Jewell v. Fletcher , 377 S.W.3d 176 ( 2010 )

DONALD L. CORBIN, Justice.

| ¶ This is an appeal from an order of the Pulaski County Circuit Court entered on December 9, 2008, in the course of a judicial-dissolution proceeding. Appellant Barry Jewell appeals that part of the order denying his motion to vacate a judgment entered in favor of his former law partner, Appellee/Cross-Appellant Scott Fletcher. Debra Worley, as Special ^Administrator of the Estate of Micheál D. Sims,¹ filed a cross-appeal from that part of the order approving the claim filed by Sims in the dissolution action but rejecting his request to order an unwinding of previous distributions in order to satisfy his claim. Fletcher also cross-appeals that part of the order approving Sims’s claim, arguing that no proof was submitted to support the claim. Because this is a subsequent appeal, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(7) (2009). As to Jewell, we affirm. As to Sims, we reverse and remand, and we affirm on Fletcher’s cross-appeal.

This is the third time that this court has had proceedings stemming from the judicial dissolution of the law firm of Jewell, Moser, Fletcher & Holleman, P.A. (JMFH). The underlying facts that precipitated this lengthy litigation were set forth in detail by this court in Sims v. Fletcher, 368 Ark. 178, 248 S.W.3d 863 (2006), part of which can be summarized as follows:

Jewell, a shareholder in JMFH, filed a complaint seeking judicial dissolution and an accounting of JMFH’s assets in Pulaski County Circuit Court on June 19, 2003, alleging that the members of the firm stopped practicing law together on or about August 31, 2002, but continued to collect receivables owed to the firm. Fletcher, also a shareholder at one time, filed a counterclaim against Jewell on July 16, 2003, asserting causes of action for breach of contract, unjust enrichment, breach of fiduciary duty, defamation, intentional destruction of property, fraud, and negligence. Moser, also a shareholder, filed a motion to dismiss Jewell’s complaint pursuant to Ark. R. |3Civ. P. 12(b)(6). In response to Fletcher’s counterclaim and Moser’s motion to dismiss, Jewell filed a motion for summary judgment, asserting that Moser had lost his license to practice law and was no longer a shareholder in JMFH and that Fletcher was also no longer a shareholder and, thus, neither party had standing to challenge the dissolution. The court entered an order on September 22, 2004, granting Jewell’s motion for summary judgment as to the dissolution of JMFH. The trial court subsequently appointed Milas “Butch” Hale to serve as the receiver for JMFH pursuant to Ark.Code Ann. § 4-27-1432 (Repl.2001).

Following entry of the trial court’s order with regard to dissolution, Holle-man, the fourth shareholder of JMFH, sought to intervene in the proceeding in order to seek salaries and benefits owed to him pursuant to his employment agreement with JMFH. The trial court granted Holleman’s motion to intervene. Appellants also sought to intervene in this case in order to assert claims against JMFH, but the trial court determined that their interests would be adequately protected and that it was not appropriate for creditors to intervene in a judicial-dissolution proceeding.

As the dissolution proceeded, the trial court held a hearing on November 8, 2005, to begin adjudicating claims and to take testimony on what assets belonged to the firm, as opposed to individual shareholders. Hale presented the court with a list of claims filed to date and the trial court announced that as long as claims had been filed within the time period established by the receiver, it would allow creditors to amend or supplement claims if needed. The trial court then proceeded to hear testimony and take evidence with regard to what assets belonged to JMFH and what assets belonged to certain individuals, including whether certain fees collected by Holleman after the dissolution proceeding began were fees that belonged to JMFH or to Holleman and Holleman & Associates.

At the conclusion of the hearing, the court instructed the parties, including the creditors, to submit simultaneous briefs on the issues of what assets belong to JMFH and whether, under the receivership statutes, the shareholders had any standing to object to the receiver’s recommendation regarding what claims should be accepted....

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14After the parties submitted their briefs, the trial court entered an order on December 29, 2005, finding that the effective date of JMFH’s dissolution was July 25, 2002, and issuing orders that Jewell, Fletcher, and Holleman pay certain monies into the court’s registry for fees that had been recovered on behalf of JMFH. In addition, the trial court ruled that a default judgment obtained by Sims in Lonoke County was void ab initio because the Lonoke County Circuit Court was divested of jurisdiction once the claim for judicial dissolution was filed in Pulaski County. Sims and the other creditors were given thirty days to file additional evidence supporting their claims against JMFH.

