Hall v. Kingsland School Dist.

Frankie HALL v. KINGSLAND SCHOOL DISTRICT

CA 96-499                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered February 26, 1997


1.   Schools & school districts -- actions brought pursuant to
     Arkansas Teacher Fair Dismissal Act -- subject of underlying
     litigation dispositive with respect to claim for attorneys'
     fees. -- An action brought pursuant to the Arkansas Teacher
     Fair Dismissal Act is both a civil action and a claim for
     labor or services within the meaning of Ark. Code Ann.  16-
     22-308 (Repl. 1994), the general statute authorizing
     attorneys' fees; the subject matter of the underlying
     litigation is solely dispositive of whether Ark. Code Ann. 
     16-22-308 may be invoked.

2.   Judges -- trial court failed to exercise discretion to either
     award or deny attorneys' fees -- case reversed and remanded
     for court to determine whether fee is warranted. -- Although
     the award of attorneys' fees is discretionary, here, the trial
     court did not exercise its discretion when it declined to
     award appellant attorneys' fees; a clearly erroneous
     application of the law is a manifest abuse of discretion;
     because attorneys' fees are recoverable in a TFDA action,
     pursuant to Ark. Code Ann.  16-22-308, the case was reversed
     and remanded to the trial court to determine if an award of
     fees was warranted.


     Appeal from Cleveland Circuit Court; David F. Guthrie, Judge;
reversed and remanded.
     Mitchell, Blackstock & Barnes, by: Marcia Barnes and L.
Randolph Mano, for appellant. 
     Laser, Wilson, Bufford & Watts, P.A., by: Alfred Angulo, Jr.,
for appellee.

     Andree Layton Roaf, Justice.  
     This is an Arkansas Teacher Fair Dismissal Act (þTFDAþ) case. 
The appellant, Frankie Hall, was informed by the appellee,
Kingsland School District (þSchool Districtþ), that her contract as
an elementary principal would not be renewed for the 1993-94 school
year.  Pursuant to the TFDA, Hall requested a hearing before the
school board, in which the board upheld the decision not to renew
her contract.  Because the hearing was not scheduled within the
time required by the TFDA, the trial court granted Hallþs appeal
and petition for writ of mandamus, and ordered reinstatement plus
back pay and benefits.  Hall appeals only from the trial courtþs
failure to award attorneysþ fees.  We reverse and remand.
     Because the School District does not appeal from the trial
courtþs ruling in favor of Hall, we need not further recite the
facts leading up to the nonrenewal of Hallþs contract.  In the
notice of appeal and petition for writ of mandamus filed by Hall in
the circuit court of Cleveland County, she asked that the trial
court order the School District to issue her a contract for the
1993-94 school year, because the untimely scheduling of the review
hearing violated the TFDA and the School Districtþs personnel
policies.  Hall also asked for back pay, matching social security
and teacher retirement benefits, and requested attorneysþ fees
pursuant to Ark. Code Ann.  16-22-308 (Repl. 1994).  Hallþs motion
for summary judgment was granted by the circuit judge, who ordered
reinstatement, back pay, and benefits.  Hall then filed a motion
seeking attorneysþ fees pursuant to  16-22-308.  The trial court
found that because the proceeding was brought pursuant to the TFDA,
which made no provision for attorneysþ fees, the motion should be
denied.  Hallþs sole point on appeal is that the trial court erred
in finding that the TFDAþs failure to mention attorneysþ fees
prohibits consideration of an award of fees to the prevailing
party.
     Hall concedes that the TFDA does not expressly provide for the
award of attorneysþ fees;  however, she contends that such an award
is permissible under Ark. Code Ann.  16-22-308, which provides in
pertinent part:
     In any civil action to recover on . . .  [a] contract 
     . . . for labor or services, or for breach of contract 
     . . . the prevailing party may be allowed a reasonable
     attorneyþs fee to be assessed by the court and collected
     as costs.
This court has recently decided this issue in Hallþs favor, in
Junction City School Dist. v. Alphin 56 Ark. App. ___, ___ S.W.2d
___ (February 19, 1997).  In Alphin, we reversed the trial courtþs
disallowance of attorneysþ fees to a teacher who prevailed in an
action brought pursuant to the TFDA, where the disallowance was
based on the same reason articulated by the trial court in Hallþs
case.  In so holding, we applied two cases decided by our supreme
court, and stated that:
     [a]n action brought pursuant to the Fair Dismissal Act is
     both a civil action and þa claim for þlabor or servicesþþ
     within the meaning of Ark. Code Ann.  16-22-308, the
     general statute authorizing attorneyþs fees.  Sosebee v.
     County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556
     (1995); City of Ft. Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991).  The supreme court held in Driggers
     that the subject matter of the underlying litigation is
     solely dispositive of whether Ark. Code Ann.  16-22-308
     may be invoked.

Id.
     Although Hall concedes that the award of attorneysþ fees is
discretionary, see, e.g., Chrisco v. Sun Indus. Inc., 304 Ark. 227,
800 S.W.2d 717 (1990), here, the trial court did not exercise its
discretion when it declined to award Hall attorneysþ fees.  A
clearly erroneous application of the law is a manifest abuse of
discretion.  Little Rock Waste Water Util. v. Larry Moyer Trucking,
321 Ark. 303, 902 S.W.2d 760 (1995).  Because this court has
determined that attorneysþ fees are recoverable in a TFDA action,
pursuant to Ark. Code Ann.  16-22-308, we reverse and remand this
case to the trial court to determine if an award of fees is
warranted.  
     Reversed and remanded.
     Robbins, C.J., and Neal, J., agree.