Bateman v. Heird , 2013 Ark. App. 671 ( 2013 )

Cite as 2013 Ark. App. 671
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-458
WILLIAM L. BATEMAN Opinion Delivered November 13, 2013
APPELLANT
APPEAL FROM THE JEFFERSON
V. COUNTY CIRCUIT COURT
[NO. CV-2011-594-2]
LILLIAN C. HEIRD HONORABLE ROBERT H. WYATT,
APPELLEE JR., JUDGE
REVERSED AND REMANDED
RITA W. GRUBER, Judge
William L. Bateman appeals the amount of attorney’s fees he was awarded in his small-
claims judgment for damages sustained in a motor-vehicle accident. The circuit court
awarded the fees under the following statutory provision:
In all cases wherein loss or damage occurs to property resulting from motor
vehicle collision amounting to one thousand dollars ($1,000) or less, and the defendant
liable, without meritorious defense, shall fail to pay the loss or damage within sixty
(60) days after written notice of the claim has been received, then the defendant shall
be liable to pay the person entitled thereto double the amount of the loss or damage,
together with a reasonable attorney’s fee, which shall not be less than two hundred fifty
dollars ($250), and court costs.
Ark. Code Ann. § 27-53-402(a) (Repl. 2010) (emphasis added).
There is no fixed formula in determining a reasonable attorney’s fee. S. Farm Bureau
Cas. Ins. Co. v. Krouse, 2010 Ark. App. 493, 375 S.W.3d 763. However, a court should be
guided in that determination by these long-recognized factors:
(1) the experience and ability of the attorney; (2) the time and labor required to
Cite as 2013 Ark. App. 671
perform the service properly; (3) the amount in controversy and the result obtained
in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily
charged for similar services in the local area; (6) whether the fee is fixed or contingent;
(7) the time limitations imposed upon 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 attorney.
Carter v. Cline, 2013 Ark. 398, at 9–10, --- S.W.3d ----, ---- (citing Chrisco v. Sun Indus.,
Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Because of the trial judge’s intimate
acquaintance with the record and the quality of service rendered, the appellate court will
usually recognize the judge’s superior perspective in assessing the applicable factors. Id. The
standard of review for an attorney-fee award is abuse of discretion. Nw. Nat’l Life Ins. v.
Heslip, 309 Ark. 319, 832 S.W.2d 463 (1992).
William Bateman’s daughter, Tacita, was driving her father’s 2007 Chrysler in Pine
Bluff on July 9, 2009, and was stopped at a red light when a 1999 Oldsmobile operated by
Lillian C. Heird struck the Chrysler from behind. On September 29, 2011, the Batemans
filed suit against Ms. Heird in circuit court. Tacita Bateman sought damages for personal
injury. William Bateman sought $622.98 of property damage and $50 total costs for car rental
while his Chrysler was being repaired. He also requested, pursuant to Arkansas Code
Annotated section 27-54-402, that he be awarded double damages, his attorney’s fees, and
court costs. In her answer, Ms. Heird denied liability and requested dismissal of the Batemans’
complaint. On November 21, 2012, upon motion of Tacita Bateman, the circuit court
dismissed her personal-injury claim without prejudice.
Ms. Heird’s liability for the accident was stipulated at a November 29, 2012 bench trial
on Mr. Bateman’s claim for property damage. The court noted that payment had not been
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made despite a demand letter to Ms. Heird and a person whom the court assumed to be her
insurance adjustor, and noted that Ms. Heird was not able to be in court to testify. The court
orally found that the testimony of both Mr. Bateman and his daughter, although contested
vigorously, was credible; that the amount of damages to Mr. Bateman’s car was $622.98; and
that Ms. Heird failed to put forth a meritorious defense showing why payment of the small
claim was not made within the statutory sixty-day period.
The circuit court awarded judgment to Mr. Bateman in the amount of $622.98 for
actual damage to his car along with a statutory penalty of $622.98, for a total of $1245.96; $25
car rental per day for two days, totaling $50; and attorney’s fee in the amount of $750 under
Arkansas Code Annotated section 27-53-402. The following colloquy then ensued between
Mr. Bateman’s counsel and the court:
Counsel: Your Honor, we’d like an opportunity to submit a fee petition.
Court: I’m going to authorize $750 in attorney’s fees and then award the cost
for bringing the action. So, at this point, the total judgment will be
$2045.96, plus you can itemize your costs; and you will be awarded
your costs as well.
On December 7, 2012, Mr. Bateman filed a motion asking the court to reconsider the
amount of attorney’s fees—which he alleged would barely cover three hours’ work—and to
allow him to submit a fee petition detailing the time and work. He alleged that the aggressive
law firm hired by State Farm had filed numerous pleadings; inspected his vehicle and hired
experts; sent numerous faxes, letters, and requests; and caused his attorneys to spend more
than seventy-five hours responding. He asserted that “the defense . . . by State Farm
Insurance Company, in denial of the claim to Mr. Bateman, was totally frivolous.” He argued
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that there was no proof on which to base a denial, and that the fees and costs should be
enhanced because State Farm took a meritless and frivolous position with no basis in fact or
law. Ms. Heird responded that the trial had been continued from August 30, 2012, to
November 29, 2012, at Mr. Bateman’s request; that the primary focus of the lawsuit had
arisen from Tacita Bateman’s personal-injury claim, which she voluntarily dismissed shortly
before trial; that the motion to reconsider essentially requested leave to file a fee petition,
which the court had denied at trial after setting Mr. Bateman’s attorney’s fee at $750; and that
Mr. Bateman had not demonstrated how, if at all, the court erred in exercising its discretion
to set the fee at $750.
