Smith v. Quality Ford, Inc.

Dorothy J. SMITH v. QUALITY FORD, Inc.

95-1041                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Attorney's fees -- Title VII claim -- prevailing party
     entitled to reasonable fee. -- The prevailing party in a Title
     VII civil rights claim is entitled to a reasonable fee; that
     fee, commonly called the "lodestar" fee, is to be determined
     by the number of hours reasonably expended on the litigation
     multiplied by a reasonable hourly rate; where the plaintiff
     has achieved only limited success, the trial court should
     award only that amount of fees that is reasonable in relation
     to the results obtained.

2.   Attorney's fees -- Title VII claim -- party seeking award of
     fees should submit supporting evidence. -- The party seeking
     an award of fees in a Title VII claim should submit evidence
     supporting the hours worked and the rates claimed.

3.   Appeal & error -- argument raised for first time on appeal not
     considered. -- The supreme court will not contenance an
     argument raised for the first time on appeal.

4.   Civil procedure -- findings by court -- court must make
     special findings of fact upon request -- failure to request
     amounts to waiver. -- Under Ark. R. Civ. P. 52(a), in all
     contested actions tried upon the facts without a jury, the
     court, if requested by a party, shall find the facts specially
     and state separately its conclusions of law, and judgment
     shall be entered pursuant to Ark. R. Civ. P. 58; while Ark. R.
     Civ. P. 52 is similar to the federal rule, Fed. R. Civ. P.
     52(a), the Arkansas rule retains prior state law by which the
     failure of a party to request special findings of fact
     amounted to a waiver of that right; further, Rule 52(b)
     provides that upon motion of a party within ten days after
     entry of judgment, the court may amend its findings and
     judgment accordingly.

5.   Civil procedure -- findings by court -- no request by
     appellant -- right waived. -- Where there was nothing in the
     record to show that appellant requested the trial court to
     make specific findings of fact and conclusions of law either
     prior to or after entry of the judgment, she waived her right
     under Ark. R. Civ. P. 52.


     Appeal from Pulaski Chancery Court; Vann Smith, Chancellor;
affirmed.
     John W. Walker, P.A., by: John W. Walker and Mark Burnette,
for appellant.
     Everett O. Martindale, for appellee.

     Tom Glaze, Justice.April 29, 1996   *ADVREP7*






DOROTHY J. SMITH,
                    APPELLANT,

V.

QUALITY FORD, INC.,
                    APPELLEE.



