# Larry Walther, Director, Arkansas Department of Finance and Administration; Andrea Lea, State Auditor; Dennis Milligan, State Treasurer; And the Central Arkansas Planning and Development District v. Mike Wilson

> Supreme Court of Arkansas · May 14, 2020 · 600 S.W.3d 554

URL: https://www.frixlaw.com/law-library/cases/11074751

## Case

- **Court:** Supreme Court of Arkansas
- **Decided:** May 14, 2020
- **Citations:** 600 S.W.3d 554; 2020 Ark. 194
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

Cite as 2020 Ark. 194
SUPREME COURT OF ARKANSAS
No. CV-19-789

Opinion Delivered: May 14, 2020

LARRY WALTHER, DIRECTOR,
ARKANSAS DEPARTMENT OF
FINANCE AND ADMINISTRATION; APPEAL FROM THE PULASKI
ANDREA LEA, STATE AUDITOR; COUNTY CIRCUIT COURT
DENNIS MILLIGAN, STATE [NO. 60CV-16-862]
TREASURER; AND THE CENTRAL
ARKANSAS PLANNING AND HONORABLE CHRISTOPHER
DEVELOPMENT DISTRICT CHARLES PIAZZA, JUDGE
APPELLANTS

AFFIRMED ON DIRECT APPEAL;
V. AFFIRMED ON CROSS-APPEAL.

MIKE WILSON
APPELLEE

KAREN R. BAKER, Associate Justice

This appeal returns for a third time and is a challenge to an award of attorney’s fees.

Appellants Larry Walther, Director of the Arkansas Department of Finance and

Administration (DFA); Andrea Lea, State Auditor; Dennis Milligan, State Treasurer

(collectively, the State); and the Central Arkansas Planning and Development District (the

CAPDD) appeal from the Pulaski County Circuit Court’s award of attorney’s fees to

appellee Mike Wilson in his illegal-exaction lawsuit that successfully challenged the

constitutionality of certain legislative acts (Acts).
A brief summary of Wilson’s 2005 illegal-exaction suit, in addition to the 2016

lawsuit in which Wilson was awarded the attorney’s fees at issue here, is helpful in

understanding the background. In July 2005, Wilson filed a complaint against the same

State defendants as in this case, as well as against other defendants who had received public

funds, such as the city of Bigelow, Cleburne County, the city of Jacksonville, the

Jacksonville Boys and Girls Club, the Jacksonville Museum of Military History, and Reed’s

Bridge Preservation Society. Wilson alleged that the acts appropriating those funds

violated article 5, section 29 of the Arkansas Constitution and Amendment 14 to the

Arkansas Constitution. The circuit court granted summary judgment in favor of the

defendants on the majority of Wilson’s claims, and he appealed. We dismissed most of the

points on appeal due to lack of a final order, and we reversed and remanded with respect

to one claim. Wilson v. Weiss, 368 Ark. 300, 245 S.W.3d 144 (2006). After a final order

was entered, Wilson again appealed, and we held that all the Acts challenged by Wilson

were unconstitutional. Wilson v. Weiss, 370 Ark. 205, 258 S.W.3d 351 (2007). Specifically,

we stated that the appropriations to each defendant for “state assistance” or for “state aid”

were invalid because they did not provide a distinct purpose for the appropriation as

required under article 5, section 29 of our state constitution. Id. We further held that the

Acts violated Amendment 14 of our constitution because they amounted to special or local

legislation. Id. Wilson did not request attorney’s fees in connection with the 2005 lawsuit.

Following our 2007 decision, the Arkansas Association of Development

Organizations (AADO), which is composed of the eight Arkansas Planning and

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Development Districts (PDDs), approached the legislature with a proposal to create a new

grant program that would be funded by the State, administered by the PDDs, and

approved by the PDD’s board of directors. The proposal was implemented during the

Eighty-sixth General Assembly in 2007 with each PDD being awarded a $250,000 grant,

and the funding of this program continued to increase through the Ninetieth General

Assembly in 2015. In 2015, the legislature passed eight identical acts, each of which

appropriated an equal amount of funds ranging from $1 million to $8 million from the

General Improvement Fund (GIF) to each of the eight PDDs in Arkansas, including the

CAPDD. The only purpose stated in these appropriation bills was “for grants to planning

and development districts.” The appropriations were funded by Act 1146 of 2015, which

authorized a special subset of GIF funds called the “90th Session Projects Account” for the

disbursements to the PDDs. CAPDD itself ended up receiving a total of $2,987,500 in

“grants” from the 2015 legislative session.

