Clyde McWilliams v. Karl Schmidt et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

CLYDE McWILLIAMS

APPELLANT

V.

KARL SCHMIDT, ET AL.

APPELLEES

CA00-955

March 14, 2001

AN APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

[EQT99-1843]

HONORABLE ELLEN BRANTLEY,

CHANCERY JUDGE

AFFIRMED

Appellees filed a quiet title action against appellant, Clyde McWilliams. Appellant filed a motion to dismiss pursuant to Rule 12(b)(8) of the Arkansas Rules of Civil Procedure. The chancellor granted appellant's motion and dismissed the action. After the dismissal, appellant asked the chancellor to impose a $5,000 punitive award of attorney's fees against each of the named appellees, for a total fee award of $20,000. The chancellor ruled that since the quiet title action presented a justiciable issue, an award of attorney's fees was not warranted. We agree.

In December 1998, after commissioning a survey that revealed their property line extended approximately eighty feet beyond the previously assumed boundary, Karl and Tanas Schmidt, Edward and Margaret Gangluff, and Ronald and David Gangluff, constructed a fence along the west boundary of their respective lands.1 On March 8, 1999, appellant filed a complaint against KarlSchmidt, Tanas Schmidt, Johnny Melvin Schmidt, Margaret Gangluff, Edward Gangluff, Ronald Gangluff, David Gangluff, Wrenetta Schmidt Ritchie, and Jerry Ritchie in Pulaski Circuit Court for ejectment, trespass and slander of title, due to the fence construction. The appellant asserted ownership of the approximate six acre, eighty-foot strip of fenced land extending along the length of the western boundary of the appellees' land.

On April 9, 1999, the appellees filed a quiet title action, asserting that the ejectment action constituted a cloud on their titles. Additionally, appellees sought injunctive relief to prevent appellant from removing their fence and from trespassing on their property. In response, appellant moved for dismissal asserting the affirmative defense under12 (b)(8) of the Arkansas Rules of Civil Procedure, because of the pending circuit court action.2 Appellant also filed a counterclaim requesting attorney's fees pursuant to Arkansas Code Annotated section 16-22-309 (Repl. 1997). He only sought a fee award against Tanas Schmidt, Edward Gangluff, David Gangluff, and Ronald Gangluff. Appellant argued that because none of the appellees had both title and possession of any of the tracts of land claimed by him, they lacked standing to bring suit. Although appellee Edward Gangluff took a voluntary non-suit, pursuant to Rule 41 (a) of the Ark. R. Civ. P., appellant alleged that it was untimely and Gangluff should also be "sanctioned" under the provisions of section 16-22-309. The quiet title action was dismissed pursuant to the Rule 12 (b)(8) motion, and appellant requested attorney's fees in the amount of $20,000. No specific proof, beyond the statutory authority, was offered in support of an award of attorney's fees. The chancellor found that a justiciable issue did exist and refused to grant attorney's fees. From that decision comes this appeal.

As a general rule, attorney's fees are not allowed in Arkansas unless expressly authorized by statute. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995). However, in any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney's fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998). Arkansas Code Annotated section 16-22-309 (Repl. 1997), provides in pertinent part:

(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney's fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.

(b) In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party's attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

On appeal, the question of whether there was a complete absence of a justiciable issue is determined de novo on the record. Ark. Code Ann. § 16-22-309(d)(Repl. 1997); Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993). We do not reverse the trial court's finding, unless it is clearly erroneous. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989).

Appellant argues that the chancellor erred in her determination that the action did in fact present a justiciable issue. It is instructive to note that this case was dismissed pursuant to a Rule 12 (b)(8) motion and that the chancellor did not address the Rule 12 (b)(6) motion. The chancellorfound that the pending circuit court action involved essentially the same parties and involved the same tract of land. Further, the chancellor found that a suit for ejectment allows for recovery of the possession of the property in question. Additionally, she cited Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541, 544 (1968), for the proposition that "in case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other." Finally, the chancellor concluded that both chancery and circuit court have the jurisdiction to clear title, through quiet title and ejectment, respectively.

In the case at bar, there was obviously a legitimately controverted matter between the parties as the matter was ultimately resolved by the circuit court. Also, during the hearing on the Rule 12 (b)(8) motion the chancellor stated "[this case is] really a little bit complicated both factually and legally." The record shows no evidence of this action being commenced in bad faith or for the sole purpose of harassment. See Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995). Therefore, we cannot say that the chancellor was clearly erroneous in her finding that the action contained a justiciable matter, and we sustain her refusal to award appellant $20,000 in attorney's fees.

Because we hold that there was a justiciable issue, we need not address appellant's arguments that the fee award provision of section 16-22-309 is punitive; that the statute requires a $5,000 award per plaintiff; and, that under section 16-22-309 there is no requirement to show proof of actual attorney's fees incurred.

Affirmed.

Pittman and Hart, JJ., agree.

1 The fence also went along the west property line of Johnny Melvin Schmidt, but he did not participate in the construction of the fence.

2 Appellant also asserted the affirmative defense of failure to state a claim, under Rule 12 (b)(6) of the Arkansas Rules of Civil Procedure.