#### MOSLEY MACHINERY COMPANY, INC. v. GRAY SUPPLY COMPANY, et al. and Jimmy Isbell d/b/a Isbell & Son v. Ed Ball Construction Company, Inc., a/k/a Ed Ball Construction Co., Inc., et al.

91-306 and 91-317

837 S.W.2d 462

Supreme Court of Arkansas

Opinion delivered September 21, 1992

Randy P. Murphy, and Dover & Dixon, P.A., by: Philip E. Dixon, for appellants.

Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian Allan Brown, for appellees Gray Supply Company and others.

Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellees Ed Ball Construction Company, Inc., and others.

Per Curiam.

In both of these cases the appellees, after prevailing in cases in this court, have asked for an award of attorneys’ fees pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1991). They cite one of our cases, Crisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), and two court of appeals cases, ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 571 (1990) and Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990), as authority for the award of attorneys’ fees in the appellate court on appeals involving contract cases.

*449In University Hospital v. Undernher, 307 Ark. 445, 821 S.W.2d 27 (1991), we expressly held that Ark. Code Ann. § 16-22-308 (Supp. 1989) allowed a trial court to assess costs and attorneys’ fees, but the statute was inapplicable to appellate courts. The statute has not been amended since that time. In the case of Crisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), we approved the award of fees by a trial court in a contract action. We did not discuss the award of attorneys’ fees in an appellate court.

The court of appeals has held that in such cases an appellate court may award attorneys’ fees under Ark. Code Ann. § 16-22-308 (Supp. 1991). ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 571 (1990) and Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990). The court of appeals cases and our case are in direct conflict. We have re-examined the statute and have again concluded that it is not applicable to appellant courts. Thus, we overrule the court of appeals cases to the extent they are in conflict with our interpretation of the statute.

Accordingly, we deny the appellees’ motions for attorneys’ fees in the appellate court in both of these cases.