On February 12, 2016, Wilson filed an illegal-exaction complaint against the State

and CAPDD, which is the subject of the appeal before us. As in his 2005 lawsuit, Wilson

alleged that the challenged 2015 Acts violated both article 5, section 29 of the Arkansas

Constitution and Amendment 14 to the Arkansas Constitution. Wilson sought a

declaratory judgment that the Acts were unconstitutional, an injunction preventing further

disbursements by the State, an injunction prohibiting CAPDD from making further grants,

and an order directing CAPDD to refund the disbursements. Wilson also requested costs

and attorney’s fees in this suit. Wilson filed an amended complaint on April 4, 2016,

3
adding a claim for declaratory judgment that appellees had violated Arkansas Code

Annotated sections 14-166-204 and -205.

Wilson filed a motion for summary judgment on his complaint and amended

complaint, and the State responded and filed a cross-motion for summary judgment. After

a hearing on the motions, the circuit court entered an order on November 9, 2016, ruling

that the challenged Acts satisfied Amendment 14, and article 5, section 29 and that

Wilson had failed to state a claim in his amended complaint. Therefore, the circuit court

granted summary judgment to the State and dismissed Wilson’s suit.

Wilson appealed, and we reversed and remanded. Wilson v. Walther, 2017 Ark. 270,

527 S.W.3d 709 (Wilson I). We agreed with Wilson that the challenged Acts were

unconstitutional as written because they failed to state their distinctive purpose in violation

of article 5, section 29. Id. We also rejected the State’s claims on cross-appeal that Wilson

lacked standing and that the appeal was moot because the funds had already been

dispersed by the State. Id. We noted that the taxpayers would still be entitled to

repayment of the GIF funds still in CAPDD’s possession, although the exact amount of

those funds was not known at that time. Id.

After the mandate in Wilson I issued and the case was remanded to the circuit court,

Wilson filed a motion on remand for declaratory judgment, permanent injunction,

restitution, costs, and attorney’s fees. He claimed that he was entitled to the relief sought

in his original and amended complaint––namely, a permanent injunction against the State

preventing it from making or approving disbursements under the authority of the Acts

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declared unconstitutional by this court; a declaratory judgment to that effect; an order

requiring CAPDD to refund the illegal disbursements to the state treasury as restitution;

his costs in the amount of $4,588.09; and attorney’s fees of one-third of “the common

economic benefit pool accruing to state taxpayers” due to his efforts or such other

reasonable attorney’s fees as the court may determine according to law.

The State filed a response to the motion, agreeing that Wilson was entitled to a

declaratory judgment that the challenged Acts were unconstitutional but disagreed that he

was entitled to any other relief. The State responded that there were no unobligated funds

to be returned to the treasury and requested that a hearing be held to determine the

amount and disposition of any 2015 GIF funds in the possession of CAPDD. With regard

to costs and attorney’s fees, the State argued that these claims were barred by sovereign

immunity. The State also contended that there was no authority for an award of attorney’s

fees in a “public funds” illegal-exaction case such as this one.

In his reply to the State’s response, Wilson indicated that he was not claiming a

statutory basis for attorney’s fees but was instead relying on Lake View School District No. 25

v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000), in which this court held that an

economic benefit to the State had accrued by Lakeview’s efforts and that attorney’s fees

should be awarded on this basis. With regard to the State’s sovereign-immunity argument,

Wilson requested that the court take judicial notice of this court’s award of appellate

briefing costs in Wilson I. He further argued that sovereign immunity was not available as a

defense in an illegal-exaction case.

5
At the February 20, 2018 hearing on Wilson’s motion, the parties agreed that

CAPDD had in its possession $969,799.60 of the GIF funds at issue. The remainder of

the $2,547,804 in GIF funds had already been distributed as grants. On March 29, the

circuit court entered an order finding that Wilson had “conferred a benefit to taxpayers in

the amount of the GIF funds appropriated but unspent” and that he was therefore entitled

to an award of attorney’s fees in the amount of one-third of the remaining GIF funds, or

$323,266.53. The court ordered that CAPDD remit the balance of the funds to the state

treasury. In denying the State’s assertion of sovereign immunity, the circuit court found

that it “does not apply to unconstitutional, illegal, or ultra vires acts of the State.” The State

appealed the circuit court’s order.

On appeal, we held that sovereign immunity did not apply because the State had

abandoned any interest in the registry funds once they were dispersed to the CAPDD.

Walther v. Wilson, 2019 Ark. 105, 571 S.W.3d 897 (Wilson II). We further held that

Wilson could receive attorney’s fees on the basis that a substantial benefit had been

conferred to the taxpayers. Id. However, we remanded the matter to the circuit court with

instructions to employ the factors set forth in Chrisco v. Sun Industries, 304 Ark. 227, 800

S.W.2d 717 (1990). We stated that “[b]ased on the record before us, the circuit court did

not make any findings with respect to what a reasonable attorney’s fee would be in this case

and awarded the one-third in fees that Wilson had requested. Accordingly, we remand to

the circuit court for it to consider the Chrisco factors in determining whether the amount

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of fees requested by Wilson is reasonable under the circumstances.” Wilson II, 2019 Ark.

