Collins v. City of Bryant

PHILLIP T. WHITEAKER, Judge. | Appellants Edward and Quinn Collins appeal from a Saline County Circuit Court order setting aside an award of attorney’s fees and costs. Appellee City of Bryant (the City) cross-appeals the trial court’s denial of its request to have a judgment entered in its favor. We reverse on the Collinses’ direct appeal and affirm on the City’s cross-appeal. I. Procedural History The Collinses filed a complaint against the City and Richard Penn, Director of Public Works, seeking relief for the City’s alleged failure to comply with the terms and conditions of an agreement between the parties for the location of a storm-drainage easement on the Collinses’ property. They requested an injunction to require the City to complete work on the easement, damages for the loss of use of their property and breach of contract, and attorney’s fees and costs. 12A jury returned a verdict in favor of the Collinses and assessed damages in the amount of $70,000. The trial court subsequently entered a judgment for that amount, and the City timely appealed. After an appeal of the judgment was filed, the Collinses requested an award of attorney’s fees and costs as the prevailing party. The trial court granted their request, awarding attorney’s fees in the amount of $27,700 and nontaxable costs of $1,606.38. A judgment for that amount was filed on March 29, 2011. The City did not file a notice of appeal from that award or amend its previous notice of appeal. On November 16, 2011, this court reversed the jury’s verdict, which found the City liable to the Collinses. City of Bryant v. Collins, 2011 Ark. App. 718, 386 S.W.3d 699. In so doing, this court found that Penn did not have the authority to bind the City to a contract with the Col-linses and that the City had not ratified any unauthorized agreement with them. The court’s opinion did not order remand or dismissal; rather, it merely stated that the jury’s verdict was reversed. The Col-linses filed a petition for review, which was denied by the supreme court on May 31, 2012. On July 11, 2012, the City filed a motion to set aside the judgment for attorney’s fees and costs on the basis that the Col-linses were no longer the prevailing party. On September 17, 2011, the City filed a motion for entry of a judgment in its favor. On September 25, 2012, the trial court denied the City’s motion to enter a judgment in its favor but granted the City’s motion to set aside the March 29, 2011 order awarding attorney’s fees to the Col-linses. The Collinses appeal the portion of the order setting aside lathe award of attorney’s fees and costs, and the City cross-appeals the trial court’s denial of its request to have a judgment entered in its favor after the reversal. II. Direct Appeal — Attorney’s Fees The Collinses argue that Rule 60 of the Arkansas Rules of Civil Procedure prohibited the trial court from setting aside the award of attorney’s fees. Under Rule 60(a), a circuit court may vacate an order within ninety (90) days of its entry.1 Ark. R. Civ. P. 60(a) (2012). The trial court recognized that Rule 60 of the Arkansas Rules of Civil Procedure prohibits courts from modifying an order more than ninety days after its entry and further recognized that the order awarding attorney’s fees in this case was more than ninety days old. However, the trial court, citing the dissenting opinion in Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008), found that a mechanical application of Rule 60 under these facts would create an absurd result in which a nonprevailing party in a contract action would be awarded attorney’s fees and costs. 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). As such, the challenging party must file a notice of appeal from the fee order, and without such a notice, this court will not address any argument on the fee issue. Id. at 777, 121 S.W.3d at 164. The City could have filed a notice of appeal from the award of fees and costs, or it could have filed an amended notice of appeal incorporating that |4award. Under those circumstances, this court would have had jurisdiction to review the matter in the original appeal. However, the City never filed a notice of appeal from the attorney’s fee award, and this court never obtained jurisdiction to review it. We also note that the City could have requested that the trial court defer the determination of attorney’s fees until after the appeal on the merits had been decided. Again, the City did not do so. The order awarding attorney’s fees and costs was entered on March 29, 2011. The circuit court lost jurisdiction to vacate the order under Rule 60(a) when it failed to do so within ninety days of the entry of the order. See Seidenstricker Farms, supra; Henson v. Wyatt, 373 Ark. 315, 283 S.W.3d 593 (2008); New Holland Credit Co. v. Hill, 362 Ark. 329, 208 S.W.3d 191 (2005). III. Cross-Appeal — Entry of Judgment in Favor of the City The City cross-appeals, arguing that, because this court’s opinion in Collins I only reversed the jury’s verdict, it was entitled to have a judgment entered in its favor. In support of its argument, the City cites Yu v. Metro. Fire Extinguisher Co., 94 Ark.App. 317, 230 S.W.3d 299 (2006) and Sanders v. Mincey, 317 Ark. 398, 879 S.W.2d 398 (1994). Those cases are distinguishable because the decisions in those cases specifically remanded with instructions that a judgment be entered. Additionally, unlike here, the decisions in those cases resulted in outcomes in favor of the plaintiff, who would need a corrected judgment upon which to execute. This court in Collins I, reversed the jury’s verdict and issued a mandate. That was all that was necessary to conclude the matter under those circumstances. The City also alludes to Rules 49 and 58, which do no more than state that the trial court shall enter a judgment |aon the verdict or decision of the court granting or denying relief. As such, they are not applicable. Reversed on direct appeal; affirmed on cross-appeal. GLADWIN, C.J., and WYNNE, HIXSON, and BROWN, JJ., agree. HARRISON, J., dissents. Footnotes [1] A judgment may be set aside after ninety days 'pursuant to Rule 60(c) under certain limited circumstances not at issue here.