Carter v. Cline

• Decision Date: 10 October 2013
• Docket Number: No. CV–12–875.,CV–12–875.
• Citation: 430 S.W.3d 22,2013 Ark. 398
• Parties: M. Jay CARTER, Appellant v. Ernie CLINE and Karen Cline, Appellees.
• Court: Arkansas Supreme Court

2013 Ark. 398
430 S.W.3d 22

M. Jay CARTER, Appellant
v.
Ernie CLINE and Karen Cline, Appellees.

No. CV–12–875.

Supreme Court of Arkansas.

Oct. 10, 2013.

[430 S.W.3d 24]

Robert S. Tschiemer, P.A., Mayflower, by: Robert S. Tschiemer; and James H. Carter, Jr., for appellant.

Rose Law Firm, a Professional Association, Little Rock, by: Kathryn Bennett Perkins and Haley Heath Burks, for appellees.

CLIFF HOOFMAN, Justice.

Appellant M. Jay Carter appeals from an order of the Pulaski County Circuit Court awarding him $42,104.06 in attorney's fees and costs against appellees, Ernie Cline and Karen Cline. We assumed jurisdiction of this appeal pursuant to Arkansas Supreme Court Rule 1–2(a)(7) as a second or subsequent appeal following an appeal that was decided by this court.

On appeal, Carter contends that (1) the circuit court erred in determining that this court's decision in Carter v. Cline ( Carter I ), 2011 Ark. 474, 385 S.W.3d 745, precluded recovery of fees and costs pursuant to the real estate contract; (2) the circuit court erred in refusing to award him fees and costs related to his third-party claim and fees and costs incurred by attorney James H. Carter; ¹ and (3) the circuit court erred as a matter of law by reducing Carter's award of fees and costs without explanation or calculation. We affirm on all points.

A complete recitation of the underlying facts of this case can be found in our earlier opinion. See Carter I, supra. To recap, the Clines filed suit against Carter for breach of a real estate contract after he was unable to acquire financing to purchase a home owned by the Clines. Carter filed a third-party complaint against his real estate agent, Casey Jones, and Jones's employer, The Janet Jones Company, for negligence. The cases were consolidated and proceeded to trial in August 2009. The jury returned a verdict in the Clines' favor on the breach-of-contract claim and in favor of Carter on the third-party negligence claim. The Jones defendants requested and were granted a new trial on the issue of damages, and Carter appealed the breach-of-contract judgment to this court. In reversing the award to the Clines, we held that because the real estate contract contained a condition precedent

[430 S.W.3d 25]

—that Carter obtain financing—and because that condition was never met, there was no contract between the parties. See Carter I, supra.

On remand, the circuit court entered an order on March 16, 2012, dismissing with prejudice both the complaint filed by the Clines and the third-party complaint filed by Carter. On March 30, 2012, Carter filed a motion for attorney's fees and costs, requesting a total of $219,576.68 against the Clines, which represented all the legal work done on Carter's defense of the breach-of-contract suit, including the appeal, and in his pursuit of the third-party claim. In the motion, Carter asserted that he was entitled to fees and costs based on paragraph 29 of the real estate contract ² and Arkansas Code Annotated section 16–22–308 (Repl.1999). In response, the Clines maintained that Carter was not entitled to fees and costs pursuant to the real estate contract or section 16–22–308 because there was no contract and that he was not entitled to fees and costs associated with his third-party complaint, his appeal, or James H. Carter's work performed prior to being admitted pro hac vice in Arkansas. Moreover, the Clines argued that Carter's request was unreasonable and that the court should exclude all of James H. Carter's fees and further reduce the amount by a third. Carter filed a reply in which he asserted that he was entitled to his fees and costs under both the contract and the statute, and he contended that his fees and costs should not be reduced for any reason.³ The parties argued their respective positions at a hearing on June 14, 2012.

The trial court entered an order on July 3, 2012, awarding Carter $52,416.56 in fees and costs. Carter filed a timely notice of appeal from that order. Specifically, the circuit court found that Carter was not entitled to recover fees and costs pursuant to paragraph 29 of the real estate contract because this court held in Carter I that there was no contract; that Carter was entitled to recover fees and costs pursuant to section 16–22–308; that Carter had conceded at the hearing that section 16–22–308 does not allow recovery for fees and costs incurred on appeal; that because section 16–22–308 does not apply to tort actions, Carter was not entitled to fees and costs associated with the third-party claim for negligence; and that because James H. Carter's work as co-counsel prior to the appeal of the case was duplicative and unnecessary, those fees and costs were denied as unreasonable.

On July 16, 2012, the Clines filed a motion to correct the July 3 order, arguing that the amount of James H. Carter's fees to be excluded had been miscalculated and that there was overlap that needed to be accounted for between James H. Carter's fees and what was attributable to the third-party complaint. The circuit court entered a revised order on August 13, 2012, reducing the amount of Carter's fees and costs to $42,104.06. Other than the amount of fees and costs, the original order and the revised order were nearly identical. The court found that of the $219,576.68 that Carter sought in fees and

[430 S.W.3d 26]

costs, $59,901.25 was attributable to the third-party claim; $38,959.25 was for fees associated with James H. Carter's representation; and $78,612.12 was for fees and costs on appeal. Carter filed a timely notice of appeal from the revised order.⁴

This court follows the American rule, which requires every litigant to bear his or her attorney's fees absent statutory authority or a contractual agreement between the parties. See Griffin v. First Nat'l Bank of Crossett, 318 Ark. 848, 888 S.W.2d 306 (1994); Damron v. Univ. Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). Because of the circuit judge's intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party's counsel, we usually recognize the superior perspective of the circuit judge in determining whether to award attorney's fees. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135. The decision to award attorney's fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Id. While the decision to award attorney's fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a circuit court under a clearly erroneous standard. Ellis v. Ark. State Highway Comm'n, 2010 Ark. 196, 363 S.W.3d 321.

I. Fees & Costs Pursuant to the Contract

For his first point on appeal, Carter argues that the circuit court erred in finding that this court's holding in Carter I, supra, precluded Carter from recovering fees and...