Kenneth R. Willis, as Agent for Rebecca James Willis v. Kaitlyn Renee Killian and Owen Kalen Killian and Kelly Renee Willis Killian

• Court: Louisiana Court of Appeal
• Decided: October 1, 2025
• Docket: 56,452-CA
• Status: Published

Opinion

Judgment rendered October 1, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 56,452-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

KENNETH R. WILLIS, AS AGENT Plaintiff-Appellant FOR REBECCA JAMES WILLIS

versus

KAITLYN RENEE KILLIAN AND Defendants-Appellees OWEN KALEN KILLIAN AND KELLY RENEE WILLIS KILLIAN

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 171,815

Honorable Michael Nerren, Judge

MURPHY’S LAW, APLC Counsel for Appellant By: Joel Keith Murphy

SHUEY SMITH, LLC Counsel for Appellees By: Richard E. Hiller

Before PITMAN, THOMPSON, and ROBINSON, JJ. ROBINSON, J.

Kenneth Willis (“Kenneth”) appeals a judgment denying his claim for

attorney fees related to his petition to collect the unpaid balance on a

promissory note secured by a mortgage. The appellees have answered the

appeal seeking damages for what they contend is a frivolous appeal. For the

following reasons, we affirm the judgment and deny the relief requested in

the answer.

FACTS

Rebecca Willis (“Rebecca”) is the mother of Kelly Killian (“Kelly”)

and Kenneth, and the grandmother of Kaitlyn Killian (“Kaitlyn”). Kaitlyn is

Kelly’s daughter. Kaitlyn borrowed $200,000 from her grandmother to buy

a home in Bossier Parish.

Kaitlyn executed a promissory note in favor of Kenneth and Rebecca

for $200,000. The note referred to an attorney fee of 15% for collection of

the note. The note did not contain an acceleration clause or default

provision. The note was secured by a mortgage on Kaitlyn’s home that was

executed by Kaitlyn in favor of Kenneth and Rebecca. The mortgage also

referred to a 15% attorney fee in the event a suit was filed to collect on the

note. The mortgage provided for acceleration of the balance due in the event

that proof of fire and tornado insurance was not provided or that any

payments on the note were not made timely.

Owen Killian (“Owen”), who is Kaitlyn’s father, and his wife, Kelly,

executed a guaranty agreement in favor of Kenneth and Rebecca. The

guaranty agreement referred to the 15% attorney fee for collection of the note. The note, mortgage, and guaranty were prepared by an attorney hired

by Owen.

On December 18, 2023, Kenneth, acting as agent for Rebecca, filed a

petition for executory process on the promissory note and the mortgage.

Kaitlyn, Kelly, and Owen (collectively, “the Killians”) were named as

defendants. The petition alleged that Kaitlyn had not complied with the

mortgage terms and conditions because: (1) monthly payments in July and

August of 2023 were not paid timely; (2) the October 2023 payment was

returned for insufficient funds before being brought current; (3) the

December 2023 payment was a day late; and (4) Kaitlyn failed to provide

proof of fire and tornado insurance. The petition further alleged that the

unpaid principal balance owed was $191,043.47.

The petition stated that although Kaitlyn, Kelly, and Owen were

named as defendants, it was an in rem proceeding against “said defendant,”

and that it was acknowledged that “there will be no further personal action

taken against said defendant with regard to this indebtedness.” The petition

does not expressly state which defendant is “said defendant,” but

presumably it is Kaitlyn, as the following paragraph refers to Owen and

Kelly and their guaranty agreement. The petition sought the issuance of a

writ of seizure and sale, a 15% attorney fee, and costs.

The trial court issued a writ of seizure and sale. On January 4, 2024,

the Bossier Parish Sheriff’s Office issued a notice of seizure ordering that

2 the property be seized and a sheriff’s sale held on March 6.1 The sale was

later reset for March 27.

On February 8, the Killians filed an answer and a motion for

preliminary injunction to stay the sheriff’s sale on the grounds that Kenneth

had wrongfully obtained an order of seizure and a sheriff’s sale date by not

submitting authentic documents for the purpose of executory process. The

Killians maintained that enforcement of the debt was premature because the

note lacked a default provision or an acceleration clause. They also

maintained that Kaitlyn had properly made every monthly installment

payment, and that the payment allegedly returned for insufficient funds was

subject to a stop payment order after Rebecca did not deposit it. The hearing

on the preliminary injunction was set for April 9 even though the sale was to

occur in March.

On February 21, the Killians filed a motion for a stay of the sheriff’s

sale or, in the alternative, to reset the preliminary injunction hearing. On

March 4, the court reset the hearing on the motion for a preliminary

injunction to March 21.

