Notice of Appeal of Post-Judgment Attorney Fee Order Must Reference the Order

The case Spill Responders, Inc. v. Felts, 2011 Ark. App. 267, is a good reminder of two important points regarding appeals: (1) To preserve trial error arguments, they must be made during trial; (2) A post-judgment attorney fee award order must be mentioned in the notice of appeal to be challenged on appeal.


The litigation in this case stemmed from a dispute over a corporate stock purchase agreement.

The stockholders (appellants) who were to sell their shares brought suit against the intended purchasers (appellees) who did not go through with the agreement. The parties’ claims and counterclaims alleged, among other things, breach of contract, breach of fiduciary duty, and fraud.

The corporation (another appellant) also brought its own claims for breach of fiduciary duty, constructive fraud, and interference with contractual relationships.

Trial and Attorney Fee Motion

At the close of appellants’ jury trial case, appellees moved for a directed verdict on appellants’ breach-of-contract claim. They argued that no evidence had been presented as to damages suffered from the alleged breach.

The motion was granted.

After the trial concluded, the jury rejected the breach-of-fiduciary duty and intentional-interference-with-contractual-relationship claims, and the remaining breach-of-contract claim.

On February 4, 2008, the trial court entered judgment on the verdict.

Appellees then filed an attorney fee request on February 19, 2008. Their request was granted. On November 3, 2008, the circuit court awarded $27,450.50 in attorney fees.

Appellants filed their appeal.

First Appeal and Amended Judgment

On October 7, 2009, appellants’ initial appeal was dismissed for lack of a final order. After remand, the circuit court entered an amended judgment on March 23, 2010 dismissing the unresolved claims.

On April 2, 2010, appellants filed a motion for new trial arguing that they should be entitled to nominal damages for appellees’ alleged breach of contract. The motion was denied.

Appellants then filed the present appeal.

Second Appeal

In the present appeal, appellants argued that the directed verdict motion should not have been granted because they should be entitled to nominal damages for breach of contract whether or not there was evidence of actual damages. Appellants also argued that the circuit court should not have awarded attorney fees and that the attorney fee award was excessive.

The Arkansas Court of Appeals rejected both arguments.

It held that the nominal damages argument had not been presented to the circuit court in a timely manner. Appellants had waived the argument by failing to raise it until after the judgment was entered.

Citing Rule 3(e) of the Arkansas Rules of Appellate Procedure-Civil, the court of appeals also held that it did not have jurisdiction to consider the attorney fee award argument because the award order was not mentioned in the notice of appeal. Since the attorney fee award was made after the judgment had been entered, it had to be specifically appealed. It was not.

The court stated the rule as follows:

[W]here the order granting or denying attorneys’ fees is entered after entry of the judgment, the issue of attorneys’ fees is a collateral matter. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003). As such, the challenging party must file a notice of appeal from the fee order, and without such a notice, this court will not address any argument on the fee issue. Id.

Appellants had filed an amended notice of appeal after the attorney fee award, but the amended notice did not refer to the attorney fee award order. It only mentioned the original February 2008 judgment.

The appeal was thus affirmed in part and dismissed in part.

Arkansas Judiciary link (pdf).