Payne v. Donaldson

Decision Date29 June 2011
Docket NumberNo. CA 10–1238.,CA 10–1238.
Citation385 S.W.3d 296,2011 Ark. App. 467
PartiesJohn T. PAYNE, II, Appellant v. Keith DONALDSON d/b/a Donaldson Wrecker Service, Appellee.
CourtArkansas Court of Appeals

OPINION TEXT STARTS HERE

John Frank Gibson, Jr., Monticello, for appellant.

Clifford Paul Block, Little Rock, for appellee.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]Appellant John T. Payne, II, brings this third appeal challenging an award of damages and attorney's fees by the Chicot County Circuit Court. The first appeal was dismissed because of a nonappealable order. The second appeal was affirmed in part and reversed and remanded in part for the circuit court to reconsider its award of attorney's fees in light of our reduction of appellee's judgment. Our opinion from the second appeal sets out a detailed factual and procedural history of the case. Payne v. Donaldson, 2010 Ark. App. 255, 379 S.W.3d 22.

On remand the circuit court awarded appellee the full amount of attorney's fees requested, $8,922.99, in its order dated July 28, 2010. Appellant filed a motion for new trial on August 5, 2010, and that motion was denied by the circuit court's August 31, 2010 order. [Ark. App. 2]Appellant then filed a notice of appeal on September 9, 2010. His sole issue on appeal is that the circuit court abused its discretion in awarding attorney's fees and costs. We affirm.

An award of attorney's fees is reviewed under an abuse-of-discretion standard. Estate of Coan v. Gaughan, 2010 Ark. App. 616, 378 S.W.3d 201;Southern Farm Bureau Cas. Ins. Co. v. Krouse, 2010 Ark. App. 493, 375 S.W.3d 763. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008); Chiodini v. Lock, 2010 Ark. App. 340, 374 S.W.3d 835. Factual findings made by the circuit court in awarding attorney's fees are reviewed under a clearly-erroneous standard. Gaughan, supra.

In Krouse, supra, the court of appeals said [t]here is no fixed formula in determining a reasonable attorney fee,” and listed the factors that must be considered in awarding attorney's fees, as follows:

Factors to consider in a motion for attorney fees include 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 that this legal work will preclude other legal employment if apparent to the client.

Id. at 4, 375 S.W.3d at 768.

Appellant cites CJ Building Corporation v. TRAC–10, 368 Ark. 654, 249 S.W.3d 793 (2007), in which our supreme court said that the one with the most points at the end of the contest is the winner and is entitled to recover his costs as the prevailing party. Under that [Ark. App. 3]analysis, appellant challenges how appellee can still be considered the prevailing party after this court reversed the circuit court's monetary award of $11,410.15. We note, however, that appellant specifically admits in paragraph one of his response to appellee's renewed motion for attorney's fees and costs following our remand that appellee was the prevailing party in the civil action to recover for labor and services provided in recovering and storing appellant's ATV. We specifically held in Payne, supra, that appellee was the prevailing party and that an award of attorney's fees was authorized by statute. We decline to revisit that issue in the instant appeal and reiterate that our previous holdings constitute the law of this case that governed the circuit court following remand and governs this review upon subsequent appeal. See Turner v. Northwest Ark. Neurosurgery Clinic, P.A., 91 Ark. App. 290, 298, 210 S.W.3d 126, 133 (2005).

We turn then to our review of the circuit court's award of attorney's fees. In his response to appellee's first motion for attorney's fees and costs, appellant merely denied every material allegation contained in appellee's motion for fees and costs. This court, in its opinion remanding the case back on the issue of attorney's fees, acknowledged that appellant failed to object to the reasonableness of the fees requested by appellee. Appellant argues that this should not be interpreted to mean that appellant had waived his right to object to the reasonableness of the fees or that reasonableness of the fees was no longer an issue. Appellant reiterates that the controlling statute requires the fees awarded to be reasonable and notes that, on remand and in response to appellee's amended motion for attorney's fees, he clarified his response and [Ark. App. 4]specifically objected to the necessity and reasonableness of the attorney's fees and costs sought by appellee. He claims that, on remand, the circuit court is still required to exercise discretion and consider the factors listed in Krouse, supra, in awarding a reasonable attorney's fee, and that failure to do so constitutes an abuse of discretion.

Appellant claims that in spite of the excessive time delay, the complexity of the case, and his request for a hearing, the circuit court proceeded to summarily and arbitrarily, without considering any evidence or other matters to be considered in awarding an attorney's fee in this case, other than an estimate and a request for the amount thereof, make a finding that because appellee was the prevailing party, he should be awarded the full amount requested. Appellant submits that the circuit court's order awarding attorney's fees and costs made no findings of fact sufficient to support the award. He maintains that, along with the factors to be considered, the circuit court should have considered the fact that this litigation, including appellee's counterclaim for damages, was necessitated by appellee's failure to communicate with appellant or his agent, or to give the required statutory notice, regarding towing and storage charges. He urges that the circuit court's refusal to do so amounts to an abuse of discretion.

