Diann Buercklin v. Michael Landes
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ARKANSAS COURT OF APPEAL
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION III
CA07-604
May 21, 2008
DIANN BUERCKLIN
APPELLANT
AN APPEAL FROM PULASKI
COUNTY CIRCUIT COURT
[PT1999-6430]
V.
HON. MARY SPENCER MCGOWAN,
JUDGE
MICHAEL LANDES
APPELLEE
REVERSED AND REMANDED
This appeal arises from an order purporting to amend an attorney’s-fee award in a
domestic relations case to hold a different party liable for attorney’s fees. After several
motions, including motions for a change of custody and to modify visitation, appellant Diann
Buercklin was awarded a judgment of $10,000 in attorney’s fees, to be paid by appellee
Michael Landes, her son’s father. Appellee later filed a motion to set aside the award based
on his attorney’s conduct in failing to notify him of and failing to defend against the
attorney’s-fee petition. The motion was initially denied but upon further motion, the circuit
court “amended” the original judgment to hold appellee’s attorney, Barbara Ketring-Beuch,
liable for paying appellant’s attorney’s fees. Appellant thereafter filed a motion for a new trial,
which was denied.
Appellant appeals from the order purporting to modify the original judgment. She
argues that the circuit court erred in three respects: 1) in relitigating appellee’s motion to set
aside the attorney’s-fee award; 2) in amending the fee award more than ninety days after it
was entered; and 3) in relieving appellee of his personal obligation to pay attorney’s fees.
Because we agree with appellant’s second argument, we reverse the amended order and
remand for the circuit court to enter an order granting appropriate relief consistent with this
opinion, to reflect that appellee remains personally liable to pay appellant’s attorney’s fees.
I. Facts
This appeal determines who will pay appellant’s attorney’s fees – appellee or his former
attorney, Barbara Ketring-Beuch. The circuit court shifted the obligation to Ms. KetringBeuch, appellee’s attorney, because she failed to apprise appellee that a motion for attorney’s
fees had been filed and that she asked the order to be set aside.
The facts leading to the circuit court’s decision are best summarized in chronological
format, as follows:
2001
Appellant is awarded custody of the parties’ child.
10/11/04
Hearing to consider appellee’s motion for a change of custody and
appellant’s counter-motion to modify appellee’s visitation and to
increase his child-support obligation; appellee is represented by Ms.
Ketring-Beuch; appellant prevails.
1/27/05
Appellee pays Ms. Ketring-Beuch a $250 retainer to represent him
regarding future developments in his case.
3/2/05
Ms. Ketring-Beuch is suspended from the practice of law for failing to
pay her licensing fee and failing to complete her continuing legal
education requirements.
4/29/05
Appellant petitions for attorney’s fees; Ms. Ketring-Beuch does not
2
respond on appellee’s behalf.
5/17/05
Ms. Ketring-Beuch’s suspension is lifted.
5/24/05
Ms. Ketring-Beuch informs appellee that no new visitation order has
been entered.
End of May Appellee receives a new visitation order, indicating that he owed
appellant’s attorney $200 in “court fees,” which appellee pays.
6/20/05
The circuit court enters the original judgment awarding appellant
$10,000 in attorney’s fees.
6/30/05
Ms. Ketring-Beuch filed a motion to set aside the attorney’s-fee award.
11/4/05
Circuit court enters an order denying appellee’s motion to set aside the
attorney’s-fee award.
3/27/06
Appellant filed a contempt motion due to appellee’s failure to pay
attorney’s fees pursuant to the June 20, 2005 order; the motion was later
granted.
4/19/06
After receiving notice of the contempt order, appellee obtained his case
file from the county clerk’s office.
5/5/06
Having obtained new counsel, appellee files a multi-part motion
including, inter alia, a motion to set aside the June 20, 2005 order.
2/22/07
Hearing on appellee’s motions, during which Ms. Ketring-Beuch
testified regarding why she failed to notify appellee of the petition for
attorney’s fees and failed to prosecute the matter.
