Cite as 2026 Ark. App. 48
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-24-131
LESTER BUCKLEY SMITH Opinion Delivered January 28, 2026
APPELLANT/CROSS-APPELLEE
APPEAL FROM THE CARROLL
COUNTY CIRCUIT COURT,
V. EASTERN DISTRICT
[NO. 08ECV-21-122]
VINCE EASTWOOD, AS PARENT AND
NEXT FRIEND OF TWO MINOR HONORABLE SCOTT JACKSON,
CHILDREN JUDGE
APPELLEE/CROSS-APPELLANT
AFFIRMED ON DIRECT APPEAL;
REVERSED AND REMANDED ON
CROSS-APPEAL
ROBERT J. GLADWIN, Judge
The appellant in this case was sued by his victim after he pled guilty to sexually abusing
her. The circuit court granted the appellee’s motion for summary judgment on liability, and
the jury then awarded him $1.6 million in damages. The appellant has appealed the order
granting summary judgment and certain rulings made during trial. The appellee crossappealed the circuit court’s denial of his motion for attorney fees.
We affirm on direct appeal and reverse and remand on cross-appeal.
I. Background
In 2019, Lester Smith (Smith) sexually abused MC1, who attended the church where
Smith was a seventy-four-year-old Sunday-school superintendent. MC1 was thirteen.
On February 27, 2020, a criminal information was filed against Smith for seconddegree sexual assault in violation of Arkansas Code Annotated section 5-14-125(a)(3) (Supp.
2019). Smith later pled guilty to fourth-degree sexual assault in violation of Arkansas Code
Annotated section 5-14-127(a)(1)(B) (Supp. 2019).
During the plea hearing, Smith testified that he was guilty of the following:
[O]n or between March the 20th, 2019, and June the 21st, 2019, being at the
time 20 years of age or older, Lester Buckley Smith did engage in sexual contact
with another person, to wit the juvenile [MC1], who was at that time less than
16 years of age and not Lester Smith’s spouse.
On October 8, 2021, MC1’s father, Vince Eastwood (Eastwood), filed a lawsuit
against Smith on behalf of MC1 and her sibling, MC2. The complaint alleged that the abuse
against MC1 started in the fall of 2018 when she was thirteen. The complaint also alleged
that Smith sexually abused MC2 when she was twelve. Eastwood brought claims on behalf
of both children for outrage, civil action by a crime victim, and civil action for vulnerable
victims of sexual abuse.
As the litigation progressed, Eastwood moved for partial summary judgment on the
issue of liability for all counts as to MC1 because Smith had pled guilty to sexually abusing
her. The circuit court held a hearing then, on January 6, 2023, granted the motion for partial
summary judgment. A two-day jury trial followed in October. The trial was for damages as
to MC1 and liability and damages as to MC2 The jury found that Smith was not liable to
MC2. As to MC1, the jury awarded $100,000 for past and future medical bills; $500,000 for
pain, suffering, and mental anguish; and $1 million in punitive damages.
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Eastwood moved for attorneys’ fees pursuant to Arkansas Code Annotated section
16-118-107 (Repl. 2016) the day after judgment was entered. The circuit court denied that
motion.
II. Direct Appeal
We now turn to Smith’s issues on appeal. He argues that the circuit court erred in
granting partial summary judgment, in denying his motion for directed verdict, and in the
format of the verdict form.
A. Partial Summary Judgment on Liability
The standard of review for a summary-judgment order is well settled. A circuit court
should grant summary judgment only when there are no genuine issues of material fact to
be litigated, and the moving party is entitled to judgment as a matter of law Marziale v. Brown,
2025 Ark. App. 468, at 6, 723 S.W.3d 641, 645. Once the moving party has established a
prima facie entitlement to summary judgment, the opposing party must meet proof with
proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this
court determines if summary judgment was appropriate by deciding whether the evidentiary
items presented by the moving party in support of the motion leave a material fact
unanswered. Id. The court views the evidence in the light most favorable to the party against
whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
This review focuses not only on the pleadings but also on the affidavits and documents filed
by the parties.
