Attorneys Fees & Costs

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Austin, Texas, is where we’re at for the next few days, for the 2016 edition of the American Law Institute-CLE Eminent Domain and Land Valuation conference, now in its 33d year. First time we’re in Austin, however, and our registration numbers are looking very good, and we haven’t had this big a turnout in years.

We haven’t been back to Austin in a few years ourselves, so we did what law nerds sometimes do when we go to new towns: visit the local courtroom to check out the scene. So we dropped by the Supreme Court of Texas to take a look. Turns out it was an off-day for the court and it was not in session and the courtroom was locked. But Security suggested that if we asked the Clerk nicely, she might retrieve the key and let us take a look around. And you know what? She did.

Continue Reading ALI-CLE 2016 Eminent Domain Conference: Austin Scouting Report

A longer one from the California Court of Appeal, but unfortunately, we don’t have the time to digest it in detail. But you really should read Pacific Shores Property Onwers Ass’n v. Dep’t of Fish and Wildlife, No. C070301 (Jan. 20, 2016), in which the court upheld a ruling that the Department of Fish and Wildlife inversely condemned the plaintiffs’ property by a physical taking, when it allowed their land to be flooded.

The interesting part of this decision is the Department’s purpose in allowing the flooding, environmental protection. Local government had historically provided some flood protection to these properties by “breaching” a sandbar when the water reached a certain level. When the Department took over that function, it decreased the level of protection, and although it required the water to reach a higher level before breaching, it didn’t eliminate it completely. The Department argued that it could not…

Continue Reading Cal App: Intentionally Flooding Land To Protect The Environment Is A Physical Taking

After the usual preliminaries — certification of a 253-member class, subclass certifications, discovery, and motions and cross-motions for summary judgment — the parties in a rails-to-trails takings case in the Court of Federal Claims mediated the dispute and ended up agreeing to $110 million plus interest as just comp for the property taken, and slightly more than $2 million in statutory attorney fees and costs under the Uniform Relocation Act. Many of the class consented to this deal.

Class counsel and the government filed a joint motion for court approval, but a day later, class counsel sought additional fees under the “common-fund” doctrine in the neighborhood of $35 million, based on its contingency fee agreement with some members of the class which entitled them to a percentage of the total award. The CFC did some calculating:

As to whether class counsel’s request for thirty percent of the common fund was…

Continue Reading Fed Circuit On Rails-To-Trails Class Action Attorneys Fees, The Uniform Relocation Act, And A Possible Circuit Split

Another short one, this time from the Arkansas Supreme Court.

In City of Siloam Springs v. La-De LLC, No. CV-15-194 (Ark. Nov. 19, 2015), the court concluded that an Arkansas statute which requires the state to pay reasonable attorneys’ fees if the just compensation exceeds the deposit by more than 10%, does not apply when a city is the condemnor against whom the condemnation judgment is entered. 

The statute was clear enough, because it required the court to award fees “against the State of Arkansas and in favor of the party entitled thereto,” and here, the condemnation judgment involved the city, not the state. There is no statutory authority for an award of fees in eminent domain cases against cities. Seems simple enough, no? 

But the twist was that the condemnation in this case was actually instituted by the State Department of Transportation, after which it was granted immediate…

Continue Reading Arkansas: Eminent Domain Fee Shifting Statute Only Applies To State Condemnations, Not City, Even Though State DOT Initiated The Taking

Those of you who represent property owners on the business end of eminent domain who practice in Florida and the few other states which allow recovery of attorneys’ fees, consider yourselves lucky: the rest of us poor slobs who practice in places where they are not permitted — either as a component of a constitutional command of just compensation, or by legislative grace — are envious.

We understand that to force a property owner to bear its own fees and costs to recover just compensation — compensation which the condemnor should have offered in the first place — effectively denies just compensation, and allows a condemnor to get away with an inadequate offer simply because it may make little economic sense for the property owner to fight back with a lawyer. Each dollar spent on attorneys is a dollar less the owner gets for her property.   

