Worsham v. Day

• Decision Date: 23 May 2019
• Docket Number: No. CV-18-151,CV-18-151
• Citation: 574 S.W.3d 150,2019 Ark. 160
• Parties: Debbie WORSHAM, Appellant v. Roy DAY and Teresa Day, Appellees
• Court: Arkansas Supreme Court

2019 Ark. 160

574 S.W.3d 150

Debbie WORSHAM, Appellant

v.Roy DAY and Teresa Day, Appellees

No. CV-18-151

Supreme Court of Arkansas.

Opinion Delivered: May 23, 2019

Lucas Law, PLLC, by: Molly E. Lucas; and Marcus Vaden, for appellant.

Robbins Law Firm, by: Kevin N. Jones and Michael S. Robbins, Russellville, for appellees.

KAREN R. BAKER, Associate Justice

Appellant, Debbie Worsham, returns to this court for a second time, challenging the Franklin County Circuit Court's denial of her motion for attorney's fees and costs.This case has an extensive procedural history.Litigation began in 2012 when Worsham filed suit against the appellees, Roy and Teresa Day, alleging breach of contract related to the sale of a liquor store.In 2015, a jury awarded Worsham damages, and the circuit court granted the Days' motion for new trial.Worsham appealed to the court of appeals, which remanded the matter to the circuit court to settle and supplement the record.Worsham v. Day , 2016 Ark. App. 262, 2016 WL 2858469(" Worsham I ").In 2017, the appeal returned to the court of appeals and we certified the case to this court.We dismissed Worsham's appeal for lack of appellate jurisdiction and the jury's verdict remained intact.Worsham v. Day , 2017 Ark. 192, 519 S.W.3d 699(" Worsham II ").In Worsham II , we recounted the procedural history of this case as follows:

On July 25, 2012, Worsham filed a complaint for breach of contract against the Days.

....

The jury trial was held on March 10 and 11, 2015, and the jury found for Worsham on her claim for breach of contract, awarding her $ 115,000 in damages.

....

On March 23, 2015, the Days filed a motion for JNOV or for a new trial.

....

The circuit court held a hearing on the motion for JNOV or for a new trial on July 14, 2015.The court then entered an order granting the motion on July 21, 2015, finding that the jury verdicts were improper and inconsistent and that they should be set aside in favor of granting a new trial.On August 3, 2015, Worsham filed a motion to reconsider the circuit court's order, which was denied.Worsham then filed a timely notice of appeal and amended notice of appeal from the circuit court's orders granting a new trial and denying her motion to reconsider.

On appeal, the court of appeals remanded this case to settle and supplement the record because there was no written judgment in the record or addendum from the circuit court reflecting the jury's verdicts.Worsham[I ].Following the court of appeals' opinion, Worsham filed a motion to enter judgment on May 19, 2016.On May 25, 2016, the circuit court entered a "Judgment Upon Jury Verdict," which was consistent with the jury's verdicts.Worsham then filed a supplemental record with the court of appeals containing this judgment, and we accepted certification of this appeal on March 17, 2017.

Upon review, we ultimately dismissed the appeal for lack of appellate jurisdiction and explained:

While the jury-verdict forms were filed, there was no judgment on the jury's verdict entered until May 25, 2016.Arkansas Rule of Civil Procedure 58(2016) provides that every judgment or decree shall be set forth on a separate document and that a judgment is effective only when entered in accordance with Administrative Order Number 2.Administrative Order Number 2 states that the clerk shall denote the date and time that a judgment is filed by stamping or otherwise marking it with the date and time and the word "filed" and that a judgment is entered when so stamped or marked by the clerk.Ark. Sup. Ct. Admin. OrderNo. 2(2016).

Pursuant to Arkansas Rules of Civil Procedure 50(b)(2) and 59(b), the Days' March 23, 2015 motion for JNOV or for a new trial was treated as filed on May 26, 2016, the day after the circuit court entered the judgment.However, there was no order by the circuit court granting this posttrial motion subsequent to the entry of the judgment on May 25, 2016.A circuit court's order granting a new trial is a nullity where a valid judgment has not yet been entered.See , e.g. , State v. Richardson , 2009 Ark. 206, 306 S.W.3d 11(holding that a motion for new trial was ineffective in the absence of a valid judgment and commitment order, thus depriving the circuit court of any basis in law for granting the motion and rendering its order granting a new trial a nullity).Under Arkansas Rule of Appellate Procedure—Civil4(b)(1), the Days' posttrial motion was deemed denied thirty days after its May 26, 2016 filing date.Neither party filed a notice of appeal or amended notice of appeal after the judgment was entered, and, accordingly, we have no timely and effective notice of appeal from the disposition of the posttrial motion.Therefore, we must dismiss this appeal, and the jury's verdict stands.

