Opinion
No. CV-12-707
06-19-2013
COLONEL ROBERT AVERY APPELLANT v. WARREN SCHOOL DISTRICT APPELLEE
Streetman, Meeks & Gibson, PLLC, by: Robert B. Gibson, III, and Gibson & Keith, PLLC, by: C.C. " Cliff " Gibson, III, for appellant. W. Paul Blume, for appellee.
APPEAL FROM THE BRADLEY
COUNTY CIRCUIT COURT
[NO. CV-2010-17-1]
HONORABLE SAM POPE, JUDGE
AFFIRMED IN PART; REMANDED
IN PART FOR FURTHER FINDINGS
BRANDON J. HARRISON , Judge
Colonel Robert Avery appeals the circuit court's award of attorneys' fees in his favor, arguing that the court erred in reducing the requested amount from $191,345 to $51,041. The fee award relates to a companion case also on appeal. See Warren Sch. Dist. v. Avery, 2013 Ark. App. ___. Regarding this appeal, we affirm the circuit court's decision to limit attorneys' fees to the work done on the employment-termination case; however, we remand to the circuit court for further findings on how it reached the amount awarded.
Avery, a JROTC instructor in the Warren School District, was accused by a JROTC student of sexually assaulting her. Shortly thereafter, Andrew Tolbert, the Warren School District Superintendent, notified Avery in writing that he (Tolbert) would recommend that Avery's employment be terminated. After a hearing, the Warren School Board terminated Avery's employment, and he appealed the decision to the Bradley County Circuit Court, which reversed the school board's decision and reinstated Avery's employment with backpay.
After the circuit court's reversal, Avery filed a motion for attorneys' fees to recoup fees incurred defending his employment termination as well as (1) an accusation of child maltreatment filed with the Arkansas Department of Human Services, (2) a criminal charge of first-degree sexual assault that arose from the student's accusation, and (3) a complaint against his teacher's license that Superintendent Tolbert filed with the Ethics Subcommittee of the Professional Licensure Board of the Arkansas Department of Education. Avery argued that "the legal services performed in defense of plaintiff in each of said legal proceedings were a necessary foundation for the successful presentation of all the matters pertinent to plaintiff's right to continue his employment with defendant." Avery sought $191,345 in attorneys' fees and attached to his motion an affidavit from Sam Bird, a retired circuit and court of appeals judge, who opined that the fee sought was reasonable. Avery also attached his lawyers' billing records that covered all the work done for Avery. The school district did not respond to Avery's motion.
In its order, the circuit court found that Avery was the prevailing party in his appeal from the school board's decision to terminate his employment and that his attorneys had also represented him in a number of "collateral" matters related to the sexual-assault allegation. The court explained,
[Avery] makes a "but for" argument in this case, arguing that "but for" the counsels['] successful representation of [Avery] in all the associated collateral matters, they could not have been successful in representing [Avery] in the Teacher Fair Dismissal case. While such is likely true, it attempts to take the statute authorizing attorney's fees in this case, Ark. Code Ann. 16-22-308, further than it goes. That statute limits attorney's fees to "contract relating toThe court attributed a total of $51,041 in hourly fees on this case and awarded attorneys' fees in that amount. The court noted that there was no evidence of a contingency contract between Avery and his counsel but that $51,041 represented 24.33% of the amount recovered, which "is in line with a reasonable contingency fee." (Judge Bird stated in his affidavit that a 40% contingency-fee agreement was in place, but no written agreement is in the record.) Avery filed a timely notice of appeal from this order.
. . . labor or services." [Avery's] argument takes the statute where it does not go, and where this court will not go. The Court finds that all services related to the criminal case, the teacher license case, and the DHS child maltreatment case should be disallowed.
When addressing a circuit court's award of attorney's fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Swink v. Lasiter Constr., Inc., 94 Ark. App. 262, 229 S.W.3d 553 (2006). The courts should be guided, however, by recognized factors in making their decision, including (1) the experience and ability of counsel; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed on the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. See Chrisco v. Sun Industries, Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 718-19 (1990). When a court reduces a fee request without explanation or reference to the Chrisco factors, we usually remand for the court to make the analysis. See, e.g. , Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004); Conway Commercial Warehousing, LLC v. FedEx Freight East, Inc., 2011 Ark. App. 51, 381 S.W.3d 94; Swink, supra. An award of attorney's fees will not be set aside absent an abuse of discretion. Tiner v. Tiner, 2012 Ark. App. 483, ___ S.W.3d ___. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Id.
