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holding that in a second appeal, the decision of the first appeal becomes law of the case and is conclusive not only of every question of law or fact decided in the former appeal but also of such questions that might have been, but were not, presented
Summary of this case from Earls v. StateOpinion
No. CA12-307
01-30-2013
STEVE'S OUTDOOR INVESTMENTS, LLC APPELLANT v. REYNOLDS FORESTRY CONSULTING-RFC, INC. APPELLEE
Robert L. Depper, Jr. , for appellant. Lindsey & Carr, P.A., by:
APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. CV-2006-201-6]
HONORABLE DAVID F. GUTHRIE, JUDGE
AFFIRMED ON APPEAL AND CROSS-APPEAL
JOHN MAUZY PITTMAN , Judge
This is a second appeal from an order enforcing an oral contract for services performed by Reynolds Forestry Consulting (RFC) for Steve's Outdoor Investments (SOI). The essence of the agreement was that RFC would determine the number and type of trees on specified tracts of timberland so that SOI could decide whether to purchase the tracts. SOI would pay for the services performed whether or not it purchased the specific tract but would be allowed to delay payment for a time so that payments could be made out of profits realized from the timberland that it did purchase. RFC sued to collect the arrearage after it reached approximately $60,000. The trial court found in favor of RFC. On the first appeal, we reversed and remanded because the trial court's order improperly allocated the burden of proof. Steve's Outdoor Investments, LLC v. Reynolds Forestry Consulting-RFC, Inc., 2011 Ark. App. 719. The case is before us again after the trial court clarified the language of the order and reached the same result on remand.
SOI argues that the judgment should be reversed because the contract is void for illegality. RFC argues on cross-appeal that the trial court erred in refusing to award prejudgment interest and attorney's fees. We affirm in all respects.
SOI's illegality argument fails because it was not presented in the first appeal, and is now barred by the doctrine of law of the case. On the second appeal, the decision of the first appeal becomes law of the case and is conclusive not only of every question of law or fact decided in the former appeal but also of such questions that might have been, but were not, presented. Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (2004). SOI argues that the question of illegality could not have been raised in the prior appeal because there has been a material change in the facts, i.e., that the trial court clarified its order to rectify what appeared to be an erroneous allocation of the burden of proof. We disagree. The allocation of the burden of proof is not a question of fact, but is instead purely a question of law; the facts here are identical to those presented in the first appeal. SOI clearly could have argued illegality in the first appeal. The correctness of the trial court's finding that an enforceable contract existed was squarely presented, and illegality is a defense to contract formation and enforcement. The issue was ripe and appellant did not argue it in the first appeal; he cannot do so for the first time in the second appeal. Id.
Nor do we agree with RFC's arguments on cross-appeal that the trial court erred in denying prejudgment interest and attorney's fees. In the order appealed from, the trial court found that RFC made mistakes in its billing computation, some in favor of RFC and some in favor of SOI. The mistakes made a difference in the amount due on the cross-claim, albeit in RFC's favor, and the award was increased to $64,292. The error in computing the amount of the debt in RFC's demand was the basis for the trial court's denial of prejudgment interest. It is true that if, at the time of the occurrence of the event that gives rise to the cause of action, a method exists for fixing an exact value on the cause of action without reliance on opinion or discretion, then prejudgment interest should be awarded. Spann v. Lovett & Co. Ltd., 2012 Ark. App. 107, ___ S.W.3d ___. In Spann, we rejected the argument that prejudgment interest is improper when the claimant adjusts his claim at trial in response to errors in calculation or omissions that are brought out during the trial, holding that prejudgment interest was nevertheless proper because the contract provided an exact method to follow in making those calculations. Here, however, the trial court could properly have found that the amount payable to RFC for each particular service provided had not been expressly identified by the parties and that there was instead only a general agreement to pay an unspecified reasonable amount that would not permit precise calculation of the outstanding amount prior to trial.
With regard to the attorney-fee issue, Arkansas Code Annotated section 16-22-308 (Repl. 1999) permits the trial court in a contract action to award reasonable attorney's fees to the prevailing party. However, the decision to allow or deny fees is a matter of discretion; the trial court is not required to award attorney's fees. Harrill & Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, ___ S.W.3d ___. The trial judge's intimate acquaintance with the trial proceedings and the quality of the service rendered by the prevailing party's counsel provides a superior perspective to determine whether to award fees; thus, whether to award attorney's fees and, if so, the amount to award are discretionary decisions that will be reversed only if the prevailing party can demonstrate that the circuit court abused its considerable discretion. Id. Here, the trial court denied attorney's fees based on an express finding that SOI's defense, although unsuccessful, was taken in good faith and resulted from a misunderstanding between friends who could both have done more to clarify the relationship and thus avoid litigation. On this record, we cannot say that denial of attorney's fees to RFC was an abuse of discretion.
Affirmed on appeal and cross-appeal.
GLADWIN, C.J., and WALMSLEY, J., agree.
Robert L. Depper, Jr. , for appellant.
Lindsey & Carr, P.A., by: Paul E. Lindsey, for appellee.