Jerry Ross and Ross Equipment Company v. WKP Management Group, LLC

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CA 04-400

DECEMBER 1, 2004



[NO. CIV-2002-1443-2]




John B. Robbins, Judge

Appellant Jerry Ross appeals the order of the Benton County Circuit Court that granted less than the full amount requested for attorney's fees. Appellant prevailed in a breach-of-contract action against appellee WKP Management Group, LLC, pursuant to a settlement that reserved the issue of fees and costs to be determined by the trial court. In the motion for attorney's fees, appellant initially requested an award of $9100, later increasing that amount to $9500. Appellant argues that the trial court abused its discretion in awarding only $1500 in fees without providing an explanation for that decision. Appellant further asks us to grant on appeal an award for the value of eight hours in attorney's fees and appellate costs. We disagree with appellant's arguments and affirm.

The material facts are not in dispute. Pursuant to a written contract executed in 1997, appellee purchased gas pumps, storage tanks, and accessories from appellant and had appellant install the items at its convenience store for a cost of $163,783 plus sales tax. Appellee paid for what it believed it owed under the contract, but appellant maintained that

there remained an outstanding balance of $6220 on the written contract, plus $512.55 on a subsequent oral contract. Appellant filed a complaint in November 2002 for breach of contract, seeking $6,732.55. Appellee answered that it fully paid the sums due under their contract and that it had to expend additional sums, over $20,000, in order to make the gas pumps operational. Appellee sought $20,000 in a counterclaim against appellant.

After extensive discovery pleadings were filed, hearings were held, and cross-motions for summary judgment were entertained, the case was set for jury trial on October 28, 2003. A week prior to the trial, the parties agreed to settle the case, appellee non-suiting its counterclaim, appellant accepting the $6,732.55 it demanded from appellee, and the parties expressly reserving the issue of attorney's fees and costs for the trial court to resolve.

Both parties fully briefed their positions on the matter. Appellant's attorney filed an affidavit stating that he had been hired at $200 per hour to litigate this breach-of-contract claim and defend the counterclaim filed by appellee, and appellant was responsible for the costs to file the suit, to serve the complaint, and to issue subpoenas. Appellant asserted that appellee had effectively thwarted the discovery process, stalled in payment of monies well-known to be due, and declined earnest settlement negotiation until trial was imminent. Appellant's attorney explained that his hourly rate was supported by his twenty years of experience in multiple state and federal courts. The total fee requested was $9100, plus $295 in costs incurred.

Appellee countered that the contract issue was not novel but that there was legitimate disagreement between the parties, that appellant was guilty of slowing the process of discovery and of causing confusion by failure to file fact-specific pleadings, and that appellant was unwilling to actively attempt to settle the case prior to trial. Appellee asked the trial judge to deny any award of fees or costs, noting that both parties settled to avoid further costs, and appellee had to bear his own attorney's fees, though not at the $200 rate charged by appellant's attorney.

Appellant responded with another brief asserting that appellee was misleading the court on the facts of the case, that appellee's counsel could not charge $200 per hour because of their lesser years of experience, and that due to further billings, the fee request was now $9500. Appellee responded to appellant's response by denying that it ever attempted to mislead the trial court, asserting again that appellant was the party responsible for lack of detail and clarity during the litigation process, pointing out that appellant's attorney's hourly rate is apparently what the market will bear, and objecting to shifting that cost to appellee. The trial judge awarded the costs requested in full ($295) and awarded attorney's fees in the amount of $1500. Appellant filed a timely notice of appeal.

Appellant argues to us that the trial judge abused his discretion by awarding only $1500 in attorney's fees without an explanation. In reviewing such an award, we adhere to the following legal principles. A trial court is not required to award attorney's fees and, because of the trial judge's intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party's counsel, appellate courts usually recognize the superior perspective of the trial judge in determining whether to award attorney's fees. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); see also Ark. Code Ann. § 16-22-308 (Repl. 1999). The decision to award attorney's fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). See also Chrisco, supra. Although there is no fixed formula in determining the computation of attorney's fees, the courts should be guided by recognized factors in making their decision, including the experience and ability of the attorney; the time and labor required to perform the legal service properly; the amount involved in the case and the results obtained; the novelty and difficulty of the issues involved; the fee customarily charged in the locality for similar legal services; whether the fee is fixed or contingent; the time limitations imposed upon the client or by the circumstances; and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. Chrisco, supra; State Farm Fire & Cas. Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988); Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984); New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980). Appellant has not shown that the trial court abused its discretion.

As argued in his brief, appellant believes that the "high-powered law firm" hired by appellee made his case as difficult as possible for his attorney so that it would be too expensive to pursue what was owed. Appellant describes appellee's counterclaim as "bogus," and its discovery responses and motions to be "false." Appellant states that the $6732.55 judgment, $1500 attorney fees, and $295 costs assessed against appellee are not enough to cover his litigation expenses, such that appellee effectively won. Appellant, in essence, argues that the trial court abused his discretion in not ensuring that after filing suit and prevailing, he do so at no expense. Appellant misunderstands our role: we determine whether an abuse of discretion occurred in the amount of fees awarded. We are hard-pressed to so hold where none are compelled as a matter of law.

We do not quarrel with appellant's assertions that his attorney had twenty years of experience in various state and federal courts justifying his hourly fee of $200. Nor do we disagree that this breach-of-contract case required nearly a year to successfully complete. However, we are not convinced that the trial court's decision amounted to an abuse of discretion where the trial court was fully informed of both parties' complaints about the other's actions or inaction in the history of this lawsuit; the nature of the lawsuit; and the amount upon which appellant prevailed. The trial judge decided in appellant's favor by granting a fee, and he gave appellant a fee of roughly one-fourth of the monies recovered from appellee. Appellant has presented no case authority in support of his contention that where fees were granted but not in the amount requested, our appellate courts have reversed that decision. In light of the fact that the trial judge had discretion to award no fee whatsoever, Ark. Code Ann. § 16-22-308, we cannot say that his considerable discretion was abused.

Appellant further challenges the award on the basis that no explanation was given for the amount awarded. To the extent that appellant argues that reversal is in order due to the lack of findings of fact, we reject that point for failure to preserve the issue for appellate review. See Tay-Tay, Inc. v. Young, 349 Ark. 675, 80 S.W.3d 365 (2002). Appellant failed to request specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52, thereby waiving this point. See id.

Lastly, we decline to grant appellant's request for appellate attorney fees and costs. The statute authorizing an award of attorney fees in a breach-of-contract action by the trial court does not apply on appeal. See Univ. Hosp. of Ark. v. Undernehr, 307 Ark. 445, 821 S.W.2d 26 (1991).


Bird and Roaf, JJ., agree.