We hold that appellant has failed to carry his burden to show that the circuit court abused its discretion in its award of attorney's fees. In response to appellee's renewed motion for fees following remand, appellant adopted, re-alleged, and renewed his objection to fees that he had filed prior to remand, continuing his failure to object to the amount of fees. [Ark. App. 5]Appellee maintains that the law of the case acknowledges that he failed to object the first time, and renewing and re-alleging the same failure to object necessarily has the same result.

The record before us indicates that appellant alleged before the circuit court in his own motion for fees that the time spent by his counsel equaled or exceeded that of appellee's counsel, and appellee urges that the circuit court could easily construe this as admittance that the time expended by appellee's counsel was reasonable. Instead of specifically challenging the amount of fees, appellant largely focused his efforts on alleging that he was a prevailing party.

We disagree with appellant's contention that the circuit court “proceeded summarily and arbitrarily to award appellee the full amount of his estimate without considering any evidence or supporting documentation whatsoever.” The record reflects that appellee initially submitted an affidavit in support of his motion for fees and costs and, following remand, appellee likewise submitted an affidavit in support of his renewed motion for fees and costs.

We hold that the circuit court did not abuse its discretion in its award of attorney's fees. The circuit court indicated in its July 28, 2010 order that it applied the factors set forth in Chrisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), and this court recently stated in Gillison v. Gillison, 2011 Ark. App. 244, 382 S.W.3d 795, that the circuit court may use its own experience as a guide and can consider the types of factors set forth in Chrisco. But we also stated that the circuit court need not conduct an exhaustive hearing on the amount of attorney's fees because it has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. Gillison, supra. The circuit court in this case [Ark. App. 6]was intimately acquainted with the pleadings, the motions and accompanying briefs, the evidentiary hearing, the hearing on appellee's counterclaim, and all matters related to this litigation. We hold that appellant has failed to show that the circuit court abused its discretion in its award of attorney's fees to appellee.

Affirmed.

ABRAMSON, MARTIN, and BROWN, JJ., agree.

HART and ROBBINS, JJ., dissent.

JOSEPHINE LINKER HART, Judge, dissenting.

The issue of attorney fees should have been dismissed the last time Mr. Payne had to bring his case to the court of appeals. See Payne v. Donaldson, 2010 Ark. App. 255, 379 S.W.3d 22 (Hereinafter Payne II ).1 However even considering the manifestly unsound holding in Payne II,2 an award of attorney fees is not [Ark. App. 7]justified. In affirming, the majority has made significant errors of law and fact. considering the manifestly unsound holding in Payne II, an award of attorney fees is not justified. In affirming, the majority has made significant errors of law and fact.

It is important to understand the underlying facts in this case. John T. Payne II had a four-wheeler stolen from John Gibson's residence in July 2006, where it was being kept for Payne, an Alabama resident, who used it on hunting trips. On July 19, 2006, Arkansas State Police found the ATV, and the Dermott Police had Donaldson Wrecker Service take it to Donaldson's place of business. That same day, Dermott Police Officer Marvin Esters told Gibson that they found the ATV and told him to see if it was...

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4 cases
  • Tiner v. Tiner
    • United States
    • Arkansas Court of Appeals
    • 12 September 2012
    ...An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Payne v. Donaldson, 2011 Ark. App. 467, 385 S.W.3d 296. Without express authority from our supreme court, and, given this court's deferential standard of review of the circui......
  • Roberts v. Unimin Corp.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • 5 December 2016
    ...reasonable attorney's fees" and nothing indicates that courts must only consider the Chrisco factors. See Payne v. Donaldson, 2011 Ark. App. 467, 5, 385 S.W.3d 296, 299 ("[T]he circuit court may use its own experience as a guide and can consider the types of factors set forth in Chrisco.").......
  • McCabe v. Wal-Mart Assocs., Inc.
    • United States
    • Arkansas Court of Appeals
    • 4 December 2019
    ...presided over the proceedings and gained familiarity with the case and the services rendered. The company relies on Payne v. Donaldson , 2011 Ark. App. 467, 385 S.W.3d 296 to support the court's decision.First, the circuit court had the authority to award an attorney fee against McCabe and ......
  • Watkins v. Watkins
    • United States
    • Arkansas Court of Appeals
    • 6 November 2013
    ...An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Payne v. Donaldson, 2011 Ark. App. 467, 385 S.W.3d 296.I. Arkansas Rule of Civil Procedure 41 Appellant first argues that the trial court abused its discretion by granting ap......

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