Ioup v. City of Benton , 2017 Ark. App. 274 ( 2017 )

Cite as 2017 Ark. App. 274ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-377
PAT M. IOUP Opinion Delivered May 3, 2017
APPELLANT APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CV-14-360]
CITY OF BENTON, ARKANSAS
HONORABLE GARY ARNOLD,
APPELLEE JUDGE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
DAVID M. GLOVER, Judge
Pat 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.
In June 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 Joe1 and Pat Ioup and
JP Morgan Chase Bank, N.A.2 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
1
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.
2
JP Morgan Chase Bank has an interest in the property by virtue of holding a
mortgage on the property.
Cite as 2017 Ark. App. 274negotiate 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.3 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 in Benton.
On 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
3
The amount of compensation is not an issue on appeal.
2
Cite as 2017 Ark. App. 274by 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.
Our 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.
As in 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
3
Cite as 2017 Ark. App. 274issue; and (ii) we affirm the denial of Ioup’s request for other costs.
Affirmed in part; reversed and remanded in part.
VIRDEN and HARRISON, JJ., agree.
The Boswell Law Firm, by: John Andrew Ellis, for appellant.
Jensen, Young & Houston, PLLC, by: Brent Houston, for appellee.
4