By written order of January 25, 2013, “based on the pleadings filed herein and being
well and otherwise sufficiently advised in the premises,” the court denied Mr. Bateman’s
motion for reconsideration and again set attorney’s fees at $750. On February 19, 2013, the
court entered judgment fixing damages at $622.98, doubling the damages pursuant to statute,
awarding $50 for a rental car, and awarding attorney’s fees of $750 as previously set at trial and
by its January order. Damages were fixed at $2,045.96, along with $215 fees for filing and
service.
On February 25, 2013, Mr. Bateman appealed the circuit court’s judgment of February
19, 2013. On March 4, 2013, he filed a motion in the circuit court under Arkansas Rule of
Civil Procedure 54(e)(2) to guard against any assertion that he had not followed proper
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procedure in seeking attorney’s fees.1 Attached to the motion was an itemized record
showing that counsel spent 68.24 hours on the case at a rate of $175, totaling $12,012, and
had costs and fees of $225. Ms. Heird responded that the motion was improper because the
circuit court had awarded reasonable attorney’s fees at the close of trial and had twice decided
the issue and that, regardless, Mr. Bateman had not shown how the award of attorney’s fees
was outside the court’s discretion. Mr. Bateman replied that the motion was proper under
Rule 54(e)(2). By order of May 22, 2013, the circuit court denied Mr. Bateman’s motion for
attorney’s fees. Mr. Bateman now appeals that order, incorporating by reference his February
25, 2012 notice of appeal.
Mr. Bateman asserts that the attorney’s fee award of $750 is not “reasonable” under
Ark. Code Ann. section 27-53-402, nor does it serve the statute’s purpose of discouraging
meritless denials of small damage claims, which then must be litigated in court to the
detriment of all concerned. See Ford v. Markham, 235 Ark. 1025, 1027–28, 363 S.W.2d 926,
928 (1963) (noting that the “basic legislative purpose” of our small-claims statute “was
evidently to provide an effective remedy for the enforcement of claims so small that in the
past they have often not been worth the expense of litigation and could therefore be ignored
by the wrongdoer with impunity”).
Mr. Bateman points to Knesek v. Cameron Hubbs Construction., Inc., 2013 Ark. App.
1
Rule 54(e)(2) requires, in pertinent part, that the motion for attorney’s fees be filed
no later than fourteen days after entry of judgment, specify the judgment and the statute or
rule entitling the moving party to the award, and state the amount or provide a fair estimate
of the amount sought.
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380, a case involving Arkansas Code Annotated section 16-22-308, under which the
prevailing party in particular civil actions “may be allowed a reasonable attorney’s fee to be
assessed by the court and collected as costs.” Hubbs submitted an affidavit with an itemized
record of time spent on the case to support a motion for $27,481.20 in attorney’s fees; the
circuit court did not conduct a hearing on the request, and the court stated in its order
denying the motion that Hubbs was not entitled to any attorney’s fees because Hubbs
recovered “less than the amount sought.” We remanded for an analysis of attorney’s fees
using the Chrisco factors because we found it unclear whether the court thought that Hubbs
was not the prevailing party, or thought, considering all of the factors, that Hubbs was not
entitled to any reasonable attorney’s fees. See also Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d
634 (2004) (remanding for consideration of the Chrisco factors in a guardianship case where
we were unable to discern from the court’s remarks its basis for reducing the requested
attorney’s fees).
Ms. Heird responds that Mr. Bateman did not provide the circuit court an amount to
consider at the conclusion of trial; that the attorney’s fee award of $750 Mr. Bateman received
was more than fifty percent of his award for property damage; that the circuit court, in
denying his motion to reconsider attorney’s fees, stated that its decision was based on the
pleadings; that his motion for attorney’s fees after judgment was based on a self-serving
statement rather than an independent statement or affidavit supporting the hourly rate “for
such a small property damage case”; and that his fee statement included generalized entries
that did not differentiate claims for personal injury and property damage. Ms. Heird argues
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that the prevailing party could not be stated with certainty because Mr. Bateman prevailed
only on the small-property claim and because the dismissal of his daughter’s claim without
prejudice did not sufficiently conclude the lawsuit. See FMC Corp. v. Helton, 360 Ark. 465,
202 S.W.3d 490 (2005); Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000).
She concludes that the circuit court did not abuse its discretion in awarding $750 in attorney’s
fees in this case.
Upon finding that Ms. Heird failed to put forth a meritorious defense showing why
payment of Mr. Bateman’s small claim was not made within the sixty days allowed under
Arkansas Code Annotated section 27-53-402, the circuit court properly recognized that the
statute mandated he be awarded a reasonable attorney’s fee. We hold, however, that the court
abused its discretion by deciding on the amount of the attorney’s fee before giving Mr.
Bateman the opportunity he requested to submit a fee petition, and by reiterating its decision
without further explanation even after the fee petition was submitted. As in Knesek, 2013
Ark. 380, and Bailey, 355 Ark. 560, 142 S.W.3d 634, we are unable to determine the basis
of the circuit court’s decision regarding the amount of the attorney’s fee it awarded. We
therefore reverse, and we remand for consideration of the requested fee under the Chrisco
factors.
Reversed and remanded.
HARRISON and WHITEAKER, JJ., agree.
Trafford Law Firm, by: Winfred A. Trafford; and Bridges, Young, Matthews & Drake PLC,
by: John P. Talbot, for appellant.
The Huckabay Law Firm, PLC, by: James T. Sayes, for appellee.
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