ROBERT J. GLADWIN, Judge.
Appellees James R. Blackburn, Dale Booth, Jodie Carroll, David Gregory, Jerry H. Griffin, Bobby Hanson, Larry A. Henry, Harold Kite, Walter E. McCarey, Ricky McDaniel, Gerald S. Smith, Lagafaatasi Tupua, Robert W. Van Hoy, Jon H. Ward, Don A. Washington, Jerry S. Wright, and Kathryn Young filed a complaint in the Little River County Circuit Court against appellant Millwood-RAB Marketing, Inc., d/b/a Millwood Landing Golf and RV Resort (hereafter "Millwood-RAB") as successor in interest to Yarborough Landing Resort, Inc., alleging breach of contract regarding their membership agreements. In an order entered on August 13, 2004, the trial court granted the plaintiffs' motion for partial summary judgment as it pertained to appellees Blackburn, Gregory, McCarey, Tupua, Ward, Washington, and Young but denied the motion as to appellees Booth, Carroll, Griffin, Hanson, Henry, Kite, McDaniel, Smith, Van Hoy, and Wright. In its order, the trial court found that Millwood-RAB had assumed the membership agreements from its predecessors in interest and had materially breached the contracts of the appellees who were granted partial summary judgment. The trial court reserved the issue of damages and an attorney's fee. In its final order entered on July 22, 2005, the trial court granted summary judgment to the remaining appellees based on its finding that Millwood-RAB had breached those contracts as well. The trial court then set forth which appellees were entitled to unlimited and limited free guest green fees and which appellees were entitled to damages representing paid green fees and/or maintenance fees. In addition, the trial court awarded an attorney's fee of $6000. From that final order come this appeal and cross-appeal.
Millwood-RAB raises three points on direct appeal: (1) the governing documents allowed it to amend the rules and regulations of the resort concerning guest fees and to increase maintenance fees; (2) estoppel cannot, as a matter of law, form a basis for recovery; (3) the trial court erred in awarding an attorney's fee. Appellees filed a cross-appeal, arguing that the trial court erred in awarding only a reduced attorney's fee to them as the prevailing parties and that this court should grant taxation of costs and award an attorney's fee for this appeal. We affirm on direct appeal and cross-appeal and deny appellees' request for taxation of costs and an attorney's fee.
Around 1967, Yarborough Landing Resort, Inc., formed a private country club and R.V. park in Little River County near Ashdown that was commonly referred to
Although it was not in writing, appellee Carroll received a Founders Membership, of perpetual duration, around 1986. He had been provided unlimited free green fees for guests since 1979.
Some members received an Assurance Certificate, containing the following language:
As noted above, certain appellees bought their memberships from original members of the resort. Those contracts contained the following language:
The membership agreements and transferred membership agreements also included such language as:
And, under a section entitled Privileges of Membership:
The introduction to the YARBOROUGH LANDING RESORT Membership Handbook of Rules and Guidelines contained language as follows:
In addition, the handbook's summary provided:
Thereafter, Millwood Landing Golf & R.V. Resort Rules and Amended Resort Rules for Millwood Landing Golf and R.V. Resort, effective February 1996, provided that, "Members are responsible for any charges, actions, or damages caused by their guests or family members," "Guests may be assessed a fee for certain amenities at the resort. Please inquire at the resort for verification of amenity fees," and "Guests are welcome on a fee basis. See pro shop for current rates."
In April 2002, Millwood Landing, which had since been sold to Cactus Resort Properties III, LLC, was purchased by Millwood-RAB. In addition to assignment and assumption language in the purchase agreement itself, a separate document entitled ASSIGNMENT AND ASSUMPTION OF CONTRACTS, AGREEMENTS AND INTANGIBLES contained the following language:
On October 11, 2002, Millwood-RAB suspended appellees' guest privileges and began charging guests for green fees. Appellees filed a complaint alleging breach of contract on September 8, 2003. In April 2004, appellees filed a motion for partial summary judgment to be followed by further fact finding regarding damages and an attorney's fee. In May 2004, Millwood-RAB filed a motion for summary judgment.
In an order entered on August 13, 2004, the trial court granted partial summary judgment to appellees Blackburn, Gregory, McCarey, Tupua, Ward, Washington, and Young. The trial court found that Millwood-RAB had assumed the contracts and concluded that Millwood-RAB could not modify the provision for free guest green fees by changing the rules and guidelines of the resort because that provision was part of the consideration for signing the contracts. The trial court reserved the issue of damages and an attorney's fee.
At a hearing held on April 26, 2005, David Meredith, a lawyer and one of the two owners of Millwood-RAB, testified that he was involved with the acquisition of the company from Cactus Resort. He stated that the deal finally closed at the end of May 2002, but that Cactus Resort had failed to provide him with complete documentation on the different memberships. Meredith stated that the owners actually took over the resort in mid-June 2002, and they noticed that members were bringing free guests on a frequent basis. Meredith testified that, "It was not going to be financially viable to continue the operation that way." He said that almost immediately Millwood-RAB started the policy of allowing guests to play for free on the day they were there but notifying them that the free-guest policy would not be honored in the future. Meredith stated that, although Millwood-RAB formulated a letter of notification, it was not mailed because the owners had no idea who to
In its final order entered on July 22, 2005, the trial court noted its earlier granting of partial summary judgment on liability to seven appellees.
