Chrisco v. Sun Industries, Inc.

• Court: Arkansas Supreme Court
• Writing for the Court: HAYS
• Citation: Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (Ark. 1990)
• Decision Date: 21 December 1990
• Docket Number: No. 90-51,90-51
• Parties: Lowell CHRISCO, Appellant, v. SUN INDUSTRIES, INC., Appellee.

Page 717

800 S.W.2d 717

304 Ark. 227

Lowell CHRISCO, Appellant, v. SUN INDUSTRIES, INC., Appellee.

No. 90-51.

Supreme Court of Arkansas.

Dec. 21, 1990.

Gary F. Liles, Little Rock, for appellant.

Ray A. Goodwin, Paragould, for appellee.

HAYS, Justice.

The sole issue on appeal is whether the trial court abused its discretion in awarding an attorney's fee, under Ark.Code Ann. § 16-22-308 (Supp.1989), of only $25,000.00 in a civil action involving breach of contract.

On October 4, 1985, the appellant, Lowell Chrisco, executed a sales agency agreement with the appellee, Sun Industries, Inc. (Sun). On January 14, 1988, Sun notified Chrisco that it was cancelling the agreement.

Chrisco filed suit on April 4, 1988, in the Circuit Court of Craighead County alleging that the termination was without proper cause and seeking past and future compensation and attorney's fees. Sun initially denied liability, but on November 10, 1988, it deposited $293,284.64 into the court registry as the amount of Chrisco's lost commissions as of that date and offered to reinstate Chrisco.

A jury was impaneled on December 19, 1988, and, after opening statements, the case was partially settled: Sun agreed to pay Chrisco $625,000.00 and only the matter of attorney's fees remained to be decided by the court.

After the jury was discharged, the trial court accepted oral statements from Chrisco's counsel on their fee arrangements, hours, and expenses. The trial court then announced from the bench that it would award a fee of $25,000.00. No judgment was entered incorporating this award, and Chrisco filed a motion for the trial court to reconsider its award. A hearing was held on October 17, 1989, and the trial court denied Chrisco's motion and subsequently entered a judgment awarding a fee of $25,000.00 on November 15, 1989.

Chrisco appeals and asserts that the trial court abused its discretion in awarding an attorney's fee of only $25,000.00.

Our general rule relating to attorney's fees is well established and is that attorney's fees are not allowed except when expressly provided for by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).

Section 16-22-308 addresses attorney's fees in certain civil actions and provides in pertinent part as follows:

In any civil action to recover on ... breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

(Emphasis added.)

The word "may" is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953). We find, within the context in which the word "may" is employed in this case, that section 16-22-308 is permissive and discretional with the trial court.

Additionally, 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...