In re Condemnation By the Redevelopment Auth. of Lawrence Cnty.
| Decision Date | 22 February 2013 |
| Docket Number | No. 2775 C.D. 2010,No. 2774 C.D. 2010,No. 90 C.D. 2011,No. 41 C.D. 2011,2774 C.D. 2010,2775 C.D. 2010,41 C.D. 2011,90 C.D. 2011 |
| Parties | In Re: Condemnation by the Redevelopment Authority of Lawrence County, Pennsylvania, in Fee Simple, Absolute Title, of Land of David C. Hamilton, situate in Neshannock Township, Lawrence County, Pennsylvania, being Parcel I.D. #25-168200, for the Millennium Park Redevelopment Project Appeal of: Redevelopment Authority of Lawrence County In Re: Condemnation by the Redevelopment Authority of Lawrence County, Pennsylvania, in Fee Simple, Absolute Title, of Land of Thomas R. and Christy L. Whittaker, situate in Neshannock Township, Lawrence County, Pennsylvania, being Parcel I.D. #25-168201 and 25-438301, for the Millennium Park Redevelopment Project Appeal of: Redevelopment Authority of Lawrence County In Re: Condemnation by the Redevelopment Authority of Lawrence County, Pennsylvania in Fee Simple, Absolute Title, of Land of David C. Hamilton, situate in Neshannock Township, Lawrence County, Pennsylvania, being Parcel I.D. #25-168200, for the Millennium Park Redevelopment Project Appeal of: Edna J. Hamilton, Executrix, Estate of David C. Hamilton In Re: Condemnation by the Redevelopment Authority of Lawrence County, Pennsylvania in Fee Simple, Absolute Title, of Land of Thomas R. and Christy L. Whittaker, situate in Neshannock Township, Lawrence County, Pennsylvania, being Parcel I.D. #25-168201 and 25-438301, for the Millennium Park Redevelopment Project Appeal of: Thomas R. Whittaker and Christy L. Whittaker |
| Court | Pennsylvania Commonwealth Court |
In Re: Condemnation by the Redevelopment Authority of Lawrence County, Pennsylvania,
in Fee Simple, Absolute Title, of Land of David C. Hamilton, situate in Neshannock Township,
Lawrence County, Pennsylvania, being Parcel I.D. #25-168200,
for the Millennium Park Redevelopment Project
Appeal of: Redevelopment Authority of Lawrence County
In Re: Condemnation by the Redevelopment Authority of Lawrence County,
Pennsylvania, in Fee Simple, Absolute Title, of Land of Thomas R. and Christy L. Whittaker,
situate in Neshannock Township, Lawrence County, Pennsylvania,
being Parcel I.D. #25-168201 and 25-438301, for the Millennium Park Redevelopment Project
Appeal of: Redevelopment Authority of Lawrence County
In Re: Condemnation by the Redevelopment Authority of Lawrence County,
Pennsylvania in Fee Simple, Absolute Title, of Land of David C. Hamilton, situate in Neshannock Township,
Lawrence County, Pennsylvania, being Parcel I.D. #25-168200, for the Millennium Park Redevelopment Project
Appeal of: Edna J. Hamilton, Executrix, Estate of David C. Hamilton
In Re: Condemnation by the Redevelopment Authority of Lawrence County,
Pennsylvania in Fee Simple, Absolute Title, of Land of Thomas R. and Christy L. Whittaker,
situate in Neshannock Township, Lawrence County, Pennsylvania,
being Parcel I.D. #25-168201 and 25-438301, for the Millennium Park Redevelopment Project
Appeal of: Thomas R. Whittaker and Christy L. Whittaker
No. 2774 C.D. 2010
No. 2775 C.D. 2010
No. 41 C.D. 2011
No. 90 C.D. 2011
COMMONWEALTH COURT OF PENNSYLVANIA
Argued: November 14, 2012
February 22, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
In these consolidated cases, the Redevelopment Authority of Lawrence County (Authority) and the Estate of David C. Hamilton (Hamilton) and Thomas R. and Christy L. Whittaker (the Whittakers) (collectively, Condemnees) cross-appeal
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from the December 17, 2010, orders of the Court of Common Pleas of Lawrence County (trial court) awarding the Whittakers $604,441.56 and counsel for Hamilton $54,591.95 for fees, costs, and expenses incurred during condemnation proceedings pursuant to the Eminent Domain Code (Code),1 and denying Condemnees' motion to direct the Authority to post bond pursuant to the Code.2 We affirm.
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Lawrence County established the Authority in March, 2003. In 2004, the Authority filed separate declarations of taking to condemn Condemnees' properties to develop a business park.3
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Prior to filing the declarations of taking, the Authority filed an equity action in the trial court seeking a right of entry onto Condemnees' property.4 In addition, prior to the filing of the declarations of taking, Condemnees filed civil rights actions in federal court under 42 U.S.C. §1983 seeking injunctive, declaratory, and monetary relief. See Whittaker v. County of Lawrence, 674 F. Supp. 2d 668 (W.D. Pa. 2009), aff'd, 437 F. App'x 105 (3d Cir. 2011).
Condemnees hired Michael K. Parrish, Esq. and his firm to represent them in the condemnation and associated proceedings. The Whittakers hired Parrish on an hourly basis5 while Hamilton hired Parrish on a contingent fee basis.6
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Condemnees filed preliminary objections7 to the declarations of taking and to the sufficiency of the bond posted by the Authority. The trial court conducted a number of hearings on the preliminary objections.