Following the submission of amended claims, the trial court entered an order allowing certain claims sought by Jewell, Fletcher, and Holleman, as well as a claim by creditor Betty Hoyt. Appellants’ claims were summarily denied. They filed a joint motion for reconsideration or new trial, and requested the court to issue findings of fact and conclusions of law. The trial court never ruled on either motion, and the motions were subsequently deemed to be denied. No order was ever entered with regard to the causes of action brought by Fletcher in his counterclaim against Jewell.

Id. at 180-82, 243 S.W.3d at 864-65.

Sims and the other creditors appealed the circuit court’s order to this court, but we dismissed the appeal for lack of a final order. Sims, 368 Ark. 178, 243 S.W.3d 863. At the time that Sims filed his direct appeal, he also filed a petition for certiorari or, alternatively, prohibition. Sims v. Cir. Ct. of Pulaski County, 368 Ark. 498, 247 S.W.3d 493 (2007). Therein, he requested, among other relief, that this court prohibit the circuit court from voiding the default judgment he obtained in Lonoke County. Sims also moved for a temporary stay to prohibit the circuit court from disbursing any funds held in the court’s registry as part of the dissolution proceeding, which this court granted. On January 18, 2007, we denied Sims’s request for an extraordinary writ on the basis that he had an adequate | ¡-.remedy available in the nature of a direct appeal. Id. That same day, the circuit court entered an order directing the Pulaski County clerk to disburse the majority of funds held in the court’s registry.

The circuit court subsequently held a hearing regarding Fletcher’s counterclaim against Jewell and entered an order finding, in relevant part, that Fletcher was entitled to judgment against Jewell for office expenses incurred pursuant to an oral agreement between Fletcher and Jewell, in the principal amount of $49,095.15. This order was entered of record on August 1, 2007.

Once the final order was entered, the parties again appealed to this court. In Sims v. Moser, 373 Ark. 491, 284 S.W.3d 505 (2008), Sims argued that the circuit court erred in voiding the default judgment he had obtained in Lonoke County. Sims and the other appellants, who are no longer a part of this litigation, also argued that they were denied due process when the circuit court denied their claims without a hearing. This court agreed, explaining that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Accordingly, we reversed and remanded the matter so that the claimants could present their claims at a meaningful hearing.² We did not, however, address Sims’s request that we order the circuit court to unwind the previous distributions. Doing so would have | firequired us to issue an advisory opinion as Sims’s claim had not yet been approved, and this court will not issue advisory opinions. Riceland Foods, Inc. v. Pearson, 2009 Ark. 520, 357 S.W.3d 434.

Following remand, Jewell filed a motion to vacate the August 1, 2007 judgment entered against him in favor of Fletcher. Jewell argued that Fletcher had defrauded the court by testifying that he had never benefitted from any immunity agreements in the course of a federal investigation into Jewell and a pending federal indictment against him. According to Jewell, because their case came down to credibility, Fletcher’s perjured testimony rendered the resulting judgment void.

Also on remand, Sims filed a bench memorandum arguing that because his claim was in the form of a judgment, it was not subject to a collateral attack. He further argued that because he was denied due process, he should not be placed at a disadvantage to those claimants who were afforded due process.³ Sims requested that the circuit court approve his claim and order a refund of previously disbursed funds in an amount sufficient to pay that claim.

A hearing was held in circuit court on October 31, 2008. The court entered a written order on December 9, 2008, ruling relevant to this appeal, that: (1) Jewell’s motion to vacate was denied; (2) Sims’s claim against JMFH was approved in the amount of $683,757.05, an amount representing the default judgment, less $40,000 received by Sims from the Arkansas 17Supreme Court Client Security Fund, and less $16,740 that Sims’s accounting showed applied to a judgment against Keith Moser, rather than a judgment against JMFH; (3) Sims’s request to unwind the previous court orders disbursing funds to JMFH’s shareholders was denied because Sims failed to obtain a stay of those judgments or post a supersedeas bond; and (4) Sims’s request that JMFH’s shareholders be required to refund previously awarded funds was also denied. This appeal followed.

