Arkansas Department of Health and Human Services, and Booneville Human Development Center v. Betty Storey
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SUPREME COURT OF ARKANSAS
No. 07525
ARKANSAS DEPARTMENT OF HEALTH
AND HUMAN SERVICES, AND
BOONEVILLE HUMAN DEVELOPMENT
CENTER,
APPELLANTS,
Opinion Delivered JANUARY 17, 2008
MOTION FOR ATTORNEYS’ FEES AND
COSTS ON APPEAL
VS.
BETTY STOREY,
APPELLEE,
COSTS ON APPEAL GRANTED;
ATTORNEYS’ FEES DENIED.
PER CURIAM
On December 13, 2007, we handed down Arkansas Department of Health and Human
Services v. Storey, ___ Ark. ___, ___ S.W.3d ___ (Dec. 13, 2007), affirming the circuit
court’s postjudgment order that Appellants would not be released from two judgments and
those judgments would not be deemed satisfied until the additional monies withheld as taxes,
plus interest, were paid to Appellee Betty Storey. Now, Storey has filed a motion for
attorneys’ fees and costs incurred in the appeal of this case. Specifically, she argues that, as
the prevailing party on this appeal, she is entitled to attorneys’ fees and costs under the
Arkansas WhistleBlower Act, Ark. Code Ann. § 211605(5) (Repl. 2004), and Ark. Sup.
Ct. R. 67(a).
Under Rule 67(a), where the order is affirmed, “[t]he appellee may recover brief
costs not to exceed $3.00 per page; total costs not to exceed $500.00.” Here, Storey’s brief
totaled thirtyone pages at a cost of $93.00. As such, Storey’s motion for costs totaling
$93.00 is granted pursuant to our rules.
Additionally, Storey has requested attorneys’ fees on appeal in the amount of
$7,547.50 pursuant to section 211605(5) of the Arkansas WhistleBlower Act. Section 21
1605(5) provides, in pertinent part:
A court in rendering judgment under this subchapter may order any or
all of the following remedies:
. . . .
(5) The payment by the public employer of reasonable court costs and
attorney’s fees.
This court has consistently maintained that attorneys’ fees are only allowed when authorized
by statute. See Running M Farms, Inc. v. Farm Bureau Mut. Ins., Co., ___ Ark. ___, ___
S.W.3d ___ (Oct. 25, 2007).
Storey argues that, as the prevailing party on appeal, she is entitled to reasonable
attorneys’ fees pursuant to section 211605(5). First, we point out that Storey is not
“entitled” to these fees because the decision to award these fees is discretionary. Second,
we are not authorized to issue attorneys’ fees in this case. Section 211605(5) clearly sets
forth that a court in rendering judgment under the Arkansas WhistleBlower Act may order
the public employer to pay reasonable attorneys’ fees. This case came before us on an
appeal from the circuit court’s postjudgment order finding that the judgments awarded in
Storey’s whistleblower cause of action would not be deemed satisfied until the additional
monies withheld as taxes, plus interest, were paid by Appellants. While the postjudgment
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order appealed from was related to judgments entered pursuant to the Arkansas Whistle
Blower Act, our judgment on appeal was not rendered under this act. Rather, it was decided
based primarily upon federal and state income tax law. As such, section 211605 is
inapplicable and attorneys’ fees are not warranted.
Costs on appeal granted; attorneys’ fees denied.
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07525
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