{ "id": 1877719, "name": "WARNER HOLDINGS, LTD., Ruth SINGER and Hymie SINGER v. Mary Ann ABREGO, Larry A. COTTEN, and Brenda S. COTTEN", "name_abbreviation": "Warner Holdings, Ltd. v. Abrego", "decision_date": "1985-04-22", "docket_number": "84-295", "first_page": "434", "last_page": "439", "citations": [ { "type": "official", "cite": "285 Ark. 434" }, { "type": "parallel", "cite": "688 S.W.2d 724" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "9 Ark. L. Rev. 70", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1954, "opinion_index": 0 }, { "cite": "461 F.2d 984", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1330001 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/461/0984-01" ] }, { "cite": "269 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712395 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0359-01" ] }, { "cite": "280 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744854 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0505-01" ] }, { "cite": "283 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879917 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0335-01" ] }, { "cite": "263 Ark. 925", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672625 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0925-01" ] }, { "cite": "267 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719781 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0086-01" ] }, { "cite": "263 Ark. 601", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672659 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0601-01" ] }, { "cite": "260 Ark. 374", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616792 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0374-01" ] }, { "cite": "281 Ark. 308", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742381 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0308-01" ] } ], "analysis": { "cardinality": 469, "char_count": 8984, "ocr_confidence": 0.838, "pagerank": { "raw": 9.931644598032887e-08, "percentile": 0.5363907316604173 }, "sha256": "670ef6222d5c801b7e271a9c1d71873c55c09c18657daeee1f1c4a3d97bc00c9", "simhash": "1:a7a8cff69b99ff8e", "word_count": 1477 }, "last_updated": "2023-07-14T21:18:39.025760+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WARNER HOLDINGS, LTD., Ruth SINGER and Hymie SINGER v. Mary Ann ABREGO, Larry A. COTTEN, and Brenda S. COTTEN" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is the second appeal arising from a mortgage foreclosure case. Our jurisdiction is based on Ark. Supreme Court and Court of Appeals Rule 29. 1. j. In the first appeal we held that, given the state of the law in 1974, when the mortgage was executed, the mortgagor, United Peoples Federal Savings and Loan Association, could not enforce a \u201cdue on sale\u201d clause against its mortgagee, Mary Ann Abrego, and those who had purchased the mortgaged property from her. Abrego v. United Peoples Federal Savings and Loan Association, 281 Ark. 308, 664 S.W.2d 858 (1984). Larry and Brenda Cotten had purchased from Abrego, and ultimately Warner Holdings and Ruth Singer had purchased from the Cottens. Hymie Singer had co-signed Ruth\u2019s note to the Cottens. Peoples had sought enforcement against Abrego and had named the Cottens and Warner and the Singers as defendants.\nIn their purchase agreement with Abrego, the Cottens had promised to indemnify Abrego for any loss resulting from demands Peoples might make, and they specifically agreed to pay attorney\u2019s fees which might be incurred by Abrego in protecting her interest in the property and in enforcement of the indemnity agreement against the Cottens. In their agreement with the Cottens, which incorporated the Abrego-Cotten agreement by reference, Warner and Singer promised to protect the Cottens in the same manner Abrego was protected in her agreement with the Cottens.\nIn her original decision the chancellor awarded eighty percent of the attorney\u2019s fees requested by attorneys for Abrego and the Cottens against Warner and Singer. In remanding the case we held the eighty percent award might have been arbitrary and directed the chancellor to award reasonable attorney\u2019s fees, costs and other reasonable expenses. In her reconsideration, the chancellor awarded substantially more in attorney\u2019s fees than she had originally allowed.\nWarner and Singer argue that (1) no attorney\u2019s fees should have been awarded to the Cottens for enforcement of their indemnity agreement against Warner and Singer; (2) it was error to hold Warner and Singer ultimately liable for attorney\u2019s fees awarded to Abrego in enforcement of her indemnity agreement with the Cottens; and (3) the attorney\u2019s fees awarded were excessive. The Cottens have cross-appealed, saying that if Warner\u2019s and Singer\u2019s obligations to them are reduced, their obligations to Abrego should also be reduced. As we affirm on appeal, the cross-appeal becomes moot.\n1. Indemnity agreement enforcement\nFor their contention that they should not have to pay attorney\u2019s fees incurred by the Cottens in enforcement of their agreement with Warner and Singer, Warner and Singer cite U.S. Fidelity and Guaranty Company v. Love, 260 Ark. 374, 538 S.W.2d 558 (1976), for the general proposition that when a party agrees to indemnify another against losses, attorney\u2019s fees incurred in enforcement of the indemnity agreement are not recoverable. We continue to observe that general proposition but need only note here that it was developed in cases in which the indemnity agreement contained no specific promise that the indemnitor would pay the attorney\u2019s fees of the indemnitee incurred by the indemnitee in enforcing the indemnity agreement. See, e.g., U.S. Fidelity and Guaranty Co. v. Love, cited above. We have no doubt that there was an agreement to pay attorney\u2019s fees, as the contract between the Cottens and Warner and Singer said the Cottens were to be protected in the same manner Abrego was protected. The appellants do not challenge Abrego\u2019s right to an attorney\u2019s fee in enforcement of her indemnity contract against the Cottens. Because of its \u201csame protection\u201d language, the contract between the Cottens and Warner and Singer provided Warner and Singer were to pay the Cottens\u2019 attorney\u2019s fees incurred in enforcing their agreement.