{ "id": 6136957, "name": "Patricia GARNER, Administratrix of the Estate of Ilia Frank Hill, Jr. v. Robert LIMBOCKER and the City of Fort Smith, Arkansas", "name_abbreviation": "Garner v. Limbocker", "decision_date": "1989-05-24", "docket_number": "CA 88-392", "first_page": "68", "last_page": "73", "citations": [ { "type": "official", "cite": "28 Ark. App. 68" }, { "type": "parallel", "cite": "770 S.W.2d 673" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "477 U.S. 561", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210660 ], "year": 1986, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/us/477/0561-01" ] }, { "cite": "488 F.2d 714", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 213570 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/488/0714-01" ] }, { "cite": "461 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298707 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/us/461/0424-01" ] }, { "cite": "475 U.S. 1011", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6233312, 6231653, 6232005, 6235176, 6230700, 6234267, 6234581, 6233014, 6234872, 6235482, 6233627, 6230911 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/1011-06", "/us/475/1011-03", "/us/475/1011-04", "/us/475/1011-11", "/us/475/1011-01", "/us/475/1011-08", "/us/475/1011-09", "/us/475/1011-05", "/us/475/1011-10", "/us/475/1011-12", "/us/475/1011-07", "/us/475/1011-02" ] }, { "cite": "771 F.2d 1153", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 338077 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/771/1153-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 545, "char_count": 9471, "ocr_confidence": 0.901, "pagerank": { "raw": 7.446380323966355e-08, "percentile": 0.444177826583712 }, "sha256": "9a5d2e16ccb49895bc0e2a19f5e99b920066ceb10b51329fc288f4636c8e8f27", "simhash": "1:13e9cef06043f22c", "word_count": 1521 }, "last_updated": "2023-07-14T20:10:20.618919+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft and Cooper, JJ., agree." ], "parties": [ "Patricia GARNER, Administratrix of the Estate of Ilia Frank Hill, Jr. v. Robert LIMBOCKER and the City of Fort Smith, Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Chief Judge.\nThis appeal comes to us from Sebastian County Circuit Court. Patricia Garner, appellant and administratrix of the estate of Ilia Frank Hill, Jr., appeals from the trial court\u2019s award of $3,000.00 from appellee, City of Fort Smith, for attorney\u2019s fees and costs under 42 U.S.C. \u00a7 1988. We affirm.\nThis action arose from an altercation which occurred on April 18, 1981, wherein appellant\u2019s brother, Frank Hill, was arrested. The record indicates that on that evening, three police officers responded to a disturbance call involving the deceased at an apartment complex in Fort Smith. Upon arrival the officers learned that the deceased left the complex and went to the residence of a friend across the street. The police confronted the deceased and a heated conversation developed which culminated in a physical altercation when the deceased tried to flee. During the fight, the deceased sustained internal injuries which appellant contends were primarily due to the actions of Officer Robert Limbocker. The deceased was subsequently arrested and charged with numerous offenses involving the altercation. The deceased became ill after his arrest and was transported to a local hospital where he underwent surgery for a ruptured intestine. Due to complications, the deceased underwent a second surgery the following day during which he expired.\nOn June 9, 1981, appellant filed suit for $2,650,000.00 in damages against the three Fort Smith police officers involved in the arrest of her deceased brother. Appellant alleged that the officers committed unjustifiable assault and battery upon her brother and that the officers negligently failed to provide medical attention resulting in his death. In July of 1982, the court granted appellant\u2019s motion to dismiss without prejudice the portion of the complaint as to the two officers other than Robert Limbocker. Thereafter, appellant also filed a medical malpractice claim against the physician who performed the surgery alleging that the doctor proximately caused the death of her brother by his negligent disregard of the deceased\u2019s condition. Appellant received a $30,000.00 settlement from the doctor which she put into accounts for the children of the deceased.\nIn 1983, appellant amended the original complaint on two occasions to join appellee, City of Fort Smith, as a defendant in the litigation, alleging it failed to provide sufficient medical care and to supervise police officers. Additionally, appellant alleged the city retained Robert Limbocker as an officer with knowledge of his propensity to use excessive force. Five years later the case proceeded to trial on February 24, 1988. At appellant\u2019s request and over appellees\u2019 objections, the case was submitted to the jury on four interrogatories with all interrogatories answered unanimously. The jury found that the city did not have a policy or custom regarding provision of medical care to detainees which proximately caused injury to the deceased. It also found that appellant failed to prove that Fort Smith did not provide adequate training to its officers which caused injury to the deceased. Next, the jury found that appellant proved the existence of a pattern of use of excessive force by Officer Limbocker or other officers which appellee either condoned or did not correct. Lastly, the jury awarded zero damages for the pain and suffering, physical injury, and loss of earnings of the deceased.