Cite as 2026 Ark. App. 167 ARKANSAS COURT OF APPEALS DIVISION II No. CV-24-85
FRED N. BOLLINGER D/B/A FNB Opinion Delivered March 11, 2026
FARMS; FRED N. BOLLINGER, JR.; APPEAL FROM THE CRITTENDEN BOLLINGER LONE OAK, INC.; AND COUNTY CIRCUIT COURT BOLLINGER PARTNERS, INC. [NO. 18CV-09-414] APPELLANTS
HONORABLE PAMELA HONEYCUTT, V. JUDGE
FARM CREDIT MIDSOUTH, PCA REVERSED AND REMANDED APPELLEE
BART F. VIRDEN, Judge
This is the fourth appeal in this long-running case between appellants, the estate of
Fred Bollinger, Sr. (Bollinger Sr.’s Estate), his son Fred Bollinger, Jr. (Bollinger Jr.), and his
farming entities (collectively, the “Bollingers”); and their creditor, appellee Farm Credit
Mid-America PCA, successor in interest by merger to Farm Credit Midsouth PCA (“Farm
Credit”). In the current appeal, the Bollingers appeal an October 2023 order and judgment
in which the circuit court vacated a prior order and awarded attorneys’ fees to Farm Credit.
For reversal, the Bollingers argue that (1) the circuit court erred in awarding attorneys’ fees
to Farm Credit pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999); (2)
the circuit court abused its discretion by setting aside its December 2016 order on
judgment; (3) the circuit court erred in failing to award Bollinger Sr.’s Estate and Bollinger Jr. reasonable attorney’s fees under section 16-22-308 given that they prevailed on a
collateral claim; (4) the circuit court erred in denying Bollinger Sr.’s Estate and Bollinger Jr.
prejudgment interest from February 17, 2012, on the $169,742.98 they were compelled to
pay in fees and escrow; and (5) the circuit court erred in finding that Bollinger Jr.,
Bollinger Lone Oak, and Bollinger Partners were jointly and severally liable for Farm
Credit’s attorneys’ fees that it accumulated for defending separate tort counterclaims. We
reverse on the first point and remand for further proceedings consistent with this opinion.
I. Background Facts and Procedural History
This litigation has been ongoing for more than fifteen years. The background facts
and procedural history are set out in detail in this court’s opinions in the previous three
appeals, Farm Credit Midsouth, PCA v. Bollinger, 2018 Ark. App. 224, 548 S.W.3d 164
(“Bollinger I”), Farm Credit Midsouth, PCA v. Bollinger, 2020 Ark. App. 36, 595 S.W.3d 3
(“Bollinger II”), and Bollinger v. Farm Credit Midsouth, PCA, 2021 Ark. App. 112, 619 S.W.3d
398 (“Bollinger III”). Thus, we have included the facts only as necessary for an
understanding of the issues in this appeal.
Beginning in 2003, Farm Credit made a series of agricultural loans to the
Bollingers, which were secured by various security agreements and mortgages. After the
Bollingers defaulted on those loans, Farm Credit filed a foreclosure and replevin action in
the Crittenden County Circuit Court in 2009. The Bollingers filed a counterclaim
asserting multiple tort causes of action. In 2011, the circuit court granted Farm Credit’s
motion for summary judgment on its complaint as to liability but withheld entry of a final
2 summary judgment until after trial of the Bollingers’ counterclaim when the value of all
the claims could be determined. Several defaulted loans between the Bollingers and Farm
Credit were resolved during the pendency of the circuit court case, a condition of which
the Bollingers agreed to pay $119,742.98 for legal fees accrued by Farm Credit to date and
also to escrow an additional $50,000.00 to cover future fees. The counterclaims were then
tried before a jury over several days. The circuit court granted a directed verdict in favor of
Farm Credit on certain claims, but the jury found in favor of the Bollingers on others and
awarded them a judgment of approximately $1.5 million. The circuit court also granted the
Bollingers’ request for prejudgment interest totaling $173,867.45. Farm Credit appealed to
this court, and the Bollingers filed a cross-appeal. This court reversed as to most of the
Bollingers’ tort counterclaims, which resulted in a reduction in the Bollingers’ award from
a total of more than $1.6 million to only $89,776.65. See Bollinger I, 2018 Ark. App. 224,
