PAT M. IOUP APPELLANT
CITY OF BENTON, ARKANSAS APPELLEE
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-14-360]
HONORABLE GARY ARNOLD, JUDGE
Boswell Law Firm, by: John Andrew Ellis, for appellant.
Jensen, Young & Houston, PLLC, by: Brent Houston, for
M. GLOVER, JUDGE
Ioup appeals the Saline County Circuit Court's
determination she is not entitled to attorney's fees and
costs under Arkansas Code Annotated section 18-15-307 (Repl.
2015). We affirm in part and reverse and remand in part.
2014, pursuant to Arkansas Code Annotated sections 18-15-201
and 18-15-301 et seq., the City of Benton
("Benton") filed a complaint against
and Pat Ioup and JP Morgan Chase Bank, N.A. to take real
property owned by the Ioups pursuant to eminent domain for
the expansion of Alcoa Road in Benton, Arkansas. Benton
asserted in the complaint that the real property in question
was worth a total of $188, 700, and attempts to negotiate the
purchase of the property had not been successful. It
requested immediate possession of the property and asked the
circuit court to set a hearing to determine the value of the
property and the compensation to be paid to Ioup. By court
order, Benton deposited $188, 700 into the registry of the
court and was given immediate possession of the real
property. Ioup answered and denied Benton's allegations;
she also filed a counterclaim seeking damages, attorney's
fees, costs, interest, and any other relief to which she
might be entitled. A jury awarded Ioup $225, 000 from Benton
as the just compensation for the taking of their
property. On October 26, 2015, the Saline County
Circuit Court entered a judgment reflecting the jury's
determination, less a credit for $188, 700 for the amount
Benton had previously paid into the registry of the court,
and vesting fee-simple title to the real property in question
November 2, 2015, Ioup filed a motion seeking costs of $8,
229.94 and attorney's fees in the amount of $39, 318.76
pursuant to Arkansas Code Annotated section 18-15-307(c)
(Repl. 2015). This statutory section 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."
Specifically, Ioup asserted she had incurred costs for an
appraisal ($3900.00), color copies ($528.50), copies
($198.00), court reporter ($528.50), expert fees ($3007.50),
faxes ($28.00), and postage ($39.44). While the trial court
initially held it would grant attorney's fees, Benton
filed a motion to reconsider, which was granted. In an order
filed January 20, 2016, the trial court denied both
attorney's fees and all costs requested by Ioup. Ioup
filed her notice of appeal on April 12, 2016, arguing that
the trial court erred in denying her motion for
attorney's fees and costs.
decision in this case is based on precedents from our supreme
court in City of Benton v. Alcoa Road Storage, Inc.,
2017 Ark. 78, ___S.W.3d ___, and our court in Brown v.
City of Bryant, 2017 Ark.App. 239, ___ S.W.3d ___. In
Alcoa Road Storage, 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 "attorneys fees are
not chargeable as costs in litigation unless specifically
permitted by statute." 2017 Ark. 78, at 2, ___ S.W.3d at
___. Furthermore, with respect to expert-witness fees, our
supreme court also held 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 ___, ___, 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. We are
bound by these determinations made by our supreme court.
Brown, Ioup seeks to recover other costs in addition
to attorney's fees and expert-witness fees under section
18-15-307(c)-specifically, costs for the appraisal
($3900.00), color copies ($528.50), copies ($198.00), court
reporter ($528.50), expert fees ($3007.50), faxes ($28.00),
and postage ($39.44). As we established in Brown:
(i) the cost of the appraisal should have been granted as a
cost occasioned by the assessment, and we reverse and remand
on that issue; and (ii) we affirm the denial of Ioup's
request for other costs. Affirmed in part; reversed and
remanded in part.
and Harrison, JJ., agree.
Joe Ioup, Pat Ioup's husband, was
also a defendant/counter-claimant in the lower court;
however, he died prior to the lodging of the record, and Pat
Ioup is the sole appellant.
JP Morgan Chase Bank has an interest in
the property by virtue of holding a mortgage on the