BEFORE ROY NOBLE LEE, DAN LEE and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Hughes Equipment Company, a/k/a Stribling Equipment Company [Hughes] appeals from a judgment of the Circuit Court
of Adams County awarding attorney's fees in the sum of three thousand dollars ($3,000) to Grover Fife [Fife] after a voluntary dismissal by Hughes of a complaint filed by it against Fife, Linnie Schuchs, and Fife Oil Field, Inc. Hughes cross-appeals, contending that in the event attorney's fees were properly allowed, the fees were excessive.
The appellant assigns four (4) errors in the trial below. We address only the first assignment, which is dispositive of the case.
DID THE LOWER COURT ERR IN GRANTING ATTORNEY'S FEES?
On June 25, 1982, prior to the institution of suit on September 20, 1982, the attorney for Hughes wrote Fife a letter advising that Fife's outstanding account in the sum of eighteen thousand two hundred fifty-five dollars seventy-six cents ($18,255.76) had been placed with him for collection, the letter following provisions of Mississippi Code Annotated 11-53-81 (1972), as amended, and that attorney's fees would be claimed in the event the account was not paid. The record does not indicate that any response was made to that letter. After the suit was filed, Fife filed an answer, affirmative defenses and a counterclaim for a declaratory judgment as to his non-liability. Subsequently, an amended answer and affirmative defenses were filed enlarging upon the affirmative defenses.
On April 4, 1983, Hughes filed a motion to dismiss its suit and the counterclaim with prejudice, stating that Hughes' claim had been successfully settled with one of the defendants; that there was no necessity of Hughes pursuing its claim against the individual defendant (Fife); and that the counterclaim for declaratory judgment on behalf of Fife should also be dismissed as moot. On April 14, 1983, Fife filed a motion to dismiss his counterclaim, and on April 15, 1983, the Court found that Fife's motion was well taken and ordered the counterclaim against Hughes dismissed, without further explanation.
On April 20, 1983, the court sustained the motion of Hughes for dismissal of its complaint and entered the following order:
CAME ON THIS DAY for hearing upon the motion of the Plaintiff, HUGHES EQUIPMENT COMPANY, for an Order of Dismissal with prejudice, and the Court, finding that it has jurisdiction of the parties and of the subject matter, and further finding that the
Defendants have no objection to the motion of the Plaintiff, the Court finds the motion well taken and that it should be granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this cause is hereby dismissed with prejudice and that all costs will be assessed against the Plaintiff herein.
SO ORDERED AND ADJUDGED, this the 20th day of April, 1983.
Previously, on April 4, 1983, Fife filed a motion for attorney's fees and expenses, which motion was heard by the lower court April 25, 1983, and, on the same date, an order was entered granting Fife's motion for attorney's fees and allowing three thousand dollars ($3,000). The order provided in part the following:
That the Motion of the defendant Grover Fife is well taken and is hereby granted, said defendant is the prevailing party in this lawsuit; and, pursuant to Rules 41 and 54, Mississippi Rules of Civil Procedure, said defendant is entitled to and is hereby awarded all costs in this action; and, further, under the authority of Section 11-53-81, Mississippi Code (1972) as amended, said defendant is entitled to and is hereby awarded a reasonable attorney's fee against the plaintiff Hughes Equipment Company, which ...