Arkansas court reverses HOA's attorney-fee award in carport case
Arkansas court reverses HOA's attorney-fee award in carport case
2026-09-09 · Arkansas · Courts
An Arkansas property owners association that wins a covenant-enforcement suit cannot convert the win into an attorney-fee award under the state's general contract fee statute — not when the only relief it asked for was an injunction. The Arkansas Court of Appeals so held on April 8, 2026, reversing a $9,440 fee award to Discovery Bay Colony Property Owners Association.1
The decision is short, unanimous and published, which under Arkansas Supreme Court Rule 5-2 makes it binding precedent. It is also the only Arkansas appellate opinion issued since January 2024 that contains the phrase “owners association” at all — which is its own comment on how rarely these questions reach the state's appellate courts.
The carport
John McKisick owns a unit at Discovery Bay Condominiums in Hot Springs. In May 2021 a thunderstorm destroyed the carport that went with his unit. His neighbor built a replacement; McKisick followed, “making an effort to match the appearance of the neighboring structure.” He did not get the board's prior written approval first, a fact neither side ever disputed.
Discovery Bay's master deed and bylaws designate carports as common elements and require board approval before any addition to or alteration of one. The association demanded removal. McKisick said he would take it down — on the condition that the board first approve a plan for a replacement. That impasse produced a lawsuit in Garland County Circuit Court in October 2023.
The association pleaded one thing: an injunction ordering removal. At the summary-judgment hearing its counsel said so in terms — “The claim we've made in this case is for injunctive relief. [We have] met the elements at issue. First, irreparable harm will result by the fact that monetary damages are an inadequate remedy.” The circuit court granted summary judgment and ordered the carport removed.
Discovery Bay then petitioned for $9,890 in fees and $812.34 in costs. In December 2024 the circuit court awarded $9,440 in fees and the full costs — $10,252.34 in all — “pursuant to the master deed and by laws for Discovery Bay horizontal property regime and Ark. Code Ann. § 16-22-308.” Only that award was appealed.
What the court held
Attorney's fees in Arkansas are “not allowed except when expressly provided by statute.” The statute the circuit court used, Ark. Code Ann. § 16-22-308, allows a prevailing-party fee in a civil action “to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract.”
None of that reaches an injunction. Quoting its own decision in Myers v. Bogner, the court restated the rule with the clause that does the work: fees “are not recoverable in injunction or declaratory-judgment cases, even when the underlying dispute arises from a contract.” The supreme court had said the same in Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas in 1998.
Discovery Bay's answer was Kell v. Bella Vista Village Property Owners Association, a 1975 supreme court decision the association read as making its bylaws a contract under which McKisick had to reimburse its legal costs. The court called that “a loophole of sorts” and refused it on two independent grounds. First, the association had not made that argument below — in its fee petition it argued only that McKisick had breached a contractual duty to follow the bylaws — and “this court will not address arguments made for the first time on appeal.” Second, and expressly in the alternative: “Even if Discovery Bay's argument were preserved, it would not change the outcome,” because Cude v. Jill Pettersen Family Revocable Trust (2023) had already held that fees are unavailable in injunction cases even where the dispute arises from a contract.
The fee award was reversed. The costs survived, but only on a technicality that cuts the other way: McKisick's challenge to $44.50 of them was itself unpreserved, because nothing in the record showed he had contested costs below.
What it changes for Arkansas boards and managers
The practical holding is narrow and the practical consequence is not. Removal of an unapproved structure is the standard remedy in an architectural-control dispute, and an injunction is how you get it. McKisick says that the remedy an association pleads now determines whether its legal bill is recoverable at all.
The pleading decision is the fee decision. Discovery Bay won everything it asked for and still paid its own lawyers. An association weighing enforcement has to decide at the complaint stage whether it is suing for an injunction, for money, or for both — and understand that the injunction-only route, which is the cleanest way to get a structure removed, is also the route on which § 16-22-308 gives it nothing.
Read what the court did not decide. This is not a holding that an Arkansas association can never recover fees. The court disposed of the Kell bylaws-as-contract theory principally because it was raised for the first time on appeal. Its alternative ground rests on Cude, where the asserted contract was a warranty deed. Whether an express fee-shifting covenant in a declaration or master deed — language that says in terms that an owner who violates the instrument reimburses the association's enforcement costs — supplies an independent contractual basis for fees was not squarely decided here on a preserved record. Anyone reading this case as closing that door is reading more into it than the panel wrote.
Preservation cut both ways, and that is the transferable lesson. The association lost its best argument by not making it below; the owner lost his cost challenge for the same reason. Both halves of this opinion turn on what was said in the circuit court, not on what was true.
The economics of small enforcement actions shift. A $10,252 award on a carport dispute is roughly the size of the fight itself. Where the fee is not recoverable, the association is choosing to spend members' assessment money to enforce the instrument, with no prospect of getting it back from the violating owner. That is a budgeting question as much as a legal one, and it belongs in the annual budget conversation rather than being discovered after judgment.
Where this sits against the rest of Arkansas law
Arkansas has no comprehensive planned-community statute; condominium regimes run on the Horizontal Property Act and everyone else runs on a recorded bill of assurance plus the Nonprofit Corporation Act. Neither the Act nor general corporate law supplies an enforcement fee-shifting provision. That leaves § 16-22-308 and the instrument itself — and McKisick has just narrowed the first of those two.
It also sharpens a point that recurs in Arkansas collections and lien practice: the recoverability of an association's legal costs is a function of the cause of action pleaded and the language of the recorded instrument, not of who was right.
What to watch next
Two things. The first is whether an Arkansas association brings the preserved version of the Kell argument — an express reimbursement covenant, pleaded as a contract claim in the circuit court, with fees sought on that basis rather than on § 16-22-308 alone. Nothing in McKisick forecloses it, and the panel went out of its way to say the argument had not been preserved.
The second is drafting. Declarations and master deeds written before this decision were not drafted with it in mind. Whether Arkansas associations begin amending their instruments to add explicit enforcement-cost recovery — and whether such a covenant survives contact with Cude — is the open question this case leaves behind.
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