White v. State
Decision Date | 11 September 1975 |
Citation | 294 Ala. 502,319 So.2d 247 |
Parties | Carolyn Drake WHITE et al. v. STATE of Alabama. SC 974. |
Court | Alabama Supreme Court |
John H. Lavette, Birmingham, for appellants.
Arthur J. Hanes and Thomas Coleman, Sp. Asst. Attys. Gen., Birmingham, for the State.
'Attorney's fees and expenses are not embraced within just compensation for land taken by eminent domain.'
This short, concise and direct quote, taken from Dohany v. Rogers,281 U.S. 362, 368, 50 S.Ct. 299, 302, 74 L.Ed. 904 (1930), sustains the trial court's judgment that attorneys' fees and litigation expenses are not recoverable costs in an eminent domain proceeding.
The landowners, after a judgment was entered in circuit court based upon a jury verdict, filed a motion with the trial judge asking him to direct the circuit clerk to tax $35,000 as costs to pay their attorneys' fees and expert witnesses' fees. The court overruled their motion and they appealed. We affirm.
The landowners cite three broad theories to support their argument that they should recover their attorneys' fees and litigation expenses. First, they say that Title 19, Section 30, Code, 1 authorizes the court to tax these expenses as costs. We disagree. In a long line of cases this Court has held that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys' fees paid by the opposing side. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So.2d 710 (1974); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926); Alabama Digest, Vol. 5--A, Costs, Key No. 172.
Where a statute does authorize the recovery of attorneys' fees, a landowner may recover them. Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485 (1969). Title 19, Section 30, Code, does not authorize the recovery of litigation expenses, however.
The landowners' other theories are based on the proposition that attorneys' fees and expenses are embraced within 'just compensation' in eminent domain proceedings.
Although Alabama appellate courts apparently have not passed on this particular question, the Supreme Court of the United States has. In Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893), Mr. Justice Brewer spelled out what the words 'just compensation' mean. He wrote:
(Emphasis added.)
The right to recover attorneys' fees from one's opponent in litigation as part of the costs thereof did not exist at common law. See annotation, Eminent Domain--Attorneys' Fees, 26 A.L.R.2d 1295.
Several state appellate courts have construed provisions in condemnation statutes and constitutions for the payment of compensation or 'just compensation' as not to include attorneys' fees wihtin those terms. United States v. 23.94 Acres of Land, 325 F.Supp. 330 (D.C.Va.1970); United States v. 254.35 Acres of Land, 46 F.Supp. 913 (D.C.La.1942); County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142 (1971); Pacific Gas & Electric Co. v. Chubb, 24 Cal.App. 265, 141 P. 36 (1914); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906); Seban v. Dade County, 102 So.2d 706 (Fla.1950); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); Ottumwa v. Taylor, 251 Iowa 618, 102 N.W.2d 376 (Iowa 1960); Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876 (1930); Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652 (1967); Petition of Reeder, 110 Or. 484, 222 P. 724 (1924); North American Realty Co. v. Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926).
Of course, when state statutes permit landowners to recover their litigation expenses, they may do so. Mobile Housing Board v. Cross, supra; State of Washington v. Roth, 78 Wash.2d 711, 479 P.2d 55 (1971).
We note that the Uniform Eminent Domain Code promulgated by the National Conference of Commissioners on Uniform State Laws at its annual meeting held in August, 1974, makes provision for a landowner to recover litigation expenses under certain circumstances. Section 1205 of the Uniform Eminent Domain Code provides:
'(Recoverable Costs.)
'(a) If the judgment determines that the plaintiff has the right to take all or part of the defendant's property, the costs incurred by the defendant shall be claimed, taxed and awarded to the defendant by the same procedure as in other civil actions, except as otherwise provided in this section.
'(b) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or greater than the amount specified in the last offer of settlement made by the defendant under Section 704, the court shall allow to the defendant, in addition to costs allowed under Subsection (a) his litigation expenses, but not more than the greater of ( ) dollars or (25)% Of the amount by which the compensation awarded exceeds the amount of the plaintiff's last offer of settlement made under Section 203 or Section 704.
'((c) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or less than the amount specified in the last offer of settlement made by the plaintiff under Section 704, the defendant shall not be entitled to his costs incurred after the date of service of the offer.)
'Comment
'Section 1205 provides the basic rules governing the award and allocation of costs. For the definition of 'costs,' see Section 103(8).
Alabama has not adopted the Uniform Code or any other statute which would permit the landowners here to recover their litigation expenses.
Affirmed.
I would frame the issue thus: Does 'just compensation', as constitutionally employed in eminent domain proceedings, mean full and unequivocally comprehensive payment, including attorney's fees and costs of litigation, for property taken? Alternatively stated, the sole and precise issue presented by this case of first impression is whether 'reasonable compensation' is denied the property owner where he must pay the costs of litigation, including the attorney's fees, out of the award received based on his property's value?
I agree that Tit. 19, § 30, Code, does not support the property owner's position. In other words, I am in accord with the majority opinion that there is no statutory authority allowing the property owner attorney's fees or other costs incident to litigation.
The property owners next contend that fundamental justice and reason support their argument with respect to the term 'just compensation', as that term is used in § 23 of Art. 1, Constitution of Alabama 1901. With this contention, I agree.
A condemnation proceeding is sui generis, totally unlike any other legal right, claim or suit for damages known to our law. Issues of culpability, retribution for wrong, or civil liability comprise no part of such proceedings; and, unlike other civil actions, the right of recovery in a condemnation proceeding is rarely, if ever, contested. Consequently, the traditional rule allowing attorney's fees and other expenses...
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