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1. Tort of outrage
The tort of outrage has four elements: (1) the defendant intended to inflict emotional
distress or should have recognized emotional distress as a likely result of his conduct; (2) the
defendant’s conduct was extreme, outrageous, and utterly intolerable in a civilized
community; (3) the defendant’s actions caused anguish or distress to the plaintiff; and (4)
the emotional distress suffered was severe and of a type that no reasonable person should be
expected to endure. Mary C. Petty Fam. Tr. v. Louton, 2019 Ark. App. 590, at 2, 591 S.W.3d
393, 394.
The first two elements are at issue in this appeal. Although Smith attempts to raise
points about elements three and four, he did not do so until his reply brief, and this court
does not consider arguments made for the first time on reply. Orintas v. Point Lookout Prop.
Owners Ass’n Bd. of Dirs., 2015 Ark. App. 648, at 2–3, 476 S.W.3d 174, 176.
Smith’s first argument is that Eastwood did not prove that Smith knew or should
have known that emotional distress was a likely result of his conduct. This argument is
absurd. Smith admitted under oath that he, a seventy-three-year-old Sunday-school
superintendent, had sexual contact with a thirteen-year-old church member. This is an
undisputed fact. Smith did not meet proof with proof by presenting evidence that he had
any sort of impairment that would render him incapable of understanding that emotional
distress was a likely result of this conduct. The undisputed facts here clearly meet the first
element, even though the courts take “strict approach and give a narrow view to the tort of
outrage.” Croom v. Younts, 323 Ark. 95, 102, 913 S.W.2d 283, 287 (1996).
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Smith argues that his state of mind should have been left to the jury. However, the
supreme court held in Croom, which is a sexual-abuse case, that a tortfeasor’s intent to cause
emotional distress is not required. Instead, outrage “includes willful and wanton conduct
which embraces activity in which a person knows or should know in light of surrounding
circumstances that his actions will naturally and probably result in emotional distress.” Id.
Smith has presented no facts or evidence that would establish that he should not have known
his conduct would naturally and probably result in the emotional distress of his victim.
Smith’s second argument regarding outrage is similarly ridiculous. He asks this court
to reverse the partial summary judgment on the outrage claim, arguing that Eastwood did
not submit proof showing that the conduct was extreme, outrageous, and utterly intolerable
in a civilized community.
While Smith correctly notes that simply describing conduct as outrageous does not
make it so, that is not at all what happened in this case. It is undisputed that Smith admitted
under oath that he had sexual contact with MC1 when she was thirteen. He was a church
elder, and she was a parishioner. The supreme court has held that an adult woman may sue
her doctor for outrage when the doctor improperly touched or “fondled” her breasts, even
though the alleged conduct happened only one time. McQuay v. Guntharp, 331 Ark. 466,
476, 963 S.W.2d 583, 588 (1998). McQuay involved a motion to dismiss, but in reversing
the dismissal, the supreme court implicitly acknowledged that if the facts were proved, then
sexual contact by a person in a position of trust could give rise to the tort of outrage. In other
words, such contact is outrageous and utterly intolerable in a civilized society. Here, not only
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was there a relationship of trust, but the victim was a child. These undisputed facts are utterly
intolerable in a civilized community. Smith’s own unsupported assertion that his conduct
was not outrageous does not qualify as meeting proof with proof.
For these reasons, we affirm the grant of partial summary judgment on the outrage
claim.
2. Victim of a felony
The second claim on which Eastwood was granted partial summary judgment was
under Arkansas Code Annotated section 16-118-107. That statute provides:
(a)(1) Any person injured or damaged by reason of conduct of another
person that would constitute a felony under Arkansas law may file a civil action
to recover damages based on the conduct.
(2) The burden of proof for showing conduct that constituted a felony shall
be a preponderance of the evidence.
(3) If the person who is injured or damaged prevails, he or she shall be
entitled to recover costs and attorney’s fees.
Ark. Code Ann. § 16-118-107 (Repl. 2016).
Smith argues that (1) the circuit court did not make any findings of fact that would
constitute a felony, and (2) he only pled guilty to a misdemeanor.