548 S.W.3d 164.
While the appeal in Bollinger I was pending, Farm Credit filed a motion for
attorneys’ fees in circuit court on December 23, 2015. It asserted that it was entitled to
fees pursuant to contractual provisions in its promissory notes with the Bollingers and
pursuant to section 16-22-308 as the prevailing party in its foreclosure claims asserted
against the Bollingers. The Bollingers objected and filed cross-motions for the return of the
$169,742.98 previously paid for attorneys’ fees and escrow plus prejudgment interest on
these funds and an award of attorney’s fees pursuant to section 16-22-308. On July 25,
2016, the circuit court entered an order finding that although Farm Credit prevailed on its
3 claims on the promissory notes, a money judgment was never actually entered due to the
pending counterclaim against it. It further found that the amount awarded to the
Bollingers on their tort claims greatly exceeded that awarded to Farm Credit. The order
stated that “considering there can be but one prevailing party overall, the Court finds that
overall Bollingers are the prevailing party, even though Farm Credit won on the Breach of
Contract claim.” It nonetheless found that because the Bollingers’ recovery sounded in
tort, section 16-22-308 was inapplicable because that statute applies to contracts. The
circuit court further found that, because of the language in some of the promissory notes,
Farm Credit was entitled to attorneys’ fees reasonably required to reach summary judgment
on the notes, but it withheld an actual fee award pending documentation as to time spent
on the case. Finally, it ruled that the $50,000 held in escrow should be refunded to the
Bollingers.
The Bollingers moved for reconsideration of the July 2016 order, claiming that the
promissory notes did not expressly provide for attorneys’ fees for seeking recovery on them.
The circuit court entered an order on December 16, 2016, granting the motion for
reconsideration and finding that
the court’s letter opinion dated July 21, 2016, is revised to reflect that Farm Credit is not entitled to recover attorney’s fees pursuant to contract language. This is because the contract language in the promissory notes/loan agreements does not provide for the recovery of attorney’s fees and expenses in enforcing the promissory notes the Bollingers executed in favor of Farm Credit. Instead, this contract language only entitles Farm Credit, upon a borrower’s default, to recover reasonable attorney’s fees and legal expenses in enforcing its remedies as to collateral, which is personal property and fixtures, as a secured party pursuant to the Uniform Commercial Code.
4 It also reaffirmed its earlier ruling that Farm Credit could not recover attorneys’ fees
pursuant to section 16-22-308 because it was not the prevailing party in its overall litigation
with the Bollingers. Finally, it ordered that the Bollingers should jointly recover judgment
from Farm Credit for the $119,742.98 (representing sums previously paid by the Bollinger
parties) to be apportioned as follows: $96,273.36 to Bollinger Sr. Estate and $23,469.62 to
Bollinger Jr. It also ruled that $40,200.00 of escrowed funds held in the registry of the
court be paid to Bollinger Sr.’s Estate and $9,800.00 to Bollinger Jr. The circuit court
deferred ruling on the issue of prejudgment interest.
Farm Credit appealed the December 2016 order. This court ultimately dismissed
that appeal for lack of a final order because, in the order, the circuit court had expressly
retained jurisdiction over the award of prejudgment interest. Bollinger II, 2020 Ark. App.
36, 595 S.W.3d 3. However, the Bollinger II opinion included the following footnote:
“Because the circuit court has jurisdiction over the attorney’s-fees issues and did not have
the benefit of our opinion in Bollinger I, the court may wish to reconsider both the
Bollingers’ request and Farm Credit’s request for fees.” Id. at 3 n.2, 595 S.W.3d at 5 n.2.
On February 7, 2020, Farm Credit moved for reconsideration of the December
2016 order. It argued that this court’s decision in Bollinger I reduced the Bollingers’ award
from $1.6 million to only $89,776.65. In light of Bollinger I, Farm Credit argued that the
circuit court’s previous finding that it was not the prevailing party and, thus, not entitled to
recover attorneys’ fees under section 16-22-308 “is simply incorrect.” It sought attorneys’
5 fees totaling $351,050.50 pursuant to section 16-22-308 for prosecuting its claims against
the Bollingers and for defending against their tort counterclaims. The Bollingers filed a
cross-motion for attorney’s fees.
On October 16, 2023, the circuit court entered an order and judgment setting aside
and vacating the December 16, 2016 order. It incorporated previous letter opinions it had
entered on August 26, 2021, and June 20, 2022. In those letter opinions, the circuit court
made findings that the nature of the case sounded in contract and that Farm Credit was
the prevailing party considering the case as a whole; as such, Farm Credit was entitled to
attorneys’ fees under section 16-22-308 and Kinkead v. Union National Bank, 51 Ark. App.