But even if…

Continue Reading Florida: When Govt Excessively Litigates An Eminent Domain Case, “Full Compensation” Requires Payment Of Attorneys Fees

In General Commercial Properties, Inc. v. Florida Dep’t of Transportation, No. 4D14-0699 (Fla. Dist. App. Oct. 14, 2015), the court held that a statute which requires the trial court to use the “first written offer” by the condemnor made prior to the initiation of the eminent domain case as the benchmark when it is calculating attorneys’ fees, does not mean that the DOT is stuck with a very early offer it made under the “Early Acquisition Program.”

Under this program, the DOT made early offers to owners for properties it wanted to acquire. There was no obligation on the part of the owners to sell. As the court phrased it, it was an “arms-length negotiation[]” with no eminent domain threat. (Yeah, right.) This was supposedly outside the usual eminent domain-related acquisition program, and if the owner said no thank you, there was nothing the DOT could have done. So in…

Continue Reading Fla App: Offer Early, Offer Often – Early Precondemnation Offer Does Not Trigger Attorneys’ Fee Statute

We don’t often post trial court decisions, but this recent ruling from an Idaho trial court awarding a property owner approximately $400,000 in fees and costs was a good read, and we’d like to share it with you all.

This is a ruling issued after a trial to determine just compensation for the partial taking of property for road improvements. The jury awarded approximately $146,000 to the property owner. There’s a lot of detail in the order, and we suggest you read the entire thing. But what grabbed us was the way the judge treated property rights, starting on page 11 of the order. 

Noting that “the Court’s analysis is rooted in the Constitution and this country’s long history of jealously protecting individual property rights,” (now there’s something you don’t hear from courts, much less trial courts, these days), the order concluded that the property owner was the “prevailing party,” …

Continue Reading A Trial Judge Who “Gets” Eminent Domain

California law requires a condemnor to present to the property owner a final pre-trial settlement offer 20 days before trial, and for the property owner to make a final demand. If a court later determines that the condemnor’s final offer was unreasonable and the property owner’s final demand was reasonable, the property owner is entitled to litigation expenses. 

In City and County of San Francisco v. PCF Acquisitionco, LLC, No. A139836 (May 26, 2015), the court concluded that the offer by the city, which “was expressly made ‘contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board]’,” was unreasonable as a matter of law because it wasn’t a “final offer.” Thus, the trial court wrongly denied the property owner’s request for fees and costs. 

The court held that the…

Continue Reading Cal App: Condemnor’s “Final” Pretrial Offer, Contingent On Approvals From Other Agencies, Isn’t Really Final, Is It?

As the Star-Advertiser reports here (“State pays newspaper for nominees battle“), Hawaii Governor David Ige has signed a bill which appropriates funds for the State to pay a portion of the legal fees and costs incurred by the Star-Advertiser during its lawsuit which compelled former Governor Neil Abercrombie to stop keeping secret the list of judicial nominees which the Judicial Selection Commission presents to the governor. 

We represented the Star-Advertiser in that case, which took several years to fully resolve because of a collateral appeal — ultimately decided in the Star-Advertiser‘s favor by the Hawaii Supreme Court — involving the attorneys’ fees and costs which are required under Hawaii’s public records statute: 

Although the newspaper quickly won on the merits of the case, the long dispute over fees raises new concerns “because most individuals do not have the time and/or money to pursue a case like this…

Continue Reading Final Chapter In Judicial Selection Commission List Public Records Case

We were all ready to write up the California Court of Appeal’s latest opinion about our favorite subtopic — the recovery of attorneys’ fees in eminent domain actions — when our colleagues at the California Eminent Domain Report beat us to it (“Court Clarifies Rules for Recovery of Attorneys’ Fees in Eminent Domain Actions“).

The case is about fee shifting when the condemnor’s conduct is judged based on its final offer made 20 days before trial. But what about if there are multiple offers, and the trial date moves?

To find out what the court thought about this, read the opinion (People ex rel. California Dep’t of Transportation v. Hansen’s Truck Stop, Inc., No. A133252 (Apr. 24, 2015)), read the post, and enjoy the remainder of your day. 

People ex rel. California Dep’t of Transportation v. Hansen’s Truck Stop, Inc. No. A133252 (Cal….

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Continue Reading Cal App On Attorneys’ Fees In Eminent Domain