Terry Cude v. the Jill Pettersen Family Revocable Trust

2023 Ark. App. 545, 680 S.W.3d 82

• Court: Court of Appeals of Arkansas
• Decided: November 29, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 545 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-705

Opinion Delivered November 29, 2023

TERRY CUDE APPEAL FROM THE SHARP APPELLANT COUNTY CIRCUIT COURT [NO. 68CV-22-94] V. HONORABLE ADAM G. WEEKS, JUDGE THE JILL PETTERSEN FAMILY REVOCABLE TRUST APPELLEE REVERSED

STEPHANIE POTTER BARRETT, Judge

In this one-brief appeal, appellant Terry Cude appeals the Sharp County Circuit

Court’s award of attorney fees to appellee, The Jill Pettersen Family Revocable Trust

(“Trust”). Cude argues that the circuit court erred in awarding the appellee attorney’s fees

because it sought only injunctive relief in its cause of action, and attorney’s fees cannot be

awarded where a complainant’s cause of action rests primarily in an injunctive claim. We

agree with Cude’s assertion and reverse the award of attorney’s fees.

The Trust and Cude own adjoining real property in Sharp County. On August 3,

2022, the Trust filed a complaint in the Sharp County Circuit Court against Cude and Kim

Fitzsimmons, a tenant living on Cude’s property (collectively “Cude”), alleging that the Trust

had an easement across Cude’s property; that Cude had erected a fence across the easement, preventing the Trust from enjoying the use of the easement; that Cude had willfully

interfered with its right to use the easement, causing the Trust to suffer damages; that the

Trust was the legal and equitable owner of the easement; and that it had no adequate remedy

at law. The Trust asked that Cude be “temporarily and permanently restrained and enjoined

from interfering with the use of said ‘easement.’”

By the time the hearing was held on the matter on September 8, 2022, Cude had

removed the fence, and the issues before the court were costs, damages, and attorney’s fees.

The Trust asserted $275 in costs, which Cude did not dispute, specifically stating that it was

not seeking damages, and requested $2500 in attorney’s fees. Counsel asserted entitlement

to an attorney’s fee on the theory of breach of contract because the easement was granted

in a warranty deed, and when Cude erected the fence, he breached the warranty-deed

contract; while admitting injunctive relief had been requested, counsel argued that the court

had the ability to infer that the Trust intended for the complaint to also argue breach of

contract under the warranty deed. Counsel further argued that Arkansas Code Annotated

section 16-22-309 allowed an award of attorney’s fees if there was a lack of a justiciable issue.

In response, Cude’s attorney argued that attorney’s fees were not recoverable in

injunction cases and that the complaint had not pled breach of a contractual obligation; it

pled only loss of the use of the easement, and it requested that Cude be temporarily and

permanently restrained and enjoined from interfering with the Trust’s use of the easement.

The circuit court took the issue of attorney’s fees under consideration, and the

following day issued a letter opinion stating that it was awarding attorney’s fees to the Trust

2 in the amount of $2500 and costs of $275. In making the award of attorney’s fees, the circuit

court stated that it found no justification for the defendants’ actions because the Trust had

a valid easement, which the defendants had stipulated to; therefore, the attorney’s fees were

warranted and granted. An order to that effect was entered on September 30; Cude filed a

motion for reconsideration the same day, arguing that attorney’s fees were not recoverable;

and he filed a notice of appeal on October 11 as well as an amended notice of appeal on

November 4 when the circuit court failed to rule on the motion for reconsideration.

Cude argues on appeal, as he did below, that the circuit court erred in awarding the

Trust $2500 in attorney’s fees because the Trust 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. We agree.

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

when expressly provided by statute. Patton Hospitality Mgmt., LLC v. Bella Vista Vill.

Coopershares Owners Ass’n, Inc., 2016 Ark. App. 281, 493 S.W.3d 798. When the circuit

court’s order awarding attorney’s fees does not state a statutory basis for the award, the nature

of the action must be ascertained to determine whether there is a statutory basis for an

attorney’s-fee award. St. Francis Co. v. Joshaway, 346 Ark. 496, 58 S.W.3d 361 (2001).

Clearly, the Trust sought injunctive relief in its complaint. In Arkansas Oklahoma Gas

Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (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

3 except where expressly provided for by statute; they are not recoverable in injunction or

declaratory-judgment cases, even when the underlying dispute arises from a contract.”

Because the Trust’s claim was one for injunctive relief, attorney’s fees are not recoverable,

and we reverse the award of attorney’s fees.

As for the Trust’s assertions that attorney’s fees were recoverable under the theory of

breach of contract or for lack of a justiciable issue under Arkansas Code Annotated section

16-22-309, we summarily dismiss those arguments. The Trust never pled breach of contract

in its complaint, and the circuit court never found that there was a complete absence of a

justiciable issue or that Cude acted in bad faith, both of which are required under that

statute.

Reversed.

HARRISON, C.J., and KLAPPENBACH, J., agree.

Daniel R. Haney, for appellant.

One brief only.