Helen Rice Grinder v. William Scott Campbell and Jennifer Leigh Campbell

Cite as 2023 Ark. 57SUPREME COURT OF ARKANSAS
No. CV-22-649
Opinion Delivered: April 6, 2023
HELEN RICE GRINDER
PETITIONER APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
V. [NO. 23DR-16-584]
WILLIAM SCOTT CAMPBELL AND HONORABLE SUSAN WEAVER,
JENNIFER LEIGH CAMPBELL JUDGE
RESPONDENTS
PETITION DENIED.
SHAWN A. WOMACK, Associate Justice
This case concerns a fee dispute between attorney Helen Grinder and her client
William Campbell, and the related remedial procedures. Grinder charged Campbell
$10,000 to represent him in an ex parte petition for a change in custody. After Campbell
prevailed, he fired Grinder, and she sought to formally withdraw as his counsel. Campbell,
however, opposed the withdrawal, alleging Grinder retained unearned fees. Although
Grinder disagreed, the circuit court ordered Grinder to refund Campbell $10,000 as a
condition of withdrawal. Grinder continued to protest the ordered refund, and the circuit
court ordered Grinder to appear and show cause. With a potential finding of contempt
imminent, Grinder filed this petition for a writ of certiorari to challenge the validity of the
refund order. Because Grinder had an adequate alternate remedy available, we deny the
petition.
I. Background
Having represented Campbell in the earlier divorce case, Grinder was again his
counsel of choice when he faced a situation necessitating an ex parte petition to modify the
existing custody agreement. Per an unwritten agreement, Campbell tendered $5,000 to
Grinder to secure her representation and paid her another $5,000 after she successfully
secured an order modifying the custody agreement.1 It is unclear why Campbell then fired
Grinder as his attorney.
Pursuant to Arkansas Rule of Professional Conduct 1.16(a)(3) and Arkansas Rule of
Civil Procedure 64(b), Grinder filed a motion to withdraw as Campbell’s counsel and
asserted that she had not retained unearned fees. Campbell, however, disagreed with
Grinder’s assertion and instead claimed that Grinder did retain unearned fees, along with his
file. After a series of competing motions, the circuit court held a hearing on Grinder’s
motion to withdraw. There, the circuit court questioned Grinder about her billing practices
and grew skeptical of the reasonableness of her fee. At the same time, the circuit court
withheld immediate judgment, conceding, “I am going to have to figure out what to do[ ]
because I don’t know. This is a first for me.”
Two days after the hearing, Grinder and Campbell informed the circuit court they
had come to a tentative settlement agreement and requested that the court not issue an
order. Despite the putative settlement agreement, the circuit court informed Grinder and
1
Campbell and Grinder disagree about the amount Campbell paid Grinder to
represent him. Campbell asserts that an earlier $5,000 payment was also part of the fee paid
for the ex parte petition, which would make the total payment $15,000. However, the exact
amount paid is irrelevant for our consideration of the present petition for a writ of certiorari,
as we are not considering the merits of the fee dispute.
Campbell that “the time for settlement was before the hearing.” The following day, the
circuit court issued an order granting Grinder’s motion to withdraw on the condition that
she refund $10,000 of allegedly unearned fees to Campbell. Two weeks later, Grinder still
had not complied with the refund order, and the circuit court sua sponte entered a show-
cause order and scheduled a contempt hearing. Before the hearing, Grinder filed a notice
of appeal in the court of appeals. She also filed this petition for a writ of certiorari and
sought a stay. This court granted the stay and took the petition as a case, so both the bench
and the bar could benefit from a written opinion. In the interim, Grinder failed to tender
a record for her pending appeal in the court of appeals and, as a result, abandoned the appeal.
Medicanna, LLC v. Ark. Dep’t of Fin. & Admin., 2021 Ark. 227, at 4.
