16
On October 19, 2017, the Arkansas Supreme Court
issued its opinion “revers[ing] the [trial] court’s [original] order” and “remand[ing] for entry of a final judgment consistent with the mandate” of this Court. Pet.
App. 15a. The mandate issued on November 7, 2017,
returning jurisdiction to the trial court. Docket Sheet,
Ark. S. Ct., No. CV-15-988. The trial court entered the
final judgment directed by the Arkansas Supreme
Court on December 8, 2017, when the trial court entered its injunction requiring Respondent to “issue
birth certificates to all same sex spouses and opposite
sex spouses in accordance with the mandate from the
United States Supreme Court and the Arkansas Supreme Court.” Pet. App. 6a. Therefore, under Rule
54(e), any motion for attorney’s fees—including for
time expended at the appellate level—was due on December 22, 2017.
Petitioners did not file a motion for appellate fees
in the trial court by that deadline. Instead, they filed a
“protective” motion for appellate fees in the Arkansas
Supreme Court on November 21, 2017. Supp. App. 5.
This was procedurally deficient for two reasons. First,
as noted earlier, a motion for attorney’s fees is only appropriate after the entry of a final judgment. See Jones,
283 S.W.3d at 555. Final judgment would not be entered for several weeks from Petitioners’ fee motion,
and the issue was therefore not ripe for consideration.
Second, the Arkansas Supreme Court’s mandate had
already issued by the time Petitioners filed their fee
motion, returning jurisdiction over the case to the trial
court.