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Brown v. City of Bryant

Court of Appeals of Arkansas, Division I

April 19, 2017

BILL G. BROWN, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR FOR THE ESTATE OF BARBARA A. ROWAN, DECEASED; JAMES L. BROWN; AND RANDY P. BROWN, APPELLANTS
v.
CITY OF BRYANT, ARKANSAS APPELLEE

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-14-366] HONORABLE GARY ARNOLD, JUDGE

          The Boswell Law Firm, by: John Andrew Ellis, for appellants.

          Richard Chris Madison, for appellee.

          DAVID M. GLOVER, Judge

         We are asked to determine whether the Saline County Circuit Court erred in denying the appellants' motion for attorney's fees and other costs under Arkansas Code Annotated section 18-15-307 (Repl. 2015). We affirm the trial court's denial of attorney's fees and all costs except the cost of the appraisal; we reverse and remand on the cost of the appraisal for entry of an order consistent with this opinion.

         In June 2014, the City of Bryant ("Bryant") filed a complaint against James L. Brown, individually and as special administrator for the Estate of Barbara A. Rowan, deceased; Bill G. Brown; and Randy P. Brown (collectively "the Browns"), pursuant to Arkansas Code Annotated sections 18-15-201 and 18-15-301 et seq., to take real property owned by the Browns through eminent domain for the expansion of Alcoa Road. Bryant asserted in the complaint the real property in question was worth $29, 211, and attempts to negotiate the purchase of the property had not been successful. It requested immediate possession of the property and asked the trial court to set a hearing to determine the value of the property and the compensation to be paid to the Browns therefor. By court order, Bryant deposited $29, 211 into the registry of the court and was given immediate possession of the real property. The Browns answered, denying Bryant's allegations, and by counterclaim sought damages, attorney's fees, costs, interest, and any other relief to which they might be entitled. A jury awarded the Browns the sum of $148, 800 from Bryant as the just compensation for the taking of the property.[1] On February 16, 2016, the trial court entered a judgment reflecting the jury's determination less a credit for $29, 211 (the amount Bryant had previously paid into the registry of the court) and vesting fee simple title to the litigated real property in Bryant.

         On February 29, 2016, pursuant to Arkansas Code Annotated section 18-15-307(c), the Browns filed a motion seeking costs of $9, 306.29 and attorney's fees of $22, 750.00. On March 1, 2016, the Browns filed an amended affidavit of costs totaling $14, 006.29. Specifically, in addition to attorney's fees, the Browns sought the following costs:

Appraisal
$3, 400.00
Clerk
165.00
Copy charges
611.15
Court Reporter
683.45
Deposition fee (Lawrence Dupree)
1, 000.00
Exhibit processing
52.12
Expert fee
3, 323.75
Expert fee (Ferstl Valuation Services)
4, 700.00
Fax transmissions
19.25
Postage
51.57

          In an order filed on March 28, 2016, the trial court denied these requests, finding that Arkansas Code Annotated section 18-15-307(c) did not authorize an award for attorney's fees or litigation costs. On April 12, 2016, the Browns filed their notice of appeal, arguing the trial court erred in denying their motion for attorney's fees and costs.

         I. The Statute to be Construed

         Arkansas Code Annotated section 18-15-307(c) provides, "The costs occasioned by the assessment shall be paid by the corporation, and, as to the other costs which may arise, they shall be charged or taxed as the court may direct."

         II. Attorney's Fees and Expert-Witness Fees

         Earlier this year, in City of Benton v. Alcoa Road Storage, Inc., 2017 Ark. 78, __S.W.3d__, our supreme court held that attorney's fees are not recoverable under section 18-15-307(c) "because there is no statutory authority for awarding attorneys' fees against a municipality in a condemnation proceeding, " and "attorney's fees are not chargeable as costs in litigation unless specifically permitted by statute." 2017 Ark. 78, at 2, __S.W.3d at __. Our supreme court also held, with respect to expert-witness fees, that "when the legislature provided for 'costs occasioned by the assessment, ' it was contemplating only those costs that could be taxed in an ordinary action, and not all expenses that a party may have incurred, " Alcoa Road Storage, 2017 Ark. 78, at 2, __S.W.3d at __, concluding that expert-witness fees could not be treated as costs and charged against the losing party in the absence of statutory authority. See also City of Benton v. Teeter, 2017 Ark. 80. Therefore, our supreme court has clearly determined that attorney's fees and expert-witness fees are not recoverable under section 18-15-307(c); we are bound by this determination.

         III. ...


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