Cite as

SUPREME COURT OF ARKANSAS No. CV-22-636

Opinion Delivered: June 8, 2023 VICTOR BERNARD WILLIAMS, M.D. APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT V. [NO. 60CV-14-808]

BAPTIST HEALTH D/B/A BAPTIST HONORABLE TIMOTHY DAVIS HEALTH MEDICAL CENTER, ET AL. FOX, JUDGE APPELLEES AFFIRMED.

RHONDA K. WOOD, Associate Justice

This appeal is from a circuit court’s award of attorneys’ fees after a medical doctor

unsuccessfully sued a hospital following its revocation of his medical-staff and surgical

privileges. The doctor challenges whether the timing of the attorneys’-fees award was

defective, whether the hospital’s noncompliance with its bylaws negated his attorneys’ fee

liability, and whether the court entered the award amount prematurely. We affirm because

we conclude the attorneys’ fees request was timely, the hospital’s compliance with the

bylaws was law of the case, and the circuit court followed the applicable rules and acted

within its discretion in entering its order.

I. Factual Background

Dr. Victor Williams sued Baptist Health and others after his medical-staff

membership and surgical privileges were terminated. The termination stemmed from

allegations that Dr. Williams—a surgeon—provided care that fell short of standard surgical practice. The circuit court dismissed all of Dr. Williams’s claims. Most were dismissed by

summary judgment in 2015 and 2016. One final claim went to a bench trial, and the circuit

court dismissed that claim by an order entered in April 2017. On appeal, we affirmed the

bulk of the circuit court’s rulings but remanded on three claims because of a discovery error.

Williams v. Baptist Health,

,

(“Williams I”).

On remand, the circuit court dismissed the remaining claims with prejudice. The

court entered its order on April 14, 2022. Baptist Health Defendants1 filed a motion for

attorneys’ fees and costs on April 28. The motion cited an agreement signed by Dr. Williams

when he first applied for medical-staff privileges at Baptist Health. The agreement set out

that Dr. Williams would reimburse Baptist Health and its representatives for attorneys’ fees

if he brought a lawsuit that largely did not succeed:

I agree that in the event I institute litigation against any Baptist Health facility and/or representative and the relief and/or damages I request in such litigation are not granted or substantially granted by final judgment of a court of competent jurisdiction, then I will reimburse the Baptist Health facility and all representatives who are defendants in such action for reasonable attorney’s fees and other reasonable expenses incurred by them in the defense of such litigation.

Dr. Williams objected to the fee request. He first argued that Baptist Health

Defendants’ request was untimely. He contended they should have moved for fees when

the circuit court dismissed his sole claim that went to a bench trial in April 2017 rather than

waiting until a final judgment after remand following his appeal. Dr. Williams also argued

1 Baptist Health d/b/a Baptist Health Medical Center and these individuals are referred to collectively as Baptist Health Defendants: Doug Weeks, Tim Burson, M.D.; Scott Marotti, M.D.; Frederick A. Meadors, M.D.; Robert Casali, M.D.; T. Robert Moffett, M.D.; Susan Keathley, M.D.; William Everett Tucker, Jr., M.D.; and Chris Cate, M.D.

2 that Baptist Health violated its bylaws and breached its agreement with Dr. Williams, thus

precluding the recovery of attorneys’ fees. Dr. Williams also requested that the court give

him a chance to make adversary submissions. Yet Dr. Williams submitted no adversary

evidence—such as depositions or affidavits—and never asked the circuit court for a hearing.

Baptist Health Defendants replied on May 19. No other filings were submitted. The

motion thus being ripe for decision, on June 24, the circuit court granted Baptist Health

Defendants’ motion. In its order, the court considered and applied the relevant factors

bearing on a reasonable attorneys’ fee award. See Chrisco v. Sun Indus.,

,

(1990). The court then awarded Baptist Health Defendants $465,240 in

attorneys’ fees and $23,860.66 in costs. Dr. Williams appealed and makes the same three

arguments to us that he made to the circuit court.

II. Law and Analysis

A. Timeliness

Generally, a party seeking attorneys’ fees must file and serve a motion “no later than

14 days after entry of judgment.” Ark. R. Civ. P. 54(e)(2). A “judgment” under Rule 54 is

“one that dismisses the parties, discharges them from the action, or concludes their rights to

the subject matter in controversy.” Worsham v. Day,

,

. “This court has consistently interpreted Ark. R. Civ. P. 54(e) to be applicable only

upon an entry of judgment that finally concludes the controversy for which attorneys’ fees

are sought.” Id. at 5, 574 S.W.3d at 153–54. When an appellate court remands a case for

further proceedings on a claim, a Rule 54 judgment arises only after the circuit court

disposes of the remanded claim. See Jones v. Flowers,

,

,

3 555 (2008). “A new period for filing will automatically begin if a new judgment is entered

following a reversal or remand by the appellate court or the granting of a motion under

Rule 59.” Ark. R. Civ. P. 54, Rpt. Notes 1997. The Rule 54 judgment was entered on

April 12, 2022. This is when the circuit court fully resolved all claims in Baptist Health

Defendants’ favor after our remand in Williams I. Because the motion for attorneys’ fees was

filed on April 28, it fell within the fourteen-day period and was timely.