105, at 7, 571 S.W.3d at 901.

On remand, Wilson filed a motion and an amended motion for attorney’s fees, in

which he again requested an attorney’s fee of one-third ($323,266.53), plus prejudgment

interest from February 12, 2016, to May 29, 2019, for a total of $386,927.89. Attached to

his motion were a brief in support; orders from prior cases in which Wilson’s attorney,

John Ogles, had received attorney’s fees; an itemization of hours expended and fees

incurred by CAPDD’s counsel, for a total of 600 hours and $164,720.50; the written

contingency-fee contract between Wilson and Ogles that was dated on April 19, 2019, but

stated that it was retroactive to February 12, 2016; and an affidavit from Wilson indicating

that he had personally spent 294.2 hours on the case, which would be a total of $102,970

in fees at his hourly rate of $350.

On June 19, 2019, the circuit court held a hearing and heard arguments from

counsel and from Wilson. On July 1, 2019, the circuit court entered an order discussing

the Chrisco factors and finding that these factors justified the 1/3 contingency fee requested

by Wilson. The circuit court awarded $323,266.53 in attorney’s fees but denied Wilson’s

request for prejudgment interest. This appeal followed.

The State timely appealed and presents three points on appeal: (1) the circuit court

abused its discretion in awarding Ogles $323,266.53 in attorney’s fees because Ogles failed

to satisfy his burden of proof; (2) the circuit court’s award of $323,266.53 was an abuse of

discretion because it is clearly unreasonable based on the evidence submitted; and (3) the

7
circuit court clearly erred in its consideration of the Chrisco factors. Wilson cross-appealed

and presents one point: that the circuit court erred when it denied Wilson prejudgment

interest. We affirm on appeal and on cross-appeal for the reasons that follow.1

I. Direct Appeal

A. Standard of Review

In awarding attorney’s fees, we have explained that “factors to consider in a motion

for attorneys’ fees include (1) the experience and ability of the attorney, (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 legal services, (6) whether the fee is fixed or

contingent, (7) the time limitations imposed upon the client or by the circumstances, and

(8) the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment of the lawyer. Chrisco, 304 Ark. at 229, 800

S.W.2d at 718–19. “Because of the circuit court’s intimate acquaintance with the record

and the quality of service rendered, we recognize the superior perspective of the circuit

court in assessing the applicable factors. Phi Kappa Tau Hous. Corp. [v. Wengert], 350 Ark.

1
On October 17, 2019, Wilson filed a motion to dismiss asserting that the State did
not have standing to bring this appeal and contending that the State relinquished and
abandoned the funds in the registry of the court. On October 22, the State responded and
on December 5, we took the motion with the appeal. However, we do not reach the merits
of the motion to dismiss because the issue was not preserved for review. Although the
circuit court ruled from the bench that the State had standing to bring this appeal, in its
written order, the circuit court declined to reach the issue. Therefore, Wilson did not
obtain a ruling, the issue is not preserved for our review, and we deny the motion to
dismiss.

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[335], 341, 86 S.W.3d [860,] 860 [(2002)]. Accordingly, the amount of the award will be

reversed only if the appellant can demonstrate that the circuit court abused its discretion.

Id., 86 S.W.3d at 860.” City of Little Rock v. Nelson, 2020 Ark. 19, at 4–5, 592 S.W.3d 666,

669. “An award of attorney’s fees will not be set aside absent an abuse of discretion. See

Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).” Hanners v. Giant Oil Co.

of Ark., 373 Ark. 418, 425, 284 S.W.3d 468, 474 (2008). With these standards in mind, we

turn to the State’s points on appeal and Wilson’s point on cross-appeal.

B. Points on Appeal

1. Failure to satisfy burden for attorney’s-fee award

For its first point on appeal, the State argues that the circuit court abused its

discretion in awarding Ogles $323,266.53 in attorney’s fees because Ogles failed to satisfy

his burden of proof. The State contends that “Ogles woefully failed to meet [his] burden

because he failed to submit any evidence regarding his personal work in this matter.” The

State further asserts that Ogles did not “submit timesheets and no information about his

personal work” or evidence supporting a “substantial benefit” in the matter supporting a

fee award. Additionally, the State contends that Wilson, who is an attorney and the

plaintiff in this case, “drafted most, if not every, significant pleading in this matter” but

Ogles cannot rely on Wilson’s hours. Wilson responds that his motion, brief, and evidence

presented at the hearing support the circuit court’s finding that Ogles performed

significant amounts of work in this matter and support the circuit court’s decision. The

record demonstrates that Wilson responded with the following:

