Elite Aviation Serv. v. ACE Pools, LLC
| Decision Date | 22 September 2021 |
| Docket Number | 5:19-CV-05134 |
| Parties | ELITE AVIATION SERVICE, LLC PLAINTIFF/COUNTER-DEFENDANT v. ACE POOLS, LLC and TRACY WELCHEL DEFENDANTS/COUNTER-PLAINTIFFS |
| Court | U.S. District Court — Western District of Arkansas |
Before the Court is Counter-Plaintiff Ace Pools, LLC's (“Ace Pools”) motion (Doc. 139) for attorney's fees and costs and brief (Doc. 139-1) in support. Counter-Defendant Elite Aviation Service, LLC (“Elite”) filed a response (Doc. 140). The motion will be GRANTED IN PART and DENIED IN PART.
Ace Pools removed this action to this Court on July 18, 2019. Elite's complaint asserted claims for breach of contract and conversion against Ace Pools. After removal, Ace Pools filed a counterclaim against Elite for negligence, breach of contract, fraud, and violations of the Arkansas Deceptive Trade Practices Act (“ADTPA”), Ark. Code Ann. § 4-88-101, et seq. On September 21, 2020, the Court granted summary judgment in favor of Elite on Ace Pools' fraud and ADTPA claims. A three-day bench trial was held and on August 17, 2021, the Court entered an opinion and order awarding Ace Pools $13, 047.79 in general damages for Elite's breach of contract.
Ace Pools now seeks $147, 560 in attorney's fees and $37, 614.70 in costs. In support of its motion, Ace Pools attached an affidavit by Mr. William Changose (Doc. 139-2) and a billing records spreadsheet (Doc. 139-3). The motion states counsel for Ace Pools expended 737.8 hours at a rate of $200 an hour. The billing record contains four sets of attorney initials, WJC, JZ, WFG, and JWK. Ace Pools did not provide the Court with the names associated with these initials.
Based on the notices of appearance entered in this case, the Court assumes WJC represents “William John Changose, ” JZ represents “Justin Christopher Zachary, ” and WFG represents “William F. Godbold, IV.” No. notice of appearance has been entered for an attorney with the initials JWK, however, Elite's response clarifies JWK is likely Jarred Kibbey, an attorney in Mr. Changose's law firm. Despite seeking $147, 560 in attorney's fees, Ace Pools' motion makes conclusory arguments that the fee sought is reasonable without any substantive argument.[1]
Ark. Code Ann. § 16-22-308 provides in a civil action for breach of contract “the prevailing party may be allowed a reasonable attorney's fee to be assessed by the court and collected as costs.” Pursuant to the statute, an award of attorney's fees is discretionary. Chrisco v. Sun Indus., Inc., 800 S.W.2d 717, 718 (Ark. 1990). In determining the amount of attorney's fees, the court looks to certain factors 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 would preclude other employment by the lawyer. Id. at 718-19. “[H]aving a lodestar calculation at hand may not in and of itself provide enough information” to determine attorney's fees. McCabe v. Wal-Mart Assocs., Inc., 591 S.W.3d 335, 344-45 (Ark. App. 2019) ).
Ace Pools has provided no information regarding the experience of the billing attorneys in this case, except for Mr. Changose. Mr. Changose's affidavit states he obtained his law degree in 2015 and began practicing in 2017. At trial, it was clear to the Court this was one of Mr. Changose's first trials in federal court. Although Ace Pools did not provide information for Justin Zachary, Mr. Zachary often enters notices of appearance in cases before the undersigned and the Court is more familiar with his experience and ability. The Court cannot determine the experience and ability of Mr. Godbold or Mr. Kibbey. The lack of experience by Mr. Changose coupled with the failure of counsel to provide the Court with sufficient information to determine the experience of all billing attorneys leads the Court to find this factor weighs against an award of attorney's fees.
Ace Pools expended 737.8 hours on this litigation. Although Ace Pools asserted claims for fraud, ADTPA violations, and negligence, this case should have been a simple breach of contract case. The inability of counsel on both sides to manage clients with substantial animosity toward one another contributed to unnecessary motion practice and in turn increased the time required in this case. However, 737.8 hours appears greater than necessary to perform the legal services properly. The Court notes Ace Pools billed 11.9 hours from July 15, 2019 to July 19, 2019, to prepare and file a notice of removal, answer and counterclaim, and state court notice. Despite expending 11.9 hours to remove this case, Ace Pools incorrectly alleged citizenship of both Elite and Ace Pools, and at the Court's direction had to supplement its jurisdictional allegations. This is only one example of billing excessive time. The Court will not examine every billing entry in this opinion, but based on the Court's review, this was not a case that necessitated over 700 hours of billing.
The amount involved and results obtained in this case do not support an attorney's fee award of $147, 560. Elite initially filed its complaint asserting approximately $60, 000 in damages, the amount of Ace Pools' unpaid bill. Ace Pools' counterclaims alleged damages in excess of $900, 000-an amount so excessive it bordered on frivolous. Ace Pools argued that a plane it bought for $129, 000 would have been worth $349, 150.29 had Elite completed the repairs as necessary. The only evidence Ace Pools presented to support this valuation was expert witness testimony that at most amounted to a confirmation that an appraiser could approve the valuation Ace Pools gave to the plane if it were sold and a loan was needed to finance the transaction. Further, Ace Pools increased its damages request by arguing Elite was liable for lost profits and ruination of business plans. There was no evidence to support Ace Pools' claim for lost profits and Ace Pools should have known following discovery it could not show Elite knew breaching the contract would cause Ace Pools to suffer lost profits or that Elite agreed to be responsible for the lost profits.
This case presented few or no novel or difficult issues. As the Court has stated repeatedly, this was a simple breach of contract case. Despite both parties' continued briefing on the Federal Aviation Administration's investigation and numerous irrelevant Federal Aviation Regulations, the substantive issues for trial were if a party breached the contract and whether damages were caused by that breach.
Ace Pools' counsel requests an hourly rate of $200. Elite does not dispute the $200 fee with respect to Mr. Changose and Mr. Zachary, but argues it is impossible to determine the customary fee for Mr. Godbold or Mr. Kibbey. The Court agrees. A $200 hourly fee for Mr. Changose and Mr. Zachary is within the range customary in this locality for lead counsel. However, Ace Pools has provided no information regarding Mr. Godbold or Mr. Kibbey's experience or involvement in this case. Without this information the Court cannot determine if Mr. Godbold or Mr. Kibbey are partners, seasoned associates, or newly licensed attorneys.
Ace Pools presented no evidence of whether its fee arrangement with counsel was fixed or contingent.
It does not appear there was a stringent time limit imposed on Ace Pools. Much of the delay in this case was a result of the COVID-19 pandemic. The aircraft at issue was...
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