4, 907 S.W.2d 154 (1995), for pursuing its contract claims and defending against the tort
counterclaims. After reviewing the factors established by the supreme court in Chrisco v.
Sun Industries, Inc., 304 Ark 227, 800 S.W.2d 717 (1990), for determining a fee award as
well as the fee statements submitted by Farm Credit and objections submitted by the
Bollingers, the circuit court awarded Farm Credit $318,740.00 in attorneys’ fees. It ruled
that the $50,000.00 the Bollingers had previously deposited into the court registry to cover
Farm Credit’s future attorneys’ fees (and accrued interest) was to offset the fee award and
be turned over to Farm Credit. It further ruled that Farm Credit was allowed to keep the
$119,742.98 previously paid by the Bollingers for its attorneys’ fees and that this amount
was also to offset the fee award. Finally, it rejected the Bollingers’ claim for fees under
6 section 16-22-308 because they were not the prevailing party under the statute. The
Bollingers filed a notice of appeal on November 9, 2023, and this appeal followed. 1
II. Points on Appeal
The Bollingers assert the five points on appeal: (1) the circuit court erred in
awarding attorneys’ fees to Farm Credit pursuant to section 16-22-308 and in relying on
this court’s previous opinion in Kinkead, 51 Ark. App. 4, 907 S.W.2d 154, to do so; (2) the
circuit court abused its discretion by setting aside its December 2016 order on judgment as
to the return of the $169,742.98 previously paid by the Bollingers; (3) the circuit court
erred in failing to award Bollinger Sr.’s Estate and Bollinger Jr. reasonable attorney’s fees
under section 16-22-308 given that they prevailed on a collateral claim; (4) the circuit court
erred in denying Bollinger Sr.’s Estate and Bollinger Jr. prejudgment interest from
February 17, 2012 on the $169,742.98 they had been compelled to pay in fees and escrow;
and (5) the circuit court erred in finding that Bollinger Jr., Bollinger Lone Oak, and
Bollinger Partners were jointly and severally liable for Farm Credit’s attorneys’ fees that it
–– 1 The third appeal in this case involved an ancillary matter between the Bollingers and Travelers Casualty & Surety Company of America (“Travelers”). In that appeal, the Bollingers challenged the circuit court’s denial of their request for judgment against Travelers as surety on an appeal bond posted by Farm Credit when Farm Credit appealed the judgment entered against it leading to Bollinger I. Bollinger III, 2021 Ark. App. 112, at 1–2, 619 S.W.3d at 399. They also challenged the circuit court’s denial of their request for a 12 percent statutory penalty, interest, and attorneys’ fees against Travelers. Id. at 5, 619 S.W.3d at 401. This court held that the appeal-bond issue was moot and that the Bollingers failed to preserve the penalty, interest, and fees issue for appeal. Id. at 6–8, 619 S.W.3d at 401–02.
7 had accumulated for defending tort counterclaims brought by the individual
defendants/counter-claimants.
A. Standard of Review and Applicable Law
The decisions to award attorney’s fees and the award amount are discretionary and
will be reversed only if the appellant can demonstrate an abuse of discretion. Folkers v.
Buchy, 2019 Ark. App. 30, at 9, 570 S.W.3d 496, 501–02. Where the issue is one of law,
however, our review is de novo. Vowell v. Waldrip Lands, LLC, 2025 Ark. App. 523, at 6,
722 S.W.3d 806, 810. Appellate courts give no deference to circuit courts on matters of
law. Freeman v. Rushton, 360 Ark. 445, 447, 202 S.W.3d 485, 487 (2005).
B. Entitlement to Attorneys’ Fees under Section 16-22-308
In their first point, the Bollingers argue that the circuit court erred in awarding
attorneys’ fees to Farm Credit pursuant to section 16-22-308 and in relying on this court’s
previous opinion in Kinkead to do so. It is well established that attorney’s fees are not
allowed except when authorized by statute. Chrisco, 304 Ark. at 229, 800 S.W.2d at 718.