3/27/07
Circuit court enters an order purporting to amend the November 4,
2005 order, pursuant to Ark. R. Civ. P. 60(c)(4), which permits
modification of a judgment or order based on misrepresentation or fraud
by an adverse party; the court amended the order to require Ms.
Ketring-Beuch to pay $10,000 in attorney’s fees to appellant’s attorney.
4/6/07
Appellant filed a motion for a new trial, asserting that the circuit court
erred in amending the June 20, 2005 order more than ninety days after
its entry based on fraud by an adverse party because Ms. Ketring-Beuch
was not a party adverse to appellee.
3
05/08/07
The circuit court enters an order denying appellant’s request for a new
trial, asserting its jurisdiction to amend the order pursuant to Rule
60(c)(4).
Appellant now appeals solely from the March 27, 2007 order amending the original
judgment to require appellee’s attorney to pay appellant’s attorney’s fees.
II. Jurisdiction to Amend the Attorney’s-Fee Award
Appellant’s primary argument is that pursuant to Rule 60(c)(4), the circuit court lost
jurisdiction to amend the attorney’s-fee award after ninety days. Rule 60(c)(4) provides that
a circuit court may set aside a judgment after ninety days for misrepresentation or fraud by an
adverse party. The original judgment awarding appellant attorney’s fees was entered on June
20, 2005. The order purporting to amend the award of attorney’s fees was entered on March
27, 2007, approximately twenty-one months after the original judgment was entered.
Accordingly, the circuit court had jurisdiction to amend the original judgment only if Ms.
Ketring-Beuch was an adverse party who committed fraud or misrepresentation. See O'Marra
v. Mackool, 361 Ark. 32, 204 S.W.3d 49 (2005).
The elements of fraud and misrepresentation are essentially the same, as follows: (1) a
false representation of a material fact; (2) knowledge that the representation is false or that
there is insufficient evidence upon which to make the representation; (3) intent to induce
action or inaction in reliance upon the representation; (4) justifiable reliance on the
representation; and (5) damage suffered as a result of the reliance. See Bullock v. Barnes, 366
Ark. 444, 236 S.W.3d 498 (2006); O’Mara v. Dykema, 328 Ark. 312, 942 S.W.2d 854 (1997).
In the amending order, the circuit court expressly cited to Rule 60(c)(4), and further
cited to Ms. Ketring-Beuch’s conduct in failing to apprise appellee that appellant had filed a
4
motion for attorney’s fees and that Ms. Ketring-Beuch had asked that the order be set aside.
Nonetheless, even if we assume that Ms. Ketring-Beuch’s conduct constituted a false
representation of a material fact, the circuit court made no finding that Ms. Ketring-Beuch
was an adverse party and made no findings regarding the remaining elements of fraud or
misrepresentation to support its application of Rule 60(c)(4).
Hence, because there was insufficient proof of fraud or misrepresentation by an adverse
party, the circuit court lacked jurisdiction under Rule 60(c)(4) to amend the judgment
awarding attorney’s fees after ninety days. See Mackool, supra. In turn, this means that appellee
remains personally obligated to pay appellant’s attorney’s fees pursuant to the June 20, 2005
order, which is the standing order in this case.1
Because we hold that the circuit court lacked jurisdiction to amend the June 20, 2005
order, we do not address appellant’s remaining arguments that the circuit court erred in
relitigating the motion to set aside the attorney’s-fee award and in relieving appellee of his
personal obligation to pay her attorney’s fees.2
Reversed and remanded for the circuit court to enter relief consistent with this
opinion.
1
Although the circuit court purported to amend the November 4, 2005 order, the
order actually implicated was the June 20, 2005 order, as the language contained in the
amending order tracks the language in the June 20, 2005 order, not the November 4,
2005 order. The circuit court should resolve this matter on remand.
2
We observe that Ark. Code Ann. § 16-22-310(a)(1) (Supp. 2007) provides that,
unless fraud or misrepresentation is shown, an attorney is not liable to a person not in
privity with the attorney for acts, omissions, decisions, or other conduct in connection
with professional services performed by the attorney.
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GLADWIN and BAKER, JJ., agree.
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