First, the circuit court was not required to make factual findings. Ark. R. Civ. P. 52
(2025); Carter v. Entergy Ark., Inc., 2024 Ark. App. 573, at 12, 701 S.W.3d 789, 797. But even
if it were, the circuit court did so. It found that Smith had testified during his plea hearing
that “between March 20, 2019, and June 21, 2019, being at the time over 20 years of age or
older, Lester Smith did engage in sexual contact with another person, to-wit, the juvenile
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MC1 who was at that time less than 16 years of age and [not] Lester Smith’s spouse.” The
circuit court did not state in the summary-judgment order that MC1 was thirteen at the time
of the sexual assault, but the ruling was based on the pleadings and arguments of counsel.
The motion for partial summary judgment included an affidavit establishing MC1’s birth
date, and from that, one can see she was thirteen at the time of the conduct.
It is true that Smith pled guilty to a misdemeanor under Arkansas Code Annotated
section 5-14-127(a)(1)(B), which applies to an adult having sexual contact with a person
under the age of sixteen. However, it is a Class B felony when an adult has sexual contact
with a child under the age of fourteen. Ark. Code Ann. § 5-14-125(a)(3), (b)(1). Smith
admitted the dates during which he committed the sexual contact, and it is undisputed that
MC1 was thirteen on those dates. The tort statute does not require that the tortfeasor be
found guilty of a felony in a criminal action. In fact, section 16-118-107(a)(2) sets out an
entirely different burden of proof than what would be required in a criminal conviction. It
is clear from the plain language of the statute that Eastwood does not have to prove that
Smith was convicted of a felony in order to prove liability under section 16-118-107. It
requires only that Smith committed felonious conduct.
The undisputed facts show that Smith committed a felony against MC1, and he has
not met proof with proof to disprove that. For these reasons, we affirm summary judgment
on liability for the claim under section 16-118-107.
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3. Vulnerable Victims of Sexual Abuse Act
Smith next contends that the circuit court should not have granted Eastwood’s
motion for partial summary judgment with regard to the claim under the Vulnerable Victims
of Sexual Abuse Act, codified at Arkansas Code Annotated section 16-118-118 (Vulnerable
Victims Act). That statute was passed in 2021 and states, “[A] vulnerable victim may bring a
civil action against any party who committed sexual abuse against the vulnerable victim or
whose tortious conduct caused the vulnerable victim to be a victim of sexual abuse.” Ark.
Code Ann. § 16-118-118(b)(1) (Supp. 2023). A minor is a vulnerable victim, and sexual abuse
includes “unlawful sexual contact with a vulnerable victim” and sexual assault in the second
degree. Ark. Code Ann. § 16-118-118(a)(3)(C), (H); Id. § 16-118-118(a)(6).
The Vulnerable Victims Act explicitly bars lawsuits involving “a claim that has been
litigated to finality on the merits in any court of competent jurisdiction before July 28, 2021.”
Ark. Code Ann. § 16-118-118(c).
As to liability under the Vulnerable Victims Act, Smith first argues that any finding
of “sexual abuse” under the statute must be made using the criminal standard of proof. Smith
did not make this argument to the circuit court, so it is not preserved for appeal. See Little
Rock Sch. Dist. v. Hart, 2025 Ark. App. 529, at 2, __ S.W.3d __, __.
Smith also attempts to argue that the Vulnerable Victims Act is an unconstitutional
ex post facto law. Although Smith made this argument below in a motion to dismiss, the
circuit court never ruled on the issue. Instead, the circuit court denied Smith’s motion to
dismiss in part, but “reserve[d] judgment” on Smith’s arguments about the constitutionality
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of the Vulnerable Victims Act. The circuit court never revisited or ruled on the remaining
issues in the motion to dismiss or Smith’s ex post facto argument. “The appellant has the
burden to obtain a ruling on an issue in order to preserve the issue for appeal.” Lockard &
Williams Ins. Servs., Inc. v. Waldrip, 2020 Ark. App. 274, at 5, 600 S.W.3d 662, 665.
Accordingly, we cannot reach the merits of this issue.
Finally, Smith argues that Eastwood’s claims had been previously litigated in his
criminal trial; therefore, the suit was barred by section 16-118-118(c). This contention is
based on the sentence in the circuit court’s order that stated, “This court finds that the case
of State of Arkansas vs. Lester Buckley Smith, Case No. 08CR-2020-37, was litigated by the
acceptance of Mr. Smith’s plea of guilty.”
