{ "id": 1449539, "name": "Robert Clayton WYNN v. Robert P. REMET and John Lewis McGehee", "name_abbreviation": "Wynn v. Remet", "decision_date": "1995-07-03", "docket_number": "95-62", "first_page": "227", "last_page": "233", "citations": [ { "type": "official", "cite": "321 Ark. 227" }, { "type": "parallel", "cite": "902 S.W.2d 213" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "320 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451214 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0322-01" ] }, { "cite": "319 Ark. 543", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453653 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0543-01" ] }, { "cite": "295 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893795 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0533-01" ] }, { "cite": "307 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902444 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0134-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 571, "char_count": 10667, "ocr_confidence": 0.894, "pagerank": { "raw": 1.064092288885445e-07, "percentile": 0.5578722929406309 }, "sha256": "f524c0d38f7786f25060688ae917a8f8bee79a0753408b96e3e24fac5aca971d", "simhash": "1:08b255a8a6725e87", "word_count": 1808 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Robert Clayton WYNN v. Robert P. REMET and John Lewis McGehee" ], "opinions": [ { "text": "David Newbern, Justice.\nThe issue before us is whether the Trial Court erroneously declined to award attorney\u2019s fees. Robert Clayton Wynn, the appellant, contends he was entitled to attorney\u2019s fee awards pursuant to Ark. Code Ann. \u00a7 16-22-309 (Repl. 1994) because there was a complete absence of a justiciable issue of either law or fact raised in counterclaims against him by Robert R Remet and John Lewis McGehee, the appellees. In accordance with subsection (d) of the statute, we have reviewed the record de novo, and we agree with Mr. Wynn; therefore, we reverse the Trial Court\u2019s decision and remand the case.\nRobert R Remet is an attorney. He is also a tenant on land owned by John Lewis McGehee. Mr. Remet had a boundary line dispute with neighboring land owners named Brown. He called another attorney, Kenneth Harper, who represented the Browns, seeking recommendation of a surveyor. Mr. Harper recommended Mr. Wynn.\nWhen Mr. Wynn went on Mr. McGehee\u2019s land, after agreeing with Mr. Remet to conduct the survey, Mr. McGehee challenged his presence but ultimately agreed to allow the survey after learning that Mr. Remet had hired Mr. Wynn. Mr. McGehee distrusted Mr. Harper, and there was disputed testimony over whether he asked Mr. Wynn at the outset if he was related to Mr. Harper and whether and what Mr. Wynn might have answered to that question.\nMr. Wynn prepared a plat showing the location of the disputed line and billed Mr. Remet $510. According to Mr. Remet, if Mr. Wynn had answered questions about the survey he would have paid the bill. Mr. Remet testified he thought the bill was to have been $350. Mr. Wynn testified he had told Mr. Remet $350 was the minimum and that it might be more.\nMr. Wynn filed his initial complaint in the Small Claims Division of the Star City Municipal Court on May 4, 1992, for $510. The complaint alleged that Mr. Remet, acting as attorney for Mr. McGehee, had hired him (Wynn) and that Mr. Remet and Mr. McGehee had refused to pay. In their answers, Mr. Remet and Mr. McGehee denied owing Mr. Wynn \u201canything.\u201d They also counterclaimed.\nMr. McGehee sought $141,575.25, as damages, costs, and attorney\u2019s fees, alleging Mr. Wynn had maliciously clouded the title to his land and was liable for deliberate infliction of mental distress, abuse of process, and trespass. Mr. Remet sought $41,500.00, alleging that Mr. Wynn had close connections with the neighbors with whom the dispute had occurred and had created a false survey. He alleged Mr. Wynn\u2019s suit was an abuse of process filed to inflict emotional harm and \u201ccorrupt prosecution.\u201d\nThe case was transferred to Circuit Court, and Mr. Wynn filed an amended complaint, renewing his contract claim of $510 and alleging that the counterclaims were without justiciable issue in either law or fact and that he should be entitled to attorney\u2019s fees and costs.\nPrior to trial, Messrs. Remet and McGehee offered to settle the dispute by dismissing their counterclaims and tendering $510.00 as payment for the survey. Mr. Wynn refused, the counterclaims were not dismissed, and the case was tried on the merits.\nMr. Remet testified he became suspicious of the results of the survey after he discovered that Mr. Wynn was Kenneth Harper\u2019s first cousin. He said that his suspicions deepened after Mr. Wynn refused to return his calls when he wanted an explanation of the survey. Mr. Wynn\u2019s wife testified she called Mr. Remet about the bill and he said he would pay \u201cafter court\u201d and did not otherwise complain or question the bill.