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DISCOVER BANK                                                                    *   NO. 2010-CA-0850
VERSUS                                                                           *
                                                                                     COURT OF APPEAL
MICHAEL S. RUSHER                                                                *
                                                                                     FOURTH CIRCUIT
                                                                                 *
                                                                                     STATE OF LOUISIANA
                                                                                 *
APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2009-52283, SECTION “A”
Honorable Charles A. Imbornone, Judge
Judge Patricia Rivet Murray
(Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr.,
Judge Edwin A. Lombard)
Gregory M. Eaton
Stacey L. Greaud
Paul E. Pendley
EATON GROUP ATTORNEYS, LLC
309 North Boulevard
P. O. Box 3001
Baton Rouge, LA 70821--3001
COUNSEL FOR PLAINTIFF/APPELLEE DISCOVER BANK
Richard H. Ahamad
SOUTHEAST LOUISIANA LEGAL SERVICES
1010 Common Street
Suite1400 A
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT MICHAEL S. RUSHER
AMENDED AND AFFIRMED




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
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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
debtor  shall  be  liable  for  the  claimant's  attorney  fees  in  a  fixed  or
determinable amount, the claimant is entitled to that amount when judgment
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on the claim is rendered in favor of the claimant. Receipt of written demand
by the person is not required.
In 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
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judgment.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
no complex issues of law or fact.  He therefore urges us to reduce the award to
$250.00.
In 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
1 At the summary judgment hearing, in response to the trial judge’s question, counsel for Mr. Rusher confirmed that
he had propounded discovery to opposing counsel requesting information as to how much labor time had been spent
on the case, but the response had been an objection to that interrogatory as calling for a legal opinion and/or being
irrelevant.   Counsel for Discover Bank, who indicated he was “standing in” for the Bank’s regular attorney, did not
refute the assertion of Mr. Rusher’s counsel in this regard.
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Corporation v. Mashburn, 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.
However, we also agree with the appellee that, according to the jurisprudence, an
award of 20% attorney’s fees in an open account case is not per se unreasonable.
Because we review summary judgments de novo, this court has an obligation to
examine the instant record for evidence of the Troth factors in order to determine
whether the trial court abused its discretion.
Although Discover Bank did not put forth any evidence as to the hours
spent or the attorney fees actually paid, the record shows that its counsel did the
following:
(1) Issued a demand letter;
(2) Prepared and filed in the trial court the following: a Petition and Request
for Admission of Fact (2 pages), a Motion and Memorandum in Support of
Summary Judgment (6 pages), Interrogatories (2 pages), a Reply
2 The record contains an order signed by the trial court permitting the unemployed Mr. Rusher to proceed in   forma
pauperis.   In his brief, Mr. Rusher also notes he is represented by pro bono counsel in this litigation.
3 These discovery requests do not appear in the record.
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Memorandum (2 pages), and a Request for Genuineness of Document and
for Production of Document (1 Page);
(3) Represented plaintiff at the Summary Judgment hearing (7-page
transcript).
Therefore the record demonstrates that some amount of fees that is
reasonable for these services was actually incurred, which in our view satisfies the
language contained in the contractual agreement between the parties.
Considering the other factors, we note that a favorable result was obtained and that
the amount owed by the defendant (nearly $20,000.00) is sizable, which factors
weigh in favor of the plaintiff.  Conversely, the relative simplicity of the legal and
factual issues involved in this case; the amount of legal work done, which
consisted of approximately fifteen pages of documents and one brief court
appearance; and the defendant’s inability to pay all weigh in favor of Mr. Rusher.
Considering all the circumstances, we conclude that the trial court abused its
discretion by awarding $4582.62, which we find to be an unreasonably high
amount of attorney’s fees given the facts of the instant case.      Accordingly, we
reduce the amount of attorney’s fees awarded to $1000.00.
CONCLUSION
For the reasons stated, the judgment of the trial court is amended to reduce
the amount of attorney’s fees awarded to $1000.00; in all other respects, the
judgment is affirmed.
AMENDED AND AFFIRMED
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