Giles v. Ozark Mountain Reg'l Pub. Water Auth. ( 2013 )

Cite as 2013 Ark. App. 639
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-38
GREGORY ROSS GILES, TERRI Opinion Delivered November 6, 2013
GILES, KAREN JEAN HUGHES, and
KEVIN HUGHES APPEAL FROM THE BOONE
APPELLANTS COUNTY CIRCUIT COURT
[NO. CV-12-202-4]
V.
HONORABLE GORDON WEBB,
JUDGE
OZARK MOUNTAIN REGIONAL
PUBLIC WATER AUTHORITY AFFIRMED
APPELLEE
ROBIN F. WYNNE, Judge
Gregory Ross Giles, Terri Giles, Karen Jean Hughes, and Kevin Hughes appeal from
an order of the Boone County Circuit Court denying their request for attorney’s fees
following a condemnation proceeding. We affirm the order of the circuit court.
On July 16, 2010, the Ozark Mountain Regional Public Water Authority (Ozark) filed
a complaint for condemnation and declaration of taking in which it sought to take property
owned by appellants for the construction of a water-treatment and intake facility together
with all necessary roadways, water transmission lines, and a water tower. An appraisal
determined the fair market value of the property to be $66,986, which amount was deposited
by Ozark in favor of appellants. The circuit court entered an order granting Ozark right of
entry onto the property. Appellants filed an answer to the complaint in which they claimed
that the amount deposited was not sufficient compensation for the property and requested a
Cite as 2013 Ark. App. 639
jury trial to determine the amount of compensation to be paid for the property. Following
a trial, the jury fixed the compensation for the property at $341,500. The circuit court
entered judgment in favor of appellants in the amount of $274,514, which is the amount
awarded by the jury less the amount previously deposited by Ozark.
On March 26, 2012, appellants filed a motion for attorney’s fees. Ozark opposed the
motion, arguing that it exercised its taking power under the procedures of a subsection of the
Arkansas Code that does not allow for attorney’s fees. Appellants responded, arguing that an
applicable subsection allowed for attorney’s fees. In an order filed on October 3, 2012, the
circuit court denied appellants’ motion for attorney’s fees. This timely appeal followed.
Appellants argue that the circuit court erred by determining that the waterworks
attorney’s fee statute is not applicable in this case. Attorney’s fees are not allowed except
where expressly provided for by statute. See Harris v. City of Fort Smith, 366 Ark. 277, 234
S.W.3d 875 (2006). A decision to grant or deny a motion for attorney’s fees will not be set
aside absent an abuse of discretion by the circuit court. See id. When issues requiring
statutory interpretation are involved, our review is de novo. See Varadan v. Pagnozzi, 2012
Ark. App. 700.
Ozark is a public-water authority, an entity sanctioned by the enactment of Act 15 of
2001, which is codified at Arkansas Code Annotated sections 4-35-201 et seq. None of those
code sections contain any authority for an award of attorney’s fees. A public-water authority
has the power to exercise eminent domain in accordance with the procedures prescribed by
Arkansas Code Annotated sections 18-15-301 et seq. Ark. Code Ann. § 4-35-210 (Supp.
2
Cite as 2013 Ark. App. 639
2011). None of the statutes in subchapter 3 allow for an award of attorney’s fees.
Arkansas Code Annotated sections 18-15-601 et seq. set out the eminent-domain
authority and procedure for water and water-generated electric municipal corporations.
Subchapter 6 does allow for an award of attorney’s fees if the amount awarded by the jury
exceeds the amount deposited by the corporation or water association in an amount that is
more than twenty percent of the sum deposited. Ark. Code Ann. § 18-15-605(b) (Repl.
2003). Appellants argue that section 18-15-605(b) applies in this case. For authority, they
rely primarily on two cases from our supreme court.
In City of Fort Smith v. Carter, 364 Ark. 100, 216 S.W.3d 594 (2005), property owners
cross-appealed from an order denying their motion for attorney’s fees following the
condemnation of their property by the city for a reservoir. The property owners argued that
section 18-15-605(b) should apply. The city argued that it should not apply because it
exercised its power of eminent domain under subchapter 4 of title 18, chapter 15 of the
Arkansas Code. Our supreme court held that section 18-15-605(b) did apply because section
18-15-401(c) states that the subchapter is cumulative to any other laws of eminent domain
in favor of municipalities operating municipal waterworks systems.
In Combs Revocable Trust v. City of Russellville, 2011 Ark. 186, the landowner appealed
the denial of its motion for attorney’s fees following condemnation of its property by the city
for the purpose of expanding and improving a public roadway, as well as improving drainage
and flood control in the area. The landowner argued that section 18-15-605(b) should apply.
The supreme court stated that, in order for section 18-15-605(b) to apply, the city must have
3
Cite as 2013 Ark. App. 639
based its underlying condemnation action upon the use of the city’s power of eminent domain
to expand its water-supply facilities. The court ultimately held that the eminent-domain
action was not brought for that purpose and affirmed the circuit court.
Appellants argue, in essence, that Carter and Combs make it clear that if eminent
domain is used for a waterworks project, then section 18-15-605(b) applies and authorizes an
award of attorney’s fees. Appellants’ argument is misplaced. Both of those cases involved the
exercise of eminent domain by a municipality. The power of eminent domain in this case
was exercised by a public-water authority, not a municipality. Appellants’ argument further
ignores the fact, which was recognized by the circuit court, that a public-water authority,
such as Ozark, must exercise its eminent-domain power pursuant to the procedures in
subchapter 3 of title 18, chapter 15 of the Arkansas Code. None of the cases cited by
appellants have applied section 18-15-605(b) to subchapter 3, nor does any such case currently
exist. Most importantly, subchapter 3 does not include language such as that in section 18-
15-401(c) that our supreme court held in Carter made section 18-15-605(b) applicable to
eminent domain exercised under subchapter 4.
Thus, an analysis of the procedure for the exercise of eminent domain by a public-
water authority is restricted to subchapter 3. As noted above, subchapter 3 contains no
provision for an award of attorney’s fees. The circuit court, therefore, did not have authority
to award any fees, and its decision to deny the motion for fees was correct.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Moffitt & Phillips, PLLC, by: Brandon K. Moffitt and Michael Phillips; and Taylor & Taylor
Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellants.
Martin Law Firm, P.A., by: Thomas A. Martin, for appellee.
4