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                 SUPREME COURT OF ARKANSAS
                                        No.   CV-16-22

                                                 Opinion Delivered: March   9, 2017
CITY OF BENTON
      APPELLANT/CROSS-APPELLEE APPEAL FROM THE SALINE
                               COUNTY CIRCUIT COURT
V.                             [NO. 63CV-14-352-2]

ALCOA ROAD STORAGE, INC.      HONORABLE GARY ARNOLD, JUDGE
     APPELLEE/CROSS-APPELLANT

                                                 REVERSED ON DIRECT APPEAL;
                                                 AFFIRMED ON CROSS-APPEAL.


                               JOHN DAN KEMP, Chief Justice

         Appellant, City of Benton (the “City”), appeals from an award of attorneys’ fees to

appellee, Alcoa Road Storage, Inc. (“Alcoa”), in a judgment arising from a condemnation

proceeding. For reversal, the City contends that the circuit court erred because there is no

statutory authority for awarding attorneys’ fees against a municipality in a condemnation

proceeding. Alcoa cross-appeals the denial of its request for payment of expert-witness fees.

Specifically, Alcoa contends that the circuit court erred in finding that expert-witness fees

incurred by a landowner to establish the calculation of its just compensation were not “costs

occasioned by the assessment” pursuant to Arkansas Code Annotated section 18-15-307(c)

(Repl. 2015). We reverse the award of attorneys’ fees and affirm the denial of expert-witness

fees.1




         1
        This court accepted certification of this case from the court of appeals pursuant to
Arkansas Supreme Court Rule 1-2(d) (2016).
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       On June 25, 2014, the City filed a complaint seeking to take real property belonging

to Alcoa by eminent domain pursuant to Arkansas Code Annotated section 18-15-201 and

Arkansas Code Annotated sections 18-15-301 et seq. The circuit court entered an ex parte

order of possession and directed the City to deposit $197,100 into the registry of the court.

Alcoa answered and requested a jury trial. The circuit court held a jury trial, and on June

24, 2015, the jury returned a verdict awarding Alcoa $317,550.2 Thereafter, Alcoa filed a

motion for assessment of expert-witness fees in the amount of $22,314.76 and attorneys’

fees in the amount of $9,285.39. The circuit court awarded attorneys’ fees but denied the

motion for expert-witness fees.

       We begin with a brief overview of the law governing the eminent-domain power of

municipalities. In 1875, the General Assembly enacted Act I, a comprehensive act

concerning the incorporation, organization, and government of municipal corporations.

The Act conferred upon municipal corporations the power of eminent domain for the

construction of certain improvements and for other lawful purposes, and it provided for

compensation to the owners of the property taken. See Act of Mar. 9, 1875, No. 1, §§ 74–

75, 1874–75 Ark. Acts 1, 31–32, now codified as Ark. Code Ann. §§ 18-15-301 to -307.

       The valuation procedure for property sought to be condemned is called an

“assessment.” The “inquiry into and assessment of compensation” is made by a jury. See

Ark. Code Ann. § 18-15-304. “As soon as the amount of compensation that may be due to




       2
        The amount of just compensation paid to Alcoa is not an issue on direct appeal or
on cross-appeal.

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the owners of the property taken . . . shall have been ascertained by the jury, the court shall

make such order as to its payment or deposit.” Id. § 18-15-307(a).

       The issues in this case require us to construe section 18-15-307(c), which states, “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.” On appeal, we

must determine whether the phrase “costs occasioned by the assessment” includes attorneys’

fees. On cross-appeal, we must determine whether the phrase includes expert-witness fees.

       The cardinal rule of statutory construction is to effectuate the legislative will. E.g.,

Roeder v. United States, 2014 Ark. 156, 432 S.W.3d 627. In considering the meaning of a

statute, we construe it just as it reads, giving the words their ordinary and usually accepted

meaning in common language. E.g., Woodrome v. Daniels, 2010 Ark. 244, 370 S.W.3d 190.

When the language of the statute is plain and unambiguous, conveying a clear and definite

meaning, we need not resort to the rules of statutory construction. E.g., Raymond James Fin.

Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008).

       The City contends that “costs occasioned by the assessment,” as used in Arkansas

Code Annotated section 18-15-307(c), does not encompass attorneys’ fees and expert-

witness fees. We agree with the City that the circuit court erred in awarding attorneys’ fees

to Alcoa because there is no statutory authority for awarding attorneys’ fees against a

municipality in a condemnation proceeding. The American rule, which is observed in

Arkansas, is that attorneys’ fees are not chargeable as costs in litigation unless specifically

permitted by statute. Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997) (citing

Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Arkansas has followed


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this common-law rule since before the Civil War. Med. Liability Mut. Ins. Co. v. Alan Curtis

Enters., 373 Ark. 525, 285 S.W.3d 233 (2008) (citing Temple v. Lawson, 19 Ark. 148 (1857)).

