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Pleasant v. State ex rel. McDaniel

Court of Appeals of Arkansas, Division IV

May 1, 2019

ROGER D. PLEASANT; INFORMATION AND DISCOVERY, INC.; PSG AND INVESTIGATION, LLC; PHYSICIAN FIRST MARKETING GROUP, LLC; AND NETWORK COLLISION GROUP, LLC APPELLANTS
v.
STATE OF ARKANSAS, EX REL. DUSTIN MCDANIEL, ATTORNEY GENERAL APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-14-2400] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Naporsha M. Valentine, for appellants.

          Leslie Rutledge, Att'y Gen., by: Shawn J. Johnson, Sr. Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         Roger Pleasant, James Hinton, Brian Hinton, and Accident Claim Service, LLC, appeal the Pulaski County Circuit Court's award of $115, 200 in attorney's fees and $6, 247.47 in costs for the State's successful claim against appellants for violations of the Arkansas Deceptive Trade Practices Act (ADTPA). We affirm.

         I. Relevant Facts

         A Pulaski County Circuit Court jury found that Roger Pleasant violated the ADTPA eight times, that James Hinton violated the ADTPA three times, and that Brian Hinton and Accident Claim Service, LLC, were each liable for one violation of the ADTPA. The jury found that, pursuant to Arkansas Code Annotated section 4-88-113(d)(1)(Supp. 2017), Pleasant was vicariously liable for all thirteen violations because he directly or indirectly controlled the other defendants. The circuit court assessed civil penalties of $2000 per violation against appellants. Appellants filed a timely notice of appeal, and we affirmed the decision in Pleasant v. McDaniel, 2018 Ark.App. 254, 550 S.W.3d 8.

         The State filed a petition for expenses, attorneys' fees, and costs, asserting that it began the formal investigation of the claims against Pleasant and his associates in December 2013 and filed the complaint in June 2014. After extensive discovery and investigation, the jury trial was held from October 4-6, 2016, and the jury reached the verdict set forth above. The State included timekeeping and accounting records and affidavits of the senior attorney general and the assistant attorney general who served as litigation counsel throughout the investigation and the trial. In the affidavit, each attorney listed his or her qualifications, experience, and hourly rate and described the complexity of the litigation. The State claimed costs of $6, 247.47, senior attorney fees of $96, 800, and assistant attorney fees of $18, 400 for a total of $121, 447.47.

         Appellants responded that the State was not entitled to the expenses and costs claimed because it did not prevail on the "predominate issues" and opposing counsel cannot incur fees because they are salaried State employees. Appellants requested more time and filed a second response on December 19, 2016. In the supporting brief, appellants argued that (1) the opposing attorneys are paid by the State; thus, they cannot be awarded attorney's fees; (2) the State claimed over 100 violations of the ADTPA and "the vast majority of the claims were found without merit"; (3) the State forced this case to go to trial, refusing to settle; and (4) the request for fees and costs is unreasonable because the State "grossly inflated" the hours worked, recording ten-hour, twenty-hour, twenty-three-hour, twenty-five-hour, thirty-five-hour, forty-hour, and fifty-hour workdays. In the prayer for relief, appellants stated, "Wherefore, the defendants pray that this motion be deemed good and sufficient and that after due proceedings are had herein that their motion be granted . . . ." (Emphasis added.)

         The State responded that (1) the attorney's fees for this case are awarded to the attorney general pursuant to Arkansas Code Annotated section 4-88-113(e); (2) the ADTPA does not exclude state-employed attorneys from incurring attorney's fees; (3) the State was not required to settle this matter, the defendants had not made the necessary concessions to settle the case; moreover, the jury found in favor of the State; (4) the recorded hours exceeding twenty-four reflect multiple days' work that was completed on that date, not work done in a single day; and (5) other than this misapprehension of the timekeeping record, appellants had not asserted how the fees were excessive or unreasonable.

         The circuit court entered an order on June 29, 2018, awarding $121, 447.47 in fees and costs pursuant to section 4-88-113(e). On July 20, the circuit court entered an amended judgment and found the following: Roger Pleasant was adjudged liable for eight violations of the ADTPA, James Hinton was adjudged liable for three violations, Brian Hinton was adjudged liable for one violation, and Accident Claim Service, LLC, was adjudged liable for one violation. Roger Pleasant directly or indirectly controlled the other parties, and he knew or should have known about their deceptive practices. Pursuant to section 4-8-113(a), the court assessed civil penalties against all the defendants at $2000 per violation and found Pleasant jointly and severally liable for all thirteen violations and assessed $26, 000 in penalties. The court held that State was entitled to expenses, attorney's fees, and costs pursuant to section 4-88-113(e), and "based on the submissions of Plaintiff's counsel and Defendants' responses thereto, the court awards the State $6, 247.47 in expenses and $115, 200 in attorneys' fees." Appellants filed a timely notice of appeal.

         II. Discussion

         A. Reasonableness of the Attorney's-Fees Award

         Our general rule relating to attorney's fees is well established, and it is that attorney's fees are not allowed except when expressly provided for by statute. Hanners v. Giant Oil Co. of Ark., Inc., 373 Ark. 418, 284 S.W.3d 468 (2008). An award of attorney's fees will not be set aside absent an abuse of discretion. Id. While courts should be guided by recognized factors in determining reasonableness of attorney's fees, there is no fixed formula to be used and an award of attorney's ...


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