ROGER D. PLEASANT; INFORMATION AND DISCOVERY, INC.; PSG AND INVESTIGATION, LLC; PHYSICIAN FIRST MARKETING GROUP, LLC; AND NETWORK COLLISION GROUP, LLC APPELLANTS
STATE OF ARKANSAS, EX REL. DUSTIN MCDANIEL, ATTORNEY GENERAL APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-14-2400] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Naporsha M. Valentine, for appellants.
Rutledge, Att'y Gen., by: Shawn J. Johnson, Sr. Ass't
Att'y Gen., for appellee.
F. VIRDEN, JUDGE
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.
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.
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.
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.)
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.
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.
Reasonableness of the Attorney's-Fees Award
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