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 Ogles has a contingency fee agreement for this matter.
 Ogles did not record his time because he was hired on a contingency fee.
 Ogles did not estimate his time spent on the case because any estimate would
be a guess.
 Ogles spent an incredible amount of time pursuing this litigation on all
fronts over four years.
 Ogles litigated every issue aggressively in circuit court and two appeals to the
Arkansas Supreme Court.
 Ogles stated that the case was time consuming because the facts and evidence
were complex.
 Ogles stated that he devoted “whatever time” was required to bring the case
to conclusion in lieu of other work because he was working on a contingency
fee and needed to resolve this matter.
 Ogles stated that the circuit court docket sheets support the complexity and
time spent on this matter because the case has gone on for four years.
 Ogles stated that the court’s opinions in Wilson I and Wilson II also
demonstrate his contribution to the case saving taxpayers potentially $120
million with the success of his work.
 Ogles stated that he was counsel of record from day one and worked on the
case continuously.

The State replies that “Ogles submitted absolutely no evidence about the time he

personally worked on this case or his hourly rate. . . . [D]espite requests from opposing

counsel and the opportunity to address the issue on remand, Ogles refused to provide even

an estimation of any hours he spent on this case.”

At issue is the circuit court’s finding: “this court has reviewed the pleadings, the

evidence presented and introduced, and the arguments of counsel. For the reasons stated

in open court, the Court awards Ogles Law Firm, P.A., an attorney’s fee of $323,266.53.”

Further, at the hearing, in awarding the fee, the circuit court explained, “I think there was

substantial work, and it’s obvious that to fight that, it’s going to take, and, while Mr. Ogles

doesn’t have a timesheet, his, he wasn’t getting paid by time. He was getting paid on a

10
contingent fee which Chrisco says whether the fee is fixed or contingent. Of course, the

amount involved in this case was really astronomical. And actually, the amount that was

involved in this case went far beyond just that we got in the bank here. The principal

spreads over the whole state. And the result is obtained. I mean it’s obvious that they, they

won this. And the result is greater than this particular case. And, you know, there’s no way

that you can measure the fees for this type of legal work as you have nothing to measure it

against. What you have to measure it against is the ability of the lawyer to prevail in this

particular matter. The other problem is that when you take a case on a contingency, it

restricts your ability to do other work.”

Here, the circuit court was fully acquainted with this record and the proceedings

involved. As Ogles explained in the hearing, he did not keep his time and explained to the

circuit court, “You’re familiar with all the parties, you’re familiar with my work in the

past.” Ogles further explained that CAPDD alone had spent hundreds of hours on the

case as demonstrated by the billing records submitted to the court, and Ogles responded to

everything that was filed. Further, Ogles stated that “it was a hard case. I mean the State of

Arkansas fought over and over and over because they wanted CAPDD to have this money.

I mean they, they did everything they possibly could to make sure that this money did not

come back to the State of Arkansas.” Further, the circuit court considered the Chrisco

factors discussed above in its order.

On review, we note we have “often observed that there is no fixed formula in

determining reasonable attorney’s fees. Due to the trial judge’s intimate acquaintance with

11
the record and the quality of service rendered, we recognize the superior perspective of the

trial judge in assessing the applicable factors.” Phi Kappa Tau Hous. Corp., 350 Ark. at 341,

86 S.W.3d at 860 (internal citation omitted). Further, we have held that although it is

helpful to have time records if ones were recorded, “there is not now, and never has been,

any rule of law or procedure in this state that requires submission of time records in

support of a request for payment of attorneys’ fees. While the time spent is an important

element to be considered in determining the reasonable value of an attorney’s services, it is

not the controlling factor, and is sometimes a minor one.” Powell v. Henry, 267 Ark. 484,

592 S.W.2d 107 (1980); see also Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979) (holding

that other factors were just as important as the time devoted to the case). Finally, in Phelps

v. U.S. Credit Life Ins. Co., 340 Ark. 439, 442–43, 10 S.W.3d 854, 856–57 (2000), we

affirmed the circuit court’s finding that a contingency-fee award rather than time spent on

the case was an appropriate award. In Phelps, Phelps’s attorney was not able to present an

actual amount of time spent preparing Phelps’s case. Instead, Phelps’s attorney “submitted

a five-page itemization of particular tasks and the dates on which they were performed.

There was no indication of the time spent on each of the tasks; . . . [Phelps’s attorney]

acknowledged that his office’s records were not completely accurate, stating that ‘we had

not kept this matter entirely timed during the work we were doing on it because of it being

a contingency fee case.’ Thus, the total time allegedly spent on the case was merely an

estimation arrived at after the fact.” In affirming, we explained that “the time spent on a

case is but one factor to consider, and we do not regard this argument as a persuasive

12
reason to reverse the chancellor’s judgment. See [Nw. Nat’l Life Ins. Co. v. Heslip, 309 Ark.