II. Discussion
A writ of certiorari will not lie when there is an adequate remedy available—for
example, an appeal. Thompson v. McCain, 2013 Ark. 261, at 7, 428 S.W.3d 502, 506. This
is true even when “it is apparent on the face of the record that there has been a plain,
manifest, clear, and gross abuse of discretion,” or “there is a lack of jurisdiction, an act in
excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face
of the record.” Id. at 6, 428 S.W.3d at 505–06. Grinder argues that an appeal is not an
adequate remedy because, as a nonparty, she cannot appeal the order to refund the purported
unearned fees. This is incorrect.
“[A] nonparty might have the right to appeal where he or she has a direct, immediate,
and substantial interest which has been prejudiced by the judgment, where he or she has
been aggrieved by the decision, or where he or she has a right sufficiently affected by the
judgment.” Swindle v. Benton Cnty. Cir. Ct., 363 Ark. 118, 121, 211 S.W.3d 522, 524
(2005) (internal quotation marks and citations omitted). Although an attorney is not a party
to his case, an attorney is undoubtedly “aggrieved” and “sufficiently affected by the
judgment” when a circuit court orders him to pay a fee, a fine, or a sanction or has otherwise
entered a judgment against him personally. See id. In Swindle, this court considered an
analogous issue: whether a nonparty attorney could appeal the circuit court’s imposition of
a fee against him personally.2 Noting that “while attorneys have standing to appeal orders
imposing sanctions upon them, they may appeal only those fee awards, costs, or sanctions
for which he or she is directly liable.” Id. at 121–22, 211 S.W.3d at 524 (internal quotation
marks and citations omitted). Here, the circuit court’s order held Grinder directly liable for
the refund of allegedly unearned fees and conditioned her withdrawal as counsel on the
payment of the refund. Thus, Grinder had standing to appeal the order.
Nonparties may appeal an order holding them directly liable only if the order is final
or otherwise appealable. Ark. R. App. P.–Civ. 2(a)(1). Whether a judgment, decree, or
order is final and appealable implicates this court’s appellate jurisdiction, and it is an issue
we must consider on our own. Ford Motor Co. v. Harper, 351 Ark. 559, 560, 95 S.W.3d
810, 811 (2003). An order is final if it conclusively resolves the rights to the subject matter
in controversy—here, the fee dispute. See Lenders Title Co. v. Chandler, 353 Ark. 339, 350,
2
An attorney, Ken Swindle, appealed the circuit court’s order directing him to pay
$150 for interpreting services that were provided to his Spanish-speaking client. Swindle,
363 Ark. at 120, 211 S.W.3d at 523. Swindle’s sole point on appeal was that the circuit
court erred in holding him personally responsible for payment of the fee, id., but this court
affirmed the sanction because Swindle failed to object to its imposition below. Id. at 123,
211 S.W.3d at 525.
107 S.W.3d 157, 163 (2003). Simply put, an order is final once it “put[s] the [circuit]
court’s directive into execution, ending the litigation or a separable branch of it.” Festinger
v. Kantor, 264 Ark. 275, 277, 571 S.W.2d 82, 84 (1978). The circuit court’s order requiring
Grinder to refund $10,000 to Campbell conclusively resolved the fee dispute below, which
made it a final, appealable order. This, coupled with Grinder’s standing to appeal the fee
refund, meant there was an adequate remedy other than a writ of certiorari for her to
challenge the circuit court’s fee adjudication.
III. Conclusion
Because Grinder could have appealed the circuit court’s order requiring her to refund
fees, a writ of certiorari will not lie. This alone is fatal to her petition for a writ of certiorari,
and we will not consider whether the circuit court exceeded its jurisdiction. McCain Mall
Co. Ltd. P’ship v. Pulaski Cnty. Cir. Ct., 2016 Ark. 279, at 4, 495 S.W.3d 625, 627. Finally,
nothing in this opinion should be construed as considering the merits of the fee dispute.
Our holding today is limited to the availability of an appeal and appropriateness of a writ of
certiorari in this unique situation.
Petition denied.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Dodds, Kidd, Ryan & Rowan, by: Lucas Rowan and Catherine A. Ryan, for appellee.