Jewell’s Appeal

As his sole point on appeal, Jewell argues that the circuit court abused its discretion in denying his motion to vacate the judgment entered against him on August 1, 2007, and awarding Fletcher $49,095.15 for recoupment of office expenses. Specifically, Jewell argues that the order should be vacated pursuant to Ark. R. Civ. P. 60(c)(4) on the basis of Fletcher’s purported fraud and misrepresentation. Fletcher counters that Jewell cannot establish the essential elements of fraud, particularly that the alleged misstatements were material and that the trial court relied on the false statement in ruling as it did.

We note at the outset that it is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and the question on appeal becomes whether there has been an abuse of that discretion. See New Holland Credit Co., LLC v. Hill, 862 Ark. 329, 208 S.W.3d 191 (2005).

Rule 60(c) states in relevant part:

(c) Grounds for Setting Aside Judgment, Other than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment |s[which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:

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(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.

Ark. R. Civ. P. 60(c)(4) (2009). Thus, pursuant to Rule 60(c)(4), a judgment may be vacated more than ninety days after being filed with the clerk where there was misrepresentation or fraud.

Here, the allegations of fraud center around testimony given by Fletcher at the August 1, 2007 hearing concerning Fletcher’s counterclaim against Jewell. Fletcher alleged that he had an oral contract with Jewell to share office expenses from September through December of 2002, with the men agreeing to split everything fifty-fifty. According to Fletcher, Jewell told him that it would take some time to accumulate enough cash flow to begin paying his half of the expenses. Fletcher stated that he agreed to pay all the expenses until the end of the year, at which time Jewell was to pay him back. Before the end of the year, however, the two began disagreeing about the amount Jewell owed. Fletcher claimed that Jewell owed him approximately $49,000, while Jewell believed he owed approximately $36,000.

On cross-examination, counsel for Jewell asked Fletcher if he had had any conversations with anyone from the U.S. Attorney’s Office or the Department of Justice regarding Jewell and an ensuing federal investigation of him. He also asked Fletcher if he had |9any type of immunity agreements or other agreements with any law enforcement agencies to provide testimony against Jewell. Fletcher admitted that he had talked with certain people but denied having any type of immunity agreements. The following colloquy ensued:

[Counsel for Jewell]: Do you have any sort of immunity agreement with any law enforcement agency?

[Fletcher]: No.

[Counsel FOR Jewell]: Do you have any understanding, either verbal or written, with any sort of law enforcement agency?

[Fletcher]: No.

[Counsel for Jewell]: Have you agreed with any law enforcement agency to provide testimony against Barry Jewell?

[Fletcher]: No.

Thereafter, Jewell, who was facing a pending federal indictment related to his association with JMFH, asserted his Fifth Amendment privilege against self-incrimination in response to questions from counsel for Fletcher. As previously mentioned, the circuit court ultimately entered an order awarding $49,095.15 to Fletcher on his counterclaim.

The federal case against Jewell proceeded to trial and during the course of this trial, Jewell learned that Fletcher did have certain agreements with federal authorities. Fletcher testified that he obtained a “Kastigar letter” in 2002 that provided that any statements Fletcher made during a proffer discussion regarding a criminal investigation by the Justice Department could not be offered by the government in its case-in-chief in a criminal prosecution of Fletcher. The second agreement was executed in 2006 and granted Fletcher use immunity 1 inin exchange for his proffer of information. It was this information that Jewell relied on in his motion to vacate pursuant to Rule 60(c)(4), arguing that it constituted fraud and misrepresentations perpetrated by Fletcher. The circuit court entered an order on December 9, 2008, denying the motion to vacate.

On appeal, Jewell asserts that the circuit court abused its discretion in denying the motion to vacate because the evidence he submitted established that Fletcher made a false representation of fact in denying the existence of any immunity agreements; that Fletcher knew the statements were false; that he made them in order to bolster his own credibility; and that the circuit court relied on Fletcher’s misrepresentations. Thus, according to Jewell, Fletcher’s credibility was of paramount importance to the circuit court’s ruling, and Jewell was harmed because this evidence demonstrating Fletcher’s bias against Jewell was excluded. Jewell further asserts that had he been allowed to explore this bias, the circuit court could have found that Fletcher’s testimony was not credible and rejected it. To the contrary, Fletcher asserts that the circuit court did not abuse its discretion in denying Jewell’s motion to vacate because his answers to Jewell’s questions at the 2007 hearing were accurate and thus could not constitute fraud. Fletcher further asserts that he did not have immunity from prosecution for any of his acts or conduct; rather, the government agreed not to use specific statements against him.

