John McKisick v. Discovery Bay Colony Property Owners Association

── John McKisick v. Discovery Bay Colony Property Owners Association ── Court: Court of Appeals of Arkansas Date: April 08, 2026 Category: General Cite as 2026 Ark. App. 223 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-25-211 JOHN MCKISICK Opinion Delivered April 8, 2026 APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26CV-23-1198] DISCOVERY BAY COLONY PROPERTY HONORABLE KARA A. PETRO, OWNERS ASSOCIATION JUDGE APPELLEE REVERSED IN PART; AFFIRMED IN PART STEPHANIE POTTER BARRETT, Judge John McKisick appeals the Garland County Circuit Court’s award of attorney’s fees and costs to appellee, Discovery Bay Colony Property Owners Association (“Discovery Bay”). On appeal, McKisick argues the circuit court erred in awarding Discovery Bay attorney’s fees because it sought only injunctive relief in its cause of action; and if the award of fees was proper, the amount was excessive, and a portion of the costs awarded are not allowable under Arkansas Rule of Civil Procedure 54(d)(2). We agree with appellant that attorney’s fees are not allowable in injunctive-relief cases. Therefore, we reverse the circuit court’s award of fees and affirm the costs as awarded.  McKisick owns a unit at Discovery Bay Condominiums in Hot Springs, Arkansas, where he has resided for several years. In May 2021, a thunderstorm destroyed the carport associated with his unit. After the storm, McKisick’s neighbor constructed a replacement carport. Following his neighbor’s lead, McKisick began constructing a new carport of his own, making an effort to match the appearance of the neighboring structure. However, McKisick did not obtain prior approval from Discovery Bay’s board of directors (the Board) before beginning the construction of the carport—a fact neither party disputes. Discovery Bay sent McKisick a letter demanding the carport be removed. McKisick agreed to remove the carport on the condition that the Board first approve a construction plan for a carport. This lawsuit followed. On October 17, 2023, Discovery Bay filed a complaint in the Garland County Circuit Court. The complaint alleged that the condominium property regime is governed by a master deed and bylaws, collectively referred to as the “governing documents.” According to Discovery Bay, these governing documents designate carports as common elements and require that any addition to or alteration of a common element receive prior approval from the Board. Discovery Bay sought injunctive relief requiring McKisick to remove the carport he had constructed. Discovery Bay also requested an award of attorney’s fees and costs pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999). In his November 21, 2023 answer, McKisick acknowledged he had received Discovery Bay’s letter requesting removal of the carport. He stated he was willing to remove the 2 structure but requested that Discovery Bay first approve an acceptable replacement carport before he dismantled the existing one. On March 11, 2024, Discovery Bay moved for summary judgment. Discovery Bay argued no genuine issue of material fact existed because McKisick did not dispute he constructed the carport without obtaining the required prior approval from the Board. Accordingly, Discovery Bay asserted it was entitled to summary judgment. On August 12, 2024, a summary-judgment hearing was held before the court. At the hearing, Discovery Bay argued McKisick’s construction of the carport violated its bylaws, and those same bylaws authorized them to enforce their terms agai