FIRST NATIONAL BANK & TRUST COMPANY OF ARDMORE, Plaintiff/Appellant,
SHARON KELLY, a/k/a SHARON L. KELLY, As Personal Representative of the Estate of GREGORY L. KELLY a/k/a GREGORY LYNN KELLY, Deceased/SHARON KELLY, a/k/a SHARON L. KELLY/ The Unknown Occupants/The County Treasurer of Love County, State of Oklahoma and The Board of County Commissioners of Love County, State of Oklahoma. Defendants/Appellees.
Mandate Issued: 10/16/2019
FROM THE DISTRICT COURT OF LOVE COUNTY, OKLAHOMA HONORABLE T.
TODD HICKS, TRIAL JUDGE
Pfrehm, Mike Mordy, MORDY, MORDY, PFREHM & WILSON, P.C.,
Ardmore, Oklahoma, for Plaintiff/Appellant,
Kelly, Burneyville, Oklahoma, Pro Se/Appellees,
Assistant District Attorney, Marietta, Oklahoma, for
JACK GOREE, CHIEF JUDGE
This is an appeal from a trial court's order awarding
attorney fees and costs in a foreclosure action.
Plaintiff/Appellant, First National Bank & Trust Company
of Ardmore (Bank), sued Sharon Kelly (Kelly), individually
and as Personal Representative of the Estate of Gregory L.
Kelly, seeking foreclosure of its mortgage for failure to
make due payments. Among its covenants, the mortgage
contained language binding Kelly to pay Bank's legal
expenses in the event litigation ensued. The trial court
granted the foreclosure and awarded Bank attorney fees and
costs. However, the award was less than Bank requested. The
only evidence in the record supports Bank's calculation
of the lodestar, which is the number of hours spent on a case
multiplied by the attorney's hourly rate. If a trial
court enhances or reduces the lodestar when assessing
attorney fees, the court should include its specific reasons
in the judgment. State ex rel. Burk v. City of Oklahoma
City, 1979 OK 115, ¶8, 598 P.2d 659, 661. Because
the trial court failed to substantiate its reduction in the
lodestar with specific factual findings, the trial court
abused its discretion. Accordingly, the trial court's
decision is reversed and remanded.
Bank filed its Petition in January 2018 seeking judgment
against Kelly and foreclosure of its mortgage. Kelly filed an
answer in March 2018. Bank then filed its motion for summary
judgment. Thereafter, Kelly's counsel filed a motion to
withdraw, which the trial court granted in May. The hearing
on Bank's motion for summary judgement was continued in
order to give Kelly time to find new representation. Kelly
did not obtain new representation, and the hearing on the
motion for summary judgment took place in June 2018.
Subsequently, the trial court granted the motion, awarding
Bank $90, 398.99, plus interest accrued and accruing thereon
at the contractual rate, against Kelly as an individual and
Personal Representative. The trial court further foreclosed
the Mortgage and related modification agreements and awarded
all court costs and a reasonable attorney fee.
Bank filed a motion to assess attorney fees and costs,
requesting fees of $6, 783.00 and costs of $2, 083.54. Bank
included a time log and applicable rates in the filing. In
August 2018, Bank appeared for a hearing on Bank's
request for attorney fees and costs. Kelly did not appear.
The trial court awarded attorney fees of $4, 260.00 and costs
of $2, 015.87. Bank appeals this award, claiming that the
reduction in attorney fees and costs was an abuse of the
trial court's discretion, and the original request
accurately reflects a reasonable fee.
A trial court's award of attorney fees and costs will not
be disturbed unless there was an abuse of discretion.
Burk, 1979 OK 115, ¶22, 598 P.2d 659, 663. An
abuse of discretion exists where the court's decision was
clearly erroneous, against reason and evidence. Abel v.
Tisdale, 1980 OK 161, ¶20, 619 P.2d 608, 612. The
reviewing court is limited to the issues actually presented
in the trial court, "as reflected by the record."
Frey v. Independence Fire and Cas. Co., 1985 OK 25,
¶6, 698 P.2d 17, 20.
TO FILE ANSWER BRIEF
Kelly's failure to respond to Bank's motion for
attorney's fees has no effect on the trial court's
determination of the fee's reasonableness. The moving
party has the burden to show that his requested fee is for a
reasonable amount, for necessary services, and is authorized
by law. Cory v. City of Norman, 1988 OK CIV APP 7,
¶5, 757 P.2d 851, 852. Furthermore, Kelly's failure
to file an answer brief does not warrant automatic reversal
in favor of Bank. The trial ...