City of Houston v. Blackbird

• Decision Date: 08 September 1983
• Docket Number: No. 01-83-0287-CV,01-83-0287-CV
• Citation: 658 S.W.2d 269
• Parties: CITY OF HOUSTON, Appellant, v. Roy BLACKBIRD, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 269

658 S.W.2d 269

CITY OF HOUSTON, Appellant, v. Roy BLACKBIRD, et al., Appellees.

No. 01-83-0287-CV.

Court of Appeals of Texas Houston (1st Dist.).

Sept. 8, 1983.

Rehearing Denied Oct. 13, 1983.

Fred Spence, Houston, for appellant.

F. Russell Kendall, H. Dixon Montague & W. Hoaglund, Houston, for appellees.

Before EVANS, C.J., and LEVY and BULLOCK, JJ.

OPINION

BULLOCK, Justice.

This is an appeal from the trial court's judgment granting attorneys' fees, costs, and interest therein in a condemnation suit.

Suit was instituted by appellant to condemn a 4.6874 acre tract of land owned by appellees. Special commissioners appointed by the court awarded appellees $1,837,650.00. Appellees then timely filed objections to the award of the commissioners; however, appellant never deposited the amount of the award and, therefore, did not take possession of the property. Appellant later voluntarily filed a motion to dismiss its condemnation action. Under Tex.Rev.Stat.Ann. art. 3265 § 6, (Vernon 1979), the trial court held a hearing on appellant's motion to dismiss. Following the hearing, the trial court granted the relief sought by appellant and awarded appellees' appraisal fees in the sum of $4,133.00 and attorneys' fees to the date of hearing on appellant's motion to dismiss in the amount of $249,419.31, plus interest on the recovery at the rate of 9% per annum until paid.

Appellant brings eleven points of error allegedly committed by the trial judge.

Appellant's first four points deal with the sufficiency of the evidence to sustain the trial court's judgment granting attorneys' fees and costs. It is appellant's contention that simply because appellees did not want their property condemned and requested that appellant dismiss its eminent domain suit, appellees are somehow estopped from an allowance of attorneys' fees and appraiser's fees as provided in art. 3265.

Tex.Rev.Civ.Stat.Ann. art. 3265 § 6 (Vernon 1979) provides in pertinent part:

Where a plaintiff after filing a petition in condemnation, desires to dismiss or abandon the proceedings, said plaintiff shall by a motion filed to the judge of the court be heard thereon, and the court hearing the same shall make an allowance to the landowner for all necessary and reasonable attorneys', appraisers', and photographers' fees and all other expenses incurred to the date of such hearing on said motion; ... (emphasis supplied).

Only the appellant had the authority to dismiss this case, and it did so voluntarily, albeit at the request of appellees. Accordingly, it was mandatory for the trial court to make an allowance to appellees for all necessary and reasonable expenses under art. 3265, § 6. See McCullough v. Producers Gas Co., 616 S.W.2d 702 (Tex.Civ.App.--Waco 1981, writ ref'd n.r.e.).

Three expert witnesses presented by appellees testified that necessary and reasonable attorneys' fees for the representation of appellees were $250,000.00. Such testimony was predicated on the various factors to be considered in determining reasonableness of attorneys' fees. See Holsworth v. Czeschin, 632 S.W.2d 643 (Tex.App.--Corpus Christi 1982, no writ); Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.--Waco 1972, writ dism'd). No evidence was presented by appellant to the contrary. Expert opinion is competent evidence. Paulus v. Lawyers Surety Corp., 625 S.W.2d 843, 845 (Tex.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). The usual and customary fee shall be presumed to be reasonable unless rebutted by competent evidence. Wenk v. City National Bank, 613 S.W.2d 345, 352 (Tex.Civ.App.--Tyler 1981, no writ).

Appellees were entitled as a matter of law, to establish their reasonable and necessary attorneys' fees, and article 3265, § 6, expressly requires the court to hold a hearing to determine the amount of such fees. Appellees are not estopped from having the court make an allowance of reasonable and necessary attorneys' fees simply because appellees desired that the condemnation action be dismissed. Article 3265, § 6 would be meaningless if the landowners were precluded from recovering expenses they had incurred whenever they did not want their property condemned.

Article 3265, § 6, specifically applies to a situation wherein the condemning authority has not taken possession of the property sought to be condemned, as in this case. In the event appellant had taken possession of the property, it could not voluntarily dismiss or abandon the proceeding. City of Wichita Falls v. Gleghorn, 531 S.W.2d 879 (Tex.Civ.App.--Eastland), writ ref'd n.r.e., 545 S.W.2d 446 (Tex.1976).

