ORDER

SUSAN WRIGHT, District Judge

Before the Court are a number of motions that were filed following a lengthy and highly contested trial in Jonesboro, Arkansas. All-Ways Logistics, Inc. ("All-Ways"), a provider of freight hauling services, brought this action against USA Truck, Inc. and USA Logistics, also providers of freight hauling services (collectively "USA" when not referenced separately), for breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, tortious interference with business relations, and defamation, for alleged actions involving the application and later termination of a Commission Agreement between All-Ways and USA Truck as concerned two accounts: Rheem Manufacturing Company ("Rheem") and W.W. Grainger ("Grainger"). USA, in turn, counterclaimed against All-Ways for negligence, breach of fiduciary duty, and breach of agency contract as concerned the Grainger account. Trial was set for July 23, 2007.

Numerous motions were filed in the days leading up to trial, including All-Ways' motion to dismiss USA's counterclaim, All-Ways' motion for summary judgment on USA's counterclaim, All-Way's motion for partial summary judgment in regards to the Rheem account, and USA's motion for summary judgment. By Memorandum and Order entered July 2, 2007 [doc. #89], this Court denied as moot All-Ways' motion to dismiss USA's counterclaim and denied the remaining motions for summary judgment. See All-Ways Logistics, Inc. v. USA Truck, Inc., et al., No. 3:06cv0087, 2007 WL 1965415 (E.D.Ark. July 2, 2007). The Court did, however, warn USA that All-Ways' motion for partial summary judgment on the Rheem account and All-Ways' motion for summary judgment on USA's counterclaim were far from weak and that at least some of the arguments in those motions may ultimately prevail. Id. at *17 n. 29.

The matter went to trial as scheduled. At the conclusion of the proof on day nine of the trial, this Court, on motion of All-Ways for judgment as a matter of law ("JAML"), dismissed USA's breach of contract counterclaim. With the dismissal of USA's counterclaim, All-Ways was entitled to judgment on its claim for breach of contract for non-payment of sums due under the Commission Agreement for freight transported for Grainger (stipulated by the parties to be $40,268.58), which USA acknowledges it withheld as a set-off against an amount it claimed as damages in its counterclaim. The case was then submitted to the jury after which the jury returned a verdict in favor of All-Ways for breach of contract on the Rheem account, awarding All-Ways $2,966,881.25, but finding in favor of USA on All-Ways' claims for breach of contract, promissory estoppel, and tortious interference as to the Grainger account. This Court entered judgment on the jury verdict (amended that same day) on August 7, 2007 [doc. #156].

Now before the Court are the following motions: (a) USA's renewed motion for JAML [doc. #161]; (b) USA's motion for a new trial [doc. #165]; (c) USA's motion to alter or amend judgment [doc. #163]; and (d) All-Ways' motion for prejudgment interest, attorney's fees, and costs [doc. #159]. Responses and replies have been filed to these motions and the matter is ready for decision. For the reasons that follow, the Court denies USA's renewed motion for JAML, denies USA's motion for a new trial, denies USA's motion to alter or amend judgment, and grants All-Ways' motion for prejudgment interest, attorney's fees, and costs.

I. A.

1.

USA fist argues it is entitled to JAML or a new trial on the Rheem claim on grounds that All-Ways failed to produce evidence sufficient to support this Court's finding that the phrase "solicited by you" in Paragraph 4 of the Commission Agreement was ambiguous. Rather, USA argues that the phrase has one reasonable interpretation: All-Ways had to request specific loads from Rheem, tender those loads to USA for acceptance, and schedule delivery and pickup of those loads.

The phrase "solicited by you" appeared as part of the text of Paragraph 4 of the Commission Agreement, which was incorporated in Court's Instruction No. 8 and submitted to the jury as follows:

INSTRUCTION NO. 8

The parties dispute the meaning of the following language in their contract:

USA Truck agrees to pay you a Five (5) % commission weekly for all services provided by you to USA Truck under this Agreement. The commission shall be for the linehaul tariff charge due USA Truck on all freight solicited by you and transported by USA Truck, up to the date this Agreement is canceled, less any revenue for accessorial, detention, redelivery, consolidation handling charges or similar charges.

It is your duty to interpret the contract to give effect to what the parties intended when they made their agreement. In determining the meaning of the language, you must take into consideration the language of the contract, the circumstances surrounding the making of the contract, the subject of the contract, the purpose of the contract, the situation and relation of the parties at the time the contract was made, the parties' subsequent course of performance, and custom in the trade.

