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                 SUPREME COURT OF ARKANSAS
                                       No.   CV-13-156

LONOKE COUNTY, ARKANSAS;                          Opinion Delivered   November 14, 2013
LONOKE COUNTY JUDGE DOUG
ERWIN; AND LONOKE COUNTY                          APPEAL FROM THE LONOKE
QUORUM COURT MEMBERS JOE                          COUNTY CIRCUIT COURT
FARRER, JANNETTE MINTON,                          [NO. CV-12-44]
LARRY ODOM, TIM LEMONS,
BARRY WEATHERS, ALEXIS                            HONORABLE THOMAS LYNN
MALHAM, ADAM SIMS, ROBERT                         WILLIAMS, JUDGE
LYNCH, ROBERT SONNY MOERY,
BILL RYKER, MIKE DOLAN, and
HENRY LANG
                    APPELLANTS

V.

CITY OF LONOKE, ARKANSAS and
LONOKE DISTRICT COURT                             AFFIRMED IN PART; REVERSED IN
                    APPELLEES                     PART.


                       JOSEPHINE LINKER HART, Associate Justice

       Lonoke County and its county judge and quorum-court members (“the County”)

appeal from the Lonoke County Circuit Court’s order issuing a writ of mandamus requested

by the City of Lonoke and the Lonoke District Court (“the City”). The County argues that

the circuit court erred in issuing the writ, as the circuit court misconstrued both a 1991 order

entered by the circuit court and statutory amendments to Arkansas Code Annotated section

16-17-115. Further, the County argues that the circuit court erred in awarding attorney’s fees

to the City. We affirm the circuit court’s issuance of the writ but reverse the court’s award

of attorney’s fees.
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       A “writ of mandamus” is “an order of the circuit court granted upon the petition of

an aggrieved party or the state when the public interest is affected, commanding an executive,

judicial, or ministerial officer to perform an act or omit to do an act, the performance or

omission of which is enjoined by law.” Ark. Code Ann. § 16-115-101(1) (Repl. 2006). A

writ of mandamus is issued to enforce an established right or to enforce the performance of

a duty. Brown v. Gibson, 2012 Ark. 285, at 2, ___ S.W.3d ___, ___. The writ is issued where

(1) the duty to be compelled is ministerial and not discretionary, (2) the petitioner has shown

a clear and certain right to the relief sought, and (3) the petitioner lacks any other adequate

remedy. Id., ___ S.W.3d at ___. As an applicant for an extraordinary writ, the petitioner

carries the burden to demonstrate that the relief he seeks is merited. Id., ___ S.W.3d at ___.

       The record establishes that in 1991, the cities of Carlisle and Lonoke requested a writ

of mandamus to require Lonoke County to pay one-half of the judicial and clerk salaries and

a portion of the expenses of the municipal courts in those cities. In support of its petition, the

cities cited Arkansas Code Annotated section 16-17-115 (Supp. 1989) (the “1987 statute”),

which provided in part as follows:

               Except as authorized otherwise, the county wherein a municipal court is held
       shall pay one-half (1/2) of the salaries of the judge and the clerks of the municipal
       courts organized in that county . . . and the quorum court . . . shall, at its annual
       meeting, make an appropriation of a sum sufficient to pay the county’s proportion of
       the expenses of all such municipal courts.

       On March 29, 1991, the circuit court entered an order (the “1991 order”) that stated

in pertinent part as follows:

               Now on this 29th day of March, 1991 . . . the court hereby finds:
       ....

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               2. That the cities of Carlisle and Lonoke and Lonoke County have entered into
       an agreement to resolve and fully and finally settle this Lawsuit and the issues raised
       therein as follows:
               a. Beginning January 1, 1991, the County shall pay one-half of the municipal
       judges and clerks’ salaries and its proportionate share of expenses based upon the
       salaries which the Municipal Judges and Clerks of said cities receive.
       ....
               e. County shall pay a proportionate share of cities’ municipal court expenses.
       ....
               5. It is the intent of the parties herein to follow the statutory authority in
       Arkansas as it pertains to . . . the sharing of court costs between counties and
       municipalities. In the event that law is amended or voided, then this agreement shall
       be amended to reflect then existing statutory law.

