Opinion
No. 134971
Decided January 28, 1971.
Appropriation of property — Judgment for attorney fees — Determination — Witness fees.
1. Where a municipality files an action to appropriate real property, pursuant to R. C. Chapter 163, and such action is dismissed by the municipality without prejudice prior to final determination, and where possession of the property to be appropriated was not had by the municipality, such dismissal constitutes an abandonment of the proceedings under R. C. 163.21(A).
2. Where a municipality has abandoned appropriation proceedings in accordance with the provisions of R. C. 163.21(A), without demonstrating that anything has occurred prejudicial to its substantial rights, substantial justice between the parties may only be accorded by entering judgment in accordance with R. C. 163.21; this is mandatory.
3. In determining the value of legal services, in making an award pursuant to R. C. 163.21, the court may consider the novelty or difficulty of the issue, the nature and extent of the service, the time occupied in the performance of the services, the standing of counsel for proficiency and skill and legal ability, the results accomplished in the rendition of the services, the value of the property or interest involved, the customary charges for similar services in the same locality, the minimum fee schedules of the bar association, the fact that compensation is contingent on success, and the skill and eminence of opposing counsel.
Messrs. Pickrel, Schaeffer Ebeling and Mr. John P. McHugh, law director, for plaintiff.
Mr. William T. McLeran, Jr., and Mr. Irving I. Saul, for defendants.
This cause is before the court upon the application of the defendants requesting the court to enter judgment against the plaintiff for fees and expenses pursuant to R. C. 163.21.
The action by the city of Moraine was for the appropriation of the real property of the defendants. Sometime after the defendants were notified of the contemplated action of the city of Moraine and before the appropriation action was filed, defendants retained attorneys, William T. McLeran, Jr., and Irving I. Saul, to represent them in all proceedings having to do with the appropriation.
The parties agree that the thrust of the representation by counsel for the defendants had to do with causing the city of Moraine to look elsewhere for other suitable sites for the contemplated use. Nevertheless, counsel for the defendants and the defendants did obtain an independent appraisal of the property in question from one McGuire, a real estate appraiser. The action of the city of Moraine began on September 23, 1969, with its resolution declaring the necessity for and the intent to appropriate defendants' land. The appropriation action was filed on February 19, 1970, and was dismissed on April 28, 1970, by an entry which reads, "By agreement of the parties and for good cause shown the within matter is herewith dismissed. Court costs to the plaintiff, city of Moraine." This entry was not approved by the defendants nor by counsel representing the defendants.
Defendants contend that there was an abandonment of the appropriation proceeding by the city of Moraine in accordance with the provisions of R. C. 163.21, whereas the city of Moraine contends there was no abandonment in that the action was dismissed by mutual agreement of the parties for mutually satisfactory purposes and reasons between them.
Moreover, the city of Moraine, by circuitous argument contends that there can be no abandonment until after final determination of the cause and then, within ninety days.
Abandon means to give up, discontinue, withdraw from. In law, to abandon means to cast away, leave or desert as property or a child. Stated another way, abandon means to give up or discontinue any further interest in something, because of discouragement, weariness, distaste or the like
Division (A) of R. C. 163.21 provides that, "[T]he agency, if it has not taken possession of the property appropriated, may, at any time not later than ninety days after the final determination of the cause, abandon the proceedings." This means that so long as the appropriating agency has not taken possession of the property in quesiton, it may at any time after the action has been commenced, abandon the appropriation proceedings up to a point in time measured ninety days after final determination of the cause.
It is conceded by the parties that possession of the property to be appropriated was not had by the city of Moraine. Therefore, the court finds that upon the dismissal of the action, regardless of whether or not the defendants joined in the dismissal by the appropriating agency of the appropriation proceedings, that there has been an abandonment. Dept. of Natural Resources v. Sellers (1968), 14 Ohio App.2d 132.
