Vogel v. Crittenden County

William R. Wilson, Jr., Special Justice. This is an appeal from a circuit court order which: (1) granted appellee’s motion to dismiss a condemnation proceeding after a consent judgment had been entered; (2) denied appellant’s motion to enforce the consent judgment; (3) denied appellants’ claim for damages; (4) denied appellants’ motion to reopen the record; and (5) awarded appellants an attorneys’ fee (the latter being the subject of a cross-appeal by appellee). We affirm on direct appeal and reverse on cross-appeal. In July of 1986, appellee Crittenden County (County) filed an application with the Arkansas Industrial Development Commission (AIDC) for funds to expand and remodel the Crittenden County Health Facility. On December 14,1987, this facility was hit by a tornado and, thereafter, the County decided to purchase and renovate property owned by appellants, Robert and Luanne Vogel. A skating rink is located on this property. The County amended its AIDC application to seek funds for the purchase of this property, and it also decided to apply for funds from the Economic Development Agency (EDA) to renovate the property. On May 11, 1988, the County offered to buy the Vogels’ property for $300,000.00, but this offer was rejected. On May 25, 1988, the AIDC approved the County’s amended application. The parties agreed that the County would pay $315,000.00 for the property, and also agreed that it would be acquired through a “friendly” condemnation action. On September 7, 1988, the County filed a complaint for condemnation; the Vogels answered, and on September 8, 1988, a judgment of condemnation was entered placing the fair market value of the property at $315,000.00. Among other things, the judgment provided that: . . .Upon the Plaintiff paying the Defendants the sum of $315,000.00, the fee simple title to the lands described herein above . . . (shall)... be and thereby is confirmed invested in the Plaintiff. . . . In late November of 1988, the AIDC notified the County that, because an environmental assessment had not been completed before the entry of the condemnation judgment, the AIDC grant could not be used to purchase this particular facility. The environmental assessment was completed before the hearing in the trial court, which was conducted in July of 1989. At the hearing, Mr. Robert Middleton, Director of Community Assistance for the AIDC, testified that, while it was placing “form over substance,” the AIDC grant could not be used for the purchase of the Vogels’ property even though a favorable environmental assessment had been received after the judgment of condemnation. The Vogels argue that Mr. Middleton’s testimony, and other evidence, is open to the interpretation that the AIDC funds were still available for this project. Viewing the evidence as a whole, we disagree with this position; but, be that as it may, the applicable law discussed below renders this question moot. In Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), we held that a condemnor has an absolute right to discontinue a condemnation action until actual payment of the compensation. Other jurisdictions have held that such an action may not be discontinued after judgment, but in Selle we rejected the latter view. Furthermore, in this case, the judgment of condemnation, approved by both parties, specifically provided that title would vest only upon payment of the $315,000,00. The Vogels contend that this case can be distinguished from Selle because that case involved a jury trial, verdict, and judgment, whereas, in this case, there was a consent judgment. For this proposition, however, the Vogels cite no authority on point, and we find none. We, therefore, decline to make such a distinction. As an alternative to their request for enforcement of the consent judgment, the Vogels asked for damages caused by the County’s failure to purchase their property. Since we hold that the County had the right to discontinue the proceedings, the Vogels are not entitled to damages as a result of the County’s exercising this right. Next, after the order granting the County’s motion to dismiss was entered on August 11,1989, the Vogels filed a motion to reopen the trial record to allow the introduction of additional evidence and to set aside the order. Attached as an exhibit to this motion was a newspaper article indicating that the County had received an EDA grant to build a new health facility. Even assuming for the purposes of argument that a newspaper article could constitute a sufficient basis for setting aside a judgment or final order, we find that the trial court properly denied this motion. The evidence established that the purchase of the Vogels’ property was to be from funds provided by the AIDC grant (if approved). This grant was disapproved. The funds from the EDA were to be used for renovation, not purchase. Finally, the County cross-appeals and asserts that the trial court erred in awarding attorneys’ fees to the Vogels. Under existing Arkansas law, a condemnee can recover damages in the form of attorneys’ fees only if the condemnor is found to have acted in bad faith. Housing Authority of the City of North Little Rock v. Amsler, 239 Ark. 593, 339 S.W.2d 268 (1965); Housing Authority of the City of North Little Rock v. Green, 241 Ark. 47, 406 S.W.2d 139 (1966). The Vogels offered some evidence suggesting that the County dropped its effort to secure the AIDC grant because of public protest over the closing of the skating rink. The County’s evidence, on the other hand, reflected that the payment for the property was conditioned upon the procurement of the AIDC grant, and that the AIDC grant failed because of a snafu in the application process. The trial court credited the County’s evidence, and there is ample evidence in the record to support this finding. Although the trial court specifically found that the County did not act in bad faith, it awarded the Vogels an attorneys’ fee of $1,719.95 (the trial judge stating that he was doing this “whether I had the authority to do it or not and . . . [I’ll] ... let the higher Court take care of it. . . .”). Since we uphold the trial court’s finding that the County did not act in bad faith, we reverse the award of attorney’s fees. Affirmed on direct appeal and reversed and remanded on cross-appeal. Special Justice William H. Kennedy, III, dissents. Corbin and Brown, JJ., not participating.