319, 832 S.W.2d 463 [1992].” Id.

Here, as in Phelps, Wilson’s attorney was not able to present an actual amount of

time spent preparing Wilson’s case. Instead, Wilson provided other types of evidence that

established the amount of work that Ogles performed in representing him in this illegal-

exaction suit. Based on the record discussed above, we are unpersuaded by the State’s

argument. Accordingly, we affirm the circuit court’s award of attorney’s fees.

2. Reasonableness of the fee award

For its second point on appeal, the State argues that the circuit court’s award of

$323,266.53 was an abuse of discretion because it is clearly unreasonable on the basis of

the evidence submitted. We note that in arguing that the fee was not reasonable, the State

alleges that the circuit court’s findings are unreasonable, contending the award is not

supported by the record. The State challenges the fee award relative to the Chrisco factors in

a separate point on appeal.

The State asserts that the award was unreasonable and alleges the award is internally

inconsistent because the circuit court relied on combined timesheets from attorneys other

than Ogles that worked on the case and then doubled the amount submitted to render its

award. The State also contends that the circuit court “offered absolutely no explanation or

justification as to why Ogles was entitled to double the amount of hours billed by Jones

and Pruitt.” The State further contends that “while not explicitly contained in the circuit

court’s findings of fact, a review of the evidence suggests that the only way the circuit court

13
could have arrived at double the time billed by Jones and Pruitt was if it considered the

timesheets of Wilson, Ogles’s client.” Wilson responds that the State erroneously posits

that attorney’s fees cannot be awarded absent contemporaneous time records. Wilson

further responds that as a result of his work on this lawsuit and this court’s finding that the

statutes were unconstitutional, the taxpayers have saved as much as $240 million.

In its order, the circuit court made the following findings:

A substantial amount of work was involved in this case, supported in part by
the time Sam Jones submitted (representing CAPDD) stating that he spent over six
hundred (600) hours on the case. In order to adequately bring this lawsuit and
prevail, it is obvious Mr. Ogles would have to commit substantial time and labor.
Although Mr. Ogles did not maintain a time sheet. Mr. Jones’ work is instructive
regarding the amount of time and labor this case demanded. . . . The amount
involved in this case was astronomical. . . . In this area, it is common for plaintiff
attorneys to enter into a contingency agreement in cases such as this and for their
fee to be wholly dependent upon the outcome of the case. The fee agreement in
this case is not out of the norm for this area and this type of work.

Here, the record demonstrates that at the hearing, Ogles stated that this case “took

up time. . . . You know how much time it took. We have the docket sheets. [It took] a lot

of time . . . over three years. This has been ongoing.” Ogles explained that “time

limitations is not really an issue in this case because Plaintiff’s counsel simply expended

whatever time was necessary to litigate this case to a successful conclusion. . . . [T]his case

is in its third year of active litigation and the Court is well aware of the volumes of

pleadings and briefs which have been prepared. Devoting all the time which has been

devoted to this case obviously limited the attorney’s time for working on other cases.”

Again, the State’s argument fails to recognize the fact that Ogles’s fee was based on a

14
contingency-fee agreement and not solely on his time spent on the case. The timesheets of

Wilson and opposing counsel were provided merely to show the large amount of time that

was required by all attorneys involved in the litigation and that the one-third contingency

fee was reasonable in light of that time spent. Further, even though the estimated fees of

CAPDD’s counsel amounted to only half of the fees awarded to Ogles, Ogles had to

respond to the pleadings and motions filed by two opposing parties—the State and

CAPDD. With regard to Wilson’s timesheets, he has repeatedly stated that he is not

asking for attorney’s fees and that his timesheets were only a demonstration of the time

that he and Ogles both expended. Wilson rejected the assertion that Ogles did not

participate in the legal work reflected on those timesheets. Further, we reject the State’s

argument that fees cannot be awarded for appellate work. We have previously directed a

circuit court to include fees for time spent on the appeal. See, e.g., Griffin v. First Nat’l Bank

of Crossett, 318 Ark. 848, 888 S.W.2d 306 (1994). The State relies on Race v. National

Cashflow Systems, Inc., 307 Ark. 131, 817 S.W.2d 876 (1991), for its position that awards

cannot be made for appellate work. However, Race is distinguishable because the circuit

court in Race had exceeded our mandate by reopening the case to award additional

attorney’s fees for the appeal. Here, our mandate specifically directed the circuit court to

determine what attorney’s fees were reasonable in this case. Accordingly, the State’s

argument that the fees awarded here were excessive or unreasonable based on the evidence

presented is not persuasive.

3. Chrisco factors

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For its final point on appeal, the State contends that the circuit court clearly erred

in its consideration of the Chrisco factors. The State asserts that the circuit court failed to

properly consider four of the eight factors and that such an oversight is clear error.