In order to prove fraud, a plaintiff must prove five elements under Arkansas law: (1) that the defendant made a false representation of material fact; (2) that the defendant knew |nthat the representation was false or that there was insufficient evidence upon which to make the representation; (3) that the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the representation; and (5) that the plaintiff suffered damage as a result of the false representation. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). The party seeking to set aside a judgment on the basis of fraud has the burden of proving fraud by clear, cogent, and convincing evidence, or, as our courts have sometimes said, clear, strong, and satisfactory proof. Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006).

No judgment will be set aside, however, unless the defendant asserts a valid defense to the plaintiffs action in his or her motion and, upon hearing, makes a prima facie showing of such a defense. Ark. R. Civ. P. 60(d) (2009); see also Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987) (holding that judgments will not be vacated unless a meritorious defense is alleged and proved). This court has defined a “meritorious defense” as the following:

[Ejvidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

Martin v. Jetkins, 320 Ark. 478, 479, 897 S.W.2d 567, 567 (1995) (quoting Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-84 (1982)).

Here, we simply cannot say that Jewell’s allegation that Fletcher perjured himself is a valid defense to the action for breach of an oral contract. Even if we were to agree that Fletcher’s testimony constituted fraud or misrepresentations, the asserted link between haFletcher’s fraud and the court’s entry of judgment on the oral contract is simply too tenuous to support a conclusion that Jewell established a prima facie showing of an affirmative defense to the breaeh-of-contract claim. Moreover, Jewell and Fletcher were embroiled in a heated judicial dissolution of their former law firm. It was no secret that there was animosity between the two men, and this was information known to the circuit court when it found Fletcher’s testimony regarding the oral contract to be credible. Accordingly, the circuit court did not abuse its discretion in denying Jewell’s motion to vacate.

Sims’s Appeal

We turn now to Sims’s arguments. First, Sims argues that he was again denied his right to due process because upon remand the circuit court, while providing him with a hearing, failed to provide any meaningful opportunity to protect his rights. According to Sims, the October 31, 2008 hearing was meaningless with respect to his property rights and did not satisfy the requirements of due process. Fletcher and Holleman assert that Sims’s argument is without merit, as he received a full and fair hearing on October 31, as evidenced by the fact that the circuit court approved Sims’s claim. Moreover, they assert that Sims was not entitled to an unwinding of previous distributions because he had failed to seek or obtain a stay of enforcement of those orders or posted the necessary supersedeas bond prior to his previous appeal. We agree with Sims that he has again been denied due process.

The appropriate starting point for our analysis of Sims’s due-process argument is this court’s very discussion of due process in our decision from 2008, where we stated as follows:

11sThe fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer great loss.” It depends upon whether the interest in avoiding that loss outweighs the governmental interest in summary adjudication. Thus, determining what process is due involves the consideration of three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Sims, 373 Ark. at 499, 284 S.W.3d at 513 (citations omitted) (quoting Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 119-20, 129 S.W.3d 822, 827-28 (2003)). The key language here is that due process requires an opportunity to be heard at “a meaningful time and in a meaningful manner.” Id. Similarly, this court stated that “[d]ue process requirements are satisfied if the property owner has reasonable notice and a reasonable opportunity to be heard and to present his claim or defense, or to protect and enforce his rights, before a tribunal having power to hear and rule his cause.” Davis v. Schimmel, 252 Ark. 1201, 1208, 482 S.W.2d 785, 789 (1972) (citing Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930)).

In the 2008 appeal, we analyzed the aforementioned requirement of due process and concluded:

In examining the due-process factors, it is initially clear that appellants have a private interest in their personal property, here, their money. What is of specific interest here is the risk of an erroneous deprivation of the claimants’ interests because they were not given the opportunity to be heard regarding 114their individual claims. Additionally, there are not additional or substitute procedural safeguards in this kind of a case because it involves the dissolution of JMFH. Once JMFH is completely dissolved and its assets are distributed, the creditors will no longer have a method to recoup JMFH’s assets to pay their claims. Finally, there is no government interest present here that outweighed the importance of giving the individual claimants an opportunity to support their claims against JMFH before a final judgment was issued.