The Court fully discussed in its Memorandum and Order the meaning of the phrase "solicited by you" and determined that the phrase may be read to require, as claimed by USA, that All-Ways actively solicit individual freight loads from shippers and tender those loads to USA for transport before USA must pay a commission on that load, or, alternatively, that it may be read, as claimed by All-Ways, to refer to all freight transported for any shipper whose account or "book of business" was brought, i.e., solicited, to USA by All-Ways and that All-Ways was thus to be paid its commission on all freight transported for that shipper. USA claims the parties operated under the former interpretation of Paragraph 4, but there was ample evidence from which a jury could determine that the parties operated under the latter interpretation. As noted in the Court's Memorandum and Order, Patrick Majors, Vice-President of Sales at USA Truck and who signed the Commission Agreement for USA Truck, testified in his deposition that it was the practice at USA Truck to pay commissioned agents a commission on all freight that they hauled for a customer brought to USA Truck by that agent as long as the Commission Agreement was in place and that "all that happens" with a commission agent is that the agent brings a book of business to the company and the company hauls the freight and then pays the agent's commission on the freight. Majors affirmed that the commission agent does not have any other duties or responsibilities other than just bringing the book of business — the relationship with the customer — to USA Truck: "they bring the business and then operationally we do the rest" — their job "was to bring the customer in and make the introduction and then if the shoe fit, the carrier would wear it and carry the freight and pay the agent." Similarly, Jack Morgan of USA Truck, who drafted the Commission Agreement and presented it to All-Ways for signature, testified in his deposition that Mike Anderson of All-Ways brought with him different Rheem business than USA Truck previously was doing and that the Rheem account was assigned to All-Ways and it was agreed that USA Truck "was going to pay him for this" because "[t]hat's business that we can't touch." There was, then, sufficient evidence to support this Court's finding that the phrase "solicited by you" in Paragraph 4 of the Commission Agreement was ambiguous and the jury thus was entitled to find that All-Ways was entitled to its commission on all Rheem freight tendered to USA and transported for Rheem from the date USA ceased paying commissions to All-Ways on the Rheem account through the effective date of the cancellation of the Commission Agreement, with said commission totaling $2,966,880.25 (representing 5% of the $59,337,605.61 USA was paid for transporting Rheem's freight during this period).

2.

USA additionally argues that All-Ways' breach of contract claim regarding the Rheem account fails because Rheem's changed shipping practices frustrated the purpose of the Commission Agreement by suspending USA's obligation to pay for post-March 2002 Rheem loads and that All-Ways in any case waived any alleged breach of the Rheem account by continuing to accept benefits under the Commission Agreement for more than three years after that alleged breach in March 2002. USA argues this Court thus erred by refusing USA's proffered jury instruction on the defense of waiver by acceptance.

USA's argument concerning frustration depends on the meaning to be afforded the Commission Agreement. USA states Rheem's change in the manner it was handling its freight hauling needs in March 2002 rendered All-Ways' alleged contacts at Rheem useless for solicitation purposes, but USA did not cancel the Commission Agreement until August 29, 2005 (with an effective date thirty days following receipt of notice of cancellation), and the jury was entitled to determine that All-Ways was to be paid a commission on all Rheem freight tendered to USA and transported for Rheem while the Commission Agreement was in place, despite any change in the manner Rheem handled its freight hauling needs.

USA's argument concerning waiver by acceptance likewise depends upon the meaning to be afforded the Commission Agreement. USA states that All-Ways knew of the alleged breach of the Commission Agreement related to the Rheem account in March 2002 but nevertheless continued to accept commissions on other accounts without declaring a breach of the Commission Agreement. Because the Commission Agreement is a bilateral contract, argues USA, waiver by acceptance bars All-Ways' breach claim. All-Ways, however, argues, and this Court agrees, that the Commission Agreement was both unilateral and severable in that each "book of business" gave rise to a separate and independent unilateral contract between the parties and that All-Ways' performance as to one account did not entitle it to a commission on another, nor did USA's breach by nonpayment as to one account create a cause of action for breach as to the others. See Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988) (noting that one test of whether a contract is entire or severable is whether all of the things, as a whole, are of the essence of the contract; that is, if it appears that the purpose is to take the whole or none, the contract is entire; otherwise it is severable, and that another test is that a contract is severable when, in its nature and purpose, it is susceptible of divisions and apportionment, and has two or more parts in respect to matters or things contemplated and embraced by the contract which are not necessarily dependent upon each other). Accordingly, this Court did not err in refusing USA's proffered instruction on waiver of breach by acceptance of benefits (Arkansas Model Instruction 2437). Moreover, All-Ways pointed out the breach and oral complaints were made. In other words, there is nothing in All-Ways' conduct that could be construed as waiver and suit on the breach was brought within the statute of limitations.

3.

4.

USA additionally argues this Court should reduce All-Ways' damages because All-Ways failed to produce evidence from which a reasonable jury could conclude that freight carried on another carrier's truck was "transported by USA Truck" as provided in Paragraph 4 of the Commission Agreement. In this respect, USA argues this Court committed a two-fold error relating to the contract phrase "transported by USA Truck" by holding that it is ambiguous and, correlatively, by instructing the jury regarding the ambiguity of that phrase. USA additionally argues this Court's ruling that the phrase "transported by USA Truck" is ambiguous was raised for the first time during the jury instructions conference and, thus, surprised USA thereby prejudicing its ability to defend this case.