This argument fails for two reasons. First, Smith argued extensively in his response to
the motion for partial summary judgment that his criminal case had not been fully litigated.
He now argues before this court that the matter was fully litigated. “A litigant is not permitted
to assume wholly inconsistent positions on the same issue in the same case.” Parsons Dispatch,
Inc. v. John J. Jerue Truck Broker, Inc., 89 Ark. App. 25, 31, 199 S.W.3d 686, 690 (2004).
Further, and to the merits of the argument—the circuit court was clearly remarking
on Smith’s criminal case. This civil case is separate. The circuit court did not state that the
civil case for Smith’s conduct was litigated. It is obvious that section 16-118-118(c) is
referencing previous civil litigation. It would make no sense otherwise, as committing
criminal sexual assault is one definition of “sexual abuse” under section 16-118-118.
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For these reasons, we affirm the circuit court’s grant of partial summary judgment on
Eastwood’s claim under the Vulnerable Victims Act.
B. Denial of Directed-Verdict Motion
Smith’s next point on appeal is that the circuit court erred in denying his directedverdict motion on the bases that Eastwood was not the real party in interest and that MC1
was not the party who incurred medical expenses.
1. Real party in interest
MC1 was a minor when Smith committed the crime against her. She was also a minor
when the lawsuit was filed. Vince Eastwood is MC1’s father and properly filed the lawsuit as
MC1’s parent and next friend as required by Arkansas Rule of Civil Procedure 17. MC1
filed an affidavit with the partial motion for summary judgment that contained her exact
birth date, which is September 1, 2005. This was filed on June 13, 2022, also when MC1
was still a minor. This series of events establishes that all the parties and attorneys in the case
knew or should have known when MC1 was due to turn eighteen—September 1, 2023. The
motion for partial summary judgment establishing liability was granted on January 6, 2023,
also while MC1 was still a minor. There is no question that Eastwood was the proper plaintiff
at that time. MC1 was actively involved in the litigation through its pendency.
Smith did not object to Eastwood’s continuing to pursue the case on September 2,
2023, or any time before trial started. The trial started on October 24, which was only fiftythree days after MC1 turned eighteen. Smith also did not object during the plaintiff’s casein-chief. Instead, he waited until the close of the plaintiff’s case at trial to make a directed10
verdict motion that MC1 was the proper party in interest instead of Eastwood. At that time,
the circuit court conformed the pleadings to the evidence presented at trial and denied the
directed-verdict motion.
The jury forms asked the jurors to assess “the amount of damages you find that [MC1]
has sustained” for medical treatment, pain and suffering, and punitive damages. The
judgment also states that “[MC1] is hereby awarded judgment in the amount of $100,000.00
for past and future medical expenses, $500,000.00 for past and future pain and suffering
and mental anguish, and $1,000,000.00 in punitive damages[.]”
Arkansas Rule of Civil Procedure 17(a) addresses real parties in interest. It mandates
that “[e]very action shall be prosecuted in the name of the real party in interest.” However,
Rule 17(a) goes on to state,
No action shall be dismissed on the ground that it is not prosecuted in the
name of the real party in interest until a reasonable time has been allowed after
objection for ratification of commencement of the action by, or joinder or
substitution of, the real party in interest; and such ratification, joinder or
substitution shall have the same effect as if the action had been commenced
in the name of the real party in interest.
Ark. R. Civ. P. 17(a).
The real party in interest “is considered to be the person or corporation who can
discharge the claim on which the allegation is based, not necessarily the person ultimately
entitled to the benefit of any recovery.” St. Paul Mercury Ins. Co. v. Cir. Ct. of Craighead Cnty.,
