American Express Bank, FSB v. Davenport
2017 Ark. App. 105
Ark. Ct. App.2017Background
- American Express sued David Davenport in April 2011 to recover $13,901.46 on a credit card balance; Davenport counterclaimed for conversion, outrage, abuse of process, and other claims seeking substantial damages.
- Davenport also sued third-party defendant Cathy Heathscott, alleging she obtained and used the card without permission; those claims were dismissed by an order stamped August 23, 2013.
- A bench trial was held in January 2014; the court’s August 27, 2014 final order awarded neither party damages on their claims.
- Davenport moved for attorney’s fees; the circuit court awarded him $30,597.50 on February 12, 2015 as the prevailing party under Ark. Code Ann. § 16-22-308.
- American Express appealed; the first appeal was dismissed for lack of a final record because the August 23, 2013 dismissal order was not in the file. The dismissal order was later placed in the record and American Express filed a timely appeal claiming the fee award was improper and also challenging the trial court’s refusal to enter a second dismissal order.
Issues
| Issue | Plaintiff's Argument (American Express) | Defendant's Argument (Davenport) | Held |
|---|---|---|---|
| Whether appeal of the fee order was timely / court has jurisdiction | Appeal was untimely because the dismissal of the third-party claim was not reflected in the record until Dec. 22, 2015, so the 30-day appeal period had passed | The dismissal order was entered (file-stamped) Aug. 23, 2013; American Express’s appeal is timely | Court found the dismissal was entered when stamped Aug. 23, 2013; appeal is timely and court has jurisdiction |
| Whether trial court erred by refusing to enter a second dismissal order for Heathscott | Trial court should have entered a second dismissal order to clarify the record | Trial court had already entered (and the file-stamped) dismissal on Aug. 23, 2013; duplicative order unnecessary | Court declined to reach the merits of this argument as jurisdiction over the fee award was established and the point was unnecessary |
| Whether Davenport was the prevailing party entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 | Davenport was not the prevailing party because he asserted counterclaims seeking more damages and did not obtain affirmative recovery | Davenport successfully defended against the contract claim and thus came out “on top”; counterclaims were intertwined with his defense | Court affirmed: trial court did not abuse its discretion; Davenport was prevailing party and fee award was proper |
Key Cases Cited
- Perry v. Baptist Health, 368 Ark. 114 (trial-court discretion on fee awards; prevailing-party standard)
- Patton Hospitality Mgmt. LLC v. Bella Vista Vill. Coopershares Owners Ass’n, Inc., 493 S.W.3d 798 (Ark. App.) (attorney’s-fee statutes do not cover tort claims; fees allowed when action is primarily based on contract)
- C & W Asset Acquisition, LLC v. Whittington, 90 Ark. App. 213 (contract-defense may support fee award)