       The 1987 statute1 was amended in 2007 with an effective date of January 1, 2012.

Arkansas Code Annotated section 16-17-115 (Repl. 2010) (the “2012 statute”), provides in

pertinent part as follows:

       (a) Except as authorized otherwise, the county wherein a district court is held shall pay
       one-half (1/2) of the salaries of the district judge and each chief court clerk of any
       district court organized in that county . . . and the quorum court . . . shall, at its annual
       meeting, make an appropriation of a sum sufficient to pay the county’s proportion of
       the expenses of any such district court. . . .
       (b)(1)(A) Except as authorized otherwise, the town or city in which a district court is
       held shall pay:
                       (i) One-half (1/2) of the salaries of the district judge and the chief court
       clerk; and
                       (ii) The operational expenses of the district court organized in that town
       or city . . . unless otherwise agreed to by the political subdivisions which contribute
       to the expenses of the district court.
            (B) The governing body of the town or city in a town or city . . . shall make at
       its annual meeting an appropriation of a sum sufficient to pay the town’s or city’s
       proportion of the salaries and operational expenses of the district court.

       In its 2012 petition for writ of mandamus, the City asserted that it was seeking a writ

“directing the County of Lonoke to obey the [1991 order] as it relates to funding the Lonoke


       1
        A 2003 amendment to the statute changed “municipal court” to “district court.”
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District Court.” The City’s petition alleged that the County now contended that the 2012

statute allowed the County “to ignore the [1991 order] and reduce its obligation to require

it to pay only one-half of the judge’s salary and one-half of the chief clerk’s salary and nothing

more.” The City asserted in its petition that “[n]othing in the law invalidates the existing

agreement incorporated into the [1991 order].” The City asked that a writ of mandamus be

issued commanding the County “to pay the county’s proportionate share of expenses for the

Lonoke District Court as ordered by the Circuit Court of Lonoke County in [the 1991

order].” The City further asked that the court “sanction” the County by an award of

attorney’s fees and costs.

       The County filed an answer and moved to dismiss the petition. After a hearing, the

circuit court issued a writ of mandamus and awarded attorney’s fees. In the order, the court

found as follows:

                This Court finds and Orders the County of Lonoke to abide by the March 29,
       1991, Order . . . as it relates to the sharing of costs and expenses . . . for the District
       Court. This Court finds that the Lonoke County Quorum Court on March 26, 1991,
       approved the settlement and agreed to pay its proportionate share of the salaries and
       expenses as set forth in the Court Order. Nothing in the current law changes that
       agreement.
                The Quorum Court of the County of Lonoke should pay one-half the costs for
       the District Court Judge’s salary, one-half of the two court clerk’s salaries and a
       proportion of the court’s expenses as specified in that Order. . . .
                Further, this Court finds that the City has expended legal fees in furtherance of
       its legal action [and] . . . [t]he County should reimburse the City for those fees in the
       amount of [$5,350] for the expenses in enforcing the Agreement between the parties.

       The County appeals, arguing that the circuit court misconstrued both the 2012 statute

and the 1991 order, and thus it erred in issuing the writ of mandamus and in awarding

attorney’s fees to the City. In its argument, the County asserts that the 2012 statute, in

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conjunction with the 1991 order, reduced the County’s funding obligations from that set out

in the 1991 order. Specifically, the County asserts that, giving effect to the specific language

of the 1991 order that it was the “intent of the parties herein to follow the statutory authority

in Arkansas as it pertains to . . . the sharing of court costs between counties and

municipalities,” and that “[i]n the event that law is amended or voided, then this agreement

shall be amended to reflect then existing statutory law,” we should apply the 2012 statute.

