                                 Cite as 2016 Ark. App. 87

                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-15-602


WATSON CHAPEL SCHOOL                             Opinion Delivered February 10, 2016
DISTRICT
                  APPELLANT                      APPEAL FROM THE JEFFERSON
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. CV-2014-122-5]

                                                 HONORABLE ROBERT H. WYATT,
JUNE VILCHES                                     JR., JUDGE
                                 APPELLEE
                                                 AFFIRMED



                               RITA W. GRUBER, Judge

       Watson Chapel School District (the District) appeals from a circuit court’s order

awarding one of its junior-high teachers, June Vilches, back pay for a thirty-nine-day leave

of absence. The District contends that the evidence was insufficient to support the award;

the circuit court improperly shifted the burden of proof; and the court’s award of attorney’s

fees was improper. We affirm the circuit court’s order.

       The incident giving rise to this case occurred on October 8, 2013, when Ms. Vilches

noticed a student in the hall whom she did not recognize, and he was not wearing an

identification card as required by school policy. Eyewitnesses to the event described the

young man as between 6'2" and 6'5" tall and between 180 and 190 pounds; Ms. Vilches is

about 5'1" and weighs 115 pounds. Ms. Vilches confronted him and requested his

identification. He became angry and confrontational, called her a b****, and began

“cussing” her, so she decided to “write him up.” Ms. Vilches testified that, at this point, he
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pushed her into the wall by “charging” her, which he did two additional times. Several

teachers heard the commotion and came out into the hall. Ms. Vilches testified that, when

he pushed her into the wall, she could not speak and she hoped he was not going to hit her.

       A male teacher, Clifton Lewis, eventually grabbed the student and escorted him away.

Mr. Lewis testified that he did not see the student hit Ms. Vilches but that they were standing

chest to chest and they were touching. He said that the student was “right in her face” and

was “towering over her.” He testified that the student was “real aggressive,” was standing like

boxers do before the prefight, and was trying to intimidate Ms. Vilches. He said that Ms.

Vilches did not treat the student any differently than she treats other students and that she did

not provoke him. The student just “flipped,” and Ms. Vilches appeared upset by the

incident.

       Another teacher, Yvette Hammond, also witnessed the event. She testified that the

student was aggressive toward Ms. Vilches, lunged forward while loudly threatening her, and

briefly touched her. She said that Ms. Vilches was visibly shaken after the event.

       Ms. Vilches testified that after three sleepless nights, nightmares, and headaches, she

went to her doctor, Tracy Phillips, on October 11, 2013. Her blood pressure was high,

which was unusual for her. Dr. Phillips diagnosed Ms. Vilches with posttraumatic stress

disorder (PTSD) and advised her not to return to work “at this time.” He told her to follow

up with him in two weeks. He also prescribed medication for anxiety and a sleep aid.

       Ms. Vilches returned to work on January 15, 2014. She did not return to see Dr.

Phillips until February 3, 2014. Dr. Phillips testified that Ms. Vilches had been his patient


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since 2001. He said that when she came in on October 11, 2013, she told him that she had

been assaulted by a student at school. His notes reflected that she had a knot on her right

arm, her blood pressure was elevated, her head and chest hurt, and she had blurred vision.

Her blood pressure that day was 162 over 106, and her pulse measured 112. Ms. Vilches did

not have a history of high blood pressure. He noted that she was “pretty shaken” and was

not her “normal self.” He diagnosed her with PTSD, which, he testified, can affect people

in different ways. He said that, typically, he would schedule a follow-up exam to check on

a patient after such a diagnosis. He said that his opinion “within a reasonable degree of

medical certainty” was that it was appropriate for Ms. Vilches to be off work from October

11, 2013, through January 15, 2014, and that she “needed to be off work.” On cross-

examination, he admitted that he could not definitively say Ms. Vilches had symptoms of

PTSD any time after October 11, 2013, when he met with her.

       After she returned to work, Ms. Vilches sought payment from the District for the

thirty-nine days she was off work pursuant to Ark. Code Ann. § 6-17-1209 (Supp. 2013).

The District’s superintendent refused her request, and the school board also voted to deny

it. She filed a complaint on March 13, 2014, alleging that the District had violated Ark. Code

Ann. § 6-17-1209 and had breached its employment contract with her by refusing to pay her

for the thirty-nine-day leave of absence. She requested damages in the amount of the back

pay for the thirty-nine-day leave and for her costs and attorney’s fees pursuant to Ark. Code

Ann. § 16-22-308 (Repl. 1999).

