Manufacturers & Traders Trust Co. v. Nickelson

386 S.W.3d 41, 2011 Ark. App. 557, 2011 Ark. App. LEXIS 589
CourtCourt of Appeals of Arkansas
DecidedSeptember 21, 2011
DocketNo. CA 10-592
StatusPublished
Cited by2 cases

This text of 386 S.W.3d 41 (Manufacturers & Traders Trust Co. v. Nickelson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Manufacturers & Traders Trust Co. v. Nickelson, 386 S.W.3d 41, 2011 Ark. App. 557, 2011 Ark. App. LEXIS 589 (Ark. Ct. App. 2011).

Opinion

WAYMOND M. BROWN, Judge.

bln this case from Faulkner County, appellants and appellees each argue that the circuit court erred in offsetting part of the jury’s $80,000 verdict against a mortgage debt owed by appellees. Appellants also challenge the court’s award of attorney fees to appellees and the imposition of post-judgment interest. Appellees claim error in the court’s striking their amended complaint and denying their motion for a default judgment. For the reasons explained below, we reverse and remand on direct appeal and affirm on cross-appeal.

Appellees’ property is subject to a $110,500 promissory note and mortgage in favor of appellants. In 2002, appellants declared appellees in default for failing to make several payments. In response, ap-pellees made a large payment, which they believed brought their note current. Appellants, however, continued to insist that appellees were in arrears. In early 122003, appellees mailed in two more payments, and appellants returned at least one of them. Upon inquiry, appellees were told that their house was in foreclosure, which could only be halted by immediately signing a forbearance agreement. Appellees, seeing no alternative, signed the agreement. They later provided appellants with copies of canceled checks and a summary of their payment history in an effort to prove their lack of default, but appellants took no further action on the matter.

Appellees made a few payments under the forbearance agreement, but appellants rejected a partial payment in May 2003 and eventually resumed foreclosure. In February 2004, appellees filed this lawsuit, asking the court to enjoin the foreclosure, set aside the forbearance agreement, and award damages for appellants’ breach of the implied duty of good faith and fair dealing in the contract. Appellants counterclaimed for the full amount of the note and for foreclosure of the mortgaged property.

The case went to trial in April 2009, by which time appellees’ note had a balance of more than $188,000, including late fees, legal fees, and about $80,000 in interest that had accumulated since their last payment in May 2003. In the liability phase of the bifurcated proceeding, the jury found that appellants had obtained the forbearance agreement through fraud and breached their duty of good faith by misapplying appellees’ payments and refusing to correct errors. In the damages phase, the parties stipulated that appellees would receive credit for the late fees and legal costs that had been assessed against them. The question of additional damages was reserved for the jury.

Appellees urged the jury to consider the accrued interest of almost $80,000 as an ^appropriate measure of compensation that would return them to the position they would have occupied but for appellants’ breach. Following closing arguments, the court instructed the jury that any damage award should put appellees in “no better position than they would have been” had all parties performed their promises under the contract. The jury returned a verdict of $80,000.

On November 24, 2009, the circuit court entered a judgment that, without explanation, deducted $53,000 of the verdict amount from appellees’ mortgage debt and awarded the remaining $27,000 to appel-lees as a monetary judgment. In post-trial proceedings, appellants argued that the court should have deducted the entire $80,000 from appellees’ indebtedness. Ap-pellees claimed that they should have received the whole verdict as a monetary judgment. When the court failed to enter timely post-judgment relief, this appeal and cross-appeal followed.1

Both sides argue on appeal that the circuit court erred in fragmenting the jury verdict, and we agree that the judgment must be reversed on this point. There is no reason we can discern for the court’s dividing the verdict as it did. On the question of how the verdict should be handled, we are persuaded by appellants that the proper course is to deduct the entire $80,000 from appellees’ mortgage debt. Appellees did not expend the $80,000 while awaiting trial and thus have not suffered the loss of that amount of money; rather, that amount |4accrued on their note between the time appellants refused to accept further payments and the time of trial. In order to place appellees in the position they enjoyed in 2003 — as the jurors were requested and instructed to do — the court should have deducted the verdict amount from the $188,000 mortgage debt, leaving appellees with approximately the same balance that existed in early 2003.2 By contrast, appellees’ sug-gestión that they receive the $80,000 verdict as a monetary award and leave appellants with a $188,000 note would not place them in the same position. We therefore reverse on this point and remand for entry of a judgment reducing appellees’ indebtedness by the amount of the jury’s verdict.

Appellants argue next that the circuit court erred when it awarded appellees $80,000 in attorney fees. We agree. The Arkansas Rules of Civil Procedure provide that a motion for attorney fees must be filed no later than fourteen days after entry of judgment and that the motion must specify the statute or rule that entitles the moving party to the award.3 Failure to follow these provisions requires reversal of a fee award.4 In this case, appellees filed their motion fifteen days after the entry of judgment and cited no rule or statute. Undisputedly, they did not meet the requirements of Rule 54(e).

Appellees claim, however, that they were not subject to Rule 54(e). They contend first that they attempted to address the issue of attorney fees during their case-in-chief, but the circuit court “took that issue for resolution” when it decided to bifurcate the trial. The | ^record reflects, however, that the court simply deferred the damages portion of the case until after liability was determined. When appellees did not ask the jury to award them attorney fees during the damages phase but instead filed a post-judgment motion seeking fees as the prevailing party, they were bound to comply with the dictates of Rule 54(e). Appellees also argue that testimony regarding attorney fees adduced during their case-in-chief served as a “verbal motion” under Rule 54(e).5 We decline to equate appellees’ brief mention of fees at that point in the proceedings to a motion under Rule 54(e), especially since the identity of the prevailing party had not yet been determined.

On the matter of post-judgment interest, the parties agree that the circuit court erred in utilizing the rate of ten percent. A court may not award post-judgment interest at a greater rate than that permitted by our state constitution.6 The Arkansas Constitution prohibits collection of interest in excess of five percent per annum above the Federal Reserve Discount Rate, now known as the Federal Reserve Primary Credit Rate.7 On the date of judgment in this case, the federal rate was one-half percent. Thus, the maximum amount of interest chargeable on the judgment was five and one-half percent, much less than what was imposed by the circuit court. We therefore hold that error occurred. But we note, however, that because we are reversing the monetary award to appellees, we doubt the court will have the occasion to impose post-judgment interest on remand. Post-judgment interest is awarded to |r,compensate judgment creditors for the loss of money adjudged to be due them.8

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386 S.W.3d 41, 2011 Ark. App. 557, 2011 Ark. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manufacturers-traders-trust-co-v-nickelson-arkctapp-2011.