348 Ark. 197, 206, 73 S.W.3d 584, 589 (2002).
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The case of White v. Welsh, 327 Ark. 465, 939 S.W.2d 299 (1997), is instructive. In
White, Martin Hardcastle owned land that could be accessed only by a road over Jack
McPherson’s property. Hardcastle died, and Evelyn Welsh was appointed personal
representative. McPherson sold his land to Sharon and Hubert White, who locked the gates
across the roadway, preventing access to the Hardcastle land. The “Hardcastle Estate” filed
suit against the Whites. Almost a year later, the chancery court entered an order substituting
Welsh, personal representative of the Estate, as the plaintiff. The Whites moved to dismiss
Welsh, arguing that she had no standing. The chancery court then gave Welsh twenty days
to file an amended complaint, which she did timely. After a trial, the Whites appealed,
arguing that the chancery court erred in allowing Welsh to be substituted as a plaintiff. They
claimed that the original complaint was void because it was filed by “the Hardcastle Estate,”
which the Whites argued was a legal nonentity. They further alleged that Welsh had no
standing because she failed to show title or ownership in the easement. The supreme court
held that Welsh did have a property interest because once the court finds that an estate’s
property should be sold, the “real property shall be an asset in the hands of the personal
representative.” Id. at 468, 939 S.W.2d at 300. The supreme court went on to hold that
Welsh was properly and timely substituted as a plaintiff, even though she did not have a
“personal interest” until after the complaint was filed and after she had amended the
complaint. Id. at 468, 939 S.W.2d at 301.
In so holding, the court relied on Rule 17(a), which allows a “reasonable time” for
the real party in interest to be substituted once an objection is made. “What constitutes a
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reasonable time under Rule 17 is a matter of judicial discretion and will depend upon the
facts of each case.” Id. Here, the substitution was made immediately—Eastwood moved to
conform the pleadings to the proof presented, and the circuit court granted that motion.
The jury was asked to determine what damages MC1 was owed, and the judgment reflected
that. This case is even more compelling than White because, here, the original complaint was
filed by the proper party. Liability was determined while MC1 was a minor. She was then
substituted shortly after turning eighteen and right after Smith objected.
In another similar case, this court rejected an appellant’s argument that the circuit
court erred “in allowing the addition of a new party plaintiff after the original plaintiff had
rested his case.” McMaster v. McIlroy Bank, 9 Ark. App. 124, 126–27, 654 S.W.2d 591, 593
(1983). Just as in this case, the defendant in McMaster moved for a directed verdict after the
plaintiff rested, alleging that the named plaintiff was not the correct party in interest. The
circuit court “overruled the motion and directed that [a different party] be made a party
plaintiff.” Id. That is exactly what happened in this case. As in McMaster, there is no error
because “[t]he evidence shows without contradiction” that Eastwood’s actions in filing and
continuing to pursue the lawsuit were “confirmed and ratified” by MC1. Id.
Smith incorrectly relies on Chavis v. Brackenbury, 375 Ark. 457, 291 S.W.3d 570
(2009). Chavis concerned a minor’s bank account that became the center of a feud between
parents. In Chavis, an ex-wife was the custodian of two bank accounts established in the
child’s name. The ex-husband filed a lawsuit for an accounting of the funds in the bank
accounts and requested that the ex-wife be ordered to repay the funds to the bank accounts.
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The “child” whose name was on the accounts turned eighteen several months after the
lawsuit was filed. Id. at 459, 291 S.W.3d at 571. The ex-wife filed a motion to dismiss or
substitute parties because the child had reached the age of majority. The circuit court granted
the motion to dismiss, reasoning that a necessary party was not before the court and that,
“even if the request for an accounting was granted, the person entitled to receive any funds
. . . was not before the court.” Id. The arguments on appeal were that the “child” was actually
still a minor under a banking law and that a certain statute allows a minor’s parent to petition
the court for an accounting. The appeal had nothing to do with the real party in interest.
Even so, the supreme court did not reach the merits of any argument on appeal because
none of the arguments had been presented to the circuit court. Id. at 461, 291 S.W.3d at
573. The issues on appeal in Chavis do not appear to relate to this case at all, but even if they
did, the supreme court certainly did not make any holdings that are applicable to this case.
2. Medical expenses
Smith next argues that his motion for directed verdict should have been granted
because the medical expenses were incurred by Eastwood rather than by MC1 herself. It is
true that “in case of injury to a minor child, there are two separate and distinct causes of
action: one in favor of the infant for his injuries and one in favor of the parent for losses
suffered by the parent.” Parrott v. Mallett, 262 Ark. 525, 528, 558 S.W.2d 152, 153 (1977).