Sims, 373 Ark. at 500, 284 S.W.3d at 514. Our opinion was clear that Sims was entitled to a meaningful hearing, and although Sims was granted a hearing following our remand, the circuit court simply granted Sims’s claim without any attempt to remedy the problem it caused in the first instance by depriving Sims of his right to due process. Holding a hearing after the funds had been distributed and subsequently failing to provide any mechanism for enforcing a valid claim does not comport with due process or with this court’s holding in 2008. This court has noted that a circuit court should look beyond the words of reversal and look to the effect of the opinion in proceeding upon remand. See Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001) (quoting Kneeland v. Am. Loan & Trust Co., 138 U.S. 509, 11 S.Ct. 426, 34 L.Ed. 1052 (1891)).

Sims states that there was approximately $2,746,813 in the court’s registry prior to the disbursements stemming from the court’s order on January 18, 2007. By the time of the hearing on October 31, 2008, however, there remained only $151 in the court’s registry. According to Sims, in order for the October 31 hearing to be meaningful as required by the Due Process Clause, he had to have been afforded the opportunity to collect on his claim in the same manner, as if his rights had never been violated in the first place. Sims further asserts |1Bthat the circuit court placed an additional burden on him by requiring him to overcome the burden of seeking to have the prior distributions unwound.

The United States Supreme Court’s decision in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), is instructive on this point. There, the Supreme Court was presented with a situation wherein the Florida Supreme Court declared a tax to be unconstitutional and ordered prospective relief in the form of an injunction. The Florida Supreme Court, however, refused to order a refund of the illegally paid taxes. In reversing, the United States Supreme Court concluded that prospective relief, by itself, was an insufficient remedy. The Court stated as follows:

If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax’s legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation.

Id. at 31, 110 S.Ct. 2238 (footnotes omitted). Just as the state of Florida was required to provide some backward-looking relief to rectify an unconstitutional deprivation, so was the circuit court in this case. The circuit court’s action of holding a hearing and summarily affirming Sims’s claim, without providing a mechanism to enforce the subsequently approved claim, was not sufficient to satisfy the “meaningful” requirement of due process.

That leads us to the arguments raised by Fletcher and Holleman that Sims was not entitled to have the distributions unwound because he failed to obtain a stay or post a sup'ersedeas bond. They raised this argument for the first time to the circuit court at the | ^October 31, 2008 hearing. Consequently, while the circuit court approved Sims’s claim, it refused to unwind the distributions or to order the shareholders to refund monies previously paid to them. Now, on appeal, Fletcher and Holleman assert that the circuit court correctly denied Sims’s requested relief because of his failure to obtain a stay or post a bond prior to his previous appeal. Under the doctrine of law of the case, because Fletcher and Holleman failed to raise this argument to this court in the 2008 appeal, they were precluded from raising it to the circuit court on remand and, likewise, cannot now assert it as a basis for affirming the circuit court.

The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d 64; Jones v. Double “D” Props., 357 Ark. 148, 161 S.W.3d 839 (2004). The doctrine provides that a decision of an appellate court establishes the law of the case for the circuit court upon remand and for the appellate court itself upon subsequent review. See Jones, 357 Ark. 148,161 S.W.3d 839. The doctrine serves to effectuate efficiency and finality in the judicial process and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. See id. It further provides that the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. See Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999).

h7In the instant case, Fletcher and Holleman could have raised the issue of Sims’s action or inaction as to a stay or supersedeas bond to this court in the 2008 appeal. In his brief to this court in the 2008 appeal, Sims stated in his statement of the case that “[o]n January 18, 2007, the court entered an order for the disbursement of funds remaining in the court registry.” Sims then argued that this court should reverse the circuit court’s order disbursing the funds and asked that “the Pulaski County Circuit Court be ordered to collect the funds that have been distributed and re-distribute in accordance with that decision.” And, then in his prayer for relief, Sims again asked this court to reverse the order of distribution. But, neither Fletcher nor Holleman argued in response that Sims was not entitled to such relief because of his failure to obtain a stay or post a bond. Thus, according to the doctrine of law of the case, where the argument could have been raised to this court in that 2008 appeal, but was not, that issue was improperly considered by the circuit court on remand and cannot form the basis for this court’s affirmance .on such grounds. See id. This is particularly true where the arguments now raised by Fletcher and Holleman regarding the stay and supersedeas bond are based on events that transpired prior to the circuit court’s 2007 order disbursing the funds.

