Ark. Code Ann. § 16-22-309 (2026)

Research References

U. Ark. Little Rock L.J.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Contract Law, 29 U. Ark. Little Rock L. Rev. 845.

Case Notes

Applicability.

Although the filing of the petition may not have triggered the application of this section, the continuation of the suit beyond a reasonable time after this section became effective rendered the litigant subject to its terms. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989).

Burden of Proof.

This section is not applicable to appellate courts. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992).

Subsection (c) makes it clear that it applies in trial rather than appellate courts and thus furnishes no authority for an award of fees requested for the first time on appeal. Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993).

Where it was obvious from the parties' arguments, the trial court's thorough opinion and the parties' written briefs on appeal that the plaintiffs made a reasonable inquiry into the facts and law and a good faith argument that defendant had waived its defenses, the defendant failed in meeting the burden of proving a violation of ARCP 11 or showing its entitlement to attorney's fees under this section. Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993).

Defense and Counterclaim.

Chancellor abused his discretion in awarding fees to plaintiff where the issues raised by defendant in defending the action and in pursuing her counterclaim had a basis in fact and a partial basis in law. Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).

Whether counterclaims were filed with the purpose of delaying municipal court claim of $510 without just cause, it was clear that opponent knew or should have known that he could not prove all the elements or perhaps even one element of complaint. There was no justification for taking the counterclaims to trial when the settlement failed so that he would not be totally empty before the trial court. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995).

Fees.

Attorney's fees allowed. Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991).

As a general rule, attorney's fees are not allowed in Arkansas unless expressly authorized by statute; however, in any civil action which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney's fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

Where there was no showing of bad faith or harassment in plaintiffs' claim that defective feed caused animals' deaths or that the claim was without any reasonable basis, and thus defendant was not entitled to attorney's fees under this section. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).

Attorney's fees were not awarded to the defendant city in an inverse condemnation action where there was nothing to indicate that the argument made by the plaintiffs was made in bad faith or solely for the purpose of harassing or maliciously injuring the city. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998).

Trial court did not err by denying a telecommunications company's motion for attorney's fees following the trial court's denial of a city's declaratory judgment action against the company because the trial court never made a finding of a complete absence of a justiciable issue, and the appellate court could not find that the city acted in bad faith by bringing the action. City of Fort Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (2005).

Although appellant did not prevail, his claim was supported, and thus the court could not find that there was a complete absence of a justiciable issue and the trial court erred in ordering the payment of fees. Laster v. Williams, 2012 Ark. App. 282 (2012).

Circuit court properly denied the landowners attorney's fees in a boundary dispute where the action was based on the contention that the adjacent owners were trespassing to access another tract owned by landowners, and although the circuit court found that the adjacent owners' claims were barred by res judicata and that there was a boundary by acquiescence, there was nothing to indicate that the argument was made in bad faith or that it was made solely for the purpose of harassing or of maliciously injuring the landowners. Cross v. Cross, 2016 Ark. App. 327, 497 S.W.3d 712 (2016) (sub. op. on reh'g).

Award of attorney's fees was justified under this section. Talley v. Peedin, 2017 Ark. App. 80, 515 S.W.3d 611 (2017).

Final Judgment.

The unliquidated award of attorney's fees pursuant to this section is not a final order. Stewart Title Guar. Co. v. Cassill, 41 Ark. App. 22, 847 S.W.2d 465 (1993).

This section specifically requires that judgment for attorney's fees be included in the final judgment entered in the action, but no such requirement appears in § 26-35-902. Stewart Title Guar. Co. v. Cassill, 41 Ark. App. 22, 847 S.W.2d 465 (1993).

Justiciable Issue.

Where there was not a complete absence of a justiciable issue, chancellor's award of attorney's fees was reversed. Bailey v. Montgomery, 31 Ark. App. 1, 786 S.W.2d 594 (1990); Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993).

On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

To obtain an attorney's fee pursuant to subdivision (a)(1), a prevailing party must show there was a complete absence of a justifiable issue of either law or fact raised by the losing party or his attorney; to obtain an attorney's fee or other sanction pursuant to ARCP 11, it must be shown that an attorney or party signed a pleading not ground in fact, not warranted by existing law or a good faith argument for a change in the law, or filed for an improper purpose. Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993).

Court properly dismissed student's petition for a writ of mandamus requesting the court to enjoin school officials to reinstate his cancelled test scores in a voluntary reading program after he was accused of cheating as the court knew of no law to compel the school officials to reinstate the student's scores in a voluntary reading program; further, an award of attorney’s fees to appellees under this section was proper because no justiciable issue was raised. T.J. v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005).

Circuit court did not err in denying attorney’s fees because there was not a complete absence of justiciable issues; the applicability of § 17-42-107(b), regarding capacity to sue for real estate commissions, had not, until the instant appeal, been interpreted by Arkansas' courts and, further, the language of the statute was sufficiently unclear that a party or his attorney would be justified in making an argument regarding its meaning. Keahey v. Plumlee, 94 Ark. App. 121, 226 S.W.3d 31 (2006).

Trial court erred in awarding attorney's fees against a neighboring land owner, who had asserted a claim for an easement by prescription, because there was no bad faith shown. The neighboring land owner presented a valid claim, and offered some evidence that he used the roadway over the course of years. Drummond v. Shepherd, 97 Ark. App. 244, 247 S.W.3d 526 (2007).

There was no evidence in the record, other than the neighbor's bare, unfounded assertion, that the boundary line established and confirmed by all of the surveys was not in fact the boundary line, and there was a complete absence of a justiciable issue on the neighbor's part in his defense; pursuant to § 16-22-309, the landowners were entitled to attorney's fees. Adams v. Atkins, 97 Ark. App. 328, 249 S.W.3d 166 (2007).

Limit on Amount.

Where the trial court found that plaintiff's complaint lacked merit, the defendant was entitled to an award of attorney's fees but subject to the limit prescribed by this section. Steward v. Wurtz, 327 Ark. 292, 938 S.W.2d 837 (1997).

Review.

Abstracts of the trial court's sanction ruling are required for an appellate court to determine whether the trial court erred in denying fees and costs pursuant to this section; appellate courts will not review the record to make this determination. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996).

Claim that an attorney was entitled to fees under subdivision (a)(1) of this section for the filing of an allegedly nonjusticiable claim was not heard on review because the circuit court made no ruling on the issue. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d 224 (2006).

Summary Judgment.

Where Supreme Court determined there were disputed issues of material fact, reversing trial court's grant of summary judgment, it could not be said that plaintiffs were pursuing a claim not grounded in fact and that defendant was entitled to attorney's fees under ARCP 11 or this section. Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997).

Cited: Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992); Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995); Marshall Sch. Dist. v. Hill, 56 Ark. App. 134, 939 S.W.2d 319 (1997); Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999); Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001); Farm Bureau Mut. Ins. Co. of Ark. v. VJM Enters., LLC, 2017 Ark. App. 28, 511 S.W.3d 349 (2017).