Assuming fees are authorized by statute, a circuit court’s decision to grant or deny
attorney’s fees, and in what amount, lies within the sound discretion of the court, and the
appellate court will not reverse absent a showing of abuse of discretion. Patton Hosp. Mgmt.,
LLC v. Bella Vista Vill. Coopershares Owners Ass’n, Inc., 2016 Ark. App. 281, at 10, 493
S.W.3d 798, 805. The fee statute at issue in this appeal is Arkansas Code Annotated
section 16-22-308, which provides:
8 In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
That statute does not permit an award of attorney’s fees in tort actions. Stein v. Lukas, 308
Ark. 74, 83, 823 S.W.2d 832, 837 (1992). However, where both contract and tort claims
are advanced, an award of attorney’s fees to the prevailing party is proper only when the
action is based primarily in contract. Meyer v. Riverdale Harbor Mun. Prop. Owners
Improvement Dist. No. 1 of Little Rock, Ark., 58 Ark. App. 91, 93, 947 S.W.2d 20, 22 (1997).
We have held that it is not sufficient to base a fee award under section 16-22-308 upon a
finding that a contract claim is a “substantial issue.” Id.
Here, the circuit court found that Farm Credit was entitled to recover fees under
section 16-22-308 for both prosecuting its breach-of-contract claims and for defending
against the tort counterclaims. In doing so, it found that:
[T]he current action sounds primarily contract because the case began as a contract and foreclosure case and Bollingers’ tort claims were counterclaims pled for offset. Further the amounts found to be owing on the promissory notes far exceeded the final amount for the tort claims.
As an action sounding in contract, A.C.A. § 16-22-308 may be applied to the issue of attorney fees in this case.
This Court finds that Farm Credit is the prevailing party herein both, because they won on more causes of action, and because the amount they were due on the notes far exceeded the verdict received on the tort claims.
As the “prevailing party” Farm Credit is entitled to recover its attorney fees related to the notes. Pursuant to the Kinkead and Loewer opinions[,] Farm Credit
9 may also be awarded attorney fees for successfully defending against the counterclaims.
The Bollingers argue that the circuit court court’s fee award under section 16-22-308 was
erroneous for two reasons: (1) the circuit court erred in finding that this case sounded
primarily in contract because the bulk of the litigation was in tort, and most of Farm
Credit’s attorneys’ time was spent defending against tort counterclaims; and (2) the Kinkead
court misinterpreted Loewer v. National Bank of Arkansas, 311 Ark 354, 844 S.W.2d 329
(1992), to authorize fees under section 16-22-308 for defending counterclaims in tort.
This point requires us to determine, as a threshold matter, whether section 16-22-
308 authorized Farm Credit’s fee award for bringing its contract action and defending
against the tort counterclaims. The circuit court found that “[a]s an action sounding in
contract, [section] 16-22-308 may be applied to the issue of attorney fees in this case.” The
circuit court based its ruling that the case sounded primarily in contract on two things—the
case began as a contract and foreclosure case, and the amounts due on the promissory
notes far exceeded the final amount for the tort claims. We are not convinced that either
of these factors is dispositive. In DWB, LLC v. D & T Pure Tr., 2018 Ark. App. 283, 550
S.W.3d 420, for example, this court affirmed a fee award under section 16-22-308 although
substantially more money was awarded for tort claims than for breach-of-contract claims. In
doing so, we held that “this fact is not dispositive of whether the action was based primarily
in tort or in contract.” Id. at 14, 550 S.W.3d at 430. Instead, our inquiry was focused on
whether the “bulk of the litigation” was in contract or tort. We held that
10 we do not agree that the bulk of the litigation was based on tort claims. Notably, breach-of-contract claims accounted for six of the eight causes of action in which damages were awarded to appellees. Additionally, several of appellants’ requests for declaratory relief were based in contract. It was not error to decide that this action was based primarily in contract and to award fees based on Arkansas Code Annotated section 16-22-308.
Id. Nor do we view timing (i.e., which party files their claim first) as dispositive on the issue
of whether a case sounds primarily in contract or tort. Instead, our inquiry should focus on
whether the “bulk of the litigation” was in contract or tort. See id.
Looking to the present case, the “bulk of the litigation” was in tort, not contract.
Farm Credit’s 2009 foreclosure and replevin action sought judgment on five different
loans. The last of those was paid by the Bollingers in 2012. The Bollingers initially brought
eleven broad counterclaims against Farm Credit. Although Farm Credit was granted
summary judgment on several counterclaims, others proceeded to a seven-day jury trial in
2015 at which a jury found in favor of the Bollingers and awarded damages on their claims
of promissory estoppel and deceit related to the 2008 soybean crop, interference with
contractual relations, and negligence and breach of fiduciary duty relating to the handling
of a 2008 crop-insurance claim. Additionally, the entire appeal and cross-appeal in Bollinger
I was about circuit court’s rulings and jury verdicts on the tort counterclaims. See Bollinger I,
2018 Ark. App. 224, at 23, 548 S.W.3d at 179. The result of that appeal—the reversal of
several jury verdicts—does not change that the bulk of the litigation was in tort.
