FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-14-367]
HONORABLE GRISHAM PHILLIPS, JUDGE
Richard Chris Madison, for appellant.
Boswell Law Firm, by: John Andrew Ellis, for appellee.
City of Bryant (the "City"), appeals from an award
to pay "appraisal fees" of $5, 700 and "other
costs" of $72.04 to appellee, the Boone Trust (the
"Trust"), in a judgment arising from a condemnation
proceeding. The Trust cross-appeals from the circuit
court's reduction of the amount requested in "other
costs" as well as the court's denial for pre- and
postjudgment interest. We affirm on direct appeal and affirm
in part and reverse in part on cross-appeal.
2014, the City filed a complaint against the Trust pursuant
to Arkansas Code Annotated sections 18-15-201 and 18-15-301
to -307 (Repl. 2015) to take real property owned by the Trust
through eminent domain for the expansion of Alcoa Road. The
City asserted in the complaint the real property in question
was worth $116, 100 and attempts to negotiate the purchase of
the property had not been successful. The City deposited that
amount into the registry of the court and a trial ensued.
Following a jury trial, the jury awarded the Trust $133,
621.28 as just compensation for the taking of the
property. On July 20, 2016, the circuit court
entered a judgment reflecting the jury's determination
less a credit for $116, 100 and vesting fee-simple title to
the litigated real property in the City. The judgment ordered
the City to deposit the $22, 521.28 difference plus awarded
interest from the date of the taking.
29, 2016, pursuant to Arkansas Code Annotated section
18-15-307(c), the Trust filed a motion seeking costs of $13,
009.62 and attorney's fees of $27, 962. In September
2016, a motion hearing was conducted, and following
arguments, the circuit court ruled that it would hold in
abeyance a decision pending a ruling by the Arkansas Supreme
Court in City of Benton v. Teeter, 2017 Ark. 80. In
March 2017, the supreme court handed down its rulings in
Teeter and in City of Benton v. Alcoa Rd.
Storage, Inc., 2017 Ark. 78, 513 S.W.3d 259. Both held
that no statutory authority exists in Arkansas to award
attorney's fees and expert-witness fees to a landowner in
a condemnation action brought by a municipality. Under these
cases, the circuit court issued an order denying the
Trust's request for attorney's fees and costs.
April 24, 2017, and following our decision in Brown v.
City of Bryant, 2017 Ark.App. 239, 520 S.W.3d 287,
Trust moved to modify the prior ruling denying attorney's
fees and costs, moving now for its "appraisal fees"
of $5, 700 and "other costs" of $1, 334.14. These
amounts were a part of its original motion for attorney's
fees and costs. Following a hearing on the motion, the
circuit court ordered the City to pay the $5, 700 appraisal
fee and $72.04 in other costs. The circuit court noted it was
"being mindful that the jury verdict in this case
represented a fraction of the total amount in that was sought
in just compensation." In turn, the City filed a timely
notice of appeal, and the Trust filed a timely notice of
appeal, we are asked to interpret Arkansas Code Annotated
section 18-15-307. Issues of statutory construction are
reviewed de novo, as it is for the appellate courts to decide
what a statute means. Brown, 2017 Ark.App. 239, 520
S.W.3d 287. We are not bound by the circuit court's
decision, but in the absence of a showing that the circuit
court erred, its interpretation will be accepted as correct
on appeal. Id.
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."
first address the direct appeal. In Brown, we
explained that per Alcoa Road Storage and
Teeter, our supreme court has clearly determined
that attorney's fees and expert- witness fees are not
recoverable under section 18-15-307(c). However, regarding
the appraisal cost, we explained:
We reference again that part of section 18-15-307(c), to wit:
"[T]he costs occasioned by the "assessment"
shall be paid by the corporation." The Oxford
English Dictionary defines "assessment," in
pertinent part, as "[o]fficial valuation of property or
income for the purposes of taxation; the value assigned to
it." We are mindful that our supreme court held in
Alcoa Road Storage that the legislature contemplated
only costs that could be taxed in an ordinary action when it
wrote this statutory provision. We are also mindful that our
supreme court, in Alcoa Road Storage, specifically
defined "assessment" as "the valuation
procedure for property sought to be condemned," 2017
Ark. 78, at 1, 513 S.W.3d 259. We hold the appraisal
expenditure is a cost "occasioned by the
assessment" that can be recovered . . . .
Brown, 2017 Ark.App. 239, at 5, 520 S.W.3d at 290.
appeal, the City asserts that the Brown holding
conflicts with the Alcoa Road Storage holding that
expert-witness fees are nonrecoverable. The City refers to
the appraisal as an "out of court opinion" and
questions why an out-of-court opinion of an expert witness is
considered compensable when his in-court testimony is not.
The City also asserts that Brown incorrectly assumed
that the appraisal report was "specifically and