National Bank of Commerce v. Quirk

Full title: NATIONAL BANK OF COMMERCE, et al. v . J. Gerald QUIRK, M.D., et al

Court: Supreme Court of Arkansas

Date published: Jun 3, 1996

922 S.W.2d 717 (Ark. 1996)

922 S.W.2d 717

Opinion

94-575

Opinion delivered June 3, 1996

APPEAL ERROR — MOTION TO AMEND MANDATE GRANTED IN PART — COSTS FOR RECORD AMENDED. — Where, in the instant case, the appellate court affirmed in part and reversed in part the decision of the trial court, the supreme court granted in part and denied in part appellants' motion to amend the mandate, awarding appellants one-half of the amount of the requested costs for the record because of the partial reversal.

Motion to Amend Mandate; granted in part; denied in part.

Davidson Associates, P.A., by: Bob Davidson; and Bernard Whetstone, P.A., by: Bernard Whetstone, for appellants.

Friday, Eldredge Clark, by: J. Phillip Malcom, for appellees.

PER CURIAM.

Appellants, National Bank of Commerce, et al., have filed a "motion to amend mandate" and request additional costs on appeal. In the mandate issued April 5, 1996, costs on appeal were awarded as follows: Appellants' Brief $500.00; Record $2,442.75; Filing Fee $100.00. The appellants submit that the total cost for preparing the record was $26,009.98; therefore, the appellants contend that they are entitled to an additional $23,567.23 for the cost of producing the record.

[1] Arkansas Supreme Court Rule 6-7, Taxation of Costs, provides in part:

(b) Reversal. The appellant may recover brief costs not to exceed $3.00 per page; total costs not to exceed $500.00, the filing fee of $100.00 and the certified costs of the transcript.

(c) Affirmed in Part and Reversed in Part — Law. In cases at law, the appellant is entitled to the appeal costs if a reversal is ordered, and a substantial recovery is made.

In the instant case, we affirmed in part and reversed in part the decision of the trial court. Because of the partial reversal, we award the appellants one-half of the amount of the requested costs for the record. See In Re Marriage of Swanson, 904 S.W.2d 88 (Mo.App. S.D. 1995); Steffens v. Paramount Properties, Inc., 667 S.W.2d 725 (Mo.App. E.D. 1984); see also 5 Am. Jur. 2d, Appellate Review § 935 (1995). Consequently, we amend the mandate to award costs on appeal as follows: Appellants' Brief $500.00; Record $13,004.99; Filing Fee $100.00.

DUDLEY, GLAZE, and BROWN, JJ., not participating.

Special Justices James McLarty and W. Kelvin Wyrick would award the entire amount requested by the appellants.