John McKisick v. Discovery Bay Colony Property Owners Association

• Court: Court of Appeals of Arkansas
• Decided: April 8, 2026
• Status: Published

Opinion

Cite as 2026 Ark. App. 223 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-25-211

JOHN MCKISICK Opinion Delivered April 8, 2026

APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26CV-23-1198]

DISCOVERY BAY COLONY PROPERTY HONORABLE KARA A. PETRO, OWNERS ASSOCIATION JUDGE

APPELLEE REVERSED IN PART; AFFIRMED IN PART

STEPHANIE POTTER BARRETT, Judge

John McKisick appeals the Garland County Circuit Court’s award of attorney’s fees

and costs to appellee, Discovery Bay Colony Property Owners Association (“Discovery Bay”).

On appeal, McKisick argues the circuit court erred in awarding Discovery Bay attorney’s fees

because it sought only injunctive relief in its cause of action; and if the award of fees was

proper, the amount was excessive, and a portion of the costs awarded are not allowable under

Arkansas Rule of Civil Procedure 54(d)(2). We agree with appellant that attorney’s fees are

not allowable in injunctive-relief cases. Therefore, we reverse the circuit court’s award of fees

and affirm the costs as awarded. McKisick owns a unit at Discovery Bay Condominiums in Hot Springs, Arkansas,

where he has resided for several years. In May 2021, a thunderstorm destroyed the carport

associated with his unit. After the storm, McKisick’s neighbor constructed a replacement

carport. Following his neighbor’s lead, McKisick began constructing a new carport of his

own, making an effort to match the appearance of the neighboring structure. However,

McKisick did not obtain prior approval from Discovery Bay’s board of directors (the Board)

before beginning the construction of the carport—a fact neither party disputes. Discovery Bay

sent McKisick a letter demanding the carport be removed. McKisick agreed to remove the

carport on the condition that the Board first approve a construction plan for a carport. This

lawsuit followed.

On October 17, 2023, Discovery Bay filed a complaint in the Garland County Circuit

Court. The complaint alleged that the condominium property regime is governed by a master

deed and bylaws, collectively referred to as the “governing documents.” According to

Discovery Bay, these governing documents designate carports as common elements and

require that any addition to or alteration of a common element receive prior approval from

the Board. Discovery Bay sought injunctive relief requiring McKisick to remove the carport

he had constructed. Discovery Bay also requested an award of attorney’s fees and costs

pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999).

In his November 21, 2023 answer, McKisick acknowledged he had received Discovery

Bay’s letter requesting removal of the carport. He stated he was willing to remove the

2 structure but requested that Discovery Bay first approve an acceptable replacement carport

before he dismantled the existing one.

On March 11, 2024, Discovery Bay moved for summary judgment. Discovery Bay

argued no genuine issue of material fact existed because McKisick did not dispute he

constructed the carport without obtaining the required prior approval from the Board.

Accordingly, Discovery Bay asserted it was entitled to summary judgment.

On August 12, 2024, a summary-judgment hearing was held before the court. At the

hearing, Discovery Bay argued McKisick’s construction of the carport violated its bylaws, and

those same bylaws authorized them to enforce their terms against McKisick. Discovery Bay

emphasized that the parties did not dispute McKisick’s failure to obtain prior written

approval from the Board before constructing the carport. During this argument, Discovery

Bay stated, “The claim we’ve made in this case is for injunctive relief. [We have] met the

elements at issue. First, irreparable harm will result by the fact that monetary damages are an

inadequate remedy.”

In response, McKisick acknowledged he had erected the carport without prior

approval from the Board but maintained that wasn’t “the whole story” and that genuine

issues of material fact remained. McKisick argued that the bylaws do not address which

rights, if any, an owner may have to restore property to its prior condition following an act

of God—here, the thunderstorm that destroyed his original carport. He further asserted that

factual disputes existed regarding whether two tenants could utilize the carport he

3 constructed and whether a member of the Board had informally given him permission to

build the structure.

After hearing the parties’ arguments, the circuit court ruled from the bench that no

genuine issue of material fact existed and granted Discovery Bay’s motion for summary

judgment. On August 20, 2024, the court entered a written order memorializing its ruling.

In that order, the court found it undisputed that Discovery Bay’s bylaws designate carports

as common elements and require prior written approval from the Board for any addition to

or improvement of such elements. Because McKisick had not obtained the required approval

before constructing the carport, the circuit court ordered him to remove the structure.

On August 30, 2024, Discovery Bay filed a petition seeking attorney’s fees and costs.