The phrase "transported by USA Truck" (along with the phrase "solicited by you") appeared as part of the text of Paragraph 4 of the Commission Agreement, which was incorporated in Court's Instruction No. 8 and submitted to the jury as set forth above. USA can hardly have been surprised by this Court's so instructing the jury as the issue of whether All-Ways was entitled to recover commissions on all freight "transported by USA Truck" has been contested throughout this litigation and was specifically addressed by this Court in its July 2^nd Memorandum and Order:

There is also a question attendant to Paragraph 4 concerning the phrase "transported by USA Truck." USA acknowledges that USA Logistics was at all times pertinent to this case a division of USA Truck but argues that USA Logistics and USA Truck "were treated as separate entities vis-a-vis the Rheem account by USA Truck and Rheem." While acknowledging that Rheem paid USA Logistics $59,337,605.61, in linehaul tariffs between 2002 and 2005, USA states that USA Logistics "was merely a pass-through entity," that "USA Logistics would select a carrier and pay them that tariff for physically hauling Rheem's freight," and that "[a]s a fee for its logistic services, USA Logistics simply kept the difference between the tariff Rheem paid it and the tariff rate it negotiated with the actual carrier who transported the freight." Dwain Key of USA Logistics testified that USA Logistics was paid by Rheem pursuant to agreed upon rates and that USA Logistics would then turn around and parcel out the freight and pay that carrier, including USA Truck, that carried the freight.

All-Ways, however, argues that the Commission Agreement makes no such distinction, that USA Logistics and USA Truck are the same entity, and that USA Logistics contracted with Rheem to transport all of Rheem's freight and was paid the "linehaul tariff" for providing that service, all the while USA Truck's Commission Agreement with All-Ways was in place. Mike Anderson at All-Ways testified that he didn't have a problem with Rheem using USA as a Logistics provider because one of the shippers All-Ways brought to the table was Rheem and "if it was hauled on a USA Truck or if it was brokered out from USA Truck or tendered to USA Logistics, we were entitled to our 5 percent" commission on the $59,337,605.61 total sum received by USA Logistics from Rheem in "linehaul tariff" charges during the period April 5, 2002, through October 6, 2005.

This Court did not single out the phrase "transported by USA Truck" in its instructions and All-Ways produced ample evidence from which a reasonable jury could conclude that freight brokered out from USA and carried on another carrier's truck was "transported by USA Truck" as provided in Paragraph 4 of the Commission Agreement.

5.

USA additionally argues the jury's award of $2,966,881.25 in breach of contract damages is decidedly against the weight of evidence, shocks the conscience and appears to be motivated by passion or prejudice. As previously noted, however, there was ample evidence for a jury to conclude that All-Ways was to be paid a commission on all Rheem freight tendered to USA and transported for Rheem — regardless of the specific carrier used — while the Commission Agreement was in place, despite any change in the manner Rheem handled its freight hauling needs. In this respect, the jury's award of $2,966,881.25 in breach of contract damages represents, based on figures provided by USA, the precise commissions that would have been payable on all freight USA transported for Rheem during the term of the Commission Agreement after USA ceased paying All-Ways. The verdict, then, is perfectly reasonable; it is not against the weight of evidence, does not shock the conscience and does not appear to be motivated by passion or prejudice.

6.

USA additionally argues this Court's decision to allow All-Ways to argue punitive damages and to give a punitive damages instruction ran contrary to the greater weight of the evidence as the proof on the expectancy element of All-Ways' tortious interference claim failed and therefore that claim could not support a punitive damages instruction. USA further argues this Court failed to bifurcate the compensatory and punitive damages phase of trial and erroneously admitted evidence of USA's net worth — evidence only relevant to punitive damages — during the compensatory damages phase of the trial and that these errors tainted the jury's deliberations about liability and damages on the Rheem claims.

Considering the evidence of USA having secret conversations with Grainger and its representatives about going around All-Ways and cancelling the contract with All-Ways and contracting directly with Grainger, this Court finds there was ample evidence from which a jury could find the existence of a valid business expectancy with Grainger, knowledge of the expectancy on the part of USA, intentional and improper interference by USA inducing or causing a breach or termination of the expectancy, and resulting damages. The jury found against All-Ways on its tortious interference claim but there was more than enough evidence to submit such a claim to the jury. It was thus not error to instruct on punitive damages and allow evidence of USA's net worth and, therefore, bifurcation of compensatory and punitive damage issues, although within the court's discretion, was not warranted. Moreover, given that the verdict on the Rheem account represented no more and no less than the total commissions that would have been payable on all freight USA transported for Rheem during the term of the Commission Agreement after USA ceased paying All-Ways, it certainly cannot be said that the jury improperly considered evidence of net worth in calculating an award of compensatory damages.

7.

