2014 Ark. App. 245
Ark. Ct. App.2014Background
- Atkinson sued the Ledbetters for trespass and damages, alleging their fence encroached based on a June 8, 2012 survey; she sought removal, damages, and fees.
- The Ledbetters counterclaimed to quiet title based on a July 25, 2012 survey and asserted boundary by acquiescence and adverse possession.
- Parties executed a May 2013 settlement and a June 4, 2013 consent order: deeds would be corrected, the fence relocated per the Lamar survey, claims dismissed with prejudice, and the right to petition for attorney’s fees under Ark. R. Civ. P. 54(e) was reserved.
- The Ledbetters filed a motion for attorney’s fees on June 18, 2013, invoking Ark. Code Ann. §§ 16-22-308 and 16-22-309; Atkinson moved to dismiss/strike the fee motion for improper service under Ark. R. Civ. P. 5(b)(1).
- The trial court concluded the consent order was a final order without continuing jurisdiction, held service on Atkinson’s counsel complied with Rule 5, and awarded $7,836.98 in fees.
- Atkinson appealed, arguing improper service and that the cited statutes do not authorize fees; the court affirmed and declined to consider the statutory-authorization argument as it was not raised below.
Issues
| Issue | Atkinson's Argument | Ledbetters' Argument | Held |
|---|---|---|---|
| Whether service of the fee motion had to be made on Atkinson personally under Ark. R. Civ. P. 5(b)(1) because the consent order was final and the court retained continuing jurisdiction | Consent order was a final order and the court retained continuing jurisdiction, so Rule 5 required personal service on Atkinson | The consent order was final but did not preserve continuing jurisdiction; service on Atkinson’s attorney was proper under Rule 5(b)(1) | The consent order was final, but the court did not retain continuing jurisdiction for Rule 5 purposes; service on counsel was proper |
| Whether the Ledbetters’ statutory bases for fees (§§ 16-22-308, 16-22-309) foreclose an award of fees here | (Raised on appeal only) Statutes provide no basis for fees in this case | Statutes supported entitlement to fees (argument presented below) | Not considered on appeal (issue forfeited because not raised in trial court) |
Key Cases Cited
- Midwest Terminals of Toledo, Inc. v. Palm, 378 S.W.3d 761 (Ark. 2011) (attorney’s-fees award is collateral and does not destroy finality of judgment)
- Stewart Title Guaranty Co. v. Cassill, 847 S.W.2d 465 (Ark. Ct. App. 1993) (order awarding fees but not setting amount may be modified; discussed for comparison)
- Maxwell v. State, 33 S.W.3d 108 (Ark. 2000) (discussing continuing jurisdiction in family-law contexts and Rule 5 implications)
- Ark. Blue Cross & Blue Shield v. Remagen, 752 S.W.2d 284 (Ark. Ct. App. 1988) (appellate court will not consider arguments raised for the first time on appeal)