Farm Bureau Mutual Insurance Co. of Arkansas v. VJM Enterprises, LLC
2017 Ark. App. 28
| Ark. Ct. App. | 2017Background
- Farm Bureau insured appellees’ Batesville home; a April 3, 2011 windstorm produced roof leaks discovered by the occupant (Jon Clouse).
- Farm Bureau’s engineer found some wind-damaged shingles but concluded the leaks were from roof deterioration; insurer denied the claim under a policy exclusion for "wear and tear... or deterioration."
- Appellees sued for wrongful denial, sought replacement-cost damages (~$29,000), penalty, and attorney’s fees under Ark. Code Ann. § 23-79-208.
- The circuit court granted appellees’ summary-judgment motion in part, finding an exclusion ambiguous, tried whether wind (covered) or deterioration (excluded) caused the damage, and after bench trial found wind necessitated replacement; judgment awarded $27,000 plus 12% penalty and interest.
- Appellees then moved for attorney’s fees and costs; the court awarded $12,500 in fees and $517.10 in costs.
- Farm Bureau filed a single notice of appeal 17 days after the fees order (but 47 days after the January 13 final judgment); appellees moved to dismiss the appeal insofar as it sought review of the final judgment as untimely.
Issues
| Issue | Plaintiff's Argument (Appellees) | Defendant's Argument (Farm Bureau) | Held |
|---|---|---|---|
| Finality/timeliness of appeal from Jan. 13 judgment | The Jan. 13 judgment was final; Farm Bureau’s notice of appeal was untimely as to that judgment | Jan. 13 order was not final because the court reserved attorney’s fees for later determination | Appeal dismissed in part for lack of jurisdiction: Jan. 13 judgment was final despite later fee proceedings; Farm Bureau’s appeal from it was untimely |
| Nature of attorney’s-fee determination | Fees are collateral/supplemental and do not defeat finality of the earlier judgment; appellees were entitled to fees under § 23-79-208 | Fee award depended on the merits (coverage); because Farm Bureau challenged coverage, it argues fees should be reversed if coverage was erroneous | Court retained jurisdiction over the timely appeal of the fee order and affirmed the fee award; dismissal of coverage appeal left fee award intact |
Key Cases Cited
- Rossi v. Rossi, 319 Ark. 373 (failure to file timely notice of appeal deprives appellate court of jurisdiction)
- Stewart Title Guaranty Co. v. Cassill, 41 Ark. App. 22 (Ark. App.) (order reserving fee amount may render an order non-final where statute requires fees be included in final judgment)
- Phelps v. Capitol Life & Acc. Ins. Co., 72 Ark. App. 464 (Ark. App.) (reservation of prejudgment interest and statutory penalties can require dismissal for lack of final order)
- Midwest Terminals of Toledo, Inc. v. Palm, 2011 Ark. 81 (order reserving substantive matters is not final; but attorney’s fees are generally collateral)
- Alexander v. First Nat’l Bank of Fort Smith, 278 Ark. 406 (attorney’s-fee awards are collateral/supplemental matters left to trial court jurisdiction)
- Nettleton Sch. Dist. v. Owens, 329 Ark. 367 (attorney’s fees treated as collateral matter)
- Marsh & McLennan of Ark. v. Herget, 321 Ark. 180 (attorney’s fees are collateral)
- Pledger v. Bosnick, 306 Ark. 45 (attorney’s-fee matters do not defeat finality)
- Harold Ives Trucking Co. v. Pro Transp., 341 Ark. 735 (discussing finality where further proceedings affect substantive rights)