USA also seeks a new trial on its counterclaim. USA argues that despite finding that substantial evidence supported USA's counterclaim theories of negligence, breach of fiduciary duty, and breach of agency contract, this Court mistakenly decided to take USA's counterclaim away from the jury. USA states this Court's "own words attest" there was substantial evidence supporting USA's counterclaim.

USA's understanding of this Court's belief in the strength of USA's counterclaim is simply mistaken. Rather, this Court noted the weakness of USA's counterclaim in its July 2^nd Memorandum and Order and specifically warned USA that All-Ways' motion for summary judgment on the counterclaim was far from weak and that at least some of the arguments therein may ultimately prevail. See All-Ways, 2007 WL 1965415, at *16 *17 n. 29. The evidence certainly revealed that no reasonable jury could have found in USA's favor on its counterclaim. USA alleges that after All-Ways became USA's commission agent on the Grainger account, All-Ways had an obligation to insure that USA's rates were submitted to and approved by Grainger and that All-Ways breached this duty. All-Ways, however, was not the agent of Grainger and USA knew within days of submitting the new rates that the rates had not been approved. Nevertheless, USA billed and collected the unapproved rates for almost a year knowing that it had not received Grainger's written approval of the rates as required by a written Transportation Agreement between USA and Grainger. USA failed to present evidence from which a reasonable jury could conclude that it was All-Ways' failure that caused USA's losses and, thus, USA's counterclaim was properly dismissed.

B.

The Court now turns to USA's motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) [doc. #163]. A district court has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to Rule 59(e). United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8^th Cir. 2006) (citation omited). A Rule 59(e) motion serves the limited function of correcting manifest errors of law or fact or to present newly discovered evidence. Id. (internal quotation marks and citations omitted).

1.

USA first argues this Court should vacate the prejudgment interest award to All-Ways because it is not supported by Arkansas law. Specifically, USA argues All-Ways' damage could not be calculated with reasonable certainty in March 2002, and that prejudgment interest, if at all appropriate, runs from the date the complaint was filed and no earlier.

Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Ozarks Unlimited Resources Co-op, Inc. v. Daniels, 333 Ark. 214, 224, 969 S.W.2d 169, 174 (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. Id. (citing Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997)). Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. Id. (citing TB of Blytheville v. Little Rock Sign Emblem, 328 Ark. 688, 946 S.W.2d 930 (1997)). In addition, where, as here, no rate of interest has been agreed upon, prejudgment interest accrues at six percent per annum. Warren v. State Farm Fire and Cas. Co., No. 3:05cv00260 GTE, 2007 WL 936354, at *11 (E.D.Ark. March 26, 2007).

All-Ways' Commission Agreement provides that USA was to pay All-Ways a 5% commission weekly on all freight solicited by All-Ways up to the date the Commission Agreement was cancelled. As noted by All-Ways, USA provided the total revenues and the "adjusted revenues" received on the Rheem account by year end for 2002, 2003, and 2004, and through the date of cancellation of the Commission Agreement, October 6, 2005. The jury awarded the exact amount of commissions sought on the Rheem account as supported by the testimony and calculations of Certified Public Accountant Bruce Engstrom, who was able to definitely ascertain the adjusted revenues received by USA, the dates they were received, and the commissions due each week throughout the contract period for which damages were sought and awarded. Engstrom computed the prejudgment interest on those commissions for the years 2002, 2004 and 2005 at 6% from two weeks after each shipment (which testimony established was when All-Ways customarily received the commissions due them after the shipments occurred), until August 7, 2007, the date the amended judgment was entered. For the year 2003, interest was computed from the end of the year until August 7, 2007, because, according to USA, the data file for 2003 was "corrupted" and individual shipment data for 2003 was not available; rather, only the total for the year was available and the most conservative method was to compute interest from the last day of the year on the total commissions for that year that were owed All-Ways but not paid. See Engstrom Aff. There was, then, a method by which All-Ways' damage could be calculated with certainty and without reliance on opinion or discretion. Accordingly, the Court determines that for the years 2002, 2004, and 2005, All-Ways is entitled to prejudgment interest from the date on which each commission payment should have been made up to the date of entry of the amended judgment, and that for the year 2003, All-Ways is entitled to interest from the last day of that year on the total commissions for that year that were owed to All-Ways but not paid up to the date of entry of the amended judgment. Cf. Ciba-Geigy Corp v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992) (prejudgment interest could be awarded for damages to crop from use of herbicide after farmer provided herbicide manufacturer with all necessary harvest figures; damages from herbicide were capable of exact determination at that time); Building Const. Enterprises, Inc. v. Garry Meadows Const. Co., Inc., No. 3:06cv0092 GTE, 2007 WL 3125107, at *2 (E.D.Ark. Oct. 24, 2007) (while liability of the parties may not have been clear at time disputed invoice was issued, damages were definitely ascertainable as of that date). As so computed for the years 2002-2005, the total dollar amount of prejudgment interest due All-Ways and hereby awarded by the Court is $582,990.

