concurring. I agree with the majority in affirming the trial court’s decision to award attorney’s fees; however, I believe Arkansas law governs the issue of attorney’s fees and would therefore affirm using Arkansas law.
As the majority states, there is no question that the substantive issue in this case was decided pursuant to the Texas Trust Code as dictated by the provisions of the trust in question. The use of Texas law to decide the substantive issue, however, does not imply that Texas law applies to a procedural issue as well. See Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007) (“Under traditional conflicts-of-law analysis, procedural matters are governed by the law of forum, which, in this case, was the State of Arkansas.”); see also John Hancock Mut. Life Ins. Co. v. Ramey, 200 Ark. 635, 140 S.W.2d 701 (1940) (holding that while Michigan law applied to determine the rights and liabilities of the parties under a contract, all procedural matters would be determined by the law of forum). Our case law has established that “[t]he allowance of attorney’s fees is penal in nature, and is a procedural matter governed by the laws of the State of Arkansas.” BAAN, U.S.A. v. USA Truck, Inc., 82 Ark. App. 202, 209, 105 S.W.3d 784, 789 (2003); see also Am. Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); New Empire Life Ins. Co. v. Bowling, 241 Ark. 1051, 411 S.W.2d 863 (1967); City of Ozark v. Nichols, 56 Ark. App. 85, 937 S.W.2d 686 (1997).
The case of New Empire Life Ins. Co. v. Bowling, supra, is particularly instructive in this instance. In New Empire, the trial court applied Missouri law to the interpretation of a provision in a life-insurance contract, which was the substantive issue of the case. The case was decided by a jury in the plaintiff s favor, and the plaintiff asked the court for attorney’s fees under Arkansas statutory law. The trial court rejected the request, holding that Missouri law also governed the issue of attorney’s fees, and that the plaintiff had not met its burden of showing the insurance company’s actions were “vexatious” as required by Missouri law. Our supreme court reversed, holding that the question of attorney’s fees was a procedural one to be governed by the law of the forum state.
In the case at bar, the trial court applied Texas law to the substantive issue, the interpretation of the trust, but applied Arkansas law to the issue of attorney’s fees. This decision was correct and in accord with established precedent. And, notably, neither party has argued on appeal that Texas law should have been applied to the attorney’s fee issue. The trial court cited Ark. Code Ann. § 16-22-308 (Repl. 1999) and Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004), as authority for its decision to award attorney’s fees in this case, and while appellant argues to the contrary, I believe the trial court’s interpretation of, and reliance on, Bailey and its use of Ark. Code Ann. § 16-22-308 was justified, and this court should affirm on that basis.
Alternatively, I agree with the majority that the award of attorney’s fees would be justified in this case under Ark. Code Ann. § 28-73-1004 (Supp. 2005), which authorizes the court to award costs and expenses, including reasonable attorney’s fees, “in a judicial proceeding involving the administration of a trust.” Whichever statutory provision is applied, I believe Arkansas law governs the issue of attorney’s fees in this case, and I see no need to apply, nor authority that justifies the use of, Texas law to decide this issue. For these reasons, I concur with the conclusion reached by the majority.