At the March 21 hearing, the court denied the request for an

injunction when Kenneth agreed to file the original documents or certified

copies into the record. When Kaitlin told the court of her intent to sell the

house, the court remarked that if she sold it, then the mortgage had to be

paid off, and it “kind of solve[d] this whole deal.” The court stated that it

1 Any further actions or proceedings in this matter at the trial court that are mentioned in the opinion occurred in 2024.

3 was not granting the preliminary injunction but was converting the matter to

ordinary process and stopping the sheriff’s sale.

On March 21, the court entered a judgment that the home was to be

removed from the sheriff’s sale docket. The judgment further stated that the

matter was set for hearing on June 27 to address the issue of whether the

payments due under the promissory note and mortgage could be accelerated

and the entire remaining balance declared due and owing, and to address any

other outstanding issues.

On April 3, a contract to purchase the house was signed, with the

purchase price being $225,000. The sale was to close on or before May 31.

On April 3, the Killians’ attorney wrote to opposing counsel

requesting a payoff amount. He further wrote that attorney fees and court

costs were not allowed because there was no acceleration or default

provision in the note. Kenneth’s attorney responded by letter on April 5 that

$188,113.99 was currently owed, and the amount would be $187,773.47 if

the April payment was made as scheduled. He further wrote that Kaitlyn

would also owe an attorney fee of $28,166.02 as set forth in the promissory

note and the mortgage.

On April 19, the Killians filed a motion for an expedited hearing to

obtain a payoff statement. A hearing was set for June 27. During a

telephone conference on April 30, the parties agreed to a payoff amount of

$188,113.99 that was good through May 31.

The closing on the house occurred on May 17. The house was sold by

a cash sale deed. The title company issued a check payable to Kenneth’s

counsel in the amount of $188,113.99.

4 On June 3, a cancellation of notice of seizure was filed by the Bossier

Parish Sheriff.

On June 27, the Killians filed a memorandum on attorney fees and

court costs. They asserted that since the house was sold and the mortgage

was paid in full and canceled, they were willing to be responsible for the

attorney fees and court costs incurred, but the claim for $28,166.02 in

attorney fees and for all court costs was unearned and undeserved.

However, they also claimed the in rem proceeding ended when the note was

paid in full and the mortgage canceled; thus, Kenneth had no cause of action

for attorney fees since he stated in the petition that he would take no further

personal action against the “said defendant.”

At the June 27 hearing, the parties agreed that the Killians would

place $7,167.42 into escrow for costs related to the planned sheriff’s sale.

The court left the issue of attorney fees for future argument.

On July 11, the title company handling the sale of Kaitlyn’s home

filed a request for cancellation of the mortgage. Attached was the

promissory note marked as paid in full.

On July 31, the Killians filed an exception of no cause of action and a

memorandum in support of their own claim for attorney fees for filing the

motion to obtain a payoff statement. They argued that Kenneth should be

sanctioned for attempting to claim attorney fees of $28,166.0 and court

costs. They asserted that Kenneth was not entitled to attorney fees for two

reasons. First, Kenneth alleged in the petition that it was an in rem

proceeding and that he would take no further personal action against

defendant. Since the only remaining issues concerned attorney fees and

5 court costs, this meant that Kenneth was now pursuing a personal action.

Second, the in rem proceeding was completed once the property was sold,

the note was paid in full, and the mortgage was canceled.

At the August 1 hearing, the court heard stipulated testimony and

accepted various exhibits into evidence, including an exhibit showing total

costs to the sheriff of $6,370.42, and an affidavit from the Killians’ attorney

setting forth their legal fees and expenses of $10,851.20.

Kenneth’s attorney argued that the court converted the matter from

executory process to ordinary process at the March 27 hearing and made it a

personal matter when it stopped the sheriff’s sale. The court stated it never

converted the matter from executory process to any type of action, and the

actual sale canceled the executory process. The Killians’ attorney argued

that the $28,166.02 attorney fee was unreasonable. He additionally argued

that based on the grounds asserted in the exception of no cause of action,

Kenneth cannot recover attorney fees. Kenneth’s attorney agreed with the

court that he was $4,800 short of being made whole. Asked what would

have happened if the house had been sold at the sheriff’s sale, Kenneth’s

attorney answered that he would have had to file another lawsuit for the

deficiency. It was noted by the court that based upon untimely payments,

there was enough basis for Kenneth to bring the suit. The court took the

matter under advisement.

On August 27, Kenneth, acting as agent for Rebecca, filed a petition

under the same docket number seeking $28,217.10 in attorney fees from the

Killians.

6 At a September 12 hearing, the court concluded that it would not

award attorney fees because it did not think attorney fees were appropriate

since the matter was an in rem proceeding with no personal liability. The

court rendered judgment ordering the Killians to pay $4,870.42 as an

equalizing payment to reimburse Kenneth for the payment of costs owed to

the Bossier Parish Sheriff. Kenneth’s claim for attorney fees and additional

court costs was denied.