\n2. Fees passed on\nWarner and Singer argue that in her original decree the chancellor did not award the Cottens an amount to compensate them for attorney\u2019s fees the Cottens were required to pay Abrego under the Abrego-Cotten agreement. Their further contention is that, as this court did not reverse the chancellor\u2019s decision on that point, her first decision is law of the case, and she should not have made such an award on remand. While the chancellor was not specific in saying what the attorney\u2019s fee she awarded to the Cottens represented, we must agree it could not have included the larger sum awarded to Abrego. Nothing in the abstract or, as far as we can tell, the record, shows this law of the case argument was called to the chancellor\u2019s attention. It was not stated in a brief submitted to the chancellor by Warner and Singer in which they argued the effect of the hold harmless agreements. We will not consider an issue raised for the first time on appeal. Green v. Ferguson, 263 Ark. 601,567 S.W.2d 89 (1978).\nEven if we were to consider it, we would have to say the chancellor reached the right result in view of Warner\u2019s and Singer\u2019s agreement to protect the Cottens just as Abrego was protected in the Abrego-Cottens agreement. We affirm if the chancellor reached the correct result. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).\n3. Reasonableness of attorney\u2019s fees\nWarner and Singer argue that the fees awarded by the chancellor are excessive in comparison with her original awards. In view of the fact that an appeal and proceedings on remand have occurred since the original awards were made we think the comparison is not very useful.\nWhen she made the final award of attorney\u2019s fees, the chancellor had before her briefs of the parties and a record of unrefuted expert testimony to the effect the fees sought by the attorneys for Abrego and the Cottens were reasonable, and, in the case of one attorney, less than a reasonable hourly rate had been charged. The record also included detailed time records of the attorneys. In her decision the chancellor cited our leading case on the . manner of determining reasonableness of attorney\u2019s fees. Love v. United States Fidelity and Guaranty Co., 263 Ark. 925, 568 S.W.2d 746 (1978).\nThere is no precise formula for the determination of reasonableness of attorney\u2019s fees. Southall v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984). The question of reasonablness of attorney\u2019s fees is to be addressed to the chancellor\u2019s discretion. Troutt v. First Federal Savings and Loan Association of Hot Springs, 280 Ark. 505, 659 S.W.2d 183 (1983); New Hampshire Insurance v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980). We find no abuse of discretion here.\nWe cannot end this opinion without noting we have not. been asked to address instances in which attorney\u2019s fees may be allowed as a general proposition. The appellant has not argued that attorney\u2019s fees may not be awarded unless specifically authorized by statute, or that an agreement permitting recovery of such fees constitutes an unlawful penalty. See Missouri Pacific Railroad Co. v. Winburn Tile Manufacturing Co., 461 F.2d 984 (1972); Note, 9 Ark. L. Rev. 70 (1954). We recognize that our decisions in this area are not clear, and, when presented with a case raising the issue properly, we will address squarely the question whether a clause permitting recovery of reasonable attorney\u2019s fees incurred in enforcement of the agreement containing the clause is enforceable.\nWe also have before us motions to assess reasonable attorney\u2019s fees and costs in favor of the appellees on this appeal. The only response of the appellants is that this court previously found the attorney\u2019s fees not to be covered by the indemnity agreement and the fees requested are excessive. We. made no such finding in our earlier decision.\nThe attorney for appellee Abrego seeks a fee of $976.00 and costs of $125.57, or $1,101.57. We find these amounts to be reasonable and assess them jointly and severally upon the Cottens, Warner and Ruth Singer.\nThe Cottens ask that the fees awarded to Abrego against them on this appeal be awarded in turn in their favor against the appellants. The motion is granted.\nThe Cottens ask further for an award of their attorney\u2019s fees against the appellant on this appeal. They ask the amount sought by their attorney which is $2,145.00 for fees and costs plus expenses advanced on behalf of Abrego in the amount of $76.88. We hold that $1,200 may be charged as a reasonable fee for the Cottens\u2019 attorney, and they are entitled to that amount from the appellants plus the above mentioned costs of $76.88 and printing costs of $113.56.\nAffirmed.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Gregory T. Karber, for appellants.", "Harper, Young, Smith & Maurras, by: Robert Y. Cohen, II, for appellee Mary Ann Abrego.", "Phillip J. Taylor, for appellees Larry A. Cotten and Brenda S. Cotten." ], "corrections": "", "head_matter": "WARNER HOLDINGS, LTD., Ruth SINGER and Hymie SINGER v. Mary Ann ABREGO, Larry A. COTTEN, and Brenda S. COTTEN\n84-295\n688 S.W.2d 724\nSupreme Court of Arkansas\nOpinion delivered April 22, 1985\nGregory T. Karber, for appellants.\nHarper, Young, Smith & Maurras, by: Robert Y. Cohen, II, for appellee Mary Ann Abrego.\nPhillip J. Taylor, for appellees Larry A. Cotten and Brenda S. Cotten." }, "file_name": "0434-01", "first_page_order": 464, "last_page_order": 469 }