CAPITAL ONE BANK v. PARSONS

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CAPITAL ONE BANK v. PARSONS
2009 OK CIV APP 71
217 P.3d 636
Case Number: 106034
Decided: 08/27/2009
Mandate Issued: 09/24/2009
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

CAPITAL ONE BANK, N.A., Plaintiff/Appellee,
v.
WILLIAM T. PARSONS, III, Defendant/Appellant.1

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY , OKLAHOMA

HONORABLE RODNEY RING, TRIAL JUDGE

REVERSED AND REMANDED

William L. Nixon, Jr., LOVE, BEAL & NIXON, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee,
M. Kathi Rawls, RAWLS LAW OFFICE, PLC, Moore, Oklahoma, for Defendant/Appellant.

BAY MITCHELL, CHIEF JUDGE:

¶1 William Todd Parsons ("Parsons") appeals an order denying his motion for prevailing party attorney fees. We find attorney fees are recoverable here and reverse the decision of the trial court.

¶2 On December 27, 2005, Capital One Bank (Capital) filed a lawsuit on an open account alleging a credit card debt owed to it by William T. Parsons, III. According to the proof of service filed in the case, a copy of process was delivered to "Williams T. Parson III." No answer was filed, and Capital obtained a default judgment. Four weeks after the default judgment was filed, Parsons, having been made aware of the judgment, filed an affidavit with the court clerk in which he stated he had learned of the litigation and that neither the credit card debt nor the credit account sued upon were his. Capital responded with a garnishment summons on Parson's employer.

¶3 Parsons petitioned to set aside the default judgment, and the trial court granted his petition on September 12, 2007. Later that month he filed an answer to Capital's petition as well as counterclaims for malicious prosecution, failure to report accurately, invasion of privacy, falsely misstating the amount of the alleged debt, and unfair and deceptive trade practices. Capital successfully moved to strike the counterclaims. Several days later Capital dismissed its petition without prejudice. Subsequently, Parsons filed an Application for Attorney Fees and Costs as the prevailing party under

¶4 Title

¶5 Closer on point is Professional Credit Collections v. Smith,

¶6 The order denying attorney fees and costs to Parsons is reversed. This case is remanded to the trial court for an evidentiary hearing and determination of recoverable costs and a reasonable attorney fee consistent with State ex rel. Burk v. City of Oklahoma City,

¶7 REVERSED AND REMANDED

HANSEN, P.J., concurs, and JOPLIN, J., concurs with stare decisis.

FOOTNOTES

1 The parties are identified pursuant to Okla. Sup. Ct. Rule 1.25(b). This appeal was filed by William Todd Parsons, who has denied that he is "William T. Parsons, III."

2 The question of whether a party is entitled to attorney fees is a legal question, which we review de novo. See Elmore v. Doenges Bros. Ford, Inc., 2001 OK CIV APP 27, ¶6, 21 P.3d 65, 69. Under that standard, we claim plenary, independent and non-deferential authority to reexamine the trial court's legal rulings. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084.

3 On appeal, Parsons also claims entitlement to attorney fees under 23 O.S. 2001 §103 because Capital's suit against him was frivolous. This statutory basis, however, was not raised in his application or at the hearing on that application at the trial court. Matters neither presented nor considered by a trial court will not be considered by this court on appeal. Midwest City v. Eckroat, 1963 OK 241, ¶20, 387 P.2d 123, 129.

4 According to the recitation of facts by the Oklahoma Supreme Court, Smith filed an answer and cross claims the day after the dismissal. Like here, the credit agency argued Smith had incurred no expense because her counsel took the case on a contingency fee basis. However, the case was remanded for a determination of a reasonable fee for trial, appeal, and certiorari-related attorney fees.