The County asserts that the 2012 statute requires a county to pay only one-half of the salaries

of the district judge and each chief court clerk and a city is required to pay the other one-half

of the salaries, as well as the operational expenses of the district court. The County

acknowledges that the 2012 statute permits a city to “otherwise agree[ ]” with “the political

subdivisions which contribute to the expenses of the district court.” The County argues,

however, that the 1991 order could not constitute such an agreement, as the County could

not, in 1991, have “otherwise agreed” to a division of payments provided for in a statute that

was not in effect until 2012.

       In this case, we are required to construe the 2012 statute. We review issues of statutory

construction de novo. Brock v. Townsell, 2009 Ark. 224, at 9, 309 S.W.3d 179, 185. In

construing a statute, meaning and effect are given to every word in the statute if possible. Id.,

309 S.W.3d at 186. We reconcile statutory provisions to make them consistent, harmonious,

and sensible. Id., 309 S.W.3d at 186.

       We hold that the circuit court properly issued the writ, and we agree with the circuit

court’s conclusion that the County was required to abide by the 1991 order and that nothing


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in the 2012 statute changed the effect of the 1991 order. The 1987 statute and the 2012

statute are virtually the same regarding a county’s obligations, as under both versions a county

is required to “make an appropriation of a sum sufficient to pay the county’s proportion of

the expenses.” Thus, in our view, both statutes allowed for a county to pay a proportion of

the district court’s expenses in addition to the salaries. We agree with the County that the

1991 order reflected that it was the intent of the parties to follow statutory law as amended

by the 2012 statute. In doing so, the 1991 order incorporated the language of the 2012

statute—“unless otherwise agreed to by the political subdivisions which contribute to the

expenses of the district court.” This language in the 2012 statute was new statutory language,

as it was not in the 1987 statute, but was contemplated by the 1991 order. Likewise, this

language in the 2012 statute anticipated that there could be or were agreements between a

county and a city regarding division of payments. Thus, this new language in the 2012 statute

preserved existing agreements between a county and a city. Accordingly, we conclude that

the circuit court properly issued a writ of mandamus ordering the County to abide by the

1991 order, and we affirm the circuit court on this point.2

       In the second point on appeal, the County challenges the award of attorney’s fees to

the City. In its argument, the County asserts that there is no statute expressly authorizing the

award of attorney’s fees following the issuance of a writ of mandamus. The City contends that


       2
        The County attempts to bolster its argument by citing article 12, section 5 of the
Arkansas Constitution and stating that a county cannot “agree to pay an amount to any
entity that it is not legally required to pay,” and that the County “could not and did not
agree to make a gift of public funds by paying amounts it is not required to pay.” The
2012 statute, however, preserved the division of payments set out in the 1991 order.
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the action sounded primarily in contract, and attorney’s fees may be awarded in a civil action

for breach of contract. Ark. Code Ann. § 16-22-308 (Repl. 1999). Particularly, the City notes

that the 1991 order provided that the City and the County “entered into an agreement to

resolve and fully and finally settle this Lawsuit,” and because the underlying cause for the writ

of mandamus is an action to enforce an agreed order, attorney’s fees were warranted.

       Attorney’s fees are not allowed except where expressly provided for by statute. Hanners

v. Giant Oil Co. of Ark., Inc., 373 Ark. 418, 425, 284 S.W.3d 468, 474 (2008). The Hanners

court held that attorney’s fees were not recoverable in declaratory-judgment cases, even when

the underlying dispute arose from a contract, as nothing in Arkansas’s statutory law governing

declaratory judgments allowed the court to award attorney’s fees, “even where the underlying

dispute arises from a contract,” and because the party “prevailed in a declaratory-judgment

action, and not a breach-of-contract action, the circuit court did not have discretion to award

attorney’s fees pursuant to § 16-22-308.” Id. at 426, 284 S.W.3d at 475. Similarly, the City

prevailed on its petition for a writ of mandamus, not a breach-of-contract action, and nothing

in Arkansas’s statutory law on mandamus actions permits recovery of attorney’s fees even if

a writ of mandamus is an action to enforce an underlying agreed order. Accordingly, we hold

that the circuit court erred in awarding attorney’s fees and reverse the award.