In its petition, Discovery Bay asserted it had incurred fees in the amount of $9,890.00 and

$812.34 in costs. Discovery Bay attached its counsel’s billing records, which reflected work

performed from the filing of the complaint through preparation of the fee petition. The

request was also supported by affidavits from other practicing attorneys in the area attesting

to the reasonableness of fees.

On December 12, 2024, the circuit court entered a judgment awarding attorney’s fees

and costs. The court awarded attorney’s fees and costs “pursuant to the master deed and by

laws for Discovery Bay horizontal property regime and Ark. Code Ann. § 16-22-308.” The

court further found the amount requested by Discovery Bay to be reasonable and necessary.

The court awarded attorney’s fees in the amount of $9,440.00 and costs in the amount of

$812.34 for a total of $10,252.34.

4 I. Discussion

A. Attorney’s Fees in Injunctive-Relief Cases

McKisick first argues the circuit court erred in awarding Discovery Bay attorney’s fees

because Discovery Bay sought and obtained only injunctive relief, and attorney’s fees are not

recoverable in cases where the cause of action rests primarily in an injunctive claim. Because

this issue involves a question of law, our standard of review is de novo. Pulaski Cnty. v. Ark.

Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007).

The well-established rule relating to attorney’s fees is they are not allowed except when

expressly provided by statute. Patton Hosp. Mgmt., LLC v. Bella Vista Vill. Coopershares Owners

Ass’n, Inc., 2016 Ark. App. 281, 493 S.W.3d 798. Here, the circuit court awarded attorney’s

fees pursuant to Arkansas Code Annotated section 16-22-308, which 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 of 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.

In the present case, it is clear from Discovery Bay’s complaint that it sought injunctive

relief only. In Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966

S.W.2d (1998), our supreme court held that attorney’s fees are not recoverable in injunction

cases. In Myers v. Bogner, 2011 Ark. App. 98, at 8, 380 S.W.3d 529, 534, this court held,

“Attorney’s fees are not allowed except where expressly provided for by statute; they are not

5 recoverable in injunction or declaratory-judgment cases, even when the underlying dispute

arises from a contract.”

However, Discovery Bay asserts that our supreme court’s holding in Kell v. Bella Vista

Village Property Owners Ass’n, 258 Ark. 757, 528 S.W.2d 651 (1975), provides a loophole of

sorts. Specifically, Discovery Bay asserts that Kell allows for the bylaws of a property owners

association to form the basis of a contract between parties, and pursuant to its bylaws,

McKisick was obligated to reimburse it for the cost of legal services to enforce the bylaws

with respect to his unit. See Kell, supra. Notably, Discovery Bay did not make this argument

in its petition for attorney’s fees. Rather, it argued that under Kell, McKisick had a

contractual duty to follow Discovery Bay’s bylaws, and by erecting a carport without prior

Board approval, he was in breach of contract. It is well known that this court will not address

arguments made for the first time on appeal; a party is bound by the scope and nature of the

arguments made before the lower court. See Lewis v. State, 2017 Ark. App. 442, 528 S.W.3d

312.

Even if Discovery Bay’s argument were preserved, it would not change the outcome.

In Cude v. Jill Pettersen Family Revocable Trust, 2023 Ark. App. 545, 680 S.W.3d 82, a similar

argument to Discovery Bay’s was made. In Cude, the plaintiff argued that the language in the

warranty deed that conveyed property to the defendant created a contractual obligation by

which attorney’s fees could be awarded. We were clear in Cude that even when the underlying

dispute arises from a contract, attorney’s fees are not recoverable in injunction cases.

Therefore, we reverse the circuit court’s award of attorney’s fees.

6 B. Fees and Costs Awarded

McKisick next argues the circuit court erred in awarding an excessive amount of

attorney’s fees and that $44.50 of the costs awarded are not allowable under Arkansas Rule

of Civil Procedure 54(d)(2). Because we reverse the circuit court’s award of attorney’s fees,

the issue of whether the award was excessive is moot. As to McKisick’s argument regarding

the $44.50 in costs not being allowable, that argument is not preserved for our review. The

record before us contains no indication that McKisick challenged—by postjudgment motion

or otherwise—the circuit court’s award of costs. Therefore, because the issue is not preserved

for appellate review, we affirm the award of costs. See Reynolds Forestry Consulting & Real Est.,

PLLC v. Colbey, 2019 Ark. App. 209, at 16, 575 S.W.3d 176, 186.

Reversed in part; affirmed in part.

KLAPPENBACH, C.J., and BROWN, J., agree.

Daniel A. Webb, for appellant.

Schnipper, Britton & Stobaugh, by: Beau Britton, for appellee.