2.

USA additionally argues this Court erred in amending the judgment to "recharacterize" the $40,268.58 as breach of contract damage on the Grainger account. As previously noted, this Court entered an amended judgment on the jury verdict on August 7, 2007 [doc. #156], which provided as follows:

IT IS ORDERED AND ADJUDGED that plaintiff All-Ways Logistics, Inc., have and recover of and from defendants USA Truck, Inc., and USA Logistics the sum of $2,966,881.25 on its breach of contract claim with respect to the Rheem account, together with interest from this date until paid at the rate of 4.83% as provided by law, as well as appropriate pre-judgment interest.

IT IS FURTHER ORDERED that plaintiff takes nothing on its claims against defendants for breach of contract, promissory estoppel and intentional interference with business expectancy as to the Grainger account, and those claims hereby are dismissed.

IT IS FINALLY ORDERED AND ADJUDGED that plaintiff All-Ways Logistics, Inc., have and recover of and from defendants USA Truck, Inc., and USA Logistics the sum of $40,268.58 for breach of contract as to the Grainger account, which is the amount stipulated by the parties for commissions due and owing to plaintiff, together with appropriate pre-judgment interest.

The final paragraph of the amended judgment originally provided that "plaintiff All-Ways Logistics, Inc., have and recover of and from defendants USA Truck, Inc., and USA Logistics the sum of $40,268.58, which is the amount stipulated by the parties for commissions due and owing to plaintiff, together with appropriate pre-judgment interest." As so drafted, this original final paragraph did not specifically reflect that All-Ways was entitled to judgment on its breach of contract claim for non-payment of sums due under the Commission Agreement for freight transported for Grainger, which, as previously noted, was intentionally withheld by USA as a set-off against an amount it claimed as damages in its counterclaim. This was somewhat misleading as All-Ways' second amended and substituted complaint specifically sought judgment on its breach of contract claim for non-payment of sums due under the Commission Agreement for freight transported for Grainger, see 2^nd Am. and Sub. Compl. at ¶¶ 17-19 [doc. #33], and this Court recognized in its Memorandum and Order denying the various motions for summary judgment that All-Ways' claim for the amount intentionally withheld by USA as a set-off against an amount it claimed as damages in its counterclaim was for breach of contract on the Grainger account. See All-Ways, 2007 WL 1965415, at *17. Accordingly, this Court's amendment of the judgment to reflect that All-Ways did in fact prevail on its breach of contract claim as to the Grainger account was proper and not a recharacterization of any claim.

C.

Finally, the Court addresses All-Ways' motion for prejudgment interest, attorney's fees, and costs [doc. #159]. As previously noted, All-Ways is entitled to prejudgment interest in the amount of $582,990. All-Ways also seeks attorney's fees in the amount of $1,196,713.27 pursuant to a contingency agreement as one-third of all sums recovered, attorney's fees of $120,000 for the successful defense of USA's $390,000 breach of contract counterclaim, and costs in the amount of $28,460.24. For the reasons that follow, All-Ways is entitled to an award of attorney's fees and costs.

1.

Turning first to All-Ways' request for attorney's fees, the Court finds that All-Ways is a prevailing party in this action, having prevailed on its breach of contract claims involving the Rheem account in the amount of $2,966,881.25 and the Grainger account in the amount of $40,268.58. In addition, this Court granted All-Ways' JAML on USA's breach of contract counterclaim at the close of USA's case. Accordingly, All-Ways is entitled to reasonable attorney's fees pursuant to Ark. Code Ann. § 16-22-308, which provides that the prevailing party in a breach of contract action may be allowed a reasonable attorney's fee to be assessed by the court. See also Perry v. Baptist Health, 368 Ark. 114, ___ S.W.3d ___ (2006) (a successful defendant in a contract action may be considered a prevailing party for the purposes of statute allowing award of attorney's fees to prevailing party).

USA, however, argues this Court should not award any fees whatsoever as this was a tort/contract hybrid from the start and an award under § 16-22-308 is thus improper. The Court disagrees. When both contract and tort claims are asserted, attorney's fees are recoverable where the action is based primarily in contract. Reed v. Smith Steel, Inc., 77 Ark.App. 110, 126, 78 S.W.3d 118, 122 (2002). Here, the promissory estoppel and tortious interference claims were based on the same facts as those underlying the claims for back-solicitation, breach of the express covenant to act in good faith, and breach of the implied covenant of good faith and fair dealing, and the jury's verdict as to the Rheem account and this Court's JAML on All-Ways' claim for breach of contract for non-payment of sums due under the Commission Agreement were based on breach of contract. Accordingly, the Court finds this action is based primarily in contract, the tort claims notwithstanding, and that All-Ways is entitled to an award of attorney's fees.