Specifically, the State contends that the circuit court failed to properly consider four of the

eight factors: (1) Ogles’s experience and ability; (2) the amount of time and labor Ogles

spent on the case and the results obtained; (3) whether the fee is fixed or contingent; (4)

and the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment of Ogles.

At issue is the circuit court’s July 1, 2019 order, which states in pertinent part:

Experience & Ability: The evidence showed that Mr. Ogles was an
experienced attorney who was quite capable of handling this matter, shown in part
by other drafts and cases submitted demonstrating his experience and skill. Mr.
Ogles had the ability to prevail in this case, and did, in fact, do just that.

Time & Labor Required to Perform Legal Services: A substantial amount of
work was involved in this case, supported in part by the time Sam Jones submitted
stating that he spent over six hundred (600) hours on the case. In order to
adequately bring this lawsuit and prevail, it is obvious that Mr. Ogles would have to
commit a substantial amount of time and labor. Although Mr. Ogles did not
maintain a time sheet, Mr. Jones’ work is instructive regarding the amount of time
and labor this case demanded.

Amount Involved in Case & Results Obtained: The amount involved in this case
was astronomical––going far beyond just what is held in the court registry. This
case involved over nine-hundred thousand ($900,000) dollars in the court registry,
which was only a small portion of the actual statewide amount. The future amounts
of money that could have potentially been spent that have now been curtailed by
this lawsuit must also be taken into account. Further, Mr. Ogles prevailed on his
claim, obtaining a result that reaches far greater than this particular case.

Fee Customarily Charged in Locality for Similar Legal Services: As noted above,
Mr. Jones charged three-hundred fifty ($350) dollars an hour and worked six

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hundred (600) hours on the instant case. Mr. Ogles entered into a contingency fee
agreement. In this area, it is common for the plaintiff attorneys to enter into a
contingency agreement in cases such as this and for their fee to be wholly
dependent upon the outcome of the case. The fee agreement in this case is not out
of the norm for this area and this type of legal work.

Fixed Fee or Contingent Fee: Mr. Ogles took this case on a contingency fee. A
common arrangement amount plaintiff attorneys in this area.

Likelihood that Acceptance will Preclude Other Employment: Taking this case
upon a contingency fee and the amount of time required to pursue this case
restricted Mr. Ogles ability to do other work. Moreover, Mr. Ogles bore the
potential burden of lost time and resources if he failed to prevail in the case.

Time Limitations Imposed Upon Client or By Circumstances: While there was not
necessarily a stringent time limitation at issue, the other Chrisco factors weigh in
favor of awarding Mr. Ogles a one-third (1/3) contingency fee.

The State first contends that there is very little evidence in the record to support the

finding that Ogles had the requisite experience and ability to handle this matter. We

disagree. The record demonstrates that Ogles has been practicing law since 1989, has been

licensed to practice in several state and federal courts, and has been practicing in front of

the circuit court holding the hearing throughout his career. Further, Ogles submitted that

the circuit court judge holding the hearing was familiar with Ogles’s work because the

Wilson matter had been in that court for the four-year litigation. Likewise, Ogles submitted

that as a plaintiff’s attorney, he specialized “in everything.” Therefore, based on the record

before us, the record supports the conclusion that the circuit court considered this factor.

Second, the State contends that the circuit court erred in its consideration of the

Chrisco factors and its determination of time spent on the case, alleging that the circuit

17
court made an assumption that Ogles had spent a substantial, unspecified amount of time

on the case based on timesheets of other attorneys. As discussed above, this argument

lacks merit. Ogles did not record his time because he was handling the case on a

contingency-fee basis and submitted the timesheets of other attorneys involved to show the

circuit court the amount of time spent on the case. Accordingly, the record establishes that

the circuit court considered this factor.

Third, the State contends that the circuit court erred in relying on Ogles’s

contingency-fee agreement as justification and alleges that a fee agreement has no bearing

on the reasonableness of the fee. As discussed above, in Phelps, 340 Ark. at 442–43, 10

S.W.3d at 856–57, we affirmed the circuit court’s finding that a contingency-fee award

rather than time spent on the case was an appropriate award and explained that “the time

spent on a case is but one factor to consider, and we do not regard this argument as a

persuasive reason to reverse the chancellor’s judgment. See Heslip, 309 Ark. 319, 832

S.W.2d 463.” The State further contends that the fee agreement is invalid because it was

not entered into or reduced to writing when this suit was commenced, as required by

Arkansas Rule of Professional Conduct 1.5. However, while the State raised the issue in

response to Wilson’s motion for attorney’s fees, the State did not obtain a ruling, and the

issue is not preserved. In any event, the State’s argument is misplaced. Rule 1.5(b) requires

that the fee “shall be communicated to the client, preferably in writing, before or within a

reasonable time after commencing the representation, except when the lawyer will charge a

regularly represented client on the same basis or rate.” Further, Rule 1.5(c) provides that a

