Rick A. BLANCHARD, AS TRUSTEE OF the RICK A. BLANCHARD LIVING TRUST AGREEMENT DATED AUGUST 18, 1989, Appellant
CITY OF SPRINGDALE, Arkansas, a Municipal Corporation Acting BY AND THROUGH Its WATER AND SEWER COMMISSION, Appellee
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-1060],
HONORABLE XOLLIE DUNCAN, JUDGE
Law Firm, PLLC, Rogers, by: Glenn E. Kelley and Caroline W.
Kelley, for appellant.
Harwell, Fryar & Ferner, PLLC, by: Charles L. Harwell and
Matthew L. Fryar, Springdale, for appellee.
S. HIXSON, Judge
is an appeal from an eminent-domain proceeding, and the
issues on appeal involve only costs and attorneys fees. The
litigation was initiated when appellee Springdale Water and
Sewage Commission (SWSC) filed an eminent-domain complaint
against appellant, Rick A. Blanchard, as Trustee of the Rick
A. Blanchard Living Trust Agreement dated August 18, 1989
(the Trust). SWSCs complaint sought two utility easements
over property owned by the Trust and prayed that just
compensation be awarded. After a jury trial, the jury
returned a verdict of $104,846.12 to the Trust as just
compensation for the easements, and a judgment was entered in
this amount. The Trust subsequently filed a motion for
attorneys fees and costs, and the trial court entered an
order denying the Trusts motion. The Trust now appeals,
contending the trial court erred in denying the motion for
attorneys fees and costs. We affirm the trial courts denial
of attorneys fees, and we affirm in part and reverse in part
the denial of costs.
The Award of Just Compensation for the Taking
Trust owns 54.93 acres of property in Benton County (the
Trust property). In 2016, SWSC sought a 65-foot-wide utility
easement across the middle of the Trust property and a
35-foot easement along the edge of the Trust property next to
a state highway. These proposed easements formed an L-shape
and consisted of 2.61 acres. Although SWSC was seeking two
easements, for ease of discussion we will hereafter refer to
them collectively as "the easement." In
prelitigation negotiations, SWSC and the Trust were unable to
reach an agreement regarding the appropriate just
compensation for the easement.
27, 2016, SWSC filed a complaint against the Trust. In its
complaint, SWSC asserted that it was authorized to acquire
easements by eminent domain pursuant to Ark. Code Ann. § §
18-15-301 et seq., § § 18-15-401 et seq., and § 14-235-210.
SWSC attached to its complaint a copy of the easement. SWSCs
complaint stated that the easement was "needed for the
construction and maintenance of improvements to and for the
location of sewer lines. " (Emphasis added.)
The easement, which was attached to the complaint, contained
a property description of the entirety of the Trust property,
as well as a description of the portions of the Trust
property to be encumbered by the easement. The easement
provided for the right of ingress and egress "for the
purpose of laying, repairing, inspecting, maintaining,
removing, or replacing, said water transmission line(s),
and/or sewer collection or force main line(s), and
the right of exercising all other rights necessary to carry
out the purposes for which this easement is created."
(Emphasis added.) The easement further provided that the
grantee "shall have and is hereby granted the right of
constructing, reconstructing, locating, relocating,
inspecting, patrolling, [and] expanding existing facilities
or such additional facilities, and appurtenances as may be
required in the future."
on July 27, 2016, SWSC filed a motion for order of
possession. In this motion, SWSC represented that "the
rights of way condemned by plaintiff in this action are for
the construction of improvements to and for the installation
of sewer lines. " (Emphasis added.) Attached to
the motion was an appraisal report prepared by Shannon
Mueller. The appraisal report states that the easement
"is intended to be for a water transmission line(s),
and/or sewer collection or force main line(s).
" (Emphasis added.) The SWSCs appraisal report also
states that "[t]he intended use of this report
is to assist the client [SWSC] with an acquisition (permanent
easement) decision in connection with the Spring Creek
Sanitary Sewer Project. " (Emphasis added.)
SWSCs appraisal estimated that the damage to the value of
the Trust property resulting from the easement was $33,900.
Relying on this estimate of just compensation, SWSC deposited
$33,900 with the clerk of the court.
July 29, 2016, the trial court entered an order of possession
granting SWSC the right of possession of the property
described in the easement attached to SWSCs complaint. The
order of possession states that SWSCs easement is
"needed by the plaintiff for the construction and
maintenance of improvements to and for the installation of
sewer lines. " (Emphasis added.)
August 17, 2016, the Trust answered SWSCs complaint. In its
answer, the Trust asserted that the estimated compensation of
$33,900 deposited by SWSC was insufficient to compensate the
Trust for the condemnation of the subject property. The Trust
asked that the trial court empanel a jury to ascertain the
amount of just compensation due to the Trust.
two-day jury trial was held on August 21 and 22, 2018. At
trial, the Trust presented the testimony of its own
appraiser, Glen Carlson. Carlson prepared an appraisal report
wherein he estimated the damages caused by the "utility
easement" to be $121,000.