Kenneth has appealed the judgment seeking reversal of the denial of

attorney fees. The Killians have answered the appeal,

DISCUSSION

Kenneth argues on appeal that the trial court was clearly wrong in not

awarding attorney fees. Regarding the standard of review, he states that a

trial court’s ruling on a claim for attorney fees is reviewed for abuse of

discretion, and factual findings are reviewed pursuant to the manifest

error/clearly wrong standard.

We note that the third circuit has stated that the applicable standard of

review for a trial court’s grant or denial of attorney fees is abuse of

discretion. Lejeune v. Fontenot, 22-444 (La. App. 3 Cir. 1/4/23), 362 So. 3d

911, writ denied, 23-00452 (La. 5/16/23), 360 So. 3d 839. In reaching that

conclusion, the third circuit relied on Covington v. McNeese State

University, 12-2182, p. 6 (La. 5/7/13), 118 So. 3d 343, 348, where the

supreme court stated: “The appellate court reviews an award of attorney’s

fees for an abuse of discretion. The district court’s factual determinations

will not be set aside absent manifest error.” (Citations omitted.)

7 In Covington, the supreme court first addressed the argument that the

lower courts should have rejected the plaintiff’s fee application in its

entirety. The supreme court found no error in the appellate court’s rejection

of that argument. The supreme court also found no clear error in the trial

court’s finding that there was sufficient documentation of the time spent by

counsel on the case. The supreme court then addressed the trial court’s

determination of the fee amount by using an abuse of discretion standard of

review.

We note that the supreme court has stated that the ruling of a trial

judge on the issue of damages under La. C.C.P. art. 3608, which includes

attorney fees, should not be disturbed on appeal absent a clear abuse of

discretion. Arco Oil & Gas Co., a Div. of Atlantic Richfield Co. v.

DeShazer, 98-1487 (La. 1/20/99), 728 So. 2d 841. Art. 3608 concerns the

wrongful issuance of a temporary restraining order or a preliminary

injunction.

We further note that in workers’ compensation matters, the decision

by the WCJ to grant or deny penalties and attorney fees under La. R.S.

23:1201 is subject to a manifest error standard of review. Thomas v.

Browning-Ferris Inc., 04-1584 (La. 2/25/05), 894 So. 2d 1091; Buggs v.

Town of Bernice, 54,804 (La. App. 2 Cir. 11/16/22), 351 So. 3d 920, writ

denied, 22-01825 (La. 2/14/23), 355 So. 3d 613.

Kenneth’s claim for attorney fees does not arise from statute, but from

the terms of the note. We conclude that the decision regarding whether

Kenneth was entitled to any attorney fees was a factual determination by the

trial court subject to the manifest error/clearly wrong standard of review.

8 Kenneth maintains that an award of attorney fees was appropriate

when Kaitlyn agreed to pay attorney fees if suit was filed to collect on the

note. While it is correct that an award of attorney fees was possible,

Kenneth was not entitled to any attorney fee under the circumstances of this

matter. The trial court was not manifestly erroneous or clearly wrong in

rejecting his claim for attorney fees.

Kenneth contends that the matter was no longer an in rem action when

the trial court considered his claim for attorney fees. He argues that his suit

had been converted from one of executory process to one of ordinary

process when the house was removed from the sheriff’s sale.

“Executory proceedings are those which are used to effect the seizure

and sale of property, without previous citation and judgment, to enforce a

mortgage or privilege thereon evidenced by an authentic act importing a

confession of judgment, and in other cases allowed by law.” La. C.C.P. art.

2631.

An executory proceeding in Louisiana is an in rem action derived

from the civil law; it provides a simple, expeditious, and inexpensive

procedure by which creditors may seize and sell property upon which they

enjoy a mortgage or privilege. Walter Mortgage Company, LLC v. Turner,

51,007 (La. App. 2 Cir. 11/16/16), 210 So. 3d 425.

A personal action is one brought to enforce an obligation against the

obligor, personally and independently of the property which he may own,

claim, or possess. La. C.C.P. art. 422. A real action is one brought to

enforce rights in, to, or upon immovable property. Id.

9 The terms “real” or “personal” under Louisiana law correspond

roughly to the common-law concepts of “rights in rem” and “rights in

personam.” Chateau Lafayette Apartments, Inc., v. Meadow Brook National

Bank, 416 F. 2d 301 (5th Cir. 1969), footnote 7.