Even if we were to ignore this procedural defect, Fletcher and Holle-man’s arguments regarding the stay and supersedeas bond are without merit. Rule 62 of the Arkansas Rules of Civil Procedure, and Rule-8 of the Arkansas Rules of Appellate Procedure — Civil, govern super-sedeas bonds. Rule 62(d) provides that, “[w]hen an appeal is taken, the appellant by lisgiving a supersedeas bond may obtain a stay.” Ark. R. Civ. P. 62(d) (2009). Appellate Rule 8(c) provides as follows:

Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a super-sedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the circuit court.

Ark. R.App. P.-Civ. 8(c) (2009). The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal. See Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004); Ryder Truck Rental, Inc. v. Sutton, 305 Ark. 374, 807 S.W.2d 909 (1991). Rule 8(c) affords the court sufficient discretion to marshal security, so long as security remains the ultimate goal. We have further held that the bond must be sufficient in amount to guarantee that the appellant will pay the appellee “all costs and damages that shall be affirmed against appellant on appeal.” Bailey, 359 Ark. at 440, 198 S.W.3d at 518 (quoting Schramm v. Piazza, 53 Ark. App. 99, 100, 918 S.W.2d 733, 734 (1996) (per curiam)). In other words, we have consistently recognized the purpose of a supersedeas bond to be securing the payment of a judgment following affirmance on appeal. Id., 359 Ark. 424, 198 S.W.3d 506; see also Sutton, 305 Ark. 374, 807 S.W.2d 909. Thus, by the plain language of the rules and our caselaw addressing them, neither Rule 62 nor Appellate Rule 8 are applicable to this case. JMFH did not have a judgment against Sims. Sims owed JMFH nothing. It was Sims who sought to prove a claim against JMFH.

| ^Moreover, this court has recognized that a supersedeas bond is not appropriate in the absence of a judgment. Beverly Enters.-Ark, Inc. v. Cir. Ct. of Independence County, 367 Ark. 13, 238 S.W.3d 108 (2006). There, this court reversed a circuit court order requiring petitioner to post a supersedeas bond because of its uncertain financial status in the absence of any type of judgment, stating the following:

When the circuit court granted the request for the supersedeas bond under Rule 8, there was no judgment for monetary or injunctive relief to be protected by a supersedeas bond. “The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal.” A su-persedeas bond required under Rule 8 is not imposed to protect appellees against alleged financial instability of an appellant prior to an entry of judgment for damages that might never be obtained. In the present case, there was no judgment for damages on which to stay execution. The case is yet to be tried. The circuit court erred in granting the request for a supersedeas bond under Rule 8.

Id. at 16, 238 S.W.3d at 110 (citations omitted). Just as a supersedeas bond was not appropriate in Beverly, it was not appropriate here. All Sims had was a claim in a dissolution proceeding that was rejected by the circuit court.

Moreover, the circuit court’s reliance on Butt v. Evans Law Firm, P.A., 351 Ark. 566, 98 S.W.3d 1 (2003), for the proposition that Sims was not entitled to relief is misplaced. In that case, an intervenor challenged the circuit court’s order awarding attorneys’ fees in an illegal-exaction suit. This court affirmed the circuit court’s award of attorneys’ fees, even though they had been improperly calculated and were thus excessive. In so ruling, this court held that the intervenor could not “unravel attorneys’ fees” where he took “no steps to stay the order awarding attorneys’ fees or to post a supersedeas bond.” Id. at 587, 98 S.W.3d at 13 12n(emphasis added) (footnote omitted). The circuit court in the instant case concluded pursuant to our holding in Butt, that Sims should have obtained a superse-deas bond and his failure to do so prohibited him from challenging the distribution of funds. The circuit court ignored the entirety of our holding in Butt, however. We concluded that the intervenor was not entitled to disgorge the already-paid attorneys’ fees because he did not post the bond or obtain a stay.