Avery first asserts that the circuit court abused its discretion by awarding only a "small fraction" of the fees requested. He argues that the court "completely ignored" Judge Bird's observations in his affidavit and reiterates that the criminal proceeding, the maltreatment proceeding, and the licensure proceeding were all based on the same sexual-assault allegation. Avery contends that the work done on these cases was "not capable of being neatly segregated as the trial court made an apparent attempt to do." Given the court's concession that it was "likely true" that, but for counsels' successful representation of Avery in the associated collateral matters, they could not have successfully represented Avery before the school board, Avery argues that the court abused its discretion by refusing to award fees for the attorneys' time spent successfully defending those collateral matters. He also argues that the court was required to provide a "pertinent analysis" of all the Chrisco factors, citing Stout v. Stout, 2011 Ark. App. 201, 378 S.W.3d 844. Finally, Avery contends that the court erred by not clearly explaining how it arrived at the reduced award.
In response, the Warren School District (the District) argues for the first time that Avery's request was excessive on its face and that a review of his attorneys' time records reveals that the majority of their time was spent defending Avery on the criminal charge in circuit court, not the employment termination. Because the District did not cross-appeal the amount of attorneys' fees awarded, we will not grant it affirmative relief on appeal. See Hanshaw v. Blair, 2011 Ark. App. 30. The District also asserts that the court did not err just because it did not follow Judge Bird's recommendation, and that to adopt Judge Bird's reasoning would require the District to pay for all of Avery's fees and costs for any action arising from the accusation that he had sex with a student, regardless of its relationship to his termination. Instead, the District contends, the court properly exercised its discretion and reduced the attorneys'-fee award accordingly.
On the Chrisco factors, the District argues that the court considered and listed the factors in its opinion. The District also emphasizes that the factors are merely a guide for the court and are not required to be specifically addressed in every case. And finally, the District asserts that the court, in reaching its decision on the amount of reasonable attorneys' fees, clearly reviewed the time records submitted, determined which entries related to the present case, and awarded fees accordingly, all of which is an exercise of discretion.
We find no abuse of discretion in the court's decision to limit the award of attorneys' fees to the work done on the Teacher Fair Dismissal case, and we affirm the court's ruling that all services related to the criminal case, the teacher-license case, and the child-maltreatment case should be disallowed. We also hold, however, that the circuit court has not made sufficient findings for us to adequately review the amount awarded given the atypical entanglement of what are arguably four matters, all of which require different processes that Avery's lawyers had to handle. It is true that circuit courts are not typically required to make specific findings on each of the Chrisco factors. See Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135. Usually a court need only provide some explanation for its decision. See Bailey, supra; Scott v. Estate of Prendergast, 90 Ark. App. 66, 204 S.W.3d 110 (2005). And we must note that Avery's reliance on Stout v. Stout is mistaken—that domestic-relations case was overruled on the fee-analysis issue in Tiner, supra. But, in Tiner, this court did recognize that in some unique cases we may stray from the beaten path and require some specificity from a circuit court on why it decided a fee question a certain way. Here, the circuit court stated that it had considered all the Chrisco factors, but it did not sufficiently explain how it arrived at the reduced $51,041 fee award given the billing records at hand and the fact that Avery's lawyers did not attempt to separate, as best they could, the fees incurred on the employment-termination case from the other three matters. We therefore remand this case to the circuit court so it may make sufficient findings on the attorneys'-fee award that it believes the employment-termination case reasonably supports. On remand, we leave the fee-calculation issue to the court's informed discretion. We express no opinion on whether a reasonable fee award should be lower, higher, or the same as the one previously entered.
Affirmed in part; remanded in part for further findings.
HIXSON and BROWN, JJ., agree.
Streetman, Meeks & Gibson, PLLC, by: Robert B. Gibson, III, and Gibson & Keith, PLLC, by: C.C. "Cliff" Gibson, III, for appellant.
W. Paul Blume, for appellee.