Jones v. Flowers, 07-409.

• Court: Supreme Court of Arkansas
• Citation: 283 S.W.3d 551,373 Ark. 213
• Docket Number: No. 07-409.,07-409.
• Parties: Gary Kent JONES, Appellant, v. Linda K. FLOWERS and Mark Wilcox, Commissioner of State Lands, Appellees.
• Decision Date: 17 April 2008

283 S.W.3d 551 373 Ark. 213 Gary Kent JONES, Appellant,
v.
Linda K. FLOWERS and Mark Wilcox, Commissioner of State Lands, Appellees. No. 07-409. Supreme Court of Arkansas. April 17, 2008.

[283 S.W.3d 552]

Lavey and Burnett, by: John L. Burnett, Little Rock; and Public Citizen Litigation Group, by Deepak Gupta, Michael T. Kirkpatrick, and Brian Wolfman, Washington, DC, for appellant.

Dustin McDaniel, Att'y Gen., by Patricia Van Ausdall Bell, for appellee Mark Wilcox.

TOM GLAZE, Justice.

This case is an appeal from an order by the Pulaski County Circuit Court denying a request for attorney's fees under 42 U.S.C. § 1988(b). In Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), the United States Supreme Court held that when a mailed notice of a tax sale is returned unclaimed, a state

283 S.W.3d 553

must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so — reversing this court's decision in Jones v. Flowers, 359 Ark. 443, 198 S.W.3d 520 (2004). Upon remand from the Supreme Court for proceedings consistent with its opinion, this court in turn remanded the case to the Pulaski County Circuit Court on September 21, 2006. Jones filed a status report on November 14, 2006, asserting that all that remained for the circuit court to do was to enter a final judgment for Jones and set the case for proceedings to determine relief, and stated the following:

Because Jones is the prevailing party, he is entitled to recovery of his attorney's fees at each stage of this litigation. In his Complaint, Jones requested that he "recover from defendants his attorney fees incurred in the prosecution of this cause...." Jones made a federal constitutional challenge to state action and won. Thus he is entitled to recover fees from the State under 42 U.S.C. § 1988.

Following a status conference on November 15, 2006, the circuit court issued an order denying Jones's request for attorney's fees because "[t]he first mention of 42 U.S.C. § 1983 was in [Jones's] Status Report filed on November 16, 2006."¹ Jones appeals, arguing that an action does not have to be specifically pled under § 1983 for entitlement to attorney's fees under § 1988(b).²

42 U.S.C. § 1983 provides a means to allow a plaintiff to obtain relief in federal courts if he can show (1) the deprivation of a right secured by the Constitution or laws of the United States, and (2) that a person acting under color of state law caused the deprivation. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993). A court has discretion to award reasonable attorney's fees for a successful § 1983 action. 42 U.S.C. § 1988(b) (2000).

It appears that most, if not all, federal courts of appeal that have considered this issue have held that regardless of whether a plaintiff specifically cites 42 U.S.C. §§ 1983 or 1988 in his original pleadings, a successful constitutional challenge is a proceeding to enforce § 1983 within the meaning of § 1988. For example, in Goss v. City of Little Rock, 151 F.3d 861 (8th Cir.1998), a landowner (Goss) filed an action against the City of Little Rock in federal district court, alleging an unconstitutional taking. The federal court dismissed the claim and denied Goss's request for attorney's fees because his complaint did not cite § 1983 as the basis for his action. The Eighth Circuit reversed on appeal, holding that the substance of the action, rather than the form of the pleading, should determine the applicability of attorney's fees under § 1988(b). Id. at 866. The Eighth Circuit first examined the language of § 1983, and the meaning of "a proceeding to enforce" § 1983, and noted the following:

As the Supreme Court has observed, the meaning of "a proceeding to enforce" § 1983 is unclear on its face because § 1983 does not create substantive rights that a person can "enforce" in the typical sense of the word. Instead § 1983 establishes a means by which

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people can enforce the Constitution. It simply provides that, when a state actor violates a person's constitutional rights, that person can sue the state actor. That, of course, is exactly what Goss did. Indeed, § 1983 does nothing more than make lawsuits like this one possible. Thus Goss did enforce § 1983 in that he did precisely what it authorizes people to do.

Id. at 865 (internal citations omitted).

The Eighth Circuit then turned to the legislative history of § 1988(b), and found that "Congress was more concerned with the substance of plaintiffs' claims than with the form in which those claims are presented" and that the "`function of an award of attorney's fees [under § 1988(b)] is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.'" Id. at 865 (quoting City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)). The Eighth Circuit held that Goss's claim was indeed a meritorious civil rights claim, although he did not cite § 1983, and "`the legislative history makes it perfectly clear [§ 1988(b)] was intended to apply in any action for which § 1983 provides a remedy.'" Id. (quoting Maher v. Gagne, 448 U.S. 122, 129 n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)). Additionally, the Eighth Circuit held that it is irrelevant if a party prevails in an action on grounds other than § 1983 in determining whether attorney's fees should be awarded under § 1988; instead, "`[i]f § 1983 would have been an appropriate basis for relief, then [the plaintiff] is entitled to attorney's fees under § 1988 even though relief was actually awarded on another ground.'" Id. at 866 (quoting Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139, 1141-42 (8th Cir.1984)).

The Eighth Circuit holding in Goss — that substance prevails over form in determining whether attorney's fees are appropriate under § 1988(b) where a plaintiff fails to explicitly plead or present a claim under § 1983 — appears to be consistent with other federal circuit courts that have addressed the issue. See, e.g., Ams. United for Separation of Church & State v. Sch. Dist. of Grand Rapids, 835 F.2d 627, 631 (6th Cir.1987) ("[Section] 1983 is concerned with the substance of the prevailing party's action, rather than the form in which it is presented"); Haley v. Pataki, 106 F.3d 478, 481-82 (2d Cir.1997) (failure to plead § 1983 is not fatal to a claim for attorney's fees if the pleadings and evidence present a substantial claim for which § 1983 provides a remedy) (quoting Ams. United, 835 F.2d at 631); Thorstenn v. Barnard, 883 F.2d 217, 218 (3d Cir.1989) (rejecting the argument that the plaintiffs' failure to cite § 1983 in their complaints barred their request for attorney's fees under § 1988).

The State does not present any counter-argument to Jones's § 1983 analysis and argument, but instead now asserts that under Ark. R. Civ. P. 54(e), Jones forfeited his entitlement to attorney's fees because he failed to file the motion within fourteen days of this court's mandate on September 21, 2006.³ A final judgment under Ark. R. Civ. P. 54(a) is "one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy."

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Looney v. Looney, 336 Ark. 542, 547-48, 986 S.W.2d 858, 861 (1999) (quoting McGann v. Pine Bluff Police Dep't, 334 Ark. 352, 355, 974 S.W.2d 462, 463 (1998)); see also Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). This court has consistently interpreted Ark. R. Civ. P. 54(e) to be applicable only upon an entry of judgment that finally concludes the controversy for which attorney's fees are sought. See, e.g., Crawford County v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006); State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). In Looney, supra, the court stated that "[b]ecause we remand this issue for resolution of the respective rights of the parties in the land to be partitioned, the issue of an appropriate award for costs and attorney's fees is...