United States District Court, E.D. Arkansas, Western Division
Marshall Jr. United States District Judge
Chemicars motion for attorney's fees and costs, No
27, is partly granted and partly denied.
on the motion to compel. Brother Miller granted the motion.
This happened early in the case. Rule of Civil Procedure
37(a)(5)(A) makes a fee award the presumptive result unless
an exception applies. None does here: Helena Chemical tried
without success to get the trust papers without a court
order; the Torians' partial production, made after the
motion to compel was filed, didn't address all the
documents; the Torians' resistance was not substantially
justified - these documents were discoverable, though not
dispositive, on the title/judgment lien issues; and a fee
award is not unjust in the circumstances presented.
Arnold v. ADT Security Services, Inc., 627 F.3d 716,
720 (8th Cir. 2010).
on the contract claim against Joseph. The Court is
disappointed that none of the parties notified it about the
auction. Here's the timeline:
• 29 September 2017 Motion for partial summary judgment
against Joseph ripened;
• 8 December 2017 Farm sold at auction;
• 8 January 2018 Court granted motion against Joseph;
• 16 January 2018 Helena Chemical moved for fees and
• 18 January 2018 Farm sale closed; and
• 30 January 2018 Judgment in No. 4:15-cv-324-DPM
unclear exactly when Helena Chemical learned about the sale.
Payment of the underlying judgment mooted this case, but that
happened three weeks or so after the Court ruled against
Joseph. The Court doesn't have the documents about the
auction or the resulting sale. It's thus unclear whether
the deal was locked in-made with so much certainty that the
Court could hold that the successful bid in December mooted
statute's word, did Helena Chemical "prevail"
against Joseph in these peculiar circumstances? ARK. CODE
Ann. § 16-22-308. No. The Court has found no Arkansas
precedent supporting a fee award in the unusual circumstances
presented. See generally HOWARD W. Brill &
Christian H. Brill, 1 Arkansas Practice Series: Law of
DAMAGES § 11 (6th ed. 2014). It's clear that Helena
Chemical is not entitled to entry of judgment against Joseph.
The company won its motion, but the sale-facilitated
satisfaction of the underlying obligation prevents the Court
from reducing Helena Chemical's win to judgment. This was
a damages case, not one for injunctive relief, where a fee is
sometimes available after the defendant voluntarily changes
course, essentially giving the plaintiff the result it
sought. E.g., Koppel v. Wein, 743 F.2d 129, 135 (2d
Cir. 1984). Helena Chemical's motion, and eventual win,
against Joseph was a spur to the sale, the closing, and the
satisfaction. But, the Court predicts that the Arkansas
Supreme Court would hold that Helena Chemical did not prevail
here, within the meaning of § 16-22-308, because it
didn't get any money from Joseph out of this case.
Chemical also says, in passing, that it's entitled to
fees pursuant to the parties' security agreement because
of Joseph's breach of the July 2016 mediation agreement.
The mediation agreement provided that Joseph and Emmet would
give a security interest in certain farm equipment, and
Helena Chemical's lawyer would prepare the document. This
was eventually done. No 5-7 at 2-5. The October 2016
security agreement addresses attorney's fees-both for
equipment-related litigation and, perhaps, for any breach of
the underlying mediation agreement. Here are the terms:
Grantors shall be in default under this Agreement upon the
happening of any of ...