Larry v. Grady School District

207 S.W.3d 451, 362 Ark. 65, 2005 Ark. LEXIS 241
Supreme Court of Arkansas·Decided April 21, 2005·No. 04-762·Published·Cited by 4 cases

Opinion

Robert L. Brown, Justice.

Appellant, Howard Larry, appeals from the circuit court’s judgment ordering the appellee, Grady School District (the District), to pay his attorney’s fees stemming from his claim against the District under the Arkansas Teacher Fair Dismissal Act. His sole point on appeal is that the circuit court erred in failing to consider fully the factors for determining a proper award of attorney’s fees as set forth by this court in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), and that the award of attorney’s fees was insufficient and constituted an abuse of discretion. The court of appeals certified the case to this court after it discovered that the record in the instant case was filed more than ninety days after the first notice of appeal. Specifically, the court certified on the issue of the timeliness of Larry’s appeal, which was a cross-appeal, and how that timeliness might be affected by a possibly-nullified first notice of appeal filed by the District. We dismiss Larry’s appeal.

The pertinent facts are these. After Larry was granted summary judgment on the issue of the District’s failure to comply with the Arkansas Teacher Fair Dismissal Act, the circuit court entered an order in which it found that Larry was terminated for cause. As a result, the court denied his request for reinstatement and monetary relief. The court did, however, award Larry minimal damages of $1.00 with reasonable attorney’s fees to be determined at a later date. Larry appealed on the basis that the circuit court erred in denying his request for damages, and the court of appeals affirmed. See Larry v. Grady Sch. Dist., 82 Ark. App. 185, 119 S.W.3d 528 (2003).

On October 10, 2003, the circuit court set down for hearing the issue of attorney’s fees due to the prevailing party, Larry. At the hearing, counsel for Larry presented his basis for his request for attorney’s fees in the amount of $15,725.00, which consisted of a $100.00 filing fee and 62.5 hours of work multiplied by an hourly rate of $250.00. He asserted that he had twenty-four years of legal experience, was co-counsel in one of the biggest civil-rights cases in history, and had previously served as a circuit judge and special judge. He further contended that he was being compensated by the federal court for his work in a case at a rate of $350.00 per hour plus an enhancer of $350.00, which totaled $700.00 per hour at that time. Counsel additionally averred that he had given up part of his workload in order to work on Larry’s case.

On March 19, 2004, the circuit court filed a letter opinion in which it found that given the complexity and difficulty of the case, Larry’s counsel’s requested billing at $250.00 per hour was excessive. The circuit court then found that $100.00 per hour was a more realistic rate of compensation and concluded that counsel for Larry was entitled to compensation for 62.5 hours of work at a rate of $100.00 per hour, plus his costs of $100.00. An order memorializing the circuit court’s letter opinion was entered, which awarded Larry attorney’s fees in the amount of $6,250.00 plus $100.00 for costs. On March 31, 2004, the District filed its notice of appeal from the award of attorney’s fees, and on April 22, 2004, Larry filed his notice of cross-appeal. The record, however, was not timely filed by the District. 1 Instead, the record was lodged by Larry on July 9, 2004.

The question certified to this court by the court of appeals is whether Larry’s filing of the only record in connection with his cross-appeal was timely. In its certification memo to this court, the court of appeals notes that the District’s notice of appeal fails to comply with Arkansas Rule of Appellate Procedure - Civil 3 in three respects: (1) it fails to designate the order appealed from; (2) it fails to designate the contents of the record; and (3) it fails to include a statement that the appellant had ordered the transcript. The court of appeals further points out that in Street v. Kurzinski, 290 Ark. 155, 712 S.W.2d 798 (1986), this court held that where both parties file a notice of appeal, Rule 5 of the Arkansas Rules of Appellate Procedure - Civil requires that the record shall be filed with the Supreme Court Clerk within ninety days of the filing of the first notice of appeal. The court of appeals then poses the following questions requiring certification of the case: (1) if the District’s notice of appeal was a nullity, do the ninety days begin to run from the filing of the notice of cross-appeal; and (2) if a party files a notice of cross-appeal, is he bound by the date that the other party filed its notice of appeal or does the cross-appellant benefit from a ninety-day period that begins to run on the date that the notice of cross-appeal was filed.

Our case of Street v. Kurzinski, supra, decides this matter irrespective of the validity of the first notice of appeal. Rule 3 of the Arkansas Rules of Appellate Procedure - Civil reads in pertinent part:

A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c). The notice shall also state whether the appeal is to the Court of Appeals, or to the Supreme Courtf.] . . .

Ark. R. App. P. - Civ. 3(e) (2004). The District’s notice of appeal filed March 31, 2004, contains the simple statement: “Notice is hereby given that Grady School District hereby appeals to the Arkansas Court of Appeals on the matter of plaintiffs attorneys fees.” As the District’s notice of appeal fails to designate the contents of the record on appeal and fails to contain any statement that it had ordered the transcript or made financial arrangements, it appears that the District’s notice of appeal fails to comply with the requirements of Ark. R. App. P. - Civ. 3.

Nonetheless, this court has held that only substantial compliance is required with Ark. R. App. P. - Civ. 3(e). See, e.g., Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001). That being said, we conclude that whether the District’s notice of appeal substantially complies with Rule 3, or whether it is a nullity, does not decide the issue before us.

Rule 5 of the Arkansas Rules of Appellate Procedure — Civil provides:

(a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided. When, however, an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days from the entry of such order.

Ark. R. App. P. - Civ. 5(a) (2004) (emphasis added).

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Larry v. Grady School District, 207 S.W.3d 451, 362 Ark. 65, 2005 Ark. LEXIS 241 (Ark. 2005).

207 S.W.3d 451 (Larry v. Grady School District) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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