Ada County Highway Dist. By and Through Fairbanks v. Acarrequi

• Decision Date: 21 December 1983
• Docket Number: No. 14249,14249
• Parties: ADA COUNTY HIGHWAY DISTRICT, a body politic of the State of Idaho, By and Through its Commissioners, Leon FAIRBANKS, L.C. Bass, and Mike Silva, Plaintiffs-Appellants, v. Floyd ACARREQUI and Carmen M. Acarrequi, husband and wife, d/b/a Cabana Motel, First Federal Savings and Loan Association of Boise, a United States corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1067

673 P.2d 1067

105 Idaho 873

ADA COUNTY HIGHWAY DISTRICT, a body politic of the State of Idaho, By and Through its Commissioners, Leon FAIRBANKS, L.C. Bass, and Mike Silva, Plaintiffs-Appellants, v. Floyd ACARREQUI and Carmen M. Acarrequi, husband and wife, d/b/a Cabana Motel, First Federal Savings and Loan Association of Boise, a United States corporation, Defendants-Respondents.

No. 14249.

Supreme Court of Idaho.

Dec. 21, 1983.

Alfred C. Hagan, John Frederick Mack, Boise, for plaintiffs-appellants.

E. Don Copple, Boise, for defendants-respondents.

ON DENIAL OF PETITION FOR REHEARING

SHEPARD, Justice.

This is an appeal from only that portion of a judgment awarding attorneys' fees and costs to the defendant property owner in an action in which the appellant Ada County Highway District sought and obtained the condemnation of lands owned by respondents Acarrequi. The only question presented is whether a property owner defendant in an eminent domain proceeding is absolutely entitled to reasonable attorneys' fees and costs as a part of the just compensation due under the fifth and fourteenth amendments to the United States Constitution and Idaho Const. art. 1, §§ 13, 14. We reverse and remand.

The highway district sought to condemn a portion of the Acarrequi property used for a motel parking lot in downtown Boise. The Acarrequis controverted the necessity of the taking of their property and a hearing was held thereon. Although the construction plans of the highway district were modified to some extent following the hearing, nevertheless the trial court determined that the taking of the Acarrequi property was necessary, and upon the highway district's paying into court the $30,600 ordered by the trial judge, the highway district was granted possession of the property in question. The amount of just compensation due therefor was reserved for trial.

Four years and seven months after the filing of the action and one month prior to trial, the highway district offered $40,000 in settlement of the action, which offer was rejected by the Acarrequis. The damage sustained by the Acarrequis by reason of the taking of the property and the damages to the remaining property were testified to by a witness for the Acarrequis as amounting to $216,197. One witness called by the highway district testified that the award should be $20,800 and another witness testified to damages of $33,760. The jury returned an award to the Acarrequis of $48,000. No issue is presented here regarding that jury award.

The Acarrequis filed a memorandum of costs which did not include attorneys' fees and the county filed a memorandum of its costs which did include attorneys' fees. Thereafter, the Acarrequis moved to amend their memorandum of costs to include their attorneys' fees. That motion was granted. Acarrequis filed an amended memorandum of costs, including attorneys' fees.

We initially address the assertion of the highway district that the trial court erred in allowing such amendment of the Acarrequis' costs bill to include attorneys' fees after the ten-day period allowed by I.R.C.P. 54(d)(5) had expired. The allowance of amendment to pleadings is a matter within the trial court's discretion and will not be disturbed absent a showing of clear error. Wheeler v. McIntyre, 100 Idaho 286 596 P.2d 798 (1979); Cougar Bay Co. v. Bristol, 100 Idaho 380, 597 P.2d 1070 (1979). A court may, in its discretion, allow such amendment, unless to do so would deprive the complaining party of some substantial right. Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426 (1942); Pennsylvania-Coeur d'Alene Mining Co. v. Gallagher, 19 Idaho 101, 112 P. 1044 (1910). We have previously ruled that the time periods allowed under Rule 54 may be enlarged at the discretion of the trial court. Wheeler v. McIntyre, supra. The record discloses no harm or prejudice resulting to the highway district from the court's allowing amendment of the Acarrequis' memorandum of costs. We find no abuse of discretion and no error.

