Discover Bank v. Rusher

53 So. 3d 651, 2010 La.App. 4 Cir. 0850, 2010 La. App. LEXIS 1704, 2010 WL 5034896
CourtLouisiana Court of Appeal
DecidedDecember 8, 2010
DocketNo. 2010-CA-0850
StatusPublished
Cited by2 cases

This text of 53 So. 3d 651 (Discover Bank v. Rusher) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Discover Bank v. Rusher, 53 So. 3d 651, 2010 La.App. 4 Cir. 0850, 2010 La. App. LEXIS 1704, 2010 WL 5034896 (La. Ct. App. 2010).

Opinion

PATRICIA RIVET MURRAY, Judge.

h Defendant Michael Rusher appeals the trial court’s judgment awarding principal, interest and attorney’s fees to Discover Bank on an open account. For the reasons that follow, we reduce the amount of attorney’s fees awarded and affirm the judgment in all other respects.

FACTS AND PROCEEDINGS BELOW

On July 31, 2009, Discover Bank filed a petition in First City Court for the City of New Orleans against individual account holder Michael Rusher alleging Mr. Rusher had defaulted on his credit card agreement and owed Discover Bank the outstanding balance of $19,900.41, plus 18% interest from April 30, 2009, and 25% attorney’s fees. On December 17, 2009, Discover Bank filed a motion for summary judgment and supporting documents asserting it was entitled to recover these same amounts. In his memorandum in opposition to the motion, Mr. Rusher did not contest the principal and interest owed but contended only that the amount of attorney’s fees demanded was unreasonable. The trial court heard the matter on March 4, 2010, and granted summary judgment the same day in favor of Discover 1 j>Bank for the amounts of principal and interest demanded, as well as 20% of the aggregate of principal and interest in attorney’s fees, which amounted to $4584.62 on the date of judgment. From this judgment, Mr. Rusher appeals.

ISSUES

The sole issue raised by the appellant is whether the amount of attorney’s fees awarded is excessive. In its appellee brief, Discover Bank argues that 20% in attorney’s fees is reasonable and also seeks additional attorney’s fees for the defense of this appeal. Because Discover Bank did not file an answer to the appeal, however, we are precluded from modifying the judgment in its favor. See La. C.C.P. art. 2133; Weber v. Crescent Ford Truck Sales, Inc., 393 So.2d 919, 924 (La.App. 4 Cir. 1981). Accordingly, we address only the issue raised by the appellant.

DISCUSSION

Appellate courts review the granting of summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lomax v. Ernest Morial Convention Center, 07-0092, p. 1 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 464-65.

La. R.S. 9:2781 provides, in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment Lon the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

[653]*653In the instant case, the credit card agreement provides, in pertinent part:

Consequences of Default. If you [the cardmember] are in default, we [Discover Bank] may declare the entire balance of your Account immediately due and payable without notice. If we refer the collection of your account to an attorney or employ an attorney to represent us with regard to recovery of money that you owe us, we may charge you reasonable attorneys’ fees and court or other collection costs as permitted by law and as actually incurred by us, including fees and costs in connection with any appeal.

The trial court is vested with great discretion in arriving at an award of attorney’s fees, the exercise of which will not be reversed on appeal absent a showing of clear abuse of that discretion. Troth Corp. v. Deutsch, Kerrigan & Stiles, 06-0457 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1165 (Citations omitted). The factors to be considered by the trial court in making an award of attorney’s fees include the “ultimate result obtained; responsibility incurred; importance of the litigation; amount involved; extent and character of labor performed; legal knowledge; attainment and skill of the attorney; number of appearances made; intricacies of facts and law involved; diligence and skill of counsel; court’s own knowledge; and ability of party liable to pay.” Id., p. 3, 951 So.2d at 1165 (quoting S. Jackson & Son, Inc. v. Aljoma Lumber, Inc., 93-2531 (La.App. 4 Cir. 5/26/94), 637 So.2d 1311, 1313).

Mr. Rusher argues that the amount of attorney’s fees awarded herein is unreasonable because the trial court had no evidentiary basis for the award. He points out that Discover Bank failed to produce any evidence showing the actual hours spent and/or attorney’s fees charged in support of its motion for summary JjJudgment.1 Mr. Rusher also argues that the trial court’s oral reasons at the conclusion of the hearing demonstrate that the court failed to consider the factors listed in Troth, supra, particularly Mr. Rusher’s pauper status.2 More specifically, the appellant points to the trial court’s comments indicating that in some collection cases, usually those involving smaller accounts, the attorney’s fees awarded are not sufficient to cover the work done, so that by awarding a larger fee in a case such as the instant one, “It kind of works out. Of course, it’s not fair to your client [Mr. Rusher] that it happens that way.” Mr. Rusher argues that these comments prove that the trial court considered an improper “balancing” factor in rendering the attorney’s fee award. Additionally, Mr. Rusher contends that the contractual agreement between him and Discover Bank requires that any award of attorney’s fees be based upon the fees “actually incurred,” of which no proof was submitted in this case. Finally, Mr. Rusher urges that $4584.62 is an unreasonably high amount of attorney’s fees considering that this is a simple open account case with ho complex issues of law or fact. He therefore urges us to reduce the award to $250.00.

[654]*654In response to the appellant’s arguments, Discover Bank asserts that Louisiana courts have repeatedly upheld 25% attorney’s fees as being reasonable in open account cases. See, e.g.: Cline v. George Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96), 685 So.2d 206; Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La. App. 4 Cir.1972); Cardinal Wholesale Supply, Inc. v. Rainbow Floor Covering, Inc., 432 So.2d 419 (La.App. 1 Cir.1983); Dyna International Corporation v. Mash-bum, 397 So.2d 1080 (La.App. 4 Cir.1981); Monlezun v. Fontenot, 379 So.2d 43 (La. App. 3 Cir.1979); Metropolis, Inc. v. Hanson, 434 So.2d 1207 (La.App. 1 Cir.1983). Additionally, the appellee notes that the principal amount owed is sizable in this case, and that Mr. Rusher’s counsel filed numerous discovery requests,3 which necessitated responses from counsel for Discover Bank.

Considering these arguments, we agree with the appellant that the trial court does not appear to have considered all the pertinent factors (as listed in Troth, supra) in determining that 20% attorney’s fees were appropriate in the instant case, but apparently did rely, at least partially, on an inappropriate “balancing” factor.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

English Turn Property Owner's Ass'n v. Contogouris
228 So. 3d 793 (Louisiana Court of Appeal, 2017)
English Turn Property Owner's Ass'n v. Short
204 So. 3d 672 (Louisiana Court of Appeal, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
53 So. 3d 651, 2010 La.App. 4 Cir. 0850, 2010 La. App. LEXIS 1704, 2010 WL 5034896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/discover-bank-v-rusher-lactapp-2010.