The following factors are relevant in determining reasonable attorney's fees: (i) the experience and ability of the attorney; (ii) the time and labor required to perform the service properly; (iii) the amount in controversy and the result obtained in the case; (iv) the novelty and difficulty of the issues involved; (v) the fee customarily charged for similar services in the local area; (vi) whether the fee is fixed or contingent; (vii) the time limitations imposed upon the client in the circumstances; and (viii) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 718-19 (1990). While courts should be guided by the foregoing factors, there is no fixed formula in determining the reasonableness of an award of attorney's fees. Phelps v. U.S. Credit Life Ins. Co., 340 Ark. 439, 442, 10 S.W.3d 854, 856 (2000).

i.

ii.

Concerning the time and labor required to perform the service properly, this Court finds that counsel committed substantial time and effort to prosecution of All-Ways' claims and defense of the counterclaim. Every aspect of this case was disputed and much time and energy required. As noted by All-Ways, "[e]very motion that could have been filed has been filed, briefed, and argued — on multiple occasions. The defense has been thorough, vigorous, unyielding, and unrelenting."

iii.

Concerning the amount in controversy and the result obtained in the case, USA concedes that All-Ways received a large verdict and got a good result. In this respect, several million dollars in past and future commissions were at stake and judgment in excess of $3 million was entered in All-Ways' favor. In addition, USA's counterclaim was dismissed by this Court. However, All-Ways asserted prior to trial that a verdict in excess of $10 million would be justified by the evidence if it prevailed on its claims, but the jury returned a verdict in favor of USA on All-Ways' claims for breach of contract, promissory estoppel and tortious interference as to the Grainger account. Further, prior to trial, All-Ways abandoned its claims of tortious interference and promissory estoppel as to the Rheem account and defamation as to the Grainger account. All told, All-Ways received approximately one-third of the damages it originally sought.

iv.

USA argues this case presented no novel or difficult issues, but the issues at stake were significant and aggressively litigated by USA against a factual background that was, contrary to USA's assertion, difficult to piece together. This litigation arose out of transactions generating over $59 million on the Rheem account alone and there were, among other things, issues of back-solicitation and secret negotiations that required, as noted by USA, "much time spent on the case."

v.

Turning to the fee customarily charged for similar services in the local area, counsel for All-Ways first argues that a one-third contingency fee is below the market rate for this type of case given the amount of time and money involved, the expenses incurred, and the risk undertaken. Counsel additionally argues that a $400 hourly attorney fee rate and a $150 hourly paralegal fee rate is reasonable given the stakes.

The Court will discuss below whether to award attorney's fees pursuant to the contingency arrangement. As to the hourly rates proposed by counsel, a reasonable hourly rate is generally the prevailing market rate, that is, the ordinary rate for similar work in the community where the case has been litigated. Moysis v. DTG Datanet, 278 F.3d 819, 828-29 (8^th Cir. 2002). The party requesting the fee award bears the burden of substantiating the requested rate as well as the hours expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

USA submits an affidavit of an experienced attorney in Jonesboro who charges a $150 hourly attorney rate and a $75 hourly paralegal rate. Mixon Aff. at ¶¶ 8-10. All-Ways, in turn, submits an affidavit of an experienced attorney in Jonesboro who opines that an hourly fee of $400 for an attorney possessing the experience and skills of All-Ways' attorney is reasonable given the complexity of this case. McDaniel Aff. at ¶ 6. Regardless of these and other competing affidavits, this Court is not aware of any similar case in the Jonesboro area, much less the Little Rock area, in which hourly attorney rates of $400 and paralegal rates of $150 were charged. Cf. William L. Patton, Jr. Family Limited Partnership, LLLP v. Simon Property Group, Inc., No. 4:04cv1477, 2007 WL 2236732 (E.D.Ark. 2007) (awarding attorney's fees for lead counsel at 2006 hourly rate of $250); Evans v. State Farm Fire Casualty Co., No. 4:06cv655, 2007 WL 1725357 (E.D.Ark. 2007) (hourly attorney rate of $190 reasonable); Brooks v. Little Rock School Dist., No. 4:07cv453 GTE (attorneys of leading Little Rock law firm charged hourly rates of $350, $275, and $260 respectively, while two paralegals each charged $90). Counsel for All-Ways argues he regularly charges a $400 hourly rate and his legal assistant a $150 hourly rate, but it simply cannot be said such rates are the ordinary rates for similar work in the community where the case has been litigated. See Moysis, 278 F.3d at 828 (noting that although a counsel's customary rate might be some evidence of a reasonable rate, it is not controlling). Nevertheless, there is no dispute of the superior experience and skills of counsel for All-Ways and the aggressive defense and time-consuming nature of this litigation. That being so, this Court finds that an attorney possessing the experience and skills of counsel for All-Ways could reasonably command in Northeast Arkansas for this type of case under similar circumstances an hourly attorney rate of $300 and an hourly paralegal rate of $90.

vi.

vii.

