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City of Bryant v. The Boone Trust

Court of Appeals of Arkansas, Division II

November 7, 2018



          Richard Chris Madison, for appellant.

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

          MIKE MURPHY, Judge.

         Appellant, 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.

         In June 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.[1] 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.

         On July 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.

         On April 24, 2017, and following our decision in Brown v. City of Bryant, 2017 Ark.App. 239, 520 S.W.3d 287, [2] the 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 cross-appeal.

         On 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.

         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."

         We 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.

         On 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 ...

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