\nThe trial court entered judgment in favor of appellant against the City of Fort Smith and awarded attorney\u2019s fees and costs of $3,000.00 to appellant as prevailing party pursuant to 42 U.S.C. \u00a7 1988. It is from this award of attorney\u2019s fees that appellant brings this appeal. As her only point for reversal, appellant argues that the trial court abused its discretion by awarding only $3,000.00 in fees and costs for the alleged 353.90 hours accrued by three attorneys between May 1, 1981, and March 6, 1988.\nWe readily agree with appellant\u2019s reliance upon Shakopee Mdewakanton Sioux Community v. City of Prior Lake, 771 F.2d 1153 (8th Cir. 1985), cert. denied, 475 U.S. 1011 (1986) that the purpose behind \u00a7 1988 is to encourage litigation of meritorious civil rights actions and to encourage the enforcement of constitutional rights through the award of fees which adequately attract competent counsel. However, we also note that under 42 U.S.C. \u00a7 1988 (1982) \u201cthe court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs.\u2019\u2019(Emphasis added.)\nIn the case at bar, although the court was not required under \u00a7 1988 to award any attorney\u2019s fees to appellant as prevailing party, it elected to award the amount of $3,000.00. In making this award, the court in this case relied on Hensley v. Eckerhart, 461 U.S. 424 (1983) which announced certain guidelines for calculating reasonable attorney\u2019s fees under \u00a7 1988. The factors considered by the court are as follows:\n(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is- fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the \u201cundesirability\u201d of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.\nIn making its award, the court found that appellant succeeded on a significant issue in the suit in that the jury concluded that the deceased\u2019s \u201cconstitutional rights were violated by defendant City of Ft. Smith.\u201d The court recognized that the issue before it involved community interest as well as the rights of plaintiff/appellant. However, the court stated, \u201cplaintiffs [appellant\u2019s] recovery was extremely slight when the complaint is reviewed and when other interrogatories submitted to the jury are reviewed and for that reason the fee herein is diminished to reflect the will and decisions of the jury.\u201d It was stated that the fact that the jury awarded appellant no damages had a bearing on the court; however, it stated that the attorney\u2019s fees of $3,000.00 were awarded after a review of Supreme Court decisions.\nWe acknowledge that it was within the jurisdiction of the trial court whether to award any attorney\u2019s fees. However, once an award is made, the reasonableness of the attorney\u2019s fees awarded is to be judged by the abuse of discretion standard. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Therefore, the issue for resolution by this court becomes whether the trial court abused its discretion in awarding fees of $3,000.00.\nIn Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court found that the initial estimate of reasonable attorney\u2019s fees is properly calculated by multiplying the number of hours expended on litigation times a reasonable hourly rate. However, the court recognized that upward or downward adjustments to that fee may be necessary based upon the particular facts of a given case. Hensley emphasized that the most critical factor to be considered in determining the reasonableness of a fee award is the \u201cdegree of success obtained.\u201d Id. at 436. The Court further stressed that in making an award, the focus should be on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on litigation. Additionally, Hensley held that although there is no precise rule or formula for making these determinations, an award may be reduced to account for limited success. Furthermore, in Riverside v. Rivera, 477 U.S. 561, 574 (9th Cir. 1986) the Court acknowledged that although the amount of damages is only one of the factors to be considered by a court when calculating attorney\u2019s fees, the damage amount is \u201ccertainly relevant to the amount of attorney fees to be awarded under \u00a7 1988.\u201d\nIn the instant case, appellant as the plaintiff below has the burden of proving entitlement to an award of attorney\u2019s fees. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The record reveals that although appellant sought $2,650,000.00 in damages, no evidence was put on to establish proof of the damages sought. The jury awarded appellant zero damages for the deceased\u2019s pain and suffering, physical injury, and loss of earnings. Additionally, appellant prevailed on only one of four claims presented to the jury on interrogatories. In making its award of $3,000.00, the court reviewed Supreme Court cases and generally took into consideration that no damages were awarded and appellant achieved only limited success in the litigation. Based on our review of the record, we agree that the findings of the court below were reasonable and the court did not abuse its discretion in awarding attorney\u2019s fees of $3,000.00.\nAffirmed.\nCracraft and Cooper, JJ., agree.", "type": "majority", "author": "Donald L. Corbin, Chief Judge." } ], "attorneys": [ "Pryor, Barry, Smith & Karber, by: Debra Armstrong-Wright, for appellant.", "Daily, West Core, Coffman & Canfield, for appellee City of Fort Smith." ], "corrections": "", "head_matter": "Patricia GARNER, Administratrix of the Estate of Ilia Frank Hill, Jr. v. Robert LIMBOCKER and the City of Fort Smith, Arkansas\nCA 88-392\n770 S.W.2d 673\nCourt of Appeals of Arkansas Division I\nOpinion delivered May 24, 1989\nPryor, Barry, Smith & Karber, by: Debra Armstrong-Wright, for appellant.\nDaily, West Core, Coffman & Canfield, for appellee City of Fort Smith." }, "file_name": "0068-01", "first_page_order": 92, "last_page_order": 97 }