11 In fact, in the circuit court’s August 2021 letter opinion in which it conducted its
attorney-fee analysis, it suggested that the bulk of the litigation and the bulk of the
attorneys’ fees were related to the tort counterclaims. Specifically, it found:
Time and labor required. This case was filed in 2009, and though the last of the notes was paid in June 2012, the case continued with numerous pre-trial hearings, a seven (7) day jury trial, and numerous post trial hearings and briefs. However, the Court also considers that the last of the notes were paid in full in June 2012, so the majority of fees after that date were in defense of the tort claims.
The amounts involved in the case and the results. Plaintiff received summary judgment rulings for approximately ($798,792.00) and successfully defended many of the tort claims. However, more of their fees were related to the tort claims.
Although the circuit court ultimately found that this case sounded primarily in contract,
several of its statements undermined that finding. We hold that the circuit court erred in
its determination that this case sounded primarily in contract.
But our analysis does not stop there. This is not a typical mixed contract/tort case
where a prevailing party has advanced (or defended against) contract and tort claims.
Compare Patton Hosp. Mgmt., LLC, 2016 Ark. App. 281, at 11, 493 S.W.3d at 805–06
(“[W]here multiple claims are advanced—including a breach-of-contract claim—an attorney’s
fee award is proper when the action is primarily based in contract.”). In those cases, our
courts have held that fees are proper under the statute only when the action is based
primarily in contract. Id. Here, however, Farm Credit’s action was based solely in contract
and resolved in 2012. Section 16-22-308 expressly permits an award of fees to prevailing
parties in contract actions. Farm Credit’s original action was in contract, and “the
prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and
12 collected as costs.” Ark. Code Ann. § 16-22-308.2 Thus, as the prevailing party of the action
as a whole and of the contract claims specifically, we hold that the circuit court did not err
in determining that Farm Credit was entitled to recover fees under section 16-22-308
related to its contract claims.
Despite that holding, we must also consider Farm Credit’s fee award under section
16-22-308 for defending against the Bollingers’ tort counterclaims. The circuit court
addressed the tort-counterclaim fees separately from the contract fees and found that
“pursuant to the Kinkead and Loewer opinions[,] Farm Credit may also be awarded attorney
fees for successfully defending against the counterclaims.” We are unconvinced by the
circuit court’s reliance on Loewer and Kinkead.
In Loewer, 311 Ark. at 361, 844 S.W.2d at 334, the supreme court affirmed a fee
award of $50,000 to the prevailing party, National Bank of Arkansas, who brought an
action to recover on two promissory notes and defended against a counterclaim for
conversion. In challenging the fee award on appeal, Loewer argued, in part, that recovery
of attorney’s fees on promissory notes is limited to 10 percent of the principal plus interest,
relying on Arkansas Code Annotated section 4-56-101 (Repl. 1991). Id. The supreme court
rejected that argument, holding that –– 2 The prevailing party is determined by who comes out “on top” at the end of the case. See Dark Knight Vending, LLC v. Luckily Diced Amusement, Inc., 2025 Ark. App. 455, at 5, 721 S.W.3d 825, 829. The circuit court determined that Farm Credit was the prevailing party at the end of the case “because they won on more causes of action, and because the amount they were due on the notes far exceeded the verdict received on the tort claims.” On the facts as recounted above, we see no error in the circuit court’s prevailing-party determination.
13 [t]his section simply recognizes that a provision in a promissory note for the payment of a reasonable attorney’s fee, not to exceed 10% of the amount of principal plus interest, may be enforceable as a contract of indemnity. We cannot interpret the Statute to limit the amount of attorney’s fees which can be awarded in an action to recover on a promissory note. Arkansas Code Ann. § 16-22-308 (Supp. 1991) clearly authorizes attorney’s fees to be awarded in an action such as this one.
Id. at 361, 844 S.W.2d at 334.
