Ragar v. Hooper-Bond Ltd. Partnership Fund III

• Decision Date: 14 September 1987
• Docket Number: No. 87-8,HOOPER-BOND,87-8
• Citation: 293 Ark. 182,735 S.W.2d 706
• Parties: Don RAGAR, Appellant, v.LIMITED PARTNERSHIP FUND III, Appellee.
• Court: Arkansas Supreme Court

Page 706

735 S.W.2d 706

293 Ark. 182

Don RAGAR, Appellant, v. HOOPER-BOND LIMITED PARTNERSHIP FUND III, Appellee.

No. 87-8.

Supreme Court of Arkansas.

Sept. 14, 1987.

Gene O. Daniel, David Hodges, Little Rock, for appellant.

Richard D. Taylor, Little Rock, for appellee.

NEWBERN, Justice.

The appellant complains about a court order which is not final and thus not appealable. We must, therefore, dismiss the appeal.

Don Ragar, the appellant, was a limited partner in the appellee Hooper-Bond Limited Partnership Fund III ("the Fund"). Ragar, on behalf of himself and other limited partners, sued Hooper and Bond, who were the general partners in the Fund, for fraud and recovered a judgment for $150,000. The Fund was named as a plaintiff in that action, although the complaint characterized the action as derivative. [See Benton Window and Door Little Rock Division, Inc. v. Garrett, 290 Ark. 244, 718 S.W.2d 438 (1986).] We affirmed. Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986).

After the judgment was affirmed, a motion was filed in the circuit court on August 8, 1986, asking guidance in disbursement of the judgment. The motion was filed jointly by David Hargis, the attorney who represented Ragar and the Fund in obtaining the judgment, and James Penick, III., attorney for Flake & Company, Inc., which had become the successor general partner in the Fund. In the motion, Hargis sought a fee of $55,462.50 for representation of the Fund. An additional $12,457.00 was sought for "the limited partnership's legal counsel," presumably now Penick, for work done for the Fund during the pendency of the appeal to reorganize the Fund and keep it in existence. The motion also noted that a precise accounting of all expenses and fees would be presented at a hearing before the court. The motion cited Ark.Stat.Ann. § 65-559 (Repl.1980) and its requirement that the court review and approve disbursements from the judgment.

On September 30, 1986, an order was entered substituting Gene O'Daniel as attorney for Ragar because it was contemplated that Hargis would have to testify in justification of his fee. A hearing on the matter was set for October 6, 1986. On October 2, 1986, Ragar moved for a continuance on the basis that his wife, Christine Ragar, would be unavailable to testify on October 6, and he would be entitled to expenses resulting from her loss of time as a real estate agent which was caused by work done by her on Ragar's behalf in preparation of the case resulting in the judgment.

The record does not show that the continuance was expressly denied, but the hearing was held on October 6, 1986, and the court entered an order allowing the fee requested by Hargis as well as $2,853.77 in unpaid expenses as well as $16,810.75 representing expenses "actually paid" by Don Ragar. The order noted the objection of counsel for the Fund, presumably Penick, and noted that none of the limited partners present objected to the disbursement. The order provided:

The fund now held by David M. Hargis, in trust for the limited partnership, should have deducted from it these noted sums, and the remainder, plus accrued interest, should be transmitted to James Penick, III., attorney for Flake & Company, Inc., the general partner for the limited partnership, which is authorized hereby to use such fund for the benefit of the limited partnership; ....

In a final paragraph, the order stated:

Other claims by Don Ragar, Christine Ragar, and any others to all or any part of such...