Love v. Smackover School Dist., 97-20

• Decision Date: 09 June 1997
• Docket Number: No. 97-20,97-20
• Citation: 946 S.W.2d 676,329 Ark. 4
• Parties: , 119 Ed. Law Rep. 728 Patricia LOVE, Appellant, v. SMACKOVER SCHOOL DISTRICT and Terry Lee, Jeff Rogers, Juanita Corley, Jerry Hegwood, and Lynn Bradley, in Their Official Capacity as Members of the Smackover School District Board of Directors, Appellees.
• Court: Arkansas Supreme Court

Page 676

946 S.W.2d 676

329 Ark. 4, 119 Ed. Law Rep. 728

Patricia LOVE, Appellant, v. SMACKOVER SCHOOL DISTRICT and Terry Lee, Jeff Rogers Juanita Corley, Jerry Hegwood, and Lynn Bradley, in Their Official Capacity as Members of the Smackover School District Board of Directors, Appellees.

No. 97-20.

Supreme Court of Arkansas.

June 9, 1997.

Marcia Barnes, Little Rock, for Appellant.

W. Paul Blume, Little Rock, for Appellees.

CORBIN, Justice.

This is an appeal by Appellant Patricia Love of the order by the Union County Circuit Court denying the award of attorney's fees in her case against Appellee Smackover School District involving the Teacher Fair Dismissal Act of 1983, Ark.Code Ann. §§ 6-17-1501 to -1510 (Repl.1993). This is the second appeal of this case. In the first appeal, this court reversed the trial court's ruling that Appellant was not a "teacher" as contemplated by the Act and remanded the case to determine the amount of compensation to which she was entitled. Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup.Ct. R. 1-2(a)(10) (as amended by per curiam July 15, 1996).

Pursuant to this court's mandate, the Union County Circuit Court held a hearing on June 19, 1996, to determine Appellant's damages pursuant to the mandate. The trial court ruled that Appellant was entitled to judgment against Appellee for $6,893.36 plus interest. The trial court also granted Appellant reinstatement as a half-time teacher for the 1996-97 school year. Appellant requested attorney's fees, but the trial court denied her request holding that such fees are not authorized under the Teacher Fair Dismissal Act, referring to the trial court's previous decisions in other Teacher Fair Dismissal act cases as well as the recent decision of Piggee v. Jones, 84 F.3d 303 (8th Cir.1996). In Piggee, the United States Court of Appeals, Eighth Circuit, held that a violation of the Teacher Fair Dismissal Act was not a breach of contract claim for which attorney's fees may be awarded under Ark.Code Ann. § 16-22-308 (Repl.1994).

The sole issue presented by this appeal is whether attorney's fees are available in an action brought under the Teacher Fair Dismissal Act as contemplated by section 16-22-308. We conclude that attorney's fees are available and we reverse the ruling of the trial court and remand this case to determine whether in this instance attorney's fees are warranted.

The American rule, which is the rule observed in Arkansas, is that attorneys' fees are not chargeable as costs in litigation unless specifically permitted by statute. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986); see Hall v. Thompson, 283 Ark. 26, 669 S.W.2d 905 (1984); Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982). Section 16-22-308 provides:

In 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's fee to be assessed by the court and collected as costs.

This court has previously determined that an action brought pursuant to the Teacher Fair Dismissal Act is a civil action within the meaning of section 16-22-308. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995). Likewise, a claim for "labor or services" is within the meaning of the statute and attorney's fees are allowed for such claim under section 16-22-308. City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). In reliance upon those two decisions, the court of appeals recently determined that the subject matter of the underlying litigation is solely dispositive of whether section 16-22-308 may be invoked. Junction City Sch. Dist. v. Alphin, 56 Ark.App. 61, 938 S.W.2d 239 (1997). In Alphin, the court of appeals reversed the trial court's disallowance of attorney's fees to a teacher who prevailed in an action brought pursuant to the Teacher Fair Dismissal Act, where the disallowance was based on the Act's omission of a procedure to award attorney's fees.

Similarly, in Hall v. Kingsland Sch. Dist., 56 Ark.App. 110, 938 S.W.2d 571 (1997), the court of appeals determined that the trial court failed to exercise discretion to either award or deny...