concurring in part; dissenting in part. The amount of attorney’s fees awarded in this case is excessive. However, I must concur in the judgment because I agree that the issue of the reasonableness of the fees is moot, because Appellant Jack Butt failed to appeal from or otherwise seek a stay of the judgments approving the settlements.
As the majority opinion notes, each of the fourteen taxing entities in this case agreed to settle the illegal-exaction claims, and each of the setdement agreements provided for the payment of attorney’s fees, either as a percentage of the settlement or as a fixed dollar amount. A fairness hearing to consider the proposed settlements was held in the trial court on September 5, 2000. No member of the class appeared at the fairness hearing. At the conclusion of the hearing, the trial court approved all of the settlement agreements. On March 16, March 26, April 9, April 12, and April 13, 2001, the trial court entered separate written judgments approving each of the settlement agreements. No appeal was taken from these judgments, and no stay was sought to prohibit their execution. Thereafter, thirteen of the fourteen taxing entities paid the full amount of their judgments, including the attorney’s fees to class counsel. Only the Springdale School District has yet to pay one-half of its judgment.
Because Butt did not appeal from the judgments approving the settlements or seek a stay of their execution, and because all but one of those judgments have been paid in full, Butt has waived any challenge to the reasonableness of attorney’s fees under those judgments. In my opinion, given the particular circumstances, it would be patently unfair to require class counsel to pay back the monies already received and probably already spent. I thus concur with the majority that the trial court’s award of fees should be affirmed, but for that portion of the fees that remain unpaid by the Springdale School District.
That being said, I sympathize with Butt’s position. I am personally offended by the amount of the award in this case, especially since it will be paid by the taxpayers, many of whom do not believe that they have benefitted from this suit. While there can be no doubt that the levy and collection of an illegal tax is a wrong that must be put right by legal action, this should not entitle the class attorneys to a paycheck that is the equivalent of winning the lottery. This is especially true considering that in most illegal-exaction cases, the class members themselves do not feel particularly aggrieved and do not seek legal action until they are prodded to do so by attorneys who actively seek out these cases.
I do not mean to imply that such attorneys should not be compensated or that they should be necessarily limited to an hourly fee for their work. But, I cannot ignore the reality of these cases, in that payment of the attorney’s fees will necessitate either an increase in taxes or a reduction of important governmental services. I therefore encourage Butt and his attorneys to take this cause to the General Assembly, so that it may consider amending Ark. Code Ann. § 26-35-902 (Repl. 1997) to provide a cap for the award of attorney’s fees in illegal-exaction cases.
Finally, I agree with Justice Imber that the majority is wrong in holding that the attorney’s fees should be based on the refunds claimed, rather than the total amount of the settlement refunds. From my reading of section 26-35-902(a), it is clear that the term “recovery” refers to the total amount of monies obtained in the suit from the taxing entity. Accordingly, I dissent from that part of the majority’s opinion limiting counsels’ fees to a portion of the refunds actually claimed by the class members.