Harrill & Sutter, P.L.L.C. v. Kosin
2012 Ark. 385
| Ark. | 2012Background
- Harrill & Sutter appeals denial of Rule 60(c)(4) relief from a January 4, 2010 judgment and the fee award to Kosin after remand.
- Kosin discharged Harrill for cause in a breach-of-contract dispute; Harrill sought quantum meruit and Harrill later challenged Kosin’s fee award.
- Kosin was deemed the prevailing party on remand and awarded fees for Clay and partial fees for Cornwell; Harrill challenged both the Rule 60 motion and the fee award.
- The circuit court found Kosin prevailing (75% of disputed amount) and awarded $36,023.98 to Clay plus $10,111.25 to Cornwell for certain hours.
- Harrill argued Cornwell violated Model Rule 3.7 by acting as both advocate and witness and that duplicative billing occurred; the court referred Cornwell to the Committee on Professional Conduct on this issue.
- This is a second appeal; the supreme court affirms in part and reverses and remands in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(c)(4) relief was correctly denied | Kosin | Harrill | No abuse of discretion; no fraud proven on Cornwell's testimony |
| Whether Kosin was properly deemed the prevailing party | Harrill | Kosin | Kosin was prevailing party under 16-22-308; trial outcome and merits favored Kosin |
| Whether fee award was reasonable given duplication and withdrawal | Harrill | Kosin | Partially reversible; remand on duplicative billing and fee related to initial defense |
| Whether referral to Professional Conduct was appropriate | Harrill | Kosin | Court referred Cornwell; concurrence disagrees on basis for referral |
Key Cases Cited
- Marcum v. Wengert, 344 Ark. 153 (2001) (prevailing party analysis under 16-22-308; who comes out on top governs fees)
- Burnette v. Perkins & Associates, 343 Ark. 237 (2000) (prevailing party defined by merits-based outcome under 16-22-308)
- Perry v. Baptist Health, 368 Ark. 114 (2006) (defendant prevailing party may be entitled to fees under §16-22-308)
- TRAC-10 v. Bar Bar, Inc., 368 Ark. 654 (2007) (prevailing party determination; holistic case outcome)
- Chrisco v. Sun Indus., Inc., 304 Ark. 227 (1990) (limits factors for awarding attorney's fees)
- Jewell v. Fletcher, 2010 Ark. 195 (2010) (fraud standard for Rule 60(c)(4) relief; clear and convincing standard)
- Grand Valley Ridge, LLC v. Metropolitan Nat’l Bank, 2012 Ark. 121 (2012) (Rule 60(c) discretionary review; fraud/misrepresentation)
- New Holland Credit Co. v. Hill, 362 Ark. 329 (2005) (diligence requirement for Rule 60(c) relief)
- Jones-Blair Co. v. Hammett, 326 Ark. 74 (1996) (diligence and timeliness in Rule 60(c) motions)
- Davis v. Davis, 291 Ark. 473 (1987) (Rule 60(c)(4) relief after judgment entry)
- White v. Priest, 348 Ark. 135 (2002) (professional conduct referrals when Rule 3.7 implicated)