Henry v. QHG of Sprindale, Inc
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Cite as 2010 Ark. App. 604
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA10-167
RICKEY HENRY
Opinion Delivered
APPELLANT
V.
QHG of SPRINGDALE, Inc.,
NORTHWEST MEDICAL CENTER of
BENTON COUNTY and WELLCARE
HEALTH INSURANCE of ARIZONA,
Inc., et al.
APPELLEES
September 15, 2010
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. CV-09-422-5]
HONORABLE XOLLIE MARIE
BUFFER DUNCAN, JUDGE
REMANDED
KAREN R. BAKER, Judge
This case involves breach-of-contract and breach-of-fiduciary-duty claims against a
patient’s health-insurance company that is not a party to this appeal and appellee QHG of
Springdale, Inc. d/b/a Northwest Medical Center of Benton County (QHG), one of the
health-care providers, for charges incurred as a result of injuries appellant Rickey Henry
sustained in an automobile accident. On appeal, appellant’s sole argument preserved before
this court is whether the trial court erred in its decision to award attorney’s fees to QHG.
Because the circuit court did not make findings consistent with the statutory requirements
in awarding attorney’s fees, we remand.
On February 19, 2008, appellant was injured in an automobile accident and was
treated by Bentonville Ambulance, QHG, Benton Emergency Group, and Bentonville
Cite as 2010 Ark. App. 604
Radiology Consultants. The aggregate charges for appellant’s medical services on this date
totaled $14,350.40. At the time of treatment, appellant had health insurance with Wellcare
Health Insurance Company of Arizona, Inc. and/or Wellcare Health Insurance Company of
Illinois, Inc. (collectively, Wellcare). On March 11, 2008, QHG filed a notice of lien against
appellant for $12,277.40 in medical charges related to the motor-vehicle accident.
On February 11, 2009, appellant brought a suit against Wellcare for breach of contract.
On March 31, 2009, QHG filed a second notice of lien against appellant for unpaid medical
bills in the amount of $12,277.40. On April 21, 2009, appellant filed a second amended
complaint, adding QHG as a defendant and asserting that pursuant to its contract with
Wellcare, QHG should have taken an agreed-upon reduction in charges instead of attempting
to collect the full bill from appellant, and that in breaching its contractual obligations to
Wellcare by improperly submitting appellant’s charges to Wellcare, QHG also breached its
fiduciary duty to appellant.
On May 7, 2009, QHG wrote off the remaining $12,216.40, but adjusted the account
on May 14, 2009, to reflect a payment of $869.67 from Wellcare. On May 21, 2009 (a little
over three months after appellant’s suit was initially filed and one month after appellant
amended his complaint to add QHG), QHG wrote off the remaining co-pay amount of
$146.09, fully settling appellant’s account. Thereafter, QHG filed a motion to dismiss, or
alternately, a motion for summary judgment.
By order dated August 31, 2009, the circuit court denied QHG’s motion to dismiss
because the court considered matters outside the pleadings, granted QHG’s motion for
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summary judgment as to appellant’s breach-of-fiduciary-duty claim against QHG, and denied
Wellcare’s motion to dismiss. On November 6, 2009, the circuit court denied QHG’s
motion for sanctions, but, stating that the award was pursuant to Ark. Code Ann. § 16-22309(a)(1)(Repl. 1999), the court granted QHG’s request for attorney’s fees in the amount of
$1,500 (out of the $4,477.74 requested). Appellant filed a motion for reconsideration, or in
the alternative, motion for findings of fact and conclusions of law on November 21, 2009,
and a motion for clarification on November 24, 2009, both of which were deemed denied
pursuant to Ark. R. Civ. P. 52(b)(1). Appellant filed a motion to dismiss his claims against
Wellcare with prejudice, so that there would be a final, appealable order, and the circuit court
granted the motion.
Appellant appeals the November 6 order awarding attorney’s fees and purports to
appeal the deemed denial of the motion for reconsideration and motion for clarification. The
notice of appeal, however, is incomplete with respect to the motions appealed in both the
addendum and the record. The court only has pages 1 and 3 before it. From these two
pages, it is clear that appellant appeals the award of attorney’s fees. Further, the notice of
appeal was filed on December 4, 2009. Under Ark. R. Civ. P. 52(b)(1), a motion is deemed
denied only if the trial court fails to act on it within thirty days of its filing. Accordingly,
appellant’s motions for reconsideration and clarification were not deemed denied until
December 20 and December 23, respectively. An appeal from the denial of these motions
that is taken prior to these dates where the notice is not amended after these dates is not
timely and will not be considered, leaving the sole issue on appeal whether the circuit court
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erred in awarding attorney’s fees to QHG under Ark. Code Ann. § 16-22-309(a)(1). Ark.
R. App. P.—Civ. 4(b)(1), (b)(2).
As a general rule, attorney’s fees are not granted in the absence of a statute permitting
their allowance; however, in a civil action in which a trial court finds a complete lack of a
justiciable issue of either law or fact raised by the losing party, the court may award limited
attorney’s fees. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007); Wynn v. Remet, 321
Ark. 227, 902 S.W.2d 213 (1995); Ark. Code Ann. § 16-22-309.
An award of attorney’s fees will not be disturbed on appeal absent an abuse of
discretion. Artman, 370 Ark. at 137, 257 S.W.3d at 869. Arkansas Code Annotated section
16-22-309(d) requires that we review the trial court’s decision to grant attorney’s fees de novo
on the record of the trial court alone.
In this case, the lower court awarded attorney’s fees under Ark. Code Ann. § 16-22309(a)(1), which allows for attorney’s fees in cases where the lower court “finds that there was
a complete absence of a justiciable issue of either law or fact raised by the losing party.”