Appellant cites the case of Austin v. City of Lubbock, 618 S.W.2d 552 (Tex.Civ.App.--Amarillo 1981), rev'd on other grounds, 628 S.W.2d 49 (Tex.1982), for the proposition that appellant is not responsible for attorneys' fees. In Austin, the Court held that the landowner was not entitled to recover attorneys' fees when the power to condemn was judicially denied. However, the Court went on to state that § 6 of article 3265 applies to a voluntary abandonment or dismissal by the condemnor. In the instant case, appellant voluntarily dismissed the proceedings, and article 3265, § 6, is applicable.

Appellant, in its fifth point of error, argues that because appellees requested the case be dismissed and kept the property which had greatly increased in value during the pendency of the suit, attorneys' fees and costs should be prohibited.

The purpose of art. 3265, § 6, is to compensate the landowner for all expenses incurred as a result of the condemnation action whenever it is voluntarily dismissed or abandoned. The trial court, after hearing the evidence, made an allowance of $249,419.31 to the date of the hearing on appellant's motion to dismiss. It would be unfair for appellees to be precluded from recovering these fees simply because they did not want their property condemned, or because there may have been an increase in the market value of appellees' property during the two-year period of time in which the possibility of condemnation applied to appellees' property. During that period of time appellees were deprived of the use of their property for any viable purpose.

No evidence rebutting the amount of fees incurred by appellees was presented by appellant, and the record supports the judgment of the trial court. Appellant's points of error one through five are overruled.

Appellant, in its sixth point of error, avers that the trial court erred in allowing attorneys' fees which would represent attorneys' fees for the appeal of the case. Article 3265, § 6, does not state that an allowance shall be made to the landowner for expenses incurred after the date of the hearing on a motion to dismiss filed by the plaintiff. However, since the express purpose of art. 3265, § 6, is to reimburse the landowner for all necessary and reasonable expenses, whenever a plaintiff voluntarily dismisses or abandons the condemnation proceedings, it follows that the landowner should be entitled to recover whatever expenses are incurred as a result of an appeal by plaintiff from a voluntary motion to dismiss. Again, it is the plaintiff as condemning authority that causes the expenses. While other attorneys' fees statutes do not specifically state that a party is entitled to recover attorneys' fees on appeal, it has been held that an award of attorneys' fees on appeal is appropriate and within the discretion of the trial court and should not be set aside absent an abuse of discretion. Paulus v. Lawyers Surety Corp., 625 S.W.2d 843 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.); Mid County Rental Service, Inc. v. Miner-Dederick Construction Corp., 583 S.W.2d 428 (Tex.Civ.App.--Beaumont 1979), rev'd on other grounds, 603 S.W.2d 193, (Tex.1980); Bernard v. Bernard, 491 S.W.2d 222 (Tex.Civ.App.--Houston [1st Dist.] 1973, no writ).

No abuse of discretion by the trial court has been shown, and appellant's sixth point of error is overruled.

Appellant, in its seventh point of error, states that the trial court abused its discretion in overruling its first motion for continuance and its motion to reset appellee's motion for a hearing pursuant to art. 3265.

Prior to the filing of appellant's motion to dismiss, appellant was aware that art. 3265 required the court to hold a hearing to make an allowance to the landowner for reasonable and necessary attorneys', appraisers' and photographers' fees, and all other expenses incurred to the date of the hearing on such motion. Nonetheless, no discovery was commenced by appellant until after the initial hearing on appellant's motion to dismiss had been scheduled. The documents requested by appellant were produced by appellees in advance of the hearing. Furthermore, appellant made no attempt to shorten the time for discovery. The trial court has the sole discretion to grant or deny a motion for continuance unless there is an abuse of discretion. Appellant's motion for continuance was not verified and accordingly does not comply with Tex.R.Civ.Pro. 251 and 252. Therefore, we must presume that the trial court did not abuse its discretion in denying the motion to reset. Lumbermens Mutual Casualty Co. v. Cummings, 618 S.W.2d 883 (Tex.Civ.App.--Ft. Worth), writ ref'd n.r.e.), 623 S.W.2d 138 (Tex.1981); Oates v Oates, 533 S.W.2d 107 (Tex.Civ.App.--Tyler 1976, no writ). Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Zamora v. Romero, 581 S.W.2d 742, 745 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). Likewise, timely notice of appellant's first motion for continuance pursuant to Tex.R.Civ.Pro. 21, 21a, and 21b was not provided. The record reflects that appellant's first motion for continuance was filed on March 21, 1983, three days after the hearing. Such motion was presented to the trial court without having been filed on March 18, 1983, the date of the hearing on appellant's motion to dismiss. The court did not abuse its discretion in denying appellant's ...