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contingency-fee agreement “shall be in writing.” In other words, there is no requirement

in Rule 1.5(b) or (c) that the agreement must be entered into or in writing at the time the

action is commenced. Finally, we have held that an oral contingency-fee agreement was

enforceable, despite Rule 1.5(c), when the attorney and client had a long-term relationship

and there was no dispute as to the existence or terms of the fee agreement. Hotel Assocs.,

Inc. v. Rieves, Rubens & Mayton, 2014 Ark. 254, 435 S.W.3d 488.

Here, as demonstrated in the record, Wilson indicated that he and Ogles had

agreed from the beginning of the litigation that Ogles’s fee would be contingent on

Wilson’s success. Although the written agreement was not signed until April 19, 2019, it

stated that it was retroactive to February 12, 2016, the date the complaint was filed. This

appears to satisfy the dictates of Rule 1.5. Here, based on the record before us, the record

supports that the circuit court considered this factor.

Finally, the State contends that the circuit court erred in finding that Ogles’s

acceptance of this case precluded other employment. In the hearing, Ogles explained that

the instant case had been ongoing for years and limited his time with other clients.

Accordingly, the record shows that the circuit court considered this factor.

In sum, in the case at bar, the circuit court considered the Chrisco factors in its

award of attorney’s fees, and we are unpersuaded by the State’s argument. Accordingly, we

affirm the circuit court on this point.

II. Cross-Appeal

A. Prejudgment Interest

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For his sole point on cross-appeal, Wilson contends that the circuit court erred

when it denied Wilson prejudgment interest on the award of fees. Wilson argues that the

circuit court denied his request without explanation and that he is entitled to prejudgment

interest from the date of the filing of his complaint to the date of final judgment awarding

the fees. In other words, Wilson contends that prejudgment interest accrued from

February 1, 2016, until July 1, 2019, the date the circuit court entered its order awarding

fees. Wilson contends that this interest amount totals $65,564.76.

“Prejudgment interest is compensation for recoverable damages wrongfully withheld

from the time of the loss until judgment. Perkins v. Cedar Mountain Sewer Improvement

District, 360 Ark. 50, 199 S.W.3d 667 (2004); Ozarks Unlimited Resources Co-op., Inc. v.

Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998). Prejudgment interest is allowable where the

amount of damages is definitely ascertainable by mathematical computation, or if the

evidence furnishes data that makes it possible to compute the amount without reliance on

opinion or discretion. Ray & Sons Masonry v. United States Fidelity & Guaranty Co., 353 Ark.

201, 114 S.W.3d 189 (2003); Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448,

938 S.W.2d 565 (1997). This standard is met if a method exists for fixing the exact value of

a cause of action at the time of the occurrence of the event that gives rise to the cause of

action. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25

(1999). Where prejudgment interest may be collected at all, the injured party is always

entitled to it as a matter of law. TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688,

946 S.W.2d 930 (1997); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).”

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Reynolds Health Care Servs., Inc. v. HMNH, Inc., 364 Ark. 168, 180–81, 217 S.W.3d 797,

807 (2005); Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 194, 272 S.W.3d 91,

95 (2008).

Wilson submits various numbers that he contends should be used for calculation of

prejudgment interest, including, “Wilson is entitled to prejudgment interest on at least the

$323,266.53 fee award.” Wilson asserts that the amount of damages has been certain

throughout this litigation. Wilson further contends that at the commencement of

litigation, the sum was $2,547,804, after the remand of Wilson I the amount was

$969,799.60, and finally, the amount after Wilson I has remained $323,266.53. The State

responds that Wilson is barred by law of the case, alleging Wilson did not request

prejudgment interest prior to Wilson II. The State further responds that prejudgment

interest is not within the scope of the mandate in Wilson II. Finally, the State responds

that Wilson is not entitled to prejudgment interest on his attorney’s-fee award. Wilson

replies that the damages wrongfully withheld from Wilson are the attorney’s fees of

$323,266.53 that he alleges have been wrongfully withheld.

Here, the cause of action is an illegal-exaction matter. In order to prevail, a method

must have existed for fixing the exact value of a cause of action at the time of the

occurrence of the event that gives rise to the cause of action. In other words, there must be

a definite value for the damages at the time the illegal-exaction lawsuit was filed. However,

here, according to the record before us, there is not an exact value of damages that gave rise

to this action. Simply put, a sum certain for the alleged damages from the statutes that were

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challenged was not available at the time of the suit. Therefore, we affirm the circuit court’s

denial of Wilson’s request for an award of prejudgment interest.

Affirmed on direct appeal; affirmed on cross-appeal.

