The Cottonport Bank v. Keller Property Management, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-649

THE COTTONPORT BANK

VERSUS

KELLER PROPERTY MANAGEMENT, LLC

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2012-8008-B
HONORABLE WILLIAM J. BENNETT, JUDGE

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J. DAVID PAINTER JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.
AFFIRMED.

Kelvin G. Sanders
P. O. Box 13922
Alexandria, LA 71315
COUNSEL FOR DEFENDANT-APPELLANT:
Keller Property Management, LLC

Anthony J. Roy, III
P. O. Box 363
Marksville, LA 71351
PLAINTIFF-APPELLEE:
The Cottonport Bank

PAINTER, Judge.

Keller Property Management, LLC (Keller) appeals the award of

attorney’s fees made by the trial court in connection with The Cottonport

Bank’s (the Bank’s) suit on a note. For the following reasons, we affirm the

award.

FACTS

The Bank filed suit against Keller for its failure to pay as required by

the terms of two promissory notes. During the pendency of the suit,

Defendants paid the principal and interest due on the note. The Bank then

filed a motion for summary judgment seeking payment of attorney’s fees in

the amount of $10,878.97, which represented 25% of one of the promissory

notes. The trial court granted the motion and awarded fees in the amount of

$10,000.00. Keller appeals this fee as excessive.

DISCUSSION

Keller argues that the fee is out of proportion to the services rendered

by the attorneys in connection with the suit. The trial court gave extensive

reasons for its award as follows:

This most unusual litigation was before the Court on
March 13, 2013[,] pursuant to a Motion for Summary Judgment
filed by plaintiff, The Cottonport Bank. Formal Judgment was
signed March 13, 2013[,] granting the Motion for Summary
Judgment filed by The Cottonport Bank as it relates to the issue
of attorney’s fees insofar as acknowledging that The Cottonport
Bank is entitled to attorney’s fees, however, denying the
Motion for Summary Judgment as to the amount of attorney’s
fees. A stipulation was entered that the attorneys were allowed
a period of time within which to submit memorandum of
authority. The amount of attorney’s fees [is] decided by this
Court based on the record and memorandum.

In preparation for this opinion, the Court has reviewed
the entire record of this proceeding and related proceedings, all
evidence adduced at various Hearings, argument of counsel,

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and this Court has performed an independent review of
applicable law and jurisprudence.

In order to issue an adequate ruling in this case, it is most
important that this Court review the various matters of litigation
involving the identical parties to the proceeding in the case at
bar. The following summary of the various items of litigation
all revolve around activities conducted by Francis Keller, as
confirmed by evidence adduced in this proceeding and related
proceedings. These actions, in summary, are as follows:

1) Francis Keller enters into an agreement with Williams
Scotsman for the purchase of a building.

2) Francis Keller enters into a loan agreement with The
Cottonport Bank to obtain the funds to purchase the
building.

3) The Cottonport Bank issues [an] $18,000.00 check made
payable to Williams Scotsman for the purchase of the
building and delivers the check to Keller to be delivered
to Williams Scotsman.

4) The building is delivered to Keller based on the
representations from The Cottonport Bank that the loan
has been executed.

5) Keller endorses the check with the notation “not for
purpose intended” and same is negotiated at Capital One
Bank with Keller receiving the sum of $18,000.00.

6) Scotsman contends that they did not receive any sales
proceeds whereas Keller contends that he did pay
Scotsman for the building.

(As a result of the above actions, Williams Scotsman, Inc.
instituted litigation against Francis Keller on April 17, 2012[,]
as reflected in Civil Suit Number 2012-7905-B of the Twelfth
Judicial District Court. The Cottonport Bank is named a
defendant in this litigation along with Francis G. Keller, Keller
Companies, Inc., and Keller Property Management, LLC. The
Sales Agreement was signed by Keller as owner of Keller
Companies, Inc. with Williams Scotsman on December 2,
2011. On February 3, 2012[,] Keller allegedly forwarded to
Scotsman a copy of the check payable to Scotsman in the sum
of $18,666.29, and as a result, the building was delivered to
Keller on February 13, 2012).

7) On May 15, 2012[,] The Cottonport Bank filed an
Answer and Reconventional Demand in the Scotsman
litigation.

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8) On May 11, 2012[,] The Cottonport Bank instituted the
litigation in the case at bar naming Keller Property
Management, LLC and Francis G. Keller as defendants.
This loan is obviously the loan which included the
proceeds for the purchase of the building acquired by
Keller from Scotsman based on the fact that the security
for said loan (which includes 2 promissory notes), is the
mobile office building; five certificates of deposit
totaling $40,000.00; and a real estate mortgage. The
petition alleges balance is due on the two notes and the
sum of $53,031.96 and $49,366.35. The bank requests
attorney’s fees in the sum of $10,606.39 and $9,873.27.

9) The Cottonport Bank files a separate lawsuit naming
Keller as a defendant on October 31, 2012[,] bearing
Civil Suit Number 2012-8635-B. In this litigation, the
bank alleges that a promissory note was executed June
30, 2009[,] secured by a real estate mortgage on property
which appears to the lot upon which the Scotsman
building is situated. A Sheriff’s Sale has been scheduled
for June 12, 2013.

It is also most interesting to note that during the pendency
of these various proceedings, Keller has been represented by
multiple attorneys, at least four in number. Keller has also filed
pleadings in proper person. All of the litigation involving Keller
and The Cottonport Bank result from the alleged actions of
Keller in the purchase of the building from Williams Scotsman
and the banks related decision thereafter to no longer do
business with Keller. One of Keller’s attorneys remarkably
argued to this Court that a bank has a duty to renew loans when
they mature.