Each party moved to disallow the other's costs and attorneys' fees. The trial court, following a hearing on attorneys' fees and costs, found that the defendants Acarrequis were the prevailing party under I.R.C.P. 54(d)(1)(B) and were therefore entitled to costs and attorneys' fees. The court found that the plaintiff highway district was not the prevailing party. As to the hearing on the necessity of the taking of the property, the court held:

"that Defendants' action in exercising their constitutional right to have Plaintiff put on evidence as to the necessity of the taking was reasonable and that as a result of that hearing Defendants did in part prevail and should be entitled to one-half of their attorneys' fees ... and ... one-half of ... [their] costs."

As to the trial held on the issue of the amount to be awarded to the Acarrequis, the court held that the Acarrequis were entitled to the full amount of their costs "as a combination of discretionary costs and costs as a matter of right," citing I.R.C.P. 54(d)(1)(D). The court stated, "the condemnee in an eminent domain proceeding should be entitled to all his costs and attorneys fees under Idaho Code 12-121 as costs under I.R.C.P. Rule 54(e)(5)." The trial court explained his ruling as follows:

"... Idaho Code 12-121 was intended to allow the awarding of attorney's fees in an eminent domain action without the modifying influence of I.R.C.P. 54(e)(1) as the rule might suggestibly be applicable to the condemnee.

"Attorney's fees awarded under a statute are awarded as costs. I.R.C.P. 54(e)(5).

"The condemnee is the one who is entitled to those costs because he is constitutionally entitled to defend his property."

Appellant highway district asserts that on the facts of this case the Acarrequis were not a prevailing party entitled to attorneys' fees and costs under I.R.C.P. 54(d)(1). Appellant urges that attorneys' fees are only an indirect cost of the taking of the owners' property and are not within the constitutional meaning of just compensation. We decline to so hold. Rather, we deem it necessary to adopt a new standard governing an award of both attorneys' fees and costs, only as it relates to a condemnation proceeding. We reverse the trial court's award of attorneys' fees and costs as not in compliance with the proper standard (not known until today) and remand for the sole purpose of determination of attorneys' fees and costs in accordance with the standard set forth infra.

According to the great weight of authority, attorneys' fees and other expenses are not recoverable in a condemnation proceeding except as authorized by statute. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930); Petersen v. Port of Seattle, 94 Wash.2d 479, 618 P.2d 67 (1980); Richmond Elks Hall Ass'n v. Richmond Redevelopment, 561 F.2d 1327 (9th Cir.1977); County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142 (1971); Leadville Water Co. v. Parkville Water District, 164 Colo. 362, 436 P.2d 659 (1967); Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931). As is stated in 4A Nichols on Eminent Domain § 14.24 (3d ed. 1981):

"It has been held that the acquisition of property by eminent domain does not involve a taking of the legal services which are needed in order to establish a claim for compensation. Unless provision is made therefor by statute, a claimant is not entitled to reimbursement either for loss of time consumed in prosecuting his claim or for counsel fees. Attorney's fees are not generally considered payable under statutory provisions for costs, expenses or just compensation. Nevertheless, judicial opinion has occasionally questioned whether an owner has been made whole so far as money is a measure of compensation, if he is denied recovery of attorney's fees necessarily expended by him in the trial of a condemnation proceeding.

"Where statutory provision is made for the inclusion of counsel fees in the just compensation to which an owner is entitled when his property is taken by eminent domain such fees may be treated like any other element of damage involved in such a case. Such statute is amply justified by the equities of the situation. As one court has stated the case:

'The constitution requires that private property shall not be taken for public use, except on the payment of just compensation, and a man who is forced into court where he owes no obligation to the party moving against him, cannot be said to have received just compensation for his property if he is put to an expense appreciably important to establish the value of his property. He does not want to sell; the property is taken from him through the exercise of the high powers of the state, and the spirit of the constitution clearly requires that he shall not be compelled to part with what belongs to him without the payment, not alone of the abstract value of the property, but of all the necessary expenses incurred in fixing that value.' [In re Board of Rapid Transit Com'rs., 128 A.D. 103, 112 N.Y.S. 619 (1908).]" (Footnotes omitted.)

I.C. § 7-718, dealing with eminent domain, provides: "Costs may be allowed or not, and, if allowed, may be apportioned between the parties on the same or adverse sides in the discretion of the court." As interpreted, that statute requires the condemnor to pay all costs. Bassett v. Swenson, supra; Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74 (1914).

We therefore hold that as the trial court determined, attorneys' fees and costs are allowable, in eminent domain proceedings, under I.R.C.P. 54(d)(1). However, we disagree with the trial court's conclusion that such fees and costs are mandatory as within the definition of just compensation.

We note that the rule in most civil cases is that fees and costs are awardable only to the prevailing party, I.C. §...