As the Parrott court held, a child cannot recover for the actual medical expenses incurred
and paid by his parents during his minority. Id. That is completely different from the jury’s
award in this case. Here, the jury was asked to:
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State the amount of damages you find that [MC1] sustained for the reasonable
expense of any necessary medical care, treatment, and services received
including transportation and board and lodging expenses necessarily incurred
in securing such care, treatment, or services and the present value of such expense
reasonably certain to be required in the future.
(Emphasis added.) The jury returned a verdict for damages of $100,000 in response. The
therapy bills that had been entered into evidence totaled $8,650, so clearly the damages
award was not tied to the total of those bills. The jury was not asked on the verdict form to
take into account the bills that had been paid by MC1’s parents, and it specifically asked
about future medical expenses.
This court will affirm the denial of a directed-verdict motion if there was substantial
evidence for the jury’s verdict. Hope Med. Park Hosp. v. Varner, 2019 Ark. App. 82, 568
S.W.3d 818.
MC1 testified that she continues to suffer from PTSD. She stated, “I have to deal
with the effects of what happened to me for the rest of my life.” Her therapist testified that
MC1 “will need a lifetime of counseling.” He also said that MC1 suffered from many mentalhealth issues stemming from the abuse, including “depressive symptoms, there’s trust, there’s
anxiety, there’s social anxiety, and all of these, I think, require their own work
therapeutically.” Smith presented no evidence refuting any of this. Considering the
testimony of MC1 and her therapist, there was substantial evidence for the jury’s award of
damages.
For these reasons, we affirm the circuit court’s denial of Smith’s directed-verdict
motion.
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C. Verdict Form
Smith’s final argument on appeal is that the circuit court erred in the way it divided
the measure of damages on the verdict form. The jury was asked to fill out a verdict form
with interrogatories. The interrogatories related to MC1 were as follows:
1. State the amount of damages you find that [MC1] sustained for the
reasonable expense of any necessary medical care, treatment, and services
received including transportation and board and lodging expenses necessarily
incurred in securing such care, treatment, or services and the present value of
such expense reasonably certain to be required in the future.
2. State the amount of damages you find that [MC1] has sustained for any
pain and suffering and mental anguish experienced in the past and reasonably
certain to be experienced in the future.
3. State the amount of punitive damages, if any, you award to [MC1].
The jury awarded $100,000 for past and future medical expenses; $500,000 for pain and
suffering; and $1 million for punitive damages.
Smith contends that the different claims entitled MC1 to different amounts of
damages, so the jury should have been tasked with awarding damages on each count rather
than for each measure of damages. For example, he argues that it is impossible to tell whether
the jury was awarding punitive damages for outrage or under the Vulnerable Victims Act.
The circuit court has discretion regarding whether to submit a verdict on
interrogatories, and the appellant must demonstrate reversible error for this court to reverse
such a decision. Builders Transp. Co. v. Smith, 2024 Ark. App. 561, at 17, 701 S.W.3d 22, 33–
34.
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Importantly, Smith does not argue that Eastwood was not entitled to any individual
element of damages on the verdict forms. Nor does he argue that the jury got any element
wrong. Instead, he argues that the jury should have had to assess punitive and compensatory
damages separately under each count for which he was liable. Smith does not cite any statute,
rule, or case to support his contention that the jury should have been given a different form.
He states only that it is impossible to determine which count the jury awarded punitive
damages for. However, at the end of the day, MC1 was entitled to punitive damages, and the
jury determined the amount. Smith has not made any showing of reversible error.
Therefore, the circuit court did not abuse its discretion in the format of the verdict
form.
On the basis of the above discussion, we affirm on direct appeal.
III. Cross Appeal
Eastwood brings a cross-appeal with one issue: the circuit court erred when it denied
his posttrial motion for attorney’s fees.
Victims of certain crimes can file a civil suit under Arkansas Code Annotated section
16-118-107. As discussed above, MC1 was entitled to partial summary judgment as to liability
under this statute.
The statute provides, “If the person who is injured or damaged prevails, he or she
shall be entitled to recover costs and attorney’s fees.” Ark. Code Ann. § 16-118-107(a)(3).
Arkansas Rule of Civil Procedure 54(e)(2) requires that a motion for attorney’s fees be filed
within fourteen days of the entry of judgment. In this case, Eastwood filed the motion for
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attorney’s fees the day after the entry of judgment. The circuit court denied the motion,
stating simply, “Plaintiff’s motion for attorney’s fees is denied.”