Worsham II , 2017 Ark. 192, at 1–6, 519 S.W.3d at 700–02.

Subsequent to our opinion, we issued the mandate on June 13, 2017.On June 12, 2017, Worsham filed a motion for attorney's fees in the Franklin County Circuit Court.On October 17, 2017, the circuit court conducted a hearing on the attorney's-fees motion and accepted supplemental pleadings from both parties.On October 30, the circuit court denied Worsham's motion for attorney's fees and costs, and on November 20, it denied Worsham's motion for reconsideration.

Worsham has filed a timely notice of appeal and presents two points: (1)the circuit court erred in denying Worsham's motion for attorney's fees and her motion for reconsideration because Worsham is entitled to attorney's fees pursuant to Ark. Code Ann. § 16-22-308(Repl. 1999) and (2)the circuit court erred in denying Worsham's motion for attorney's fees because Worsham's motion was timely under Rule 54(e) of the Arkansas Rules of Civil Procedure.We affirm.

We first address Worsham's argument that the circuit court erred in denying her motion for attorney's fees because her motion was timely under Rule 54(e) of the Arkansas Rules of Civil Procedure.

On review, "[o]ur general rule relating to attorney's fees is well established and is that attorney's fees are not allowed except when expressly provided for by statute.Chrisco v. Sun Indus., Inc. , 304 Ark. 227, 800 S.W.2d 717(1990).An award of attorney's fees will not be set aside absent an abuse of discretion.SeeHarris v. City of Fort Smith , 366 Ark. 277, 234 S.W.3d 875(2006)."Hanners v. Giant Oil Co. of Ark. , 373 Ark. 418, 425, 284 S.W.3d 468, 474(2008).Thus, although we are not bound by the circuit court's interpretation, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal.Id.

Further, with regard to awarding attorney's fees, Rule 54(e) of the Arkansas Rules of Civil Procedure provides in pertinent part:

(e)Attorneys' Fees.

(1) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.

(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought.If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made.

For purposes of Rule 54(e), we have explained that "[a] final judgment under Ark. R. Civ. P. 54(a) is ‘one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy.’Looney v. Looney , 336 Ark. 542, 547–48, 986 S.W.2d 858, 861(1999)(quotingMcGann v. Pine Bluff Police Dep't , 334 Ark. 352, 355, 974 S.W.2d 462, 463(1998) );see alsoPetrus v. Nature Conservancy , 330 Ark. 722, 957 S.W.2d 688(1997).This court has consistently interpreted Ark. R. Civ. P. 54(e) to be applicable only upon an entry of judgment that finally concludes the controversy for which attorney's fees are sought.See, e.g. , Crawford County v. Jones , 365 Ark. 585, 232 S.W.3d 433(2006);State Auto Prop. & Cas. Ins. Co. v. Swaim , 338 Ark. 49, 991 S.W.2d 555(1999)"Jones v. Flowers , 373 Ark. 213, 217, 283 S.W.3d 551, 554–55(2008).

Finally, "we have consistently held that the award of attorney's fees is a collateral matter.Nettleton Sch. Dist. v. Owens , 329 Ark. 367, 948 S.W.2d 94(1997);Marsh & McLennan of Ark. v. Herget , 321 Ark. 180, 900 S.W.2d 195(1995);Pledger v. Bosnick , 306 Ark. 45, 811 S.W.2d 286(1991)."Harold Ives Trucking Co. v. Pro Transp., Inc. , 341 Ark. 735, 737, 19 S.W.3d 600, 602(2000)(per curiam)."Matters that are collateral or supplemental to the trial court's judgment are left within the trial court's jurisdiction even though an appeal has been docketed.Alexander v. First Nat'l Bank of Fort Smith , 278 Ark. 406, 646 S.W.2d 684(1983)."Id.Where an order granting or denying attorney's fees is entered after entry of the judgment, the issue of attorney's fees is a collateral matter.Craig v. Carrigo , 353 Ark. 761, 121 S.W.3d 154(2003).

With these standards in mind, we turn to the case before us.The crux of the issue before us is the judgment and the date that triggered the fourteen-day period for the motion for attorney's fees to be filed pursuant to Rule 54(e).At issue is the circuit court's October 30, 2017 order denying Worsham's motion for attorney's fees and other relief, which stated in pertinent part:

[Worsham's]motion for attorney's fees is denied.

The court finds that the legal arguments advanced by [the Days] on this issue are well taken and that [Worsham's]request for attorney's fees and other relief is untimely because it did not comply with 54(e) of the Arkansas Rules of Civil Procedure and the May 25, 2016 Judgment of this court was not appealed.

Worsham contends that the circuit court erred...