Subsequently, in Kinkead, 51 Ark. App. 4, 907 S.W.2d 154, Union National Bank
brought a foreclosure action against an insurance company on its note and mortgages. The
insurance company’s owners, the Kinkeads, counterclaimed on various tort theories and
under a federal statute. A trial was held on the foreclosure complaint and the tort
counterclaims, at the conclusion of which the circuit court granted Union National Bank
judgment on its complaint and all counts of the tort counterclaim. Id. at 10, 907 S.W.2d at
157. It also awarded attorney’s fees to the bank as the prevailing party. Id. On appeal, the
Kinkeads argued that the bank may have been entitled to receive fees on its foreclosure
action, but it was not entitled to a fee for defending the counterclaims based in tort. This
court disagreed. Relying on the language in Loewer that section 16-22-308 “clearly
authorizes attorney’s fees to be awarded in an action such as this one,” the Kinkead court
held that although the Kinkeads “made unsubstantiated allegations of tort in their
counterclaim, the trial was basically an action for foreclosure.” Id. at 18, 907 S.W.2d at 162
(quoting Loewer, 311 Ark. at 361, 844 S.W.2d at 334). Thus, it affirmed the entire fee
award, including fees for defending against the tort counterclaim. Id.
14 Here, like in Kinkead, Farm Credit brought a contract action and defended against
tort counterclaims, but Kinkead is otherwise distinguishable from this case. Unlike in
Kinkead, where the trial encompassed contract and tort claims, the litigation on the
Bollingers’ tort counterclaims in this case continued for years after the easily separable
contract claims had been resolved. Further, the trial in this case involved only the tort
counterclaims, and unlike in Kinkead, we cannot say those claims were “unsubstantiated,”
given that a jury returned verdicts in favor of the Bollingers on several counterclaims, and
the crop-insurance-counterclaim verdicts were affirmed by this court on appeal. Bollinger I,
2018 Ark. App. 224, at 23, 548 S.W.3d at 179. The circuit court’s reliance on Kinkead to
award Farm Credit fees under section 16-22-308 for defending against the tort
counterclaims was misplaced.3
Additionally, it is important to note that this does not appear to be a case where
time spent on the contract action was so intertwined with time spent defending the tort
counterclaims that the two cannot be separated for fee purposes. Cf. Patton Hosp. Mgmt.,
LLC, 2016 Ark. App. 281, at 11, 493 S.W.3d at 806 (upholding fee award under section
–– 3 The Bollingers urge this court to overrule Kinkead, arguing that Kinkead misinterpreted the supreme court’s opinion in Loewer and that Loewer did not support Kinkead’s holding that fees could be awarded under section 16-22-308 for defending counterclaims in tort. Arkansas courts do not lightly overrule cases and apply a strong presumption in favor of the validity of prior decisions. Helton v. MBNA Am. Bank, N.A., 102 Ark. App. 364, 369, 285 S.W.3d 676, 680 (2008). As a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result. Id. Because we can easily distinguish Kinkead, it is not necessary that we overrule it in order to determine that its holding does not govern this case.
15 16-22-308 where resolution of noncontract claims hinged on the interpretation of two
contracts); Am. Express Bank, FSB v. Davenport, 2017 Ark. App. 105, at 6–7, 513 S.W.3d
880, 885 (upholding entire fee award under section 16-22-308 where the circuit court
noted that tort counterclaim was “intertwined” and an “integral part” of prevailing party’s
successful defense against a breach-of-contract claim). In Davenport, the contract and tort
claims were so intertwined that “to clearly separate the time spent for pursuing the
counterclaim versus what was spent for defending the complaint [was] almost impossible.”
Id. at 6, 513 S.W.3d. at 884. That is not the case here. Although the circuit court did not
separate the attorneys’ fees for time spent on pursuing the breach-of-contact action versus
defending against the tort counterclaims, it could easily do so on remand. We therefore
hold that the fees awarded to Farm Credit’s attorneys for defending against the tort
counterclaims were not prescribed by section 16-22-308.
We reverse the circuit court’s award of fees for Farm Credit’s defense against the
tort counterclaims, and we remand for further proceedings consistent with this opinion.
Because we reverse on the first point, and that reversal may affect the remaining points, we
decline to address the Bollingers’ remaining arguments for reversal.
III. Conclusion
For the reasons stated above, we reverse the circuit court’s October 16, 2023 order
and judgment and remand for further proceedings.
Reversed and remanded.
HARRISON and BARRETT, JJ., agree.
16 Rogers & Coe, Attorneys, by: Joe M. Rogers, for appellants.
Waddell, Cole & Jones, PLLC, by: Ralph W. Waddell, Kevin W. Cole, and Justin E.
Parkey, for appellee.