It should be observed that the defendants failed to file an answer in accordance with R. C. 163.08, and therefore a "statute of limitation" ran against defendants. Thereupon the city of Moraine could have proceeded in accordance with the provisions of R. C. 163.09(A), and thereby have obtained the property for the value set forth in the document filed with the clerk of courts by the city of Moraine. The city of Moraine chose to waive this right and subsequently abandoned the proceedings. Toledo v. Custer (1970), 24 Ohio St.2d 152.
The city of Moraine has not demonstrated that anything has occurred prejudicial to its substantial rights, thus substantial justice between the parties may only be accorded by entering judgment in accordance with R. C. 163.21. This is mandatory. Dept. of Natural Resources v. Sellers, supra.
The court finds that the making of an award for attorney fees under the particular facts and circumstances in this case is a complex and difficult task. The award must be reasonable, fair and consistent with the facts, circumstances and the law. In determining the value of professional services, the court may consider the novelty or difficulty of the issue, the nature and extent of the services, the time occupied in the performance of the services, the standing of counsel for proficiency and skill and legal ability, the results accomplished in the rendition of the service, the value of the property or interest involved, the customary charges for similar services in the same locality, the minimum fee schedules of the bar association, the fact that compensation is contingent on success, and the skill and eminence of opposing counsel.
The landowners and their counsel entered into an employment agreement on October 20, 1969, which spelled out several avenues for compensation based primarily on a percentage basis of the success of counsel obtaining an amount in excess of the value of $65,000 placed upon the land by the appropriating agency. Considerable time was employed by the parties in presentations and arguments with respect to the consideration to be given to Mr. McGuire's valuation of $124,500 and the difference between it and the agency's valuation. This court is of the opinion that consideration of such evidence introduces an element of speculation and guesswork that is necessarily misleading and prejudicial. It is true that in the case of a wrongful termination by a client, an attorney may recover the value of the services contemplated. But in this case, because of the abandonment by the appropriating agency and the failure of the defendants to file an answer within time, no work on the litigation was actually performed as contemplated by the employment contract. Thus, the court cannot consider the benefits the defendants might have derived if the services had been rendered.
It is said that one of the basic factors to be considered in determining the reasonable value of legal services is the nature, extent and difficulty of the services rendered. Burnett v. Graves (1956), 230 F.2d 49, 56 A. L. R. 2d 1; Monaghan v. Hill (1944), 140 F.2d 31. Conversely, the fact that an action involved no novel or difficult questions has been given as a reason for limiting attorneys fees. Twentieth Century-Fox Film Corp. v. Brookside Theater Corp. (1952), 194 F.2d 846; 56 A. L. R. 2d 23, Section 3. There has been no evidence brought to the attention of the court that the novelty of any issues involved in the litigation were deemed to affect the difficulties and, hence, the value of legal services. Certainly the thrust of the representation by counsel for the defendants had no novel or difficult connotations.
On the other hand, this court is of the opinion that inasmuch as there is now no contract or controlling rule or statute to be considered in determining the reasonable value of the service rendered by the attorneys, the court may consider the skill and eminence of opposing counsel since the character of the opposition to some extent determines the difficulty of the services. 143 A. L. R. 682; 56 A. L. R. 2d 23, Section 3, supra. Counsel for the appropriating agency has the acknowledged capacity of a formidable adversary with known repute as an aggressive, vigorous and tenacious fighter. Therefore, there may be some credence in the proposition that the handling of this matter by the attorneys for the landowners reflected some skillful ingenuity.
Obviously an important element to be considered in determining the reasonable value of attorney services, is the time spent in the performance of those services. It has been asserted, however, that time spent in doing professional work is not a controlling factor in assessing the value of services. Sometimes, however, the time spent is of minor importance since an experienced or skillful attorney might accomplish in a very short time what another would require a much longer time to accomplish. In re Huffman's Estate (1944), 349 Pa. 59, 36 A.2d 640. Brickell v. Di Pietro (1943), 152 Fla. 429, 12 So.2d 782; Trimble v. Kansas City, S. G. Ry. Co. (1907), 201 Mo. 372, 100 S.W. 7; Garden v. Riley (1935), 116 W. Va. 723, 183 S.E. 46. In the case under consideration, the evidence shows that the attorneys for the landowners clocked 34 hours in performing the services rendered.