Concerning the time limitations imposed upon the client in the circumstances, All-Ways states that Mike and Cheryl Anderson of All-Ways were intimately involved in the discovery process and all other aspects of the litigation and that Mike Anderson attended almost every deposition in Arkansas and Illinois, missing only the experts' depositions in New York and Georgia. USA argues this case was garden variety at to this Chrisco consideration, but this Court finds that the time limitations imposed on All-Ways were significant.

viii.

Finally, concerning the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney, counsel for All-Ways states that it was anticipated that employment in this case would only preclude other employment while the case was actively being litigated, and notes that for six months prior to trial he did little else but work on this case and was forced to turn away other work in the process. USA argues this case was not such that significant business would have to be turned away by counsel for All-Ways, but this Court, based on its familiarity with and active involvement in the case (to this day), can attest to the time limitations imposed upon counsel for All-Ways while the case was actively being litigated.

a.

The Court now turns to All-Ways' request that it award attorney's fees based upon those it is obligated to pay its counsel under their contingent fee arrangement. The Court has carefully considered the matter and finds that an attorney's fee award in the amount of one-third of the total judgment on the successful breach of contract claims — $2,966,881.25 jury award for breach of contract on the Rheem account and this Court's JAML in the amount of 40,268.58 for breach of contract on the Grainger account — is appropriate in these circumstances. Counsel for All-Ways took a substantial risk in accepting this case on a contingency basis, investing hundreds of hours in time to the exclusion of certain other work and advancing expenses of over $100,000, and basing All-Ways' award of attorney's fees in part on the one-third contingency arrangement (along with the other Chrisco factors) awards no compensation for any claims upon which All-Ways did not prevail. Moreover, considering the affidavits submitted in support of an award of attorney's fees, a one-third fee arrangement is some evidence of the value of the attorney services in the community. In contrast, awarding attorney's fees under the lodestar method, which reflects the number of hours reasonably expended multiplied by a reasonable hourly rate, would result in a substantial loss to All-Ways, which was forced to engage in expensive, time-consuming litigation to recover commissions it rightfully earned and that the jury (on the Rheem account) and this Court (on the Grainger account) found were wrongfully withheld.

Certainly, the fact that the agreed upon fee was a contingency fee does not automatically entitle the attorney to that amount under § 16-22-308. All-Tech Machine Tool, Inc., v. Simmons Foods, Inc., 2007 WL 1556285, at *6 (Ark.App. May 30, 2007). The statute limits the attorney to a reasonable fee. Id. See also Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 337, 676 S.W.2d 228, 229 (1984) (court not required to compute fees mechanically and without question on the basis of a fee contract between the parties). But the fact that the fee was based on a contingency agreement for one-third of all sums recovered is a factor to be considered in determining reasonable fees. See Phelps, 340 Ark. at 442-43, 10 S.W.3d at 856-57 (Arkansas Supreme Court approved attorney's fee award based upon a contingency fee arrangement, holding that the trial court properly considered the fact that the plaintiff's attorney took the case on a contingency basis as a factor in arriving at a reasonable fee). Indeed, the Arkansas Court of Appeals has approved an award of attorney's fees in a breach of contract action that far exceeded the one-third contingency fee to which the attorney and client agreed, see Potter v. Magee, 2000 WL 562567, at *2 (Ark.App. 2000) (plaintiff who received $1,900 jury verdict in breach of contract action awarded $7,218.75 in attorney's fees pursuant to Ark. Code Ann. § 16-22-308; Court of Appeals affirmed award as reasonable, rejecting contention that because plaintiff and his attorney contracted to one-third contingency fee, plaintiff should recover as an attorney's fee only an amount equal to one-third of the damages awarded to plaintiff), and Arkansas courts have approved awards based on contingency fees that exceeded the hourly rate. See, e.g., Southern Farm Bureau Life Ins. Co. v. Cowger, 295 Ark. 250, 748 S.W.2d 332 (1988) (awarding one-third contingency fee that was approximately three times the hourly rate); Home Mut. Fire Ins. Co. v. Jones, 63 Ark.App. 221, 977 S.W.2d 12 (1998) (awarding 40% contingency fee that was approximately two times the hourly rate). Similarly, it is not uncommon for an award of reasonable attorney's fees to exceed the amount of the judgment, particularly in cases such as this where every possible issue was raised by the defense and aggressively litigated. See, e.g., Baptist Health, 368 Ark. 114, ___ S.W.3d ___ (award of attorney's fees in amount of $65,000 to defendant hospital reasonable even though plaintiff's $1,000,000 claim was reduced to $26,000 in initial claim, and $4,000 was at issue in counterclaim; case was long and involved legal struggle, which culminated in a jury trial and hospital produced evidence it incurred approximately $100,000 in legal expenses); TCBY Systems, Inc. v. RSP Co., Inc. 33 F.3d 925 (8^th Cir. 1994) (affirming award of $95,363 in attorney's fees under Ark. Code Ann. § 16-22-308 following five-day trial that resulted in damages award of $70,000); Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996) (award of attorney's fees five times the sum award approved as reasonable where insured prevailed against automobile insurer on breach of contract claim, but not on related bad faith suit claim, even though amount recovered on breach of contract claim was less than one fifth amount of attorney's fees, where issues were intricately connected and difficult to separate from one another, and matter was vigorously defended on both bad faith and breach of contract issues).