       Affirmed in part; reversed in part.

       DANIELSON, J., concurs.

       BAKER and GOODSON, JJ., dissent.

       PAUL E. DANIELSON, Justice, concurring. I concur with the majority that the


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General Assembly did not intend to do away with agreements between counties and cities to

share the operating expenses of district courts. I write simply to encourage the General

Assembly to reexamine and possibly clarify the verbiage of the statute as it is not necessarily

the epitome of clarity.

       KAREN R. BAKER, Justice, dissenting. While I agree with the majority’s reversal

of the award of attorney’s fees, I disagree with the majority’s holding that the circuit court

properly granted the writ of mandamus. Therefore, I dissent.

       The 1991 agreed order provided as follows:

       It is the intent of the parties herein to follow the statutory authority in Arkansas as it
       pertains to . . . the sharing of court costs between counties and municipalities. In the
       event that law is amended or voided, then this agreement shall be amended to reflect
       then existing statutory law.

The existing statutory law changed effective January 1, 2012. Prior to that date, Arkansas

Code Annotated section 16-17-115 provided that a county must pay one-half of the salaries

of the judges and the clerks of the municipal courts organized in that county. Ark. Code

Ann. § 16-17-115 (Supp. 1989). Under the new statute, a county is required to pay one-half

of the salaries of the district judge and the chief court clerk of the district court, and the town

or city is required to pay one-half of the salaries of the district judge and the chief court clerk

and the “operational expenses” of the district court, “unless otherwise agreed to by the

political subdivisions which contribute to the expenses of the district court.” Ark. Code Ann.

§ 16-17-115 (Repl. 2010).

       While the majority concludes that the “unless otherwise agreed” provision preserved

preexisting agreements, I must disagree. The amended statute provided a new division of

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payments between a county and a city. Nothing in the statute suggests that it preserved

agreements that existed prior to the enactment of the new statute. Further, it is illogical to

suggest that Lonoke County could reject, in 1991, a division of payments that was not in

effect until 2012.

       The majority notes that under both the old and new version of the statute, a county

is required to “make an appropriation of a sum sufficient to pay the county’s proportion of

the expenses of any such district court.” This language, however, does nothing more than

refer to the statute’s directive that a county is required to pay one-half of the salaries of the

district judge and the chief court clerk of the district court. Moreover, the statute as amended

specifically sets out a city’s payment obligations, one-half of the salaries of the district judge

and the chief court clerk; and the operational expenses of the district court.

       The statute provides that the town or city shall pay as follows:

       (i) One-half (1/2) of the salaries of the district judge and the chief court clerk; and
       (ii) The operational expenses of the district court organized in that town or city under
       the provisions of § 16-17-901 et seq. unless otherwise agreed to by the political subdivisions
       which contribute to the expenses of the district court.

Ark. Code Ann. § 16-17-115(b)(1)(A) (Repl. 2010) (emphasis added).                    The political

subdivisions here have not agreed otherwise. Accordingly, I would vacate the writ of

mandamus. Had the General Assembly intended previously existing agreements to remain

binding under the new law, they could have so provided. They did not. In determining

legislative intent, we observe a strict rule of construction against retroactive operation and

indulge in the presumption that the General Assembly intended statutes enacted by it to

operate prospectively only and not retroactively. Jackson v. Sparks Reg’l Med. Ctr., 375 Ark.

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533, 294 S.W.3d 1 (2009). Further, we do not add words to a statute to convey a meaning

that is not there. See Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

Here, the majority interprets the statute as saying “unless previously otherwise agreed,” an

interpretation that is not bourne out by the specific language of the statute.

       The General Assembly set out a new division of payments between a county and a

town or city, and I am loathe to reject the General Assembly’s specific directives. Therefore,

I must dissent.

       GOODSON, J., joins this dissent.

       Rainwater, Holt & Sexton, by: Jason E. Owens, for appellant.

       Camille Williams Bennett, City Attorney, City of Lonoke, for appellee.




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