       At the end of a bench trial, the circuit court ruled from the bench, finding that an


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assault did take place, stating that it found the testimony of Ms. Vilches, Ms. Hammond, and

Mr. Lewis credible. Without determining that Ms. Vilches was grabbed or pushed, the court

found that she suffered personal injury as a result of the assault. The court credited Dr.

Phillips’s diagnosis of PTSD—noting that this type of injury had been recognized by our

court in Moore v. Pulaski County Special School District, 73 Ark. App. 366, 43 S.W.3d 204

(2001), as a “personal injury” under the statute—and further considering Dr. Phillips’s notes

regarding Ms. Vilches’s elevated blood pressure, painful chest and head, and blurred vision.

Finally, the court noted that there was no medical testimony to suggest that Ms. Vilches had

not been injured due to the assault. After announcing its findings, the court stated that the

case was a “dual case” including a private statutory cause of action in addition to a breach-of-

contract issue because section 6-17-1209 is “part of every teacher contract.” Thus, the court

stated that Ms. Vilches would be entitled to attorney’s fees and costs and requested her to

submit those in an itemized statement.

       On April 28, 2015, the circuit court entered an order awarding Ms. Vilches damages

for the thirty-nine-day absence, granting a setoff to the District for sick days for which she

had been paid and ordering the sick days reinstated, and awarding her attorney’s fees and

costs. The order tracked the court’s oral ruling, finding that Ms. Vilches had met her burden

of proving that an assault had occurred against her in the course of her employment and that

she had sustained a personal injury caused by the assault, noting Dr. Phillips’s diagnosis of

PTSD. The court then stated that the case was a private cause of action pursuant to Ark.

Code Ann. § 6-17-1209 but awarded attorney’s fees, stating that it was also a breach-of-


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contract case by virtue of the fact that the District was required to incorporate the statute into

its written personnel policies. Taking into account the setoff, the court awarded damages in

the amount of $6649.01 and attorney’s fees of $9160.00.

       A week after the order was entered, the District filed an objection to the request for

attorney’s fees, stating that the statement for legal services submitted by Ms. Vilches’s counsel

was excessive in light of the amount of damages received by Ms. Vilches; that none of the

tasks reflected a one-tenth-hour entry; and that the requested hourly rate was not supported

by evidence indicating that it was an appropriate rate. Ms. Vilches responded to the

objection, but the court did not enter any additional orders. The District filed this appeal.

       In bench trials, the standard of review on appeal is whether the circuit court’s findings

were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ.

P. 52(a) (2015); Optical Partners, Inc. v. Dang, 2011 Ark. 156, at 14, 381 S.W.3d 46, 55.

Disputed facts and determinations of the credibility of witnesses are within the province of

the fact-finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 361, 974 S.W.2d 464, 467

(1998).

       For its first point on appeal, the District contends that Ms. Vilches did not provide

sufficient proof to support her claim. Specifically, it argues that there must be more medical

proof to support a personal-injury claim than an initial diagnosis of PTSD and a two-week-

off-work slip. The District also argues that the PTSD diagnosis was based on a

characterization of the event that wasn’t true—that is, an incident in which Ms. Vilches was

grabbed or punched. Before we address the District’s argument, we turn to the relevant


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statute:

       (a)(1)(A) Whenever a schoolteacher is absent from his or her duties in a public school
       as a result of personal injury caused by either an assault or a criminal act committed
       against the teacher in the course of his or her employment, the teacher shall be
       granted a leave of absence from school with full pay for up to one (1) year from the
       date of the injury.

             (B) Teachers who suffer personal injury while intervening in student fights,
       restraining a student, or protecting a student from harm shall be considered to be
       injured as a result of an assault or a criminal act.

         (2) The leave of absence for personal injury from an assault or a criminal act shall
       not be charged to the teacher’s sick leave authorized under this subchapter.

       (b) The board of directors of each school district shall adopt written policies for the
       implementation of this section and incorporate them as part of the written personnel
       policies of the school district.

Ark. Code Ann. § 6-17-1209.

       The relevant part of the statute provides that a schoolteacher who is absent from her

duties “as a result of personal injury caused by either an assault or a criminal act committed

against the teacher in the course of his or her employment” shall be granted a leave of

absence from school with full pay. The statute does not define personal injury nor does it

provide the type of proof required to prove such an injury. In Moore, we made clear that the

injury does not need to be physical for the statute to apply and specifically affirmed an award

for PTSD. Moore, 73 Ark. App. at 373, 43 S.W.3d at 209. Although there was evidence that

the claimant in that case had been diagnosed with PTSD by a physician as a result of the

incident, we also stated that the claimant’s testimony—that she developed “hypertension that

caused her to ‘pass out,’ in addition to depression, post-traumatic stress disorder, anxiety, and

mental confusion”—constituted evidence to establish the injury: “Given appellant’s evidence

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of the effects that this incident had on her, we have no hesitation in holding that she

sustained a personal injury within the meaning of section 6-17-1209.” Id.