Moreover, this court has squarely rejected the argument that attorneys’ fees are a component

of just compensation. See Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d

321; Ark. State Highway Comm’n v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989).

       Here, the statute provides for “costs occasioned by the assessment.” The terms

“costs” or “expenses” when used in a statute do not ordinarily include attorneys’ fees. Ark.

Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); State v. McLeod, 318

Ark. 781, 888 S.W.2d 639 (1994). Because attorneys’ fees are not expressly provided for in

section 18-15-307(c), we reverse the circuit court’s award of attorneys’ fees.

       On cross-appeal, Alcoa contends that the circuit court erred in finding that expert-

witness fees incurred by a landowner to establish the calculation of its just compensation are

not “costs occasioned by the assessment” pursuant to Arkansas Code Annotated section 18-

15-307(c). We disagree.

       This court has long recognized that “[o]ur entire law of costs and fees is, in substance,

statutory.” Thorn v. Clendenin, 12 Ark. 60, 62 (1851); see also Ark. State Game & Fish Comm’n

v. Kizer, 222 Ark. 673, 262 S.W.2d 265 (1953) (noting that, at common law, neither party

was entitled to recover costs). Notably, section 18-15-307(c) has not been amended since

its enactment in 1875. We conclude 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. Cf. Wood v. Tyler,

317 Ark. 319, 877 S.W.2d 582 (1994). In the absence of statutory authority, the fees of


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expert witnesses cannot be treated as costs and charged against a losing party. Sutton v. Ryder

Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991); Ark. State Highway Comm’n v.

Union Planters Nat’l Bank, 231 Ark. 907, 333 S.W.2d 904 (1960); see also Wood, 317 Ark.

319, 877 S.W.2d 582. Therefore, we affirm the circuit court’s denial of expert-witness fees

to Alcoa.

       Reversed on direct appeal; affirmed on cross-appeal.

       HART, J., dissents.

       JOSEPHINE LINKER HART, Justice, dissenting.               The majority has failed to

properly apply statutory construction in accordance with the time-honored methods that

this court has hitherto employed. The proper application of our procedures for interpreting

an act of the General Assembly, when done in a manner that comports with our state

constitution, mandates that both attorney’s fees and expert-witness fees are “costs occasioned

by the assessment” of just compensation for property condemned under eminent domain.

Ark. Code Ann. § 18-15-307(c).1 Thus, Alcoa Road Storage, Inc. (Alcoa) is entitled to not

only attorney’s fees but its expert-witness fees as well.

       The crux of this appeal is the meaning of the word “costs” in the phrase “costs

occasioned by the assessment” found in Arkansas Code Annotated section 18-15-307(c).

More specifically, the question is whether “costs” may be interpreted to mean the money




       The full text of the pertinent part of the statute reads as follows: “The costs
       1

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.” Ark. Code Ann.
§ 18-15-307(c).

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that Alcoa had to expend in litigation to obtain the “just compensation” that a property

owner is guaranteed by the Arkansas Constitution.

       The Arkansas Constitution, in article 2, section 22 states, “The right of property is

before and higher than any constitutional sanction; and private property shall not be taken,

appropriated or damaged for public use, without just compensation therefor.” Furthermore,

“just compensation” means full compensation. Ark. State Highway Comm’n v. Vick, 284

Ark. 372, 682 S.W.2d 731 (1985). Moreover, this court is obligated to construe an act to

be constitutional, if possible. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007).

Had the majority allowed these fundamental principles to illuminate its search for the

meaning of “costs” in section 18-15-307(c), it would not have stumbled so badly as to

interpret a statute in an unconstitutional manner.

       The majority’s citation of Ellis v. Arkansas State Highway Commission, 2010 Ark. 196,

363 S.W.3d 321 and Arkansas State Highway Commission v. Johnson, 300 Ark. 454, 780

S.W.2d 326 (1989) shows the depth of its misunderstanding of my analysis on this point.

The proper construction of section 18-15-307(c) must proceed from the presumption that

the General Assembly understands the constitutional requirement that a citizen receives just

compensation whenever the state takes his or her property. I contend that this constitutional

requirement is embodied in section 18-15-307(c) and should be given effect by this court.

       Instead, the majority apparently presumes that the General Assembly has disregarded

the Arkansas Constitution both directly by denying a landowner just compensation and

indirectly by intruding on the landowner’s constitutional right to a trial by jury.




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       To be sure, Alcoa has not placed before this court a challenge to the constitutionality

of section 18-15-307(c). Implicit in Alcoa’s argument is that the statute is constitutional. It

is only the majority’s interpretation that has made section 18-15-307(c) unconstitutional.

       “Costs” is commonly defined as “the expenses of litigation, prosecution, or other

legal transaction esp. those allowed in favor of one party against another.” Black’s Law

Dictionary 423 (10th ed. 2014). The majority is being disingenuous when it cites Arkansas

Department of Human Services v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995), for the

proposition that when a statute uses the words costs and expenses, the meaning “do[es] not

ordinarily include attorney fees.” Kistler holds that attorney’s fees are not awarded without

statutory authority. The majority completely misses my point—section 18-15-307(c) does

provide that statutory authority in this case.