In this case, Sims filed a motion requesting a stay of the circuit court’s distribution order after the circuit court summarily denied his claim. On February 14, 2006, the claimants, including Sims, collectively filed a motion for reconsideration or new trial, or, alternatively, for a stay of the circuit court’s order requiring payment of the other claims. Therein, they specifically requested the circuit court to “stay its order and not to authorize the disposition of any funds held in the registry of the Court until this matter can be heard on appeal.” The circuit court, however, never ruled on this motion and it was deemed denied. Sims then sought a writ of certio-rari, or alternatively prohibition, in this court, arguing that the circuit court had denied his motion for a stay. This court denied his requested writ, holding that he had an adequate remedy available to him, namely an appeal. Sims, 368 Ark. 498, 247 S.W.3d 493. Then, Sims pursued his appeal. Clearly Sims took steps to seek a stay. He could not force the circuit court to rule on his motion to stay, and when the court in fact refused to rule on it, he sought extraordinary relief in this court, which was also denied. Thus, the instant case is distinguishable, as Sims took action and attempted to |¾1 prevent the distribution of funds. He did not sit back and do nothing, as did the litigant in Butt.

Because the circuit court denied Sims his right to due process on remand by failing to provide him with a meaningful hearing and by incorrectly determining that Sims was barred from seeking relief, we reverse and remand on this point. We note that Sims requests this court to determine what mechanism, i.e., ordering an unwinding of the distributions or ordering actions against the shareholders of JMFH, shall be used to pay his claim. We decline this request, however, as it is not for this court to fashion the appropriate remedy. That is an issue to be addressed by the circuit court on remand.

Sims’s final point on appeal is that the circuit court erred in reducing his claim by $40,000 for monies paid by this court’s Client Security Fund and by another $16,740 for attorneys’ fees awarded to Sims in connection with the Lonoke County judgment that was entered against Mos-er in his individual capacity. Sims argues that these funds could not be used to reduce his claim as they constituted a collateral source. Fletcher and Holleman argue that the circuit court properly offset Sims’s claim, as the collateral-source rule is inapplicable.

The collateral-source rule is a general rule providing that recoveries from collateral sources do not redound to the benefit of the tortfeasor, even though double recovery for the same damage by the injured party may result. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007); Bell v. Estate of Bell, 318, Ark. 483, 885 S.W.2d 877 (1994); Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). For the collateral-source rule to apply, the third-party 122payment must be wholly independent of the tortfeasor. Douglas v. Adams Trucking Co., Inc., 345 Ark. 203, 46 S.W.3d 512 (2001).

The purpose of the Client Security Fund is to protect clients from losses caused by the dishonest conduct of an attorney. Healthcare Recoveries, Inc. v. Ark. Client Sec. Fund, 363 Ark. 102, 211 S.W.3d 512 (2005). Here, the Client Security Fund paid to Sims $40,000 as a result of Moser’s misdeeds. In receiving those funds, Sims had to sign an indemnity agreement promising to repay those funds if a judgment against Moser was ever obtained. Thus, the Client Security Fund was wholly independent and the funds it paid to Sims constituted a collateral source. Accordingly, it was improper for the circuit court to reduce Sims’s claims by $40,000.

We now consider the $16,740 paid as a result of an order of the Lonoke County Circuit Court regarding outstanding attorneys’ fees owed by Moser.⁴ The judgment that Sims obtained in Lonoke County was against Keith Moser, Moser & Associates, and JMFH, jointly and severally. In addition, the Lonoke County Circuit Court awarded Sims attorneys’ fees in the amount of $14,062.76, an amount that with interest now totals $16,740. After Moser received a distribution as part of the dissolution, Sims executed a writ of garnishment and received a payment of $45,140.45. From that payment, Sims allocated $16,740 of the money to cover attorneys’ fees, with the remaining funds attributed to Sims’s claim against JMFH. Sims now argues that these funds were a collateral source as well, because the judgment he | ^obtained was against Moser and JMFH jointly and severally, so that they were each liable for the entire judgment owed. We disagree with Sims. Regardless of the nature of the judgment he obtained, the fact remains that the money allocated for attorneys’ fees came from a garnishment of Moser, who was the tortfeasor. Thus, the funds were not from a wholly independent source, and the circuit court properly offset the judgment by the amount of $16,740.

Fletcher’s Cross-Appeal

Fletcher argues on cross-appeal that the circuit court erred in approving Sims’s claim in the absence of any proof supporting that claim. Fletcher argues that the circuit court ruled as a matter of law that the default judgment obtained by Sims in Lonoke County Circuit Court supported the claim without any further proof. According to Fletcher, Sims’s judgment was based on an allegation that Moser assisted in a wrongful transfer of real property valued at $650,000 and belonging to Sims and that this money was deposited in JMFH’s trust account. Fletcher argues that this transaction occurred after the dissolution date of JMFH and thus his documents on their face establish no claim against JMFH. Sims counters that the circuit court properly accepted the default judgment that was obtained against JMFH and was not required to look beyond that judgment. Sims is correct.

