Dickinson et al v. SunTrust Mortgage Inc et al

Filing 74

ORDER denying 67 Motion for Attorney Fees and granting in part Motion for costs. Defendants are awarded costs in the amount of $945.39. Signed by Chief Judge Brian S. Miller on 6/9/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ROBERT DICKINSON et al.
v.

PLAINTIFFS

CASE NO: 3:12CV00112 BSM

SUNTRUST MORTGAGE, INC. and
FEDERAL NATIONAL MORTGAGE ASSOCIATION

DEFENDANTS

ORDER
Summary judgment was granted and plaintiffs’ Arkansas Deceptive Trade Practice
Act (“ADTPA”) and unjust enrichment claims were dismissed. Defendants now seek to
recover $115,458.50 in attorneys fees and $1,282.77 in expenses from plaintiffs [Doc. No.
67]. The request for attorneys’ fees is denied, but the request for costs is granted in the
amount of $945.39.
I.
A.

DISCUSSION

Attorney’s Fees
In diversity cases, state law governs the availability of attorney’s fees when no

conflicting federal statute or court rule applies. Weitz Co. v. MH Washington, 631 F.3d 510,
534 (8th Cir. 2011). In Arkansas, each party must bear his or her own attorney’s fees unless
a statute, court rule, or contract expressly provides otherwise. See St. Francis Cnty. v.
Joshaway, 58 S.W.3d 361, 363 (Ark. 2001).
1.

Statutory Right to Attorney’s Fees

Defendants are not entitled to attorney’s fees under Arkansas code annotated section
16-22-308 because plaintiffs did not sue them for breach of contract. See Curry v.

Thornsberry, 128 S.W.3d 438, 445 (Ark. 2003) (when the complaint does not specifically
raise a breach of contract claim, attorney’s fees may be awarded under section 16-22-308
only if there is an underlying contract action). Plaintiffs’ complaint raised ADTPA and
unjust enrichment claims. Neither of these claims is contract based as required by section
16-22-308. See Friends of Children, Inc. v. Marcus, 876 S.W.2d 603, 606 (Ark. App. 1994)
(holding that attorney’s fees are not available under section 16-22-308 for unjust enrichment
because it is based on quasi-contract, which is no contract); Ark. Code Ann. § 4-88-113
(providing for attorney’s fees only for violation of the ADTPA). Accordingly, defendants’
motion for attorney’s fees pursuant to section 16-22-308 is denied.
2.

Contractual Right to Attorney’s Fees

Neither the note nor the mortgage provides defendants with a basis to recover
attorney’s fees. Even when attorney’s fees are not authorized under section 16-22-308, they
may be awarded if there is a contract specifically providing for the payment of such fees.
Marcum v. Wengert, 40 S.W.3d 230, 237 (Ark. 2001). Section 6(E) of the note herein
provides as follow:
If the Note Holder has required me to pay immediately in full as described
above, the Note Holder will have the right to be paid back by me for all of its
costs and expenses in enforcing this Note to the extent not prohibited by
applicable law. Those expenses include, for example, reasonable attorneys’
fees.
See Note ¶ 6(E), Ex. 2, Doc. No. 67. Further, section 22 of the mortgage provides that the
“[l]ender shall be entitled to collect all expenses incurred in pursuing the remedies provided
in this Section 22, including, but not limited to, reasonable attorneys’ fees and cost of title
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evidence.” See Mortgage § 22, Ex. 3, Doc. No 67. Plaintiffs are correct that neither contract
provides for the assessment of attorney’s fees or costs against them under the facts of this
case. Defendants’ request for fees is therefore denied.
B.

Costs
Federal Rule of Civil Procedure 54(d) permits defendants, as the prevailing parties,

to recover costs. To overcome defendants’ request for costs, plaintiffs must show that
awarding costs to defendants is inequitable under the circumstances. Concord Boat Corp.
v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002). In that plaintiffs have failed to carry
this burden, defendants are awarded costs totaling $945.39, which includes $497.42 for filing
fees, $366.37 for photocopies, and $81.60 for postage, long distance phone calls, and courier
expenses.
II. CONCLUSION
For the foregoing reasons, the motion for attorney’s fees filed by defendants Suntrust
Mortgage, Inc., and Federal National Mortgage Association [Doc. No. 67] is denied and their
motion for costs is granted in part. Defendants are awarded costs in the amount of $945.39.
IT IS SO ORDERED this 9th day of June 2015.

________________________________
UNITED STATES DISTRICT JUDGE

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