# City of Fort Smith v. Carter > Supreme Court of Arkansas · November 10, 2005 · 364 Ark. 100 URL: https://www.frixlaw.com/law-library/cases/9755718 ## Case - **Full name:** CITY of FORT SMITH v. J.D. CARTER, Mary Lois Carter, Lee Hackler and Patricia Hackler, Mortgagees - **Court:** Supreme Court of Arkansas - **Decided:** November 10, 2005 - **Citations:** 364 Ark. 100; 216 S.W.3d 594 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Jim Hannah - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755718 ## Opinion text Robert L. Brown, Justice, dissenting. I agree that Rule 11 sanctions are not appropriate in this case. I must, however, dissent from the majority’s tortured reasoning. What the majority has done is apply a 1995 attorney’s fee statute which amended an 1895 act (subchapter six) to a separate 1957 act, which set up a new procedure (subchapter four). The effect of this decision will be to saddle all municipalities with attorney’s fees even when the cities proceed under procedures in different subchapters where attorney’s fees are not contemplated. That is not right and defies legislative intent. Plus, it is unfair to those municipalities which were not put on notice that the subchapter six’s attorney’s fees statute would apply to a subchapter four procedure. For these reasons, I respectfully dissent. The majority’s reason for applying subchapter six attorney’s fees to a subchapter four procedure is based on one word, “cumulative,” which is found in the 1957 act. Part of that act reads, “(c) This subchapter shall be cumulative to any laws of eminent domain in favor of municipalities operating municipal waterworks systems.” Ark. Code Ann. § 18 — 15—401 (c) (Repl. 2003) (emphasis added). It should be emphasized, as an initial matter, that the appellees do not develop the ambiguity-and-cumulative argument relied on by the majority to reverse this case. Indeed, it is the City of Fort Smith that relies on § 18-15-401(c) and the cumulative language to support its decision to proceed under the alternative eminent domain procedure set out in subchapter four. This court has said we do not reverse on an argument not developed. See, e.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591 , 29 S.W.3d 730 (2000). We should not do so in this case. That being said, the only commonsensical reading of “cumulative” is that the 1957 act (subchapter four), which set up the new procedure, would be an alternative procedure to the 1895 act (subchapter six). It makes no sense to read “cumulative” as combining the alternative procedures in subchapter four and subchapter six into one unit. Why? Because the General Assembly did not amend the 1895 act in 1957 to combine the two procedures but, rather, created an alternative eminent domain procedure with subchapter four. We do not give an absurd interpretation to legislative enactments. See Waste Mgmt. & Transp. Ins. Co. v. Estridge, 363 Ark. 42 , 210 S.W.3d 869 (2005). But that is precisely what the majority has done by stating that “subchapter 4 is subject to the requirements of subchapter 6” in construing “cumulative.” What confirms my point is that every foreign jurisdiction that has construed “cumulative” in a comparable context has interpreted it to mean a new or additional remedy, not a combination of the two remedies. See, e.g., Kennedy v. Henderson, 794 P.2d 754 (Okla. 1990) (the term “cumulative” denotes additional remedial provisions); Harris v. Manor Healthcare Corp., 111 Ill. 2d 350 , 489 N.E.2d 1374 (1986) (the sole purpose of a cumulative provision is to preserve other legal remedies so that a plaintiff may choose between them); Bonn v. California State University, 88 Cal. App. 3d 985 , 152 Cal. Rptr. 267 (1979) (“cumulative,” as defined by legal lexicographers means “additional;” that which is super-added to another thing of the same character and not substituted for it); Rodriguez v. Cascade Laundry Co., 185 Kan. 766 , 347 P.2d 455 (1959) (the word “cumulative” is to be construed as evidencing an intent on the part of the legislature to give any party to an action an absolute right he had not previously possessed under existing statutes); State Ex Rel. Whitmore v. Barboglio, 63 Utah 432 , 226 P. 904 (1924) (a cumulative remedy by statute is an additional one, and the party may elect between the two). Arkansas has followed suit and has interpreted “cumulative” to mean that an alternative procedure has been enacted. See BWH, Inc. v. Metropolitan Nat’l Bank, 267 Ark. 182 , 590 S.W.2d 247 (1979) (the word “cumulative,” as used, is indicative of an addition to existing provisions); City of Helena v. Arkansas Utilities Co., 208 Ark. 442 , 186 S.W.2d 783 (1945) (cumulative acts may provide alternative procedures). In short, there is no jurisprudence that supports the majority’s construction of “cumulative” to mean a combination of the 1957 act with the 1895 act so that an amendment to subchapter six could also amend subchapter four. That is not how legislation works. If the General Assembly had intended that, it could have easily amended subchapter four. It did not do so. Moreover, the award of attorney’s fees by statute must be express. See, e.g., Damron v. University Estates, Phase II, Inc., 295 Ark. 533 , 750 S.W.2d 402 (1988). This is especially so when attorney’s fees had never before been allowed against municipalities for waterworks projects. 1 Here, there is no amendment to subchapter four. The circuit judge obviously knew that an award of attorney’s fees in a subchapter four proceeding was wrong under the dubious rationale that the majority presents. That is why he did not award attorney’s fees and costs using § 18-15-605(b). Quite simply, he undoubtedly understood that a later amendment for attorney’s fees to one statute did not automatically amend a second, discrete statute. I would affirm the trial court on this point and for that reason, I respectfully dissent. I recognize that City of Fort Smith also argues that § 18-15-605(b) does not apply to municipalities but only to nonprofit corporations and water associations. The City cites Howard Brill’s Law of Damages in support of its argument. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755718. Public record. Not legal advice.