       In this case, Dr. Phillips testified that he had diagnosed Ms. Vilches with PTSD as a

result of the incident. Contrary to the District’s argument, he did not state in his notes or in

his testimony that the diagnosis was based on Ms. Vilches’s having been either grabbed or

pushed by the student. The diagnosis was based on her elevated blood pressure, the pain she

described in her head and chest, her blurred vision, and the fact that she was not her “normal

self.” Moreover, the court heard all of the testimony, specifically did not find that Ms.

Vilches had been grabbed or pushed, and found that she had been assaulted and suffered

personal injury, PTSD, because of the assault. We do not make credibility findings in this

court, and we hold that the circuit court’s findings are not clearly erroneous.

       For its next argument, the District claims that the circuit court improperly shifted the

burden of proof to it to prove that Ms. Vilches could work. It bases this argument on the

court’s statement from the bench that there was “no other medical testimony from another

doctor or medical-care provider to show that Ms. Vilches was not injured due to the assault”

and its similar statement in its order that there was no “credible evidence” that she should

have returned to work earlier than she did. First, the District did not raise this argument to

the circuit court, and we generally do not address arguments raised for the first time on

appeal. Dixon v. State, 2011 Ark. 450, at 16, 385 S.W.3d 164, 175. Furthermore, we do not

view these statements by the court as “burden shifting.” The court thoroughly reviewed the

testimony, explained why it determined that Ms. Vilches had met her burden of proving that


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she had suffered an assault and a personal injury caused by the assault, and observed that no

evidence had been introduced to support the District’s position.

       Finally, the District contends on appeal that the circuit court erred in awarding

attorney’s fees. First, the District argues that this case was not a contract case but a statutory

case, and thus fees are not recoverable under Ark. Code Ann. § 16-22-308, which authorizes

fees in contract cases. Second, the District argues that fees were not requested by motion as

required pursuant to Ark. R. Civ. P. 54(e). Finally, the District argues that the fees were

excessive because they are greater than the amount awarded in damages to Ms. Vilches and

that no evidence supports the hourly rate.

       In her complaint, Ms. Vilches pleaded a statutory action and a breach-of-contract

action and requested attorney’s fees pursuant to Ark. Code Ann. § 16-22-308. After

testimony was concluded at the trial, the circuit judge stated that the case was both a

statutory and a contract case and asked Ms. Vilches to provide an itemized statement of her

attorney’s fees for recovery. This information is not in the record, but the statement was

provided, the court awarded attorney’s fees, and the District filed an objection to those fees.

The District did not, however, object on the basis that the case was not primarily a contract

case and thus that fees were not recoverable. It also did not object to the absence of a motion

pursuant to Rule 54(e). Arguments not raised at trial will not be addressed for the first time

on appeal, Dixon, 2011 Ark. 450, at 16, 385 S.W.3d at 175, and the basis for objection on

appeal must be the same basis for objection as at the trial court level. Threadgill v. State, 347

Ark. 986, 990, 69 S.W.3d 423, 426 (2002).


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       The District did properly raise its objection to the amount of fees, however. A circuit

court is not required to award attorney’s fees and, because of the judge’s intimate

acquaintance with the trial proceedings and the quality of the service rendered by the

prevailing party’s counsel, the circuit judge has a superior perspective to determine whether

to award fees. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). The decision to

award attorney’s fees and the amount to award is discretionary and will be reversed only if

the appellant can demonstrate that the circuit court abused its considerable discretion. Harrill

& Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, at 9, 424 S.W.3d 272, 277. In this case, while

the fees were greater than the damages awarded, the District has not provided any evidence

that they are excessive in light of the work required to pursue and prosecute this case. Nor

has it offered any evidence that the hourly rate charged is outside the normal range in the

area for attorneys of the same experience. Consequently, we hold that the circuit court did

not abuse its considerable discretion and affirm its decision.

       Affirmed.

       WHITEAKER and HOOFMAN, JJ., agree.

       Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellant.

       Mitchell, Blackstock, Ivers, Sneddon & Marshall, PLLC, by: Greg Alagood, for appellee.




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