While Kenneth is correct that his action was converted from executory

process to ordinary process once the house was removed from the sheriff’s

sale, it remained an in rem proceeding. We recognize that in his petition,

Kenneth pled that his lawsuit was an in rem proceeding against “said

defendant,” and that it was acknowledged that “there will be no further

personal action taken against said defendant with regard to this

indebtedness.” We further recognize that after the August 1 hearing but

before the trial court rendered a ruling, Kenneth, acting as agent for

Rebecca, filed a petition under the same docket number seeking $28,217.10

in attorney fees from the Killians.

Kenneth counters that even if it was still an in rem proceeding,

Kaitlyn had enough proceeds from the sale of the house to pay the attorney

fee without being personally liable. This argument is also without merit.

Although Kenneth clearly reserved his claim to argue for attorney fees, he

released the mortgage and allowed the promissory note to be marked as paid

in full without having the disputed funds for attorney fees placed in escrow.

Finally, Kenneth is without relief because of the mere fact that the

promissory note did not have an acceleration or default provision. This

meant that Kenneth could not sue to collect for the unpaid balance of the

note. He would have been able to sue only for any unpaid installments,

which were none. Thus, he would have been entitled to 15% of zero.

10 We note that in Titus v. Titus, 23-0349 (La. App. 4 Cir. 11/29/23), 382

So. 3d 999, writ denied, 24-00046 (La. 3/5/24), 380 So. 3d 551, a former

wife sued her former husband after he allegedly defaulted on two promissory

notes by failing to make payments. The notes related to child support

arrearages and community property. The trial court granted the former

wife’s motion for summary judgment and awarded the entire principal sum.

In opposition to his former wife’s motion for summary judgment, the former

husband argued that the notes lacked any acceleration clause giving his

former wife the authority to demand payment on the balance owed for his

failure to make the installment payments. He claimed that she could invoke

payment on demand only if he violated an obligation to provide security.

The fourth circuit was not receptive to the former husband’s argument:

Mr. Titus cites no law that specifically mandates that the inclusion of an acceleration clause is a mandatory requirement for the collection of a promissory note. Rather, our jurisprudence is well-established that the plaintiff’s burden of proof to collect on a promissory note is straightforward – “the [plaintiff's] production of the note sued upon makes his case.” Merchants Trust & Sav. Bank v. Don’s Int’l, 538 So. 2d 1060, 1061 (La. App. 4th Cir. 1989). Here, Mr. Titus does not contest the validity of the Notes or that he failed to make the installment payments as delineated in the Notes. Moreover, Mr. Titus points to no clause within the Notes that affirmatively prohibits Ms. Titus from making demand on the Notes based on a failure to pay. Thus, the existence or non-existence of an acceleration clause is not a genuine issue of material fact that is germane to the enforcement of the Notes, and thereby, the status of any acceleration clause is insufficient to defeat summary judgment.

Id., 23-0349 at pp. 12-13, 382 So. 3d at 1008.

11 We disagree that the absence of an acceleration clause does not

preclude a lawsuit to collect the balance of the note. We recognize that La.

C.C. art. 20542 provides:

When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

While it is unquestioned that an attorney paid by Kaitlyn’s father

prepared the promissory note, mortgage, and guaranty, nothing in the record

explains why an acceleration clause appears in the mortgage but not in the

promissory note. It is not clear if this was an oversight or intentional. It was

stipulated that the attorney explained the documents to the parties, and there

were no questions or requests for additions or changes. Regardless, an

acceleration clause is absent from the note. Because Kenneth could not

accelerate the payment of the note, he was only entitled to 15% of what was

due at the moment, which was zero, because Kaitlyn was current with her

payments.

The Killians have answered the appeal seeking damages for what they

contend is a frivolous appeal. The court may award damages, including

attorney fees, for a frivolous appeal. La. C.C.P. art. 2164. Regarding the

award of damages for frivolous appeals under art. 2164, this court stated in

Cox v. O’Brien, 49,278, p. 12 (La. App. 2 Cir. 8/13/14), 147 So. 3d 809,

817:

This provision is penal in nature and is to be strictly construed. Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be allowed. Damages for frivolous appeal are only allowed when it is

2 La. C.C. art. 2054 was not cited in Titus, supra.

12 obvious that the appeal was taken solely for delay, that the appeal fails to raise a serious legal question or that counsel is not sincere in the view of the law he advocates, even though the court is of the opinion that such view is not meritorious.

(Case citations omitted.)

No ground to establish a frivolous appeal is present in this matter.

The appeal was not taken solely for delay, it did not fail to raise a serious

legal question, and there is no evidence that Kenneth’s counsel is insincere

in the view of the law that he advocated in this unique case. Accordingly,

the request for damages raised in the answer to the appeal is without merit.

CONCLUSION

For the foregoing reasons, the trial court was not clearly wrong in

denying the request for attorney fees. The judgment is affirmed and the

relief sought in the answer is denied. Each party is to bear their own appeal

costs.