{ "id": 6137361, "name": "Charles T. MEYER and Myer's Bakeries Incorporated v. RIVERDALE HARBOR MUNICIPAL PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 1 of Little Rock, Arkansas; Marion B. Burton, Agent; Riverdale Harbour Incorporated; Walker Real Estate; H. Bradley Walker; Marion B. Burton; and Hugh Murphy", "name_abbreviation": "Meyer v. Riverdale Harbor Municipal Property Owners Improvement District No. 1", "decision_date": "1997-06-18", "docket_number": "CA 96-1254", "first_page": "91", "last_page": "96", "citations": [ { "type": "official", "cite": "58 Ark. App. 91" }, { "type": "parallel", "cite": "947 S.W.2d 20" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "45 Ark. App. 87", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6655164 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/45/0087-01" ] }, { "cite": "51 Ark. App. 4", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136001 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "18" }, { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ark-app/51/0004-01" ] }, { "cite": "315 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910535 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0178-01" ] }, { "cite": "315 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910446 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0318-01" ] }, { "cite": "308 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904387 ], "weight": 10, "year": 1992, "pin_cites": [ { "page": "83" }, { "page": "837" }, { "page": "82" }, { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/ark/308/0074-01" ] }, { "cite": "34 Ark. App. 269", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141590 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/34/0269-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 466, "char_count": 9567, "ocr_confidence": 0.732, "pagerank": { "raw": 2.5839221575398973e-07, "percentile": 0.8174663851058498 }, "sha256": "09a7c73bb749ef33cf7420754222312f29dd1875f44258c3459c23bb0fbd1a67", "simhash": "1:b596e327ab7fc430", "word_count": 1550 }, "last_updated": "2023-07-14T22:49:00.217253+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Roaf, J., agree." ], "parties": [ "Charles T. MEYER and Myer's Bakeries Incorporated v. RIVERDALE HARBOR MUNICIPAL PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 1 of Little Rock, Arkansas; Marion B. Burton, Agent; Riverdale Harbour Incorporated; Walker Real Estate; H. Bradley Walker; Marion B. Burton; and Hugh Murphy" ], "opinions": [ { "text": "D. Franklin Arey, III, Judge.\nThe appellant in this chancery case purchased a lot in Canal Pointe, a residential subdivision, from Riverdale Harbor Incorporated. After a dispute regarding security in the subdivision, the appellant sued the appellees for fraud and breach of contract. The chancellor found that the suit was barred by the three-year statute of limitations applicable to tort claims, and granted summary judgment against the appellant. This summary judgment was appealed, and, in an unpublished decision delivered on February 21, 1996, we held that the chancellor properly applied the three-year statute of limitations because the appellant\u2019s cause of action, in substance, sounded in tort. Subsequently, the appellees petitioned the chancery court for an award of attorney\u2019s fees pursuant to Ark. Code Ann. \u00a7 16-22-308 (Repl. 1994). After a hearing, the chancellor awarded attorney\u2019s fees to the appellees. This appeal followed.\nThe appellant contends that the chancellor erred in concluding that the appellees were entitled to an award of attorney\u2019s fees under Ark. Code Ann. \u00a7 16-22-308 (Repl. 1994). We agree, and we reverse.\nArkansas Code Annotated \u00a7 16-22-308 provides that:\nIn 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\u2019s fee to be assessed by the court and collected as costs.\nThis section has been held to authorize an award of attorney\u2019s fees to a party who successfully defends against a contract claim. Cumberland Financial Group, Ltd. v. Brown Chemical Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991). However, \u00a7 16-22-308 does not permit an award of attorney\u2019s fees in tort actions. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).\nAlthough both contract and tort claims were advanced in the case at bar, the action was not based primarily in contract. Our prior opinion was premised on our holding that the appellant\u2019s claims were based primarily in tort. Nonetheless, attorney\u2019s fees were awarded to appellees subsequent to our prior opinion, upon findings that appellees were the prevailing party and that the contract claim advanced by the appellants was a \u201csubstantial issue\u201d before the trial court.\nWe do not disagree with the chancellor\u2019s finding that the appellees are the prevailing party. However, we do not think it is sufficient to base a fee award under \u00a7 16-22-308 upon a finding that a contract claim is a \u201csubstantial issue.\u201d Where both contract and tort claims are advanced, an award of attorney\u2019s fees to the prevailing party is proper only when the action is based primarily in contract. See Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Security Pacific Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Kinkead v. Union Nat\u2019l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995).\nIn Wheeler Motor Co., Inc. v. Roth, the prevailing party cross-appealed from the trial court\u2019s denial of an award of attorney\u2019s fees. The prevailing party\u2019s case had been submitted to the jury-on alternate contract and tort theories. Special interrogatories were utilized; one jury instruction allowed an award of damages consistent with the tort theory, and another jury instruction authorized an award of damages consistent with breach of contract. In determining whether the denial of attorney\u2019s fee was proper, our supreme court examined the basis of the prevailing party\u2019s claim:\nWhen the prevailing party\u2019s claim is based in tort, an award of attorney\u2019s fees cannot be justified under section 16-22-308. . . . Because the jury gave [the prevailing party] an award in the amount of the purchase price, it must have based its award on restitution for revocation. This rests in tort. The jury obviously found deceit which formed the basis of revocation and the resti-tutionary award. We cannot say the trial judge erred in declining to award attorney\u2019s fees.