B. Liability for Attorneys’ Fees

Dr. Williams next argues that Baptist Health Defendants were not entitled to

attorneys’ fees under the agreement. Dr. Williams argues that Baptist Health failed to comply

with medical-staff bylaws while terminating his medical-staff membership and surgical

privileges, thus negating his liability for attorneys’ fees under the agreement.

But in Williams I, we rejected the argument that Baptist Health failed to follow its

bylaws. “[W]e agree with the circuit court that the actions taken by Baptist Health appellees

with respect to Dr. Williams’s administrative-review proceedings substantially complied

with Baptist Health’s bylaws and professional-staff rules.” Williams I,

,

. This holding has become law of the case. It has preclusive effect both

upon the circuit court on remand and upon an appellate court on subsequent review. See

Clinical Study Centers, Inc. v. Boellner,

,

. We cannot

revisit this ruling now.2

2 To the extent Dr. Williams has tried to raise a separate issue about mutuality of obligations, he failed because it remained dependent entirely on his argument that Baptist Health failed to comply with its bylaws. See Appellant’s Brief at 23 (“Since the Baptist Appellees failed to comply with . . . the specific medical staff bylaw provisions . . . the

4 C. Two-Stage Decision

Last, Dr. Williams argues that the circuit court should have decided whether he was

liable for attorneys’ fees first and then allowed him to later make adverse submissions as

permitted by Rule 54(e)(3). But the rule doesn’t require courts to make attorneys’-fees

decisions in two stages. Rather, “the court may determine issues of liability for fees before

receiving submissions bearing on issues of evaluation of services for which liability is

imposed by the court.”

Rule 54(e) cross-references Rule 43(c) and Rule 78, giving circuit courts the

flexibility to handle the matter either by motion or with a hearing. Rule 43(c) allows the

court to consider both affidavits and deposition testimony when resolving a motion based

on facts absent from the record. And Rule 78(c) discusses, in part, the circumstances in

which the court “may hold a hearing on a motion” (emphasis added); yet if a hearing is not

requested, “a hearing will be deemed waived and the court may act upon the matter without

further notice.”

It appears from Dr. Williams’s brief that he thinks we should reverse and remand for

the circuit court to reconsider his liability for attorneys’ fees and then also allow him the

chance to make adverse submissions about the reasonableness of Baptist Health’s fee request,

which he failed to do initially. Yet Baptist Health Defendants filed a motion for attorneys’

fees with over two hundred pages of supporting fee documentation. Dr. Williams’s response

did not seek a hearing or directly contest the itemized fee documentation. He did not

attorney fee provisions . . . should be void and unenforceable as there was no mutuality of obligations.”).

5 analyze and suggest how application of the Chrisco factors would negate or lessen the

requested fees. Nor did Dr. Williams submit additional evidence, such as affidavits or

depositions, that would impact the circuit court’s decision on attorneys’ fees. Instead, Dr.

Williams asked the court to reach the liability issue first and then allow him to submit

adversary documentation.

Our rules do not oblige the circuit court to grant this request. The plain language of

Rule 54 provides that a circuit court may determine issues of liability before receiving

submissions, not that it shall. This language is permissive, not mandatory. Nor do the rules

require that the circuit court hold a hearing when one is not requested. Again, the language

from the rule is permissive, not mandatory: “The court, upon notice to all parties, may hold

a hearing on a motion . . . .” Ark. R. Civ. P. 78(c) (emphasis added). And if no hearing is

requested, then a hearing will be deemed waived.

If Dr. Williams wanted to submit adversary documentation, he should have done so

in the months following the motion for attorneys’ fees or requested a hearing and presented

it then. Instead, he simply responded to Baptist Health Defendants’ motion with procedural

arguments that did not directly challenge Baptist Health’s substantive request for fees. By

the time the circuit court entered its ruling granting attorneys’ fees, the motion was ripe for

decision. We have said before that we will not let a party remain silent on attorneys’ fees

and decline to take full opportunity when the matter is squarely before the circuit court. See

Hargis v. Hargis,

,

, 211–12.

Last, Dr. Williams has not challenged the award amount specifically, nor has he

asserted that the circuit court abused its discretion in the application of the Chrisco factors.

6 Given our standard of review, which is abuse of discretion, we affirm the circuit court’s

attorneys’ fee award on this record. See KBX, Inc. v. Zero Grade Farms,

,

(describing standard of review).

Affirmed.

Andre K. Valley, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Byron Freeland and Audra

K. Hamilton, for appellees.

7