Millwood-RAB argues that the trial court ignored those portions of the membership agreements that incorporated by reference the resort's rules and guidelines and that the four corners of all of the documents taken together clearly indicate that the rules, including those involving fees, were subject to change. Millwood-RAB concedes that it was required to fulfill certain obligations with respect to the members but maintains that, by virtue of the assignment, it also acquired the right to impose certain obligations upon the members.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Clarendon Nat'l Ins. Co. v. Roberts, 82 Ark.App. 515, 120 S.W.3d 141 (2003). When parties file cross-motions for summary judgment, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id. As a general rule, the filing by both parties of opposing motions for summary judgment will not warrant a court's granting either party's motion if indeed there exists a genuine factual dispute concerning a material issue. Chick-A-Dilly Properties, Inc. v. Hilyard, 42 Ark.App. 120, 856 S.W.2d 15 (1993) (citing Schlytter v. Baker, 580 F.2d 848, 849-50 (5th Cir.1978)). When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Id. Thus, cross-motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive. Id.
Where the meaning of a contract does not depend on disputed extrinsic evidence, the construction and legal effect of the contract are questions of law. See Tunnel v. Progressive N. Ins. Co., 80 Ark.App. 215, 95 S.W.3d 1 (2003). On appeal from a trial court's determination of a purely legal issue, we must only decide if its interpretation of the law was correct. The applicable rule of contract construction states that where two provisions of a contract conflict, the specific provision controls over a more general provision, as it is assumed that the specific provision expresses the parties' intent. American Investors Life Ins. Co. v.
Next, Millwood-RAB argues that estoppel does not apply. Appellees had argued below that Millwood-RAB was estopped to claim that it was entitled to change the maintenance fees and charge guest fees because it did not immediately notify every member of the change and instead waited two or three months before making changes. Because appellees agree on appeal that estoppel does not apply and because the trial court's order does not indicate that it relied on the theory of estoppel, we will not address this point.
Finally, Millwood-RAB argues that the trial court erred in awarding an attorney's fee and that, alternatively, the fee was excessive. It is well settled that under Arkansas law, attorney's fees are awarded only when expressly authorized by a statute or rule. Boatmen's Trust Co. of Ark. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000). Arkansas Code Annotated section 16-22-308 (Repl.1999) provides that the prevailing party in a civil action, including breach of contract, may be allowed a reasonable attorney's fee to be assessed by the court and collected as costs. The decision to award attorney's fees and the amount of an award are discretionary determinations that will be reversed only if there was an abuse of discretion. Buchbinder, supra.
This court has often observed that there is no fixed formula in determining reasonable attorney's fees. Phi Kappa Tau Housing Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002). However, a court should be guided in that determination by the following long-recognized factors: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Id. Due to the trial judge's intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id.
Here, appellees' attorney, Troy Hornsby, submitted an affidavit wherein he stated that he had been licensed to practice law in Arkansas since 1995. He charged $150 per hour for his services and fifty dollars per hour for his legal assistant's time. According to Hornsby, his hourly rates were reasonable and customary for legal services in the area. He stated that he had, at that point, expended 83.7 hours in representing appellees, while his legal assistant had spent 2.3 hours, and that he expected to have expended 91.7 hours at the completion of his representation at the trial court level. Therefore, he requested $13,870, plus $100 for reasonable and necessary
Millwood-RAB also relies on Ark. R. Civ. P. 54(e) for the proposition that the trial court's award was not proper because there was no stated basis for the award as it pertained to those appellees who received only declaratory relief and because appellees' request for an attorney's fee in its initial complaint cannot provide that basis. Rule 54(e) provides:
Millwood-RAB argues that there was no such motion filed by appellees. In State Auto Property & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999), our supreme court held that Rule 54(e) does not require a written motion for attorney's fees. That court also noted that an award of attorney's fees pursuant to Ark.Code Ann. § 16-22-308 further obviates the need for a motion to be filed requesting the fees. Although certain appellees received only declaratory relief, the action was commenced as a breach-of-contract claim. Accordingly, the granting of an attorney's fee was proper under Ark.Code Ann. § 16-22-308.
Appellees argue that the trial court erred in awarding a reduced attorney's fee in light of the uncontradicted evidence that their attorney asserted entitlement to a reasonable and necessary attorney's fee of around $13,000. Again, there is no fixed formula in determining what is a reasonable and necessary attorney's fee. Wengert, supra. The trial court was able to observe and assess Hornsby's performance at trial, and after considering the affidavit Hornsby submitted, the trial court determined that an attorney's fee of $6000 was warranted. We simply cannot say that the trial court abused its discretion in awarding that amount.
Appellees also request that they receive taxation of costs pursuant to Sup. Ct. R. 6-7(a), (c), and/or (d), and they further request permission to petition this court for an attorney's fee incurred in the appeal of their case. Supreme Court Rule 6-7 provides:
Furthermore, appellees' request for an attorney's fee for this appeal pursuant to Ark.Code Ann. § 16-22-308 is denied. The cases relied upon by appellees are either inapplicable or have been overruled. In a per curiam opinion, our supreme court stated that Ark.Code Ann. § 16-22-308 permits trial courts, but not appellate courts, to assess attorney's fees. See Mosley Mach. Co., Inc. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992).
Affirmed on direct appeal; affirmed on cross-appeal.
Motion for costs and attorney's fee denied.
GRIFFEN and NEAL, JJ., agree.