KEMP, C.J., and WOOD and WOMACK, JJ., concur in part and dissent in part.

JOHN DAN KEMP, Chief Justice, concurring in part and dissenting in part. I agree

with the majority’s holding on cross-appeal to affirm the circuit court’s denial of Wilson’s

request for an award of prejudgment interest. For the reasons articulated in my dissent in

Walther v. Wilson, 2019 Ark. 105, at 7, 571 S.W.3d 897, 902, I respectfully dissent from the

majority’s holding on direct appeal.

WOOD, J., joins.

SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. I agree

with the majority’s analysis regarding the issue of prejudgment interest on cross-appeal. I

write separately because I disagree with the majority’s decision to affirm the circuit court’s

award of attorney’s fees on direct appeal. Based on the evidence presented by appellee

Mike Wilson and his attorney of record in this matter, John Ogles, an award of

$323,266.53 is not reasonable under a Chrisco analysis.

Ogles has presented scant evidence of his personal efforts in this case outside of

obvious statements that it “took up time” and that it was a “hard case.” While the

timesheets of opposing counsel were able to give the circuit court a sense of the time

involved in this litigation, they do nothing to establish the work Ogles himself performed–

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–which is especially relevant in determining the reasonableness of attorney’s fees for Ogles,

when Wilson’s own records suggest he did most of the legal work.

The majority relies on the contingency agreement between Wilson and Ogles to

absolve Ogles of his burden of accounting for his time. Yet, this agreement is invalid under

Arkansas Rule of Professional Conduct 1.5. Rule 1.5(c) provides that a contingency

agreement “shall be in writing.” Wilson acknowledged during oral argument before this

court that the agreement was not in writing. A written agreement was not signed until

April 18, 2019, the date this court handed down its opinion in Wilson II. The majority

argues that Rule 1.5 does not include a requirement that contingency-fee agreements be

entered into or in writing at the time an action is commenced. This argument overlooks

the language of Rule 1.5(b), which requires that the fee arrangement be communicated to

the client “before or within a reasonable time after commencing the representation.”

Taken together, subsections (b) and (c) require a contingency arrangement to be in writing

and communicated to the client before or within a reasonable time after the

commencement of representation. Wilson’s post hoc agreement does not satisfy our rules

of professional conduct. Additionally, the majority’s reliance on Hotel Assocs. v. Rieves,

Rubens & Mayton, 2014 Ark. 254, 435 S.W.3d 488, is misplaced. There, this court

addressed the enforceability of an oral contingency-fee agreement between an attorney and

his client, whereas in this case, Wilson seeks to enforce a contingency agreement against

the State as a nonparty to the claimed contract.

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Moreover, even if Ogles was operating under the assumption that a valid agreement

existed and, as a result, did not maintain contemporaneous records of his time, he is still

required to account for his time and labor under Chrisco. The majority cites Phelps v. United

States Credit Life Ins. Co., 340 Ark. 439, 10 S.W.3d 854 (2000), a contingency-fee case in

which this court upheld an award of attorney’s fees despite the inability of Phelps’s

attorney to present evidence of the actual amount of time he spent preparing the case.

Although the attorney in Phelps was unable to furnish records of the exact amount of time

he put into the case, he still submitted an estimation of his efforts in the form of a five-page

itemization of particular tasks and the dates on which they were performed. Wilson argues

that because the case was taken on a contingency basis, there can be no detailed

itemization; however, in Wilson’s own brief in support of fees, he included a motion for

attorney’s fees filed by Ogles in a prior contingency-fee case wherein Ogles attached an

itemization of his time spent and hourly rate. Thus, it is untrue that a contingency

agreement prevents itemization, as Ogles himself proves.

While no single Chrisco factor may dominate over the others, the circumstances of

this case necessitate actual evidence of Ogles’s time and labor. See Running M Farms, Inc. v.

Farm Bureau Mut. Ins. Co. of Ark., Inc., 371 Ark. 308, 265 S.W.3d 740 (2007) (concluding

that there was no indication in the circuit court’s decision that the existence of a

contingency-fee agreement dominated over the other factors). Here, the weight of the

evidence suggests that it was Wilson, not Ogles, that performed the bulk of the legal work.

With Ogles’s level of involvement in this case at issue, it was unreasonable for the circuit

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court to award a fee of $323,266.53 without any direct evidence of Ogles’s work.

Therefore, I must respectfully dissent from the majority’s conclusion that the circuit court

adequately considered the Chrisco factors.

WOOD, J., joins in this opinion.

Leslie Rutledge, Att’y Gen., by: Brittany N. Edwards, Ass’t Att’y Gen., for appellant.

Ogles Law Firm, P.A., by: John Ogles; and Mike Wilson, for appellee.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11074751. Public record. Not legal advice.