At the hearing upon remand, Fletcher moved for a directed verdict on the claim of Sims’s, arguing as follows:

Your Honor, we move for a directed verdict on the claim of Michael Sims. There’s been no proof of his claim. He has submitted judgments. | ^There’s no testimony about what his claim was against JMFH, whether JMFH did anything to warrant the payment of any JMFH assets to him.

The default judgment is not a claim. It does not satisfy the requirements for the claim under the dissolutions statutes. There’s been a failure of proof in that regard, so we move for a directed verdict on Sims’ claim.

The court ultimately denied the motion, allowing Sims’s claim, minus the deductions of $40,000 representing payment to Sims by the Client Security Fund and the $16,000 amount paid by Moser for attorneys’ fees.

There is no merit to Fletcher’s argument on cross-appeal. First, Fletcher fails to cite any authority in support of his argument that Sims failed to prove his claim. This court may refuse to consider an argument where appellant fails to cite any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. See Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001).

Moreover, when Sims initially presented his default judgment as a claim in the judicial-dissolution proceeding, the circuit court ruled that it was void ab initio because the Lonoke County Circuit Court lacked jurisdiction to enter an order against JMFH when it had a pending proceeding in Pulaski County Circuit Court. This court reversed that ruling, explaining that there was concurrent jurisdiction under the applicable statutory law. Thus, upon remand, Sims again presented his default judgment by submitting certified copies of records establishing that judgment. That judgment was rendered after JMFH failed to appear and defend; thus, the judgment itself reflects no factual allegations or dates as set forth by Fletcher and was evidence sufficient to support the circuit court’s approval of that claim. lafiFletcher’s argument to the contrary constitutes an impermissible collateral attack, as it is an attack on the judgment in any manner other than by an action or proceeding, whose very purpose is to impeach or overturn the judgment. See Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007).⁵ As there is no merit to Fletcher’s cross-appeal, the circuit court’s denial of his directed-verdict motion should be affirmed.

Holleman’s Argument

Lastly, Holleman argues in his brief that the circuit court erred when it deemed Sims’s Lonoke County judgment valid as a matter of law because Sims fraudulently obtained that judgment. As any attack by Holleman to the validity of the circuit court’s ruling regarding Sims’s judgment would be in the nature of a cross-appeal, it was incumbent on Holleman to file a timely notice of cross-appeal. The record reflects that Holleman did file a notice of cross-appeal, but it was untimely. Prior to filing a notice of cross-appeal, Holleman filed a posttrial motion for reconsideration but this motion was not filed within ten days of entry of the court’s order; thus, the time for filing an appeal was not extended. See Ark. R. Civ. P. 59 (2009) (a motion for new trial must be filed not later than ten days after entry of the judgment). Accordingly, Holleman’s purported notice of cross-appeal filed some months after the order was entered was in no way timely, and we are precluded from considering his argument on cross-appeal.

_|^Affirmed as to Jewell; affirmed in part; reversed and remanded in part as to Sims; affirmed as to Fletcher’s cross-appeal; dismissed as to Holleman’s cross-appeal.

BROWN and WILLS, JJ., dissent part; concur in part.

1 . Mr. Sims was killed in an automobile collision on his way to the October 31, 2008 hearing in this matter. Although the Estate is now the proper party in this appeal, we will continue to refer to Mr. Sims as the appealing party for purposes of continuity with the prior appeals decided by this court. Moreover, although Mr. Sims filed a notice of cross-appeal after Mr. Jewell filed his notice of appeal, Mr. Sims’s appeal is more in the nature of a direct appeal.

2 . In Sims, 373 Ark. 491, 284 S.W.3d 505, we also rejected Jewell’s arguments on appeal that the circuit court erred in denying his motion for continuance or for a stay of Fletcher's counterclaim

3 . Ultimately, the only claimants who received disbursements were the four shareholders of JMFH.

4 . The actual amount allocated for attorneys' fees was $16,735.45, but the circuit court rounded up that sum to $16,740.

5 . Fletcher and the others previously sought to have the default judgment set aside in Lonoke County Circuit Court and were unsuccessful.