Subsection (a)(1) provides as follows:
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’s 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.
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Subsection (b) of this statute sets forth what is required to find that an issue is nonjusticiable:
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’s 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.
Subsection (d) provides, “On appeal, the question as to whether there was a complete absence
of a justiciable issue shall be determined de novo on the record of the trial court alone.” See
Drummond v. Shepherd, 97 Ark. App. 244, 247 S.W.3d 526 (2007); see also Stilley v. Hubbs, 344
Ark. 1, 40 S.W.3d 209 (2001). A finding of a complete lack of a justiciable issue is a
prerequisite to awarding attorney’s fees under this provision of the Code. See City of Fort
Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (2005). Our case law requires
that we not reverse the trial court’s factual findings unless they are clearly erroneous.
Drummond, 97 Ark. App. at 247, 247 S.W.3d at 528; see also Stanley v. Burchett, 93 Ark. App.
54, 216 S.W.3d 615 (2005).
Although the Drummond court examined a claim of adverse possession, it offered this
guidance with respect to the requirements necessary for awarding attorney’s fees under the
statute before us now:
Arkansas Code Annotated § 16-22-309 provides that an attorney’s fee shall be awarded
in any action where the trial court finds that there was a complete absence of a
justiciable issue of either law or fact. In order to support a determination that no justiciable
issue exists, the court must determine that a complaint was filed in bad faith solely for purposes
of harassing or maliciously injuring another, or delaying adjudication without just
cause or that an attorney or party signed a pleading not grounded in fact, not
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warranted by existing law or a good faith argument for a change in the law, or filed
for an improper purpose. See State v. Craighead County Bd. of Election Comm’rs, 300
Ark. 405, 779 S.W.2d 169 (1989).
In this case, although the trial court expressly held that there was an absence of a
justiciable issue, it made no factual findings supporting its legal conclusion. Therefore,
we are left with the singular task of determining whether – as a matter of law –
Drummond presented a justiciable claim. Further, contrary to appellees’ assertion that
the trial court did not abuse its discretion in making the fee award, which is generally
the ultimate test for the propriety of an award of attorney’s fees, we do not review
matters of law under an abuse-of-discretion standard.
Although Drummond fell short of his ultimate burden, proving seven years of
adverse use, he did present a valid claim and offered some evidence that he had used
the roadway over the course of many years. Indeed, his claim had sufficient merit that
the trial court twice refused to dismiss the claim before its ultimate decision to dismiss.
Therefore, based on our de novo review of the trial record, we conclude that
Drummond presented a weak but justiciable claim. The trial court is reversed on this
point.
Drummond, 97 Ark. App. at 246–47, 247 S.W.3d at 528 (emphasis added).
The November 6 order does not set forth any findings of fact or law upon which the
court might base either its denial of Rule 11 sanctions or its grant of attorney’s fees, other
than its citation to Ark. Code Ann. § 16-22-309(a)(1). In order to award the attorney’s fees
to QHG, as the prevailing party, the statute dictates that the circuit court must find a
complete lack of a justiciable issue. QHG prevailed in this case by virtue of the court’s
August 31 order, granting QHG’s motion for summary judgment. In pertinent part, the court
states the following in its order:
There is no issue of material fact as to the [appellant]’s breach of fiduciary relationship
claim against QHG. The Court finds that the undisputed facts as presented do not rise
to the level to state a claim for breach of fiduciary responsibility. The Court
specifically finds that [appellant]’s claim cannot survive the motion for summary
judgment due to his failure to establish any damages for his claim. Therefore, the
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claim of [appellant] as against the separate defendant, QHG, should be and hereby is
dismissed with prejudice.
In the foregoing findings, the circuit court does not state that the claim is dismissed for
complete lack of a justiciable issue. Going to the record on our de novo review, the lower
court states in the hearing on the motion to dismiss,
My take on this is that the issue of whether there is a fiduciary duty between a patient
and a hospital is much closer than what [QHG] argues, but much closer still doesn’t
get there, and I don’t think there has been a fiduciary duty established. The reason I
had some question in my mind about it is because the hospital does take on the role
of give us your insurance card, and we are going to pursue all this, and you have to
assign the insurance proceeds to us. I think they take a much more active and greater
role in dealing with the insurance company than just simply you are our patient, and
we are your hospital, and that’s the end of it. I think it is much more than that. But
that being said, I still don’t believe that it rises to the level of a fiduciary duty. At least
I am not convinced in this case it did.
The other issue is the lack of damages, and I think that is absolutely the death knell to
this case between [appellant] and [QHG] because I don’t think he can establish
damages that the entire amount that was not paid in excess of $11,000 has been
written off, and I just don’t see how he could possibly claim damages. So for those
two reasons together I am going to grant [QHG]’s motion for summary judgment.
The circuit court determined that appellant failed to establish that a fiduciary duty existed
between appellant and QHG and failed to prove damages. The question for this court is
whether the above findings adequately meet the requirements of section 16-22-309.
Examining the statute as a whole, as we must, subsection 309(b) states that in order to be
awarded attorney’s fees, it is necessary to prove that the plaintiff was acting in bad faith. We
hold that the trial court’s findings of fact fail to demonstrate that appellant brought, used, or
continued the breach-of-fiduciary-duty claim in bad faith. The statutory obligation to make
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Cite as 2010 Ark. App. 604
such findings lies with the trial court, and we remand the case to the lower court for findings
to support the award under this statute.
Remanded.
GLADWIN and ROBBINS, JJ., agree.
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