ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 00-1212

May 9, 2001

ALAN PALMER

APPELLANT APPEAL FROM POLK COUNTY

CHANCERY COURT

VS.

HONORABLE GAYLE FORD,

CHANCELLOR

MELVIN PALMER

APPELLEE AFFIRMED IN PART;

REVERSED IN PART AND REMANDED

This case involves a dispute between brothers over a parcel of land. Alan Palmer brings this appeal from a money judgment the chancellor awarded his brother, Melvin Palmer. Alan raises two points for reversal. He contends that the chancellor erred in awarding prejudgment interest at the rate of ten percent and in awarding Melvin an attorney's fee. We agree with appellant's first argument and affirm, as modified.

In July 1990, Melvin's wife died, leaving him to raise their son alone. Later that summer, Alan approached Melvin about their buying a piece of property together that Alan had found in Polk County. The plan was for the two families to live together on the land. This proposition was agreeable to Melvin, and he traveled from his home in Arizona to Arkansas to close the transaction in December 1990. At closing, Melvin learned that Alan had arranged for the property to be deeded to a trust set up in the name of their father to which Melvin had been named as a trustee. Melvin took an early retirement and moved with his son to Polk County in June 1991.

After seven years, the brothers fell into disagreement. As "executive trustee" of the trust, Alan removed Melvin as a trustee and tried to oust Melvin from the property. When Alan refused Melvin's request to sell the property, Melvin filed this suit for partition to force a sale of the property. After a trial, the chancellor did not grant Melvin's request for partition. Instead, he allowed Alan to keep the property but ordered Alan to reimburse Melvin $36,849.00, as the amount Melvin had paid toward the $50,500.00 purchase price for the land, and to reimburse Melvin for the cost of improvements and the taxes Melvin had paid over the years, all totaling $40,561.00. As "just compensation," the chancellor ordered this amount to bear prejudgment interest at arate of ten percent, and Melvin was granted judgment in the amount of $105,680.78. The court also awarded Melvin an attorney's fee of $7,552.00.

As argued in his post-trial brief, Alan first argues on appeal that the chancellor erred in setting prejudgment interest at ten percent because the Arkansas Constitution restricts the award of prejudgment interest to six percent under these circumstances. We agree.

As stated in his order, the chancellor adjusted the amount of the judgment by ten percent as a matter of "just compensation," finding that Melvin had "paid over these amounts expecting something for his money." However, under Article 19, § 13 of the Arkansas Constitution, prejudgment interest is limited to six percent when no rate of interest has been agreed upon by the parties. See Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Halford v. Southern Capital Corp., 279 Ark. 261, 650 S.W.2d 580 (1983); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981); Lovell v. Marianna Fed. S&L Ass'n, 267 Ark. 164, 589 S.W.2d 577 (1979). It follows that the chancellor erred in fixing the amount of prejudgment interest in excess of six percent.

Next, appellant argues that the chancellor erred in awarding attorney's fees in this action. We conclude that the issue raised is not properly before us.

In his complaint, Melvin requested an attorney's fee under Ark. Code Ann. § 18-60-419 (1987), which allows a fee, when judgment is rendered for partition, to the attorney who brings the action for his services that are of common benefit to all parties. In the decree, the chancellor allowed a fee under the statute in the amount of $7,552.00. In a timely-filed motion for a new trial, Alan argued for the first time that no fee should be allowed because the court did not enter an order for partition and that there was otherwise no statutory authority for the award of a fee. The court did not enter an order denying the motion for a new trial, and it was deemed denied after thirty days under Rule 4(b)(1) of Arkansas Rules of Appellate Procedure - Civil. Alan, however, filed his notice of appeal before this thirty-day period expired.

Subsection (b)(2) of Rule 4 now provides, as it did at the time of this trial, that:

A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appealthe underlying judgment, decree, or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with Rule 3(e).

(Emphasis added). Under the plain language of the rule, the notice of appeal Alan filed was effective to bring an appeal from the court's decree but not from the denial of appellant's new-trial motion. Because Alan did not file an amended notice of appeal, Alan has failed to perfect an appeal from the denial of his motion in which he questioned the chancellor's authority to award a fee. Therefore, that issue is not properly before us, and we cannot address it.

We reduce the prejudgment interest rate to six percent per annum and otherwise affirm the chancellor's decree in all respects. Affirmed in part; Reversed in part and remanded.

Bird and Griffen, JJ., agree.