\nDaniel Robison, another land surveyor, first spoke with Mr. Remet in August, 1993. Mr. Remet asked him to do a second survey of the line and not to consult Mr. Wynn. Mr. Robison testified that the plat prepared by Mr. Wynn was substandard because it showed a \u201ccalculated corner\u201d without stating the method of calculation. He concluded it was apparent that a corner marker had been moved some 13 feet, but his ultimate calculation placed the boundary line within one foot of the place Mr. Wynn had found it to be. He said Mr. Wynn\u2019s survey was thus, according to minimum surveying standards, an accurate survey. Mr. Robison presented that result to Mr. Remet in October of 1993.\nIn his testimony, Mr. Remet said that after receiving Mr. Robison\u2019s survey result he had \u201cno problem\u201d with Mr. Wynn\u2019s survey.\nAs a general rule, attorney\u2019s fees are not allowed in Arkansas unless expressly authorized by statute. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). However, in any civil action in which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney\u2019s fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Ark. Code Ann. \u00a7 16-22-309 (Repl. 1994); Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).\nSection 16-22-309 provides, in pertinent part:\n(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney\u2019s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.\n* * *\n(b) In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party\u2019s attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.\nThe Trial Court announced the ruling from the bench. He awarded Mr. Wynn $510 plus costs and an attorney\u2019s fee of 10% of that amount against Mr. Remet but not against Mr. McGehee, as it was found that Mr. McGehee had not contracted for the survey. Mr. Wynn\u2019s claims for attorney\u2019s fees in accordance with \u00a7 16-22-309 were denied. Discussing Mr. Wynn\u2019s claim for attorney\u2019s fees pursuant to the statute, the Trial Court reviewed the history of the animosity among the parties and concluded Mr. McGehee had not acted maliciously in filing the $141,575.25 claim because he was \u201cupset\u201d at the time as he thought he \u201cgot a surveyor that was a friend of the Harpers that [he] didn\u2019t want.\u201d\nWith respect to Mr. Remet it was found that he thought the price for the survey was to be $350 and it turned out to be $510. In addition, Mr. Remet later learned, as the Trial Court stated, \u201cthat Mr. Wynn was a friend of Harper, and he made a lot of statements that... he has not substantiated ... by proof today.\u201d The Trial Court commented further, in reaching his conclusion that Mr. Remet\u2019s claims were not totally baseless, that Mr. Remet had attempted to settle by paying Mr. Wynn\u2019s full $510 claim without success, \u201cAnd Remet said, well, I\u2019m not going into court, then, totally empty; I\u2019m not going to give away everything if he\u2019s not willing to give any at all.\u201d\nNothing in the evidence cited in the Trial Court\u2019s ruling or elsewhere in the record supports any conclusion other than that, when this case went to trial, the counterclaims were completely baseless. Mr. Remet admitted he knew, through his second survey by a disinterested surveyor, that Mr. Wynn\u2019s survey was accurate.\nAs we read subsection (b) of the statute, a counterclaim \u201clacking a justiciable issue of law or fact\u201d is one \u201ccommenced or used in bad faith\u201d for one of two purposes, that of \u201charassing or maliciously injuring another or delaying adjudication without just cause. . . .\u201d Stated in the disjunctive is a further situation justifying the fees, i.e., \u201cor that the party or the party\u2019s attorney knew, or should have known, that the . . . counterclaim . . . was without any reasonable basis in law or in equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.\u201d\nBoth counterclaims contained allegations of abuse of process and the intentional infliction of emotional distress. To establish intentional infliction of emotional distress, the plaintiff is required to satisfy four elements: (1) the actor intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff\u2019s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. AMI Civil 3rd, 404 (1989).\nThe elements of the tort of abuse of process are (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Harmon v. Careo Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995).\nWhether or not the counterclaims were filed with the purpose of delaying Mr. Wynn\u2019s municipal court claim of $510 without just cause, it is very clear that Mr. Remet knew or should have known that he could not prove all the elements or perhaps even one element of either of the torts he and Mr. McGehee claimed Mr. Wynn committed against them. While Mr. Remet\u2019s attempt to settle the matters were perhaps laudable, we find no justification for his taking the counterclaims to trial when the settlement failed so that he would not be \u201ctotally empty\u201d before the Trial Court.\nReversed and remanded for proceedings consistent with this opinion.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Kenneth A. Harper, for appellant.", "Robert P. Remet and John Lewis McGehee, for appellees." ], "corrections": "", "head_matter": "Robert Clayton WYNN v. Robert P. REMET and John Lewis McGehee\n95-62\n902 S.W.2d 213\nSupreme Court of Arkansas\nOpinion delivered July 3, 1995\nKenneth A. Harper, for appellant.\nRobert P. Remet and John Lewis McGehee, for appellees." }, "file_name": "0227-01", "first_page_order": 277, "last_page_order": 283 }