Attorneys Fees & Costs

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You’ve seen those shirts, the ones that have “Hollister” emblazoned on the front (“So Cal inspired clothing for Dudes and Bettys”). But here’s a case about the real Hollister (the town in Northern California), and a condemnation action directed at the Hollister Inn, a roadside hostelry near that town.

In Council of San Benity County Govt’s v. Hollister Inn, Inc., No. H036629 (Sep. 19, 2012), the Court of Appeal (6th District) held:

On appeal from the final judgment in condemnation, COG challenges (1) the trial court’s order of conditional dismissal that dismissed the action unless COG cured what the court found to be a gross abuse of discretion in adopting resolutions of necessity and (2) the trial court’s associated order awarding reasonable litigation expenses in the amount of $233,750 to respondent Hollister Inn. Both orders were incorporated into the final judgment, which recognized that COG…

Continue Reading Cal App: Necessity And Attorneys Fees In Eminent Domain

When does a party who loses a petition for rehearing actually win it?

In Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012) an opinion we detailed here, a 2-1 panel of the Federal Circuit held that the property owner’s request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. The majority, in an opinion by Judge Dyk, remanded the case to the Court of Federal Claims for additional calculation.

Judge Plager dissented, asserting that remand was pointless because there was nothing left for the CFC to do but apply the lodestar (reasonable rate x reasonable time), and since the panel majority did not disturb any of the CFC’s findings on those two issues, the result, absent the halving, should be the same. Small…

Continue Reading Fed Circuit: En Banc Petition Denied, But Kind Of Granted

Remember the case from late last year in which the Honolulu Star-Advertiser brought a freedom of information/open records lawsuit against the Hawaii governor to force him to disclose the names of judicial nominees? Abandoning the practice of his two predecessors, the Governor refused to release the list of names of nominees transmitted to him by the Judicial Selection Commission.

The circuit court ruled that under Hawaii’s Uniform Information Practice Act the Governor should not have kept the names secret, and that disclosure is required. [Disclosure: we represent the Star-Advertiser in that case.]

Following the ruling, three things happened. First, the Governor released the names on the lists for the vacancies on the Hawaii Supreme Court (eventually filled by Justice McKenna) and on the circuit bench. Second, the Judicial Selection Commission amended its rules to allow for the release of the lists when they are transmitted to the governor. Third, UIPA…

Continue Reading State Appeals Attorneys’ Fees Award In JSC List Case

Here are the cases we discussed in this morning’s session at the Eminent Domain & Land Use in Hawaii seminar:

  • Brown v. Howard, No 26991 (June 21, 2011), the case in which the South Carolina Supreme Court held that an attorney’s services constitute property, and that property was taken when a trial court refused to let a court-appointed attorney withdraw from defending a criminal case, forcing him to work for a fee capped at $3,500. Here’s the Bar Association’s amicus brief on the issue.

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Continue Reading Links From Today’s Eminent Domain Conference

How hard is it for the government to obtain a Williamson County dismissal that a federal takings claim is not ripe for federal court reivew? Not too hard, says Justice Souter.

Justice Souter? But wait, didn’t he retire, you ask? Recall that Supreme Court justices who retire from the Court don’t really “retire” in the sense that they may continue to sit and hear cases in the federal courts of appeals. Justice O’Connor has done so, and Justice Souter did so in Efron v. Mora Dev. Corp., No. 11-1347 (Mar. 26, 2012, a case from the First Circuit involving a claim for a regulatory taking in Puerto Rico.

The Puerto Rico highway department condemned Efron’s land, and although he objected, the Commonwealth court transferred ownership and possession to the department. Efron then went to federal court on civil rights claims against the department and Mora Development, alleging that they…

Continue Reading Justice Souter: Dismissal Under Williamson County Is So Easy, A Caveman Could Do It

Today’s post is by our colleague Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing. He’s familiar to our readers who have followed his success in “rails to trails” cases in the CFC, and for his earlier guest posts on these issues. Thor reports on the latest developments in attorneys fee recovery in Tucker Act and Little Tucker Act cases below.

For more on the issue Thor discusses, see DOJ Ordered to Pay $2.24M in Legal Fees in Property Dispute (Blog of Legal Times).

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The Justice Department’s most recent defeat in a series of losses the DOJ has suffered was handed to the DOJ last week by Judge Williams…

Continue Reading Hash v. United States – Attorneys Fees Under The URAA

Here is the Petition for Rehearing En Banc, in Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012), an opinion we detailed here. In that case, a split panel of the Federal Circuit held that the property owner’s request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. Here’s how the brief summarizes the issues:

In a 2-1 opinion, the panel majority construed the URA for the first time and set new standard for trial courts to follow when calculating reasonable attorneys’ fees pursuant to the URA, 42 U.S.C. § 4654(c), the fee-shifting statute that applies to reimbursement of attorneys’ fees for both Little Tucker Act and Big Tucker Act cases. Slip op. at 8-9. The panel majority, over a strong dissent by…

Continue Reading Petition For Rehearing En Banc In Fed Cir Attorneys’ Fees Case: Small Property Owners Are Entitled To The Same Fee Awards As Large Property Owners

In Miller v. FW Commercial Properties, LLC, No. 105066 (Mar. 9, 2012), the Kansas Supreme Court held that a lawyer who represents a party in a condemnation case is not entitled to recapture his or her legal fees from another party’s condemnation award because the lawyer is not a “party in interest” in the case.

KDOT condemned Armendariz’s land. The petition also listed the Britts as interested parties, because they claimed they owned one of Armendariz’s tracts by virtue of adverse possession, and had filed a quiet title action. Eventual award for this tract: $18,000, which is $11,000 more than KDOT’s original offer.

Amendariz was not represented by a lawyer until after the award (he appealed the valuation, and contests the adverse possession lawsuit). The Britts were represented by a lawyer in the condemnation, and a different lawyer in the quiet title action. The Britts’s condemnation lawyer informed their…

Continue Reading Kansas: Lawyer Not A “Party In Interest” In Condemnation Case

Here’s today’s second decision about attorneys fees and costs, this time in an inverse condemnation claim out of the Federal Circuit, Bywaters v. United States, No. 2011-1032 (Mar. 1, 2012).

In a class action rails-to-trails takings case under the Little Tucker Act (less than $10,000 per claim, district court venue), the trial court awarded the property owners attorneys fees and costs under the Uniform Relocation Assistance and Real Property Acquisition Policies Act. The government had stipulated to liability and the parties worked together to determine compensation for class members. Eventually, the district court approved a settlement for the entire class of approximately $1.25 million, interest included. The property owners then filed a claim seeking $832,000 in fees for 2,000+ hours of work. The market rate they sought was for attorneys in the District of Columbia (where their office is located), and not the Eastern District of Texas (the…

Continue Reading Federal Circuit Talks Attorneys Fees Under The Uniform Relocation Act

Here’s the first of two cases about the recovery of attorneys fees in takings cases.

The first is People ex rel. Dep’t of Transportation v. Superior Court, No. C069391 (Mar. 1, 2012), from the California Court of Appeal, about recovery of fees in eminent domain proceedings.

After a stipulated judgment days before the trial was to commence, the trial court awarded the property owners their litigation expenses under the California statute allowing the court to include those expenses as part of the costs if the condemnor’s offer was unreasonable, and the property owner’s demand was reasonable. Here’s the relevant provision:

If the court, on motion of the defendant made within 30 days after entry of judgment, finds that the offer of the plaintiff was unreasonable and that the demand of the defendant was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding…

Continue Reading Cal Ct App: Property Owners Only Entitled To Attorneys Fees In Condemnation Cases After A Trial