       That the General Assembly is sensitive to protection of the constitutional right of

landowners to full compensation for the taking of their property cannot be doubted. When

the General Assembly recently amended another eminent-domain statute, Arkansas Code

Annotated section 27-67-317, it effectively overruled the two cases relied on by the

majority, Ellis v. Arkansas State Highway Commission, supra and Arkansas State Highway

Commission v. Johnson; supra, it stated the following:

       AN ACT TO MODIFY CERTAIN EMINENT DOMAIN LAWS THAT ARISE
       OUT OF PROPERTY RIGHTS SECURED UNDER ARTICLE 2, § 22 OF
       THE ARKANSAS CONSTITUTION; AND FOR OTHER PURPOSES.

       Subtitle

       TO MODIFY CERTAIN EMINENT DOMAIN LAWS THAT ARISE OUT
       OF PROPERTY RIGHTS SECURED UNDER ARTICLE 2, § 22 OF THE
       ARKANSAS CONSTITUTION.


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       BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
       ARKANSAS:

       SECTION 1. DO NOT CODIFY. Legislative intent.

       (a) It is the intent of the General Assembly to protect the property rights of the people
       of the State of Arkansas in eminent domain proceedings initiated by the State
       Highway Commission because, as stated in Article 2, § 22 of the Arkansas
       Constitution, the right of property in Arkansas is before and higher than any
       constitutional sanction and should not be taken without just compensation.

       (b) The General Assembly believes when the Arkansas State Highway and
       Transportation Department fails to offer the fair market value for condemned
       property that costs, expenses, and reasonable attorney’s fees should be awarded to the
       land owner to justly compensate the people of the State of Arkansas.

Act of Mar. 26, 2013, No. 502, 2013 Ark. Act 502. Section 18-15-307(c) did not need

similar attention from our legislature, until now.

       Section 18-15-307(c)’s use of the word “costs” is consistent with at least one other

statute that concerns the award of attorney’s fees. Arkansas Code Annotated section 16-22-

308 provides for the award of attorney’s fees to the prevailing party in a contract action, 2

directing that a reasonable attorney’s fee be assessed by the trial court and “collected as

costs.” Accordingly, this interpretation would affirm the award of attorney’s fees as part of

the “cost” of securing a proper assessment for the condemned property. However, by


       2
           The code section states:
In any civil action to recover on an open account, statement of account, account stated,
promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of
goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise
provided by law or the contract which is the subject matter of the action, the prevailing
party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as
costs.

Ark. Code Ann. § 16-22-308 (Repl. 1999).



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construing “costs” in the way that it does, the majority has caused Alcoa to receive for its

“just compensation” $31,600.15 less than the jury determined was “just.”

       A more rigorous application of the canons of statutory construction further

substantiates this analysis. The correct application and interpretation of an Arkansas statute

is a question of law, which this court decides de novo. Hammerhead Contracting & Dev.,

LLC v. Ladd, 2016 Ark. 162, 489 S.W.3d 654. The purpose of the rules of statutory

construction is to give effect to the intent of the legislature. Id. The first rule of statutory

construction is to construe a statute just as it reads, giving the words their ordinary and

usually accepted meaning. Id. Additionally, in construing any statute, we place it beside

other statutes relevant to the subject matter in question and ascribe meaning and effect to

be derived from the whole. Id. Statutes relating to the same subject must be construed

together and in harmony, if possible. Id.

       The construction of “costs” to include attorney’s fees and expert-witness fees

harmonizes section 18-15-307(c) with the provisions in section 27-67-317(b).               This

interpretation would provide the same compensation to a landowner who is forced to

vindicate his or her right to just compensation through litigation. Otherwise, we are left

with the anomaly of the rare instance in which the legislature gives the State of Arkansas,

which would otherwise be protected by sovereign immunity, less protection than a

municipal corporation.

       In short, two interpretations of section 18-15-307(c) are possible. One interpretation

justifies the circuit court’s award of attorney’s fees and the expert-witness fees that Alcoa

seeks in its cross-appeal, thus giving Alcoa the full compensation that a jury determined was


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“just.”     The other interpretation, the one espoused by the majority, leaves Alcoa’s

compensation $31,600.15 less than what the jury said Alcoa was entitled to. I refuse to lay

at the feet of the General Assembly an interpretation of a statute, made solely by this court,

that serves to unconstitutionally deny Alcoa its just compensation for the land taken by the

City of Benton. I would affirm the circuit court on the award of attorney’s fees and reverse

and remand this case for a consideration of which expert-witness fees and other expenses

associated with the litigation were necessary to obtain the jury’s assessment of the “just

compensation” in this case. I therefore respectfully dissent.

          Jensen Young & Houston, PLLC, by: Brent Houston, for appellant.

          Eichenbaum Liles P.A., by: Christopher O. Parker, for appellee.




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