95-1041

Opinion Delivered:  4-29-96

APPEAL FROM THE CHANCERY COURT
OF PULASKI COUNTY, ARKANSAS,
NO. 91-6929, HONORABLE VANN
SMITH, CHANCELLOR


AFFIRMED





                  TOM GLAZE, Associate Justice

     On June 15, 1987, Quality Ford hired Dorothy Smith as an
officer manager, and this litigation ultimately ensued as a result
of the company's discharge of Smith in October 1991.  During her
more than four years of employment, Smith's responsibilities
included co-signing checks and insuring invoices were paid.  Larry
Duncan, who was hired in 1988, was Smith's immediate supervisor,
and after being on the job for a short period of time, he formed
the suspicion Smith was stealing company funds, but he had no
proof.  Duncan related his suspicions to LeMon Henderson, the
majority stockholder of the company, who told Duncan to get a
replacement for Smith.  Duncan had difficulties in obtaining a
replacement, so Smith continued in her position.
     In 1989, Henderson suspected either Duncan or Smith were
converting company funds, so he hired certified public accountants
to determine if employees were embezzling funds.  Eventually in
1991, one of the accountants discovered that Smith had been
altering Quality Ford checks and converting those checks and funds
to her personal accounts.  In August 1991, Smith, who is black,
filed an EEOC claim, alleging racial discrimination by Duncan, who
is white.  Later in October 1991, Henderson, who is black,
suspended Smith, and informed Smith she had failed to carry out her
duties by not forwarding correspondence from the EEOC to his
attention.  Smith immediately responded by filing another EEOC
claim, alleging retaliatory discharge, and later filed another
complaint alleging gender discrimination.
     On November 13, 1991, Quality Ford filed a civil suit against
Smith, seeking the money she converted, and the next day, Smith was
arrested and charged with the crime of embezzlement.  In December
1991, Smith answered Quality Ford's suit, alleging she and
Henderson had been involved romantically, and during that
relationship, Henderson had authorized Smith's altering checks to
defraud the Internal Revenue Service, and also to divert company
funds to Henderson and Duncan.  She further filed a counterclaim
alleging defamation, malicious criminal and civil prosecution,
false arrest, outrage, wrongful termination, breach of contract,
and her Title VII claims of racial and gender discrimination and
retaliatory discharge.
     On October 8, 1992, Smith was acquitted of the criminal charge
of theft.  However, in the civil suit, the trial court found Smith
had altered and misappropriated twenty Quality Ford checks,
totalling $73,108.67.  The trial court specifically found that
Smith was unbelievable and that she had devised a scheme to defraud
Quality Ford of funds by altering checks entrusted to her care. 
The trial court did hold Smith had prevailed on her Title VII claim
of retaliatory discharge, and awarded her damages in the nominal
amount of $1,000.00 and attorneys fees in the sum of $5,000.00. 
The trial court ordered a set off of these awards against the
$73,108.67 Smith owed Quality Ford.  Furthermore, the trial court
held Henderson had breached Smith's employment contract, and
determined Henderson owed Smith two percent (2%) of the company's
annual net profits for the years 1988 through October 1991.  The
court directed that, after the parties arrived at the amount of the
profits owed Smith, that sum should also be set off against the
$73,108.67 Smith owed Quality Ford.  On March 15, 1995, the trial
court entered judgment in favor of Quality Ford in the amount of
$52,965.00.  Smith brings this appeal from that judgment.
     In her initial point for reversal, Smith agrees that the trial
court correctly awarded her attorney's fees, but argues that it
erred in the assessment of that fee.  Smith cites Hensley v.
Eckerhart, 461 U.S. 424 (1983), for the proposition that a
prevailing party of a Title VII claim is entitled to a reasonable
fee, and that fee is to be determined by the number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly rate.  This is commonly called the "lodestar" fee.  The
Hensley court further held that where the plaintiff achieved only
limited success, the trial court should award only that amount of
fees that is reasonable in relation to the results obtained.     
     While Smith argues that the trial court failed to follow the
Hensley formula when setting the $5,000.00 attorney's fee or to
state why it might have reduced the lodestar amount, she concedes
she failed to submit any evidence of (1) the hours expended by her
counsel, (2) the counsel's rate, or (3) any other relevant facts
bearing on the fee amount.  The Hensley decision clearly holds that
the party seeking an award of fees should submit evidence
supporting the hours worked and rates claimed.  Hensley, at 433. 
     Here, the trial court awarded Smith's counsel an attorney's
fee in its December 9, 1994 order even though counsel failed to
submit any documents or evidence; counsel never objected either to
the manner or amount of the fees awarded.  In fact, although the
trial court's final judgment was not entered until March 15, 1995,
Smith still interposed no objections.  She only does so for the
first time in this appeal.  
     This court has held that it will not contenance an argument
raised for the first time on appeal.  Crockett & Brown, P.A. v.
Courson, 312 Ark. 363, 849 S.W.2d 938 (1993); see also McElroy v.
Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (the burden of obtaining
a ruling from the court is on the attorney requesting fees, and the
objections and matters left unrecorded below are waived and may not
be relied upon on appeal).  For the same reasons, we also do not
reach Smith's argument that the trial court erred in setting off
counsel's attorney's fees against Quality Ford's judgment.
     Smith next argues that she proved a prima facie case of race
and sex discrimination and that the trial court failed to give the
required findings needed for a review of determining whether the
facts as applied might be due to a misunderstanding of the law. 
Smith cites Jones v. Jones Bros. Const. Corp., 879 F.2d 295 (7th
cir. 1989), where the federal appellate court remanded the civil
rights case for further findings because the district court's
opinion was not supported by adequate findings of fact and law. 
See also Chandler v. City of Dallas, Tex., 958 F.2d 85 (5th Cir.
1992).
     Here, Ark. R. Civ. P. 52(a) is controlling and provides in
relevant part as follows:
          If requested by a party, in all contested actions
     tried upon the facts without a jury, the court shall find
     the facts specially and state separately its conclusions
     of law thereon, and judgment shall be entered pursuant to
     Rule 58[.].  (Emphasis added.)
While Arkansas's Rule 52 is similar to the federal rule, Fed. R.
Civ. P. 52(a), the Arkansas rule retains prior state law by which
the failure of a party to request special findings of fact amounted
to a waiver of that right.  Reporter's Notes (as modified by the
Court) to Rule 52, n. 1 [citing Anderson v. West Bend Co., 240 Ark.
519, 400 S.W.2d 495 (1966)].  Further, Rule 52(b) provides that
upon motion of a party within ten days after entry of judgment, the
court may amend its findings and/or judgment accordingly.
     In the present case, there is nothing in the record to show
Smith requested that the trial court make specific findings of fact
and conclusions of law either prior to or after entry of the
judgment.  Because Smith made no request for findings, she waived
her right under Rule 52.
     For the reasons above, we affirm.