In assessing the reasonable value of an attorney's services, his standing for learning, ability, skill and integrity should be considered. Bank of China v. Wells Fargo Bank Union Trust Co. (1952), 104 F. Supp. 59, 48 A. L. R. 2d 172; In re Atwood's Trust (1949), 227 Minn. 495, 35 N.W.2d 736. On the other hand, an attorney's unique skill is not an important factor where the case involved is not such as to call for such specialized ability. Milwaukee Towne Corp. v. Loew's (1951), 190 F.2d 561.
A most significant factor in determining the reasonable value of professional services is the amount of money or the value of property or interest involved. Bank of China v. Wells Fargo Bank Union Trust Company, supra; In re Atwood's Trust, supra; Beard v. Westmoreland (1954), 90 Ga. App. 632, 84 S.E.2d 93; 56 A. L. R. 2d 31, Section 7. The responsibility assumed by an attorney where the interests are great should be given substantial weight in determining the compensation to which he is entitled. Although the labor of an attorney in conducting a case wherein great sums or interests are involved may be no greater than would be required in a case of trifling importance, yet the responsibility is greater. This, therefore, should be considered in determining his compensation. Further, the amount involved is to be considered in fixing an allowance to an attorney because that determines the risk to the client and the commensurate responsibility of the lawyer. In re Osofsky (1931), 50 F.2d 925; Smith v. C., N.W. R. Co. (1883), 60 Iowa 515, 15 N.W. 291; 56 A. L. R. 2d 35, Section 7. See Canon 12(4), Canons of Professional Ethics.
The results secured for the benefit of the client are, of course, important in determining the reasonable value of the attorney's services. However, it is clear that the result should not be the only factor. Also, lack of success does not justify the denial of compensation. In re Atwood's Trust, supra; In re Huffman's Estate, supra.
Some courts have deemed it proper to consider the amounts customarily charged or allowed for similar services in the same locality. However this criterion is of no value where litigation is complex and highly specialized. In re Atwood's Trust, supra; Burnett v. Graves, supra.
The examination of minimum fee schedules adopted by bar associations is probably at the very least persuasive evidence of what constitutes a reasonable fee for legal services. Krieger v. Colby (1952), 106 F. Supp. 124.
Employment undertaken on a contingent basis is a proper factor to be considered in assessing reasonable compensation. Obviously a larger fee will be authorized when its payment depends upon the attorney's success, than where it is to be paid regardless of success. If, however, there is little hazard involved in the litigation, the fact that a retainer is on a contingent fee basis may be entitled to little weight. Bordonaro Bros. Theaters v. Paramount Pictures (1953), 113 F. Supp. 196; 56 A. L. R. 2d 36, Section 8; Canon 12(5), Canons of Professional Ethics.
The court has reviewed the various factors that may or could be relied upon encompassing the award of compensation for services performed by counsel for the landowner. It would appear that the only factors that may be considered under the peculiar and particular facts and circumstances of this case are skill and eminence of opposing counsel, time required, skill and standing of counsel, value of interest involved, results secured and minimum fee schedules of bar associations.
Accordingly a fair, reasonable and sufficient award as and for the services performed by the attorneys for the landowners should be in the amount of $3,000. In addition the court feels, under all the facts and circumstances that an award should be made for witness fees. The only witness fee to come to the attention of the court is that of Mr. McGuire in the sum of $600. This fee was for his appraisal and comprehensive report concerning the property in question. The court finds that the sum of $600 for this service was necessary and a reasonable charge under all the facts and circumstances. There were no other expenses.
Wherefore the court hereby enters judgment in favor of the defendants and against the plaintiff in the sum of $3,600.
This decision and judgment was served on all counsel as identified below, by ordinary mail, on January 28, 1971.
Judgment for defendants.