Eastwood’s argument on appeal is that the circuit court erred because the plain
language of section 16-118-107(a)(3) entitles a successful plaintiff to attorney’s fees.
The decision to grant attorney’s fees is within the sound discretion of the circuit court
and will not be set aside absent an abuse of that discretion. Harris v. City of Fort Smith, 366
Ark. 277, 280, 234 S.W.3d 875, 878 (2006).
“Attorney’s fees are not allowed except when expressly provided for by statute.”
Thomason Invs., LLC v. Huddleston, 2020 Ark. App. 500, at 26, 613 S.W.3d 729, 745. Certain
statutes, such as Arkansas Code Annotated section 16-22-308 (Repl. 1999), contain
permissive language. Under that statute, “the prevailing party may be allowed a reasonable
attorney’s fee to be assessed by the court and collected as costs” in breach-of-contract cases
and certain other actions. Ark. Code Ann. § 16-22-308. The appellate courts have held that
a circuit court is not required to award attorney’s fees when the statute contains such
permissive language. See, e.g., Conway Com. Warehousing, LLC v. FedEx Freight E., Inc., 2011
Ark. App. 51, at 9, 381 S.W.3d 94, 100 (noting that in the context of § 16-22-308, “[a] trial
court is not required to award attorney fees . . . and any amounts awarded are discretionary”).
Unlike section 16-22-308, the statute at issue in this case does not contain any permissive
language.
Our rules about statutory construction are clear. When determining a statute’s
meaning, “we construe it just as it reads, giving the words their ordinary and usually accepted
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meaning in common language. We construe the statute so that no word is left void,
superfluous, or insignificant, and we give meaning and effect to every word in the statute, if
possible.” DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 222, 289 S.W.3d 466, 472 (2008).
The word “shall” is considered mandatory. Middleton v. Lockhart, 344 Ark. 572, 584, 43
S.W.3d 113, 122 (2001). In Middleton, for example, the supreme court reversed and
remanded a circuit court’s order that taxed an attorney’s-fee award to the defendant when
the relevant statute stated that reasonable fees “shall be allowed” and taxed to the plaintiff.
The statute at issue in that case was Arkansas Code Annotated section 16-61-109.
Further, this court has reversed a circuit court’s denial of a motion for attorney’s fees
when the parties had entered into “a written contract that specifically provides for the
entitlement to certain fees incurred in the enforcement of the contract[.]” Dye v. Precision
Found. Specialties & Flow Rite Drainage Sols., Inc., 2022 Ark. App. 220, at 25, 646 S.W.3d 168,
183. In such instances, appellate courts have interpreted “the word ‘shall’ to indicate
mandatory compliance unless compliance would result in an absurdity.” Id. The contract in
Dye stated, “Client [the Dyes] will reimburse PFS, Inc. for all time spent and expenses
(including fees of any attorney, collection agency, and/or court costs) incurred in connection
with collecting any delinquent account.” Id. at 25–26, 646 S.W.3d at 183. In Dye, this court
reversed the denial of attorney’s fees and remanded to the circuit court “to award PFS
attorney’s fees pursuant to the terms of the contract.” Id. at 27, 646 S.W.3d at 184.
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There is no question that Eastwood, as next friend of MC1, prevailed as required by
section 16-118-107(a)(3).1 The plain language of the statute states that if the person who is
injured or damaged prevails, then he or she “shall” recover attorney’s fees. Therefore, the
circuit court abused its discretion in denying Eastwood’s motion for attorney fees.
Therefore, the order denying Eastwood’s motion for attorney fees is reversed, and
remanded for proceedings consistent with this opinion.
IV. Conclusion
We affirm the circuit court’s orders on direct appeal and reverse and remand on crossappeal.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
ABRAMSON and BARRETT, JJ., agree.
Story Law Firm, PLLC, by: Travis W. Story, for appellant/cross-appellee.
Horton Law Firm, by: T.J. Fosko, for appellee/cross-appellant.
1
Smith did not argue that Eastwood was not “the person who is injured or damaged.” Further, MC1 could not bring the lawsuit in her own name when it was filed because she was a minor. Liability was determined when she was a minor.
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