Another remarkable aspect of the litigation in the case at
bar is that the entirety of the principal and default interest due
on the promissory notes at issue have been paid, leaving only
the issue of attorney’s fees. It is undisputed that the promissory
notes executed by Keller include provisions that “if lender
refers this note to an attorney for collection, or files suit against
borrower to collect this note, or if borrower files for bankruptcy
or other relief from creditors, borrower agrees to pay lenders
reasonable attorney’s fees.”

Additionally, the promissory notes at issue include
provisions allowing the bank to “insist upon immediate
payment in full of...reasonable attorney’s fees, costs, expenses,
and other fees and charges as provided herein.”

This clause reminds this Court that the evidence also
indicates that at some point during this litigation, Keller

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instituted a bankruptcy proceeding a day or so before a
scheduled Sheriff’s Sale, which bankruptcy proceeding was
thereafter dismissed. Another strange and unusual occurrence.

Had Keller delivered the $18,000.00 check payable to
Scotsman and issued by The Cottonport Bank directly to
Scotsman, the Scotsman litigation would not have occurred and
the bank in all likelihood would not have placed Keller in
default. Keller caused the problem and he must pay according
to law.

With the above discussion in mind, this Court must now
address the amount of attorney’s fees to be awarded to The
Cottonport Bank. However, this Court must note that the above
discussion is extremely important in reaching a decision as to a
reasonable amount of attorney’s fees. This Court is firmly and
absolutely convinced that the amount of attorney’s fees to be
awarded to the bank have become necessary due to the actions
of Keller; in support of their request for attorney’s fees, the
bank has submitted a detailed billing statement dated March 8,
2013[,] which is attached as an exhibit to the Motion for
Summary Judgment. In his memorandum, Keller remarkably
alleges that the bank has not provided adequate documentation
supporting the time expended in the Keller litigation and alleges
that the case at bar does not involve complex issues nor unusual
amount of preparation time. A simple review of the record
reveals otherwise. Keller would have one believe after reading
his memorandum that this is a simple suit on promissory note
where payment was received immediately thereafter. However,
this belies the fact that this litigation has been anything but a
simple “suit on note - - -payment - - -dismissal.” Keller has
been represented by no less than two attorneys in this litigation
alone. Keller has filed a request for notice; motions to enroll;
motions to withdraw by attorneys; an answer; an emergency
motion for a status conference; a status conference in chambers
was conducted, which conference was attended by other
counsel who was not enrolled; an Exception of Insufficiency of
Service of Process filed by current counsel for Keller and a
record that is anything but a simple ordinary “suit on
promissory note.” It must be recalled that part of Keller’s
defense to the requested status conference was a remarkable
claim that the bank had a duty to re-finance the promissory
notes at issue. This status conference was held in chambers on
November 20, 2012. The principle and interest were paid
November 29, 2012.

Also, as part of the record herein, there is a Judgment
which was rendered by this Court on February 4, 2013[,] and
signed February 26, 2013[,] denying Keller’s request for a
preliminary injunction to enjoin the bank from proceeding with
a Sheriff’s Sale, which apparently was in companion litigation.

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However, the Judgment is filed in the instant proceeding and
under this heading, which appears to be an obvious error. This
only further substantiates this Court’s finding of the related
nature of all of the litigation involving Keller and The
Cottonport Bank.

It is easy for this Court to understand Keller’s dispute
with the amount of attorney’s fees being claimed by the bank
based on simple facts that the notes at issue have been paid in
full, principle and interest, without trial. However, it is clear
from a reading of the detailed attorney’s fees statement issued
by the bank that this litigation has been anything but routine. In
fact, in reviewing the statement in detail, this Court notes that
there are several items which the bank may have omitted in this
and companion litigation.

Keller remarkably asserts to this Court that an award of
7.5 hours of work, inclusive of Court Hearings, would be the
proper amount of attorney’s fees to be awarded. Considering a
simple review of this record, much less the record of the
companion proceedings, this claim is absurd.

After a consideration of all factors and after a review of
the various cases cited by counsel for Keller and this Court’s
independent review of applicable law and jurisprudence [sic].

Accordingly, this Court awards attorney’s fees in the sum
of $10,000.00.

The Louisiana Supreme Court in Rivet v. State, Dept. of Transp. and

Dev., 96-0145, pp. 11-12 (La. 9/5/96), 680 So.2d 1154, 1161, set out factors

for determination of a reasonable attorney’s fee.

Regardless of the language of the statutory authorization
for an award of attorney fees or the method employed by a trial
court in making an award of attorney fees, courts may inquire
as to the reasonableness of attorney fees as part of their
prevailing, inherent authority to regulate the practice of law.
State, DOTD v. Williamson, 597 So.2d 439, 441-42 (La.1992)
and cases cited therein. This court has previously noted that
factors to be taken into consideration in determining the
reasonableness of attorney fees include: (1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of
the litigation; (4) the amount of money involved; (5) the extent
and character of the work performed; (6) the legal knowledge,
attainment, and skill of the attorneys; (7) the number of
appearances involved; (8) the intricacies of the facts involved;
(9) the diligence and skill of counsel; and (10) the court’s own
knowledge. Id. at 442.

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However, “a trial court’s determination of attorneys’ fees will not be

disturbed unless it is manifestly erroneous.” St. Blanc v. Stabile, 12-677, p. 6

(La.App. 5 Cir. 4/24/13), 114 So.3d 1158, 1161 , writ denied, 131185 (La.

8/30/13), 120 So.3d 270.

After reviewing the record and the trial court’s reasons for ruling in

light of the Rivet factors, we find no error in the award made by the trial

court.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to the Defendant-Appellants, Keller Property

Management, LLC.

AFFIRMED.

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