Pulvirenti, a civil engineer employed by SWSC, testified
about the easement crossing the Trust property. Pulvirenti
indicated that the easement is part of the Spring Creek Sewer
Project. This project extends the boundaries of SWSCs sewage
service and requires the installation of sewer lines for the
transmission of sewage from a lift station to SWSCs
wastewater-treatment facility. These sewer lines cross the
Trust property, creating the necessity for the easement.
Pulvirenti stated that "[t]his project is only the
transmission of sewage between the lift station and some
other point." Pulvirenti indicated that at some future
time, SWSC could install additional sewer lines over the
easement that would result in no additional compensation to
the Trust. Pulvirenti testified that SWSC also has water
lines running through other portions of the Trust property,
but that compensation for those lines was negotiated years
ago when the water lines were installed. He stated that the
water lines are not part of this project.
the trial, the jury returned a verdict of $104,846.12 in
favor of the Trust as just compensation for the taking. The
verdict was entered of record on August 23, 2018.
The Motion for Attorneys Fees and Costs
Trust filed a motion for attorneys fees and costs, and this
motion set off a flurry of motions and countermotions by each
party. Each motion and countermotion advanced specific
interpretations and constructions of the aforementioned
statutes, which ultimately resulted in the trial court
denying appellants motion for attorneys fees and costs.
August 24, 2018, the Trust filed its initial motion for
attorneys fees and costs. The Trusts motion was made
pursuant to Ark. Code Ann. § 18-15-605(b) (Repl. 2015), which
In the case of application for orders of immediate possession
by the corporation or water association, if the
amount awarded by the jury exceeds the amount deposited by
the corporation or water association in an amount
which is more than twenty percent (20%) of the sum deposited,
the landowner shall be entitled to recover the reasonable
attorneys fees and costs.
(Emphasis added.) The Trust asserted that this statute
provides for attorneys fees and costs in condemnation
proceedings involving municipalities where the jury awards
damages of more than 20 percent than the sum deposited.
Noting that the jurys verdict exceeded the amount deposited
by SWSC by more than 20 percent, the Trust requested
attorneys fees of $49,832.50 and costs of $9237.00.
August 29, 2018, SWSC filed a response to the Trusts motion
for attorneys fees and costs. In its response, SWSC
contended that the Trust was not entitled to attorneys fees
or costs because Ark. Code Ann. § 18-15-605(b) does not apply
to a taking for a sewer line. In its accompanying brief, SWSC
asserted that Ark. Code Ann. § 18-15-301(a) provides the
general authority of a municipal corporation to condemn
private property for construction or other lawful purposes;
that Ark. Code Ann. § 18-15-401 describes a municipalitys
authority to exercise that broad condemnation power for water
systems; and that Ark. Code Ann. § 14-235-210 (Repl. 1998)
extends municipal authority to condemnations for purposes of
expanding sewer systems. SWSC asserted that Ark. Code Ann. §
§ 18-15-601 et seq., which SWSC did not rely on in these
proceedings, provides a means by which a municipality can
condemn land for purposes of expanding a water system or
water-generated electric system. SWSC contended that Ark.
Code Ann. § 18-15-605(b), upon which the Trust relied in its
application for attorneys fees and costs, has no application
to this case because its application is limited to a
condemnation for purposes of expanding a citys municipal
water system. SWSC argued that because it acted only to
expand its sewer system, it was not responsible for the
Trusts attorneys fees or costs. SWSC noted that its
complaint, its motion for order of possession, and the trial
courts order of possession all reference an easement for the
installation and maintenance of sewer lines. SWSC asserted
that it had clearly requested that its easement be limited to
sewer lines, and that sewer lines were the only lines SWSC
had run within the easement.
an underlying judgment was entered and while the Trusts
motion for attorneys fees and costs remained pending, the
Trust filed a motion regarding the form of the judgment, and
SWSC filed a response. In the Trusts motion filed on
September 5, 2018, and SWSCs response filed on September 10,
2018, the parties disagreed as to the nature of the easement
that had been granted to SWSC and prepared different
precedents for consideration by the trial court.
Trusts motion, it contended that SWSCs easement was not
limited to sewer lines but that it also included
water-transmission lines (which would then permit the Trust
to recover statutory attorneys fees). In support of its
claim, the Trust noted that the stated purpose of the
easement that SWSC attached to its complaint was for
"water transmission line(s), and/or sewage
collection or force main line(s)." (Emphasis added.) The
Trust alleged that SWSCs postverdict characterization of the
easement as only a sewage easement was a thinly veiled effort
to avoid an assessment of attorneys fees and costs as
contemplated under the statute that authorizes attorneys
fees and costs for the taking of waterworks easements. The
Trust submitted a proposed judgment wherein the Trust would
be compensated for the taking of a permanent utility
responded that, notwithstanding the generic reference to
transmission lines and/or sewer-collection lines in
the easement attached to its complaint, its application for
an easement was at all times limited to sewage-transmission
lines as evidenced by the language in the complaint itself.
SWSC stated that the testimony at trial confirmed that
sewage-transmission lines were currently in the easement and
that other sewage-transmission lines would likely be added in
the future. ...