\nWheeler Motor Co., Inc., 315 Ark. at 329, 876 S.W.2d at 451 (citations omitted). Even though a contract claim was litigated and submitted to the jury, our supreme court looked to the basis of the prevailing party\u2019s claim in determining whether an award of fees was justifiable under \u00a7 16-22-308.\nIn Security Pacific Housing Services, Inc. v. Friddle, our supreme court reversed an award of attorney\u2019s fees to the prevailing party. At trial, the prevailing party pursued its counterclaim for breach of contract and conversion. After judgment was entered in its favor, the trial court awarded the prevailing party attorney\u2019s fees. The losing party appealed, claiming that fees could not be justified under \u00a7 16-22-308 because the prevailing party prevailed on its claim in tort for conversion, not on its claim for breach of contract. The supreme court agreed.\n[W]e conclude [the prevailing party\u2019s] recovery was based primarily in the tort of conversion. We make this finding with full awareness that [the prevailing party\u2019s] counterclaim included a claim for breach of contract. Merely alleging a claim for breach of contract does not mean the jury awarded damages on that basis. The evidence presented focused on the wrongful repossession and the tort of conversion. The relatively large award of punitive damages indicates the jury awarded its verdict based on the tort claim.\nSecurity Pacific Hous. Services, Inc., 315 Ark. at 186, 866 S.W.2d at 379. Thus, litigation of a breach-of-contract claim alone was not sufficient to justify fees under \u00a7 16-22-308; the award of fees was reversed. Id.\nThe denial of attorney\u2019s fees was appealed by the prevailing party in Stein v. Lukas. At trial, the prevailing party advanced both deceit and breach-of-warranty claims. The circuit court instructed the jury on both of these claims. Nonetheless, our supreme court affirmed the denial of fees under \u00a7 16-22-308.\nArkansas\u2019 fee statute for civil actions does not embrace tort actions such as deceit. See Ark. Code Ann. \u00a7 16-22-308 (1987). In this case deceit lies at the heart of the claim leveled by the [prevailing party] against the [losing party].\nStein, 308 Ark. at 83, 823 S.W.2d at 837. The court noted that \u201c[t]his was essentially a deceit action sounding in tort.\u201d Id., 308 Ark. at 82, 823 S.W.2d at 836. Therefore, even though a contract claim was litigated and presented to the jury, fees were denied.\nEach of these cases involved a contract or breach-of-contract claim; the claims must have been substantial enough to justify presentation to the jury. Nonetheless, in each case our supreme court denied fees to the prevailing party because the action was based primarily in tort.\nKinkead v. Union National Bank presents a different fact pattern. The prevailing party, a bank, brought a foreclosure action on its note and mortgages. The losing party counterclaimed on various tort theories, and under a federal statute. The trial court granted judgment to the prevailing party on its foreclosure complaint and on all counts of the losing party\u2019s counterclaim; the prevailing party was awarded attorney\u2019s fees. The losing party argued that the bank may have been entitled to receive an attorney\u2019s fee on its foreclosure action, but it was not entitled to a fee for defending the counterclaim, since the latter was based upon tort theories and a federal statute. Our court did not agree.\nWe find that Stein v. Lukas, supra, is not controlling in this fact situation. In that case, the [prevailing party\u2019s] complaint was brought on theories of deceit and breach of warranty. Here, although [the losing party] made unsubstantiated allegations of tort in their counterclaim, the trial was basically an action for foreclosure.\nKinkead, 51 Ark. App. at 18, 907 S.W.2d at 162. Thus, because the action was based primarily in contract \u2014 \u201cbasically an action for foreclosure\u201d \u2014 an award of attorney\u2019s fees was proper to the prevailing party that defended a counterclaim based in tort and a federal statutory cause of action.\nIn the case at bar, our prior opinion was premised on our holding that the appellant\u2019s claims were based primarily in tort. We must follow this characterization of the appellant\u2019s action, because it is the law of the case. Matters decided on a prior appeal are the law of the case and govern the appellate court\u2019s actions on the subsequent appeal. Thurman v. Clark Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).\nBecause the appellant\u2019s action was based primarily in tort, we reverse the award of attorney\u2019s fees. In light of our decision on this issue, the appellant\u2019s remaining points for reversal are moot; consequently, we do not address them.\nReversed and dismissed.\nRobbins, C.J., and Roaf, J., agree.", "type": "majority", "author": "D. Franklin Arey, III, Judge." } ], "attorneys": [ "Gill Law Firm, a professional association, by: John P. Gill, for appellants.", "Anderson & Kilpatrick, by: Mariam T. Hopkins, for appellees Riverdale Harbour Incorporated, Walker Real Estate, and H. Bradley Walker." ], "corrections": "", "head_matter": "Charles T. MEYER and Myer's Bakeries Incorporated v. RIVERDALE HARBOR MUNICIPAL PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 1 of Little Rock, Arkansas; Marion B. Burton, Agent; Riverdale Harbour Incorporated; Walker Real Estate; H. Bradley Walker; Marion B. Burton; and Hugh Murphy\nCA 96-1254\n947 S.W.2d 20\nCourt of Appeals of Arkansas Division IV\nOpinion delivered June 18, 1997\nGill Law Firm, a professional association, by: John P. Gill, for appellants.\nAnderson & Kilpatrick, by: Mariam T. Hopkins, for appellees Riverdale Harbour Incorporated, Walker Real Estate, and H. Bradley Walker." }, "file_name": "0091-01", "first_page_order": 119, "last_page_order": 124 }