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On June 18, 2007, the trial court overruled Condemnees' preliminary objections challenging the legality of the taking, but sustained the preliminary objection regarding the sufficiency of the bond. On appeal, this Court reversed the trial court's order overruling the preliminary objections regarding the legality of the taking and sustained those objections, and vacated the order sustaining the objection regarding the sufficiency of the bond and dismissed that objection as moot. See In re Condemnation of the Land of Hamilton, 962 A.2d at 1265.8
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In July and August of 2009, Condemnees filed the instant motions for fees and costs.9 In an amended affidavit in support of their motion, the Whittakers sought $806,096.01 for fees and costs incurred from the inception of the action to June 30, 2010,10 and Hamilton sought $323,459.73 for fees and costs for the same period.11 On July 30, 2009, the Whittakers filed a motion asking the trial court to compel the Authority to post a $650,000.00 bond. The trial court held three hearings on the motions wherein the parties presented expert testimony and submitted numerous exhibits detailing the hours expended by Condemnees' attorneys throughout these proceedings.
By orders dated December 17, 2010, the trial court denied the Whittakers' motion to compel the Authority to post bond and granted Condemnees' motions for fees and costs. The trial court reduced the amount Condemnees requested by unrelated or unreasonable fees, ultimately awarding the Whittakers $604,441.56, and awarding Hamilton's attorney $54,591.95. Condemnees and the Authority then filed the instant cross-appeals of the trial court's orders.12
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In their appeal,13 Condemnees claim that the trial court erred in determining that the Authority was not required to post bond because the Code's bond requirement relates to all damages, including fees and costs, and not only to just compensation for the taking. Condemnees also claim that the trial court erred in calculating the attorney fees and costs awarded to Hamilton's attorney.
In its cross-appeal, the Authority claims that the trial court erred in awarding any fees and costs to Hamilton's attorney because Parrish's representation was based on a contingent fee agreement and therefore no fees and costs were actually incurred.14 The Authority also claims that the trial court erred in awarding
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fees and costs to the Whittakers because: (1) the fees and costs relating to the fee petition case were patently unreasonable due to non-compensable items and an exorbitant witness fee, and Condemnees' counsel engaged in dilatory, obdurate, and vexatious conduct; (2) the fees and costs relating to the equity action cannot be awarded under the Code; (3) the fees and costs relating to the proceedings on the sufficiency of the bond cannot be awarded under the Code, the proceedings were unnecessary, and there is not sufficient evidence supporting their amount; (4) the fees and costs relating to the condemnation action are excessive because they include the cost of expert witnesses who did not testify, the valuation of the property, and an unnecessary motion to revest title; and (5) the amount awarded violates the Code requirement that the amount of fees and costs awarded be reasonable.
Condemnees first claim that the trial court erred in determining that the Authority was not required to post bond because the Code's bond requirement relates to all damages, including fees and costs, and not only to just compensation for the taking. We do not agree.
Section 403(a) of the Code stated, in relevant part, that "[e]very condemnor shall give security to effect the condemnation by filing with the declaration of taking its bond, without surety, to the Commonwealth ... for the use of the owner or owners of the property interests condemned, the condition of which shall be that the condemnor shall pay such damages as shall be determined by law."
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26 P.S. §1-403(a) (repealed). Thus, adequate surety of the just compensation15 due for any taking under the Code had to be posted by the condemnor at the filing of the notice of condemnation in order to secure the taking. Appeal of Perry, 461 A.2d 916, 917 (Pa. Cmwlth. 1983).16
In contrast, no similar provisions of the Code required security to be posted with respect to the fees and costs recoverable under section 406(e). Section 406(e) of the Code provided that where "[p]reliminary objections are finally sustained, which have the effect of finally terminating the condemnation, the condemnee shall be entitled to damages as if the condemnation had been revoked under section 408, to be assessed as therein provided...." 26 P.S. §1-406(e) (repealed). In turn, section 408 provided that "[t]he condemnee shall be reimbursed by the condemnor for reasonable ... attorney ... fees and other costs and expenses actually incurred because of the condemnation proceedings...", and that "[s]uch damages shall be assessed by the court...." 26 P.S. §1-408 (repealed).
As this Court has explained:
[I]f a timely declaration of relinquishment is filed, then the condemned property may be relinquished and, where relinquishment occurs, according to Section 408, a condemnee is entitled to reimbursement from a condemnor for reasonable appraisal, attorney and engineering fees, and
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for other costs and expenses actually incurred due to the condemnation proceedings. However, where a declaration of relinquishment is not filed within the statutorily mandated one-year period, no relinquishment may properly occur, and, pursuant to Section 407 of the Code, 26 P.S. §1-407,17 just compensation is due from a condemnor to the condemnee for the taking.
Alexander v. Snow Shoe Township, 798 A.2d 809, 813 (Pa. Cmwlth. 2002) (emphasis in original and footnote omitted). Thus, "[w]hen determining statutory costs and expenses to be awarded a condemnee, the trial court may not apply just compensation requirements." In re Condemnation by Department of Transportation, 709 A.2d 939, 943 (Pa. Cmwlth. 1998) (citation omitted).18 As a result, the trial court
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did not err in denying Condemnees' motion to compel the Authority to post bond as required by section 403(a) of the Code requiring a surety of just compensation in the instant proceedings seeking reimbursement under the provisions of sections...
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