Accordingly, although the cost of "indemnity to the litigant" is indeed high in this case, this Court, having considered the Chrisco factors and the contentious, time-consuming nature of this litigation, and based on this Court's familiarity with the record and quality of service rendered, finds that an attorney's fee award in the amount of one-third of the $2,966,881.25 jury award for breach of contract on the Rheem account and this Court's JAML in the amount of $40,268.58 for breach of contract on the Grainger account is reasonable. The Court therefore awards attorney's fees to All-Ways in the amount of $1,002,383.27 (representing one-third of the $3,007,149.83 total award for breach of contract on the Rheem and Grainger accounts). This percentage fee award is irrespective of the award of prejudgment interest or defense of the counterclaim, which this Court subsumes within the contingency agreement for purposes of a court-awarded percentage fee. Cf. Cowger, 295 Ark. at 258, 748 S.W.2d at 337 (upholding $33,000 fee award based on contingency fee agreement that was not precisely one-third of judgment since it did not encompass one-third of prejudgment interest and penalty awarded); Jones, 63 Ark.App. at 233, 977 S.W.2d at 18 (upholding $36,600 fee award based on contingency agreement that was not precisely one-third of recovery since it did not encompass one-third of the prejudgment interest and penalty received); Wengert, 350 Ark. 335, 86 S.W.3d 856 (in case where tenants prevailed in conversion and breach of contract claim against landlord but lost landlord's breach of lease counterclaim against them, attorney's fee award based on one-third of net award and split between parties was reasonable, despite claim of tenants' counsel that his fee for tenants' claim was contingent but for counterclaim was hourly).

b.

2.

The Court now turns to All-Ways' motion for costs. Under 28 U.S.C. § 1920, a judge or court clerk "may tax as costs" fees of the clerk and marshal, fees of the court reporter, fees and disbursements for printing and witnesses, fees for copies of necessary papers, docket fees, and compensation of court-appointed experts and interpreters. Under Fed.R.Civ.P. 54(d)(1), "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8^th Cir. 2002). See also Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8^th Cir. 2002) (noting that when an expense, such as necessary photocopies, is taxable as a cost, "there is a strong presumption that a prevailing party shall recover it `in full measure'") (quoting In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 458 (3<sup>rd</sup> Cir. 2000)). "The `losing party bears the burden of making the showing that an award is inequitable under the circumstances.'" Id. See also 168^th and Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 958 (8^th Cir. 2007) (a prevailing party is presumptively entitled to recover all of its costs and the losing party bears the burden of overcoming the presumption that the prevailing party is entitled to costs, meaning that the losing party must suggest a rationale under which the district court's actions constitute an abuse of discretion) (internal quotations and citations omitted).

The Court finds that All-Ways is entitled to an award of costs but not the full $28,460.24 it seeks. The Court will address only those costs that USA challenges, finding that the remainder of the costs itemized by All-Ways are recoverable.

First, the Court declines to award $5,662.55 in mileage and lodging for counsel and his legal assistant as such costs are not found in § 1920.

The Court additionally declines to award $4,445.13 associated with the Michael Bange deposition — USA's expert — as Bange never testified at trial and All-Way's does not adequately explain the need for a $1,945 video-conference fee.

The Court additionally declines to award $296.20 in special service costs as such costs are not authorized under § 1920. See Crues v. KFC Corp., 768 F.2d 230, 234 (8^th Cir. 1985).

Finally, the Court declines to award $19.84 for pacer costs as no explanation for this amount is given.

Excluding the amount of costs for which recovery is not allowed, All-Ways is entitled to costs in the amount of $18,036.52.

II.

For the foregoing reasons, the Court denies USA's renewed motion for judgment as a matter of law [doc. #161], denies USA's motion for a new trial [doc. #165], denies USA's motion to alter or amend judgment [doc. #163], and grants All-Ways' motion for prejudgment interest, attorney's fees, and costs [doc. #159]. All-Ways is hereby awarded prejudgment interest of $582,990, attorney's fees in the amount of $1,002,383.27 as one third of the sums recovered for breach of contract on the Rheem and Grainger accounts, and costs in the amount of $18,036.52. Alternatively, should the Court of Appeals for the Eighth Circuit disapprove of a fee award based in part on the one-third contingency agreement (along with the other Chrisco factors), All-Ways is awarded fees under the lodestar method in the total amount of $217,014.60 (as well as prejudgment interest of $582,990, and costs in the amount of $18,036.52).

IT IS SO ORDERED.