Franklin-McKinley School District v. Lester

AGEE, J.

Plaintiff’s original complaint sought to condemn certain land owned by defendants for use as a school site. Thereafter, an amended complaint changed the location

[348]

of the land to be condemned to another site, also owned by defendants.

The parties agreed that such an amendment constituted an abandonment of the proceeding as to the original site

(County of Kern

v.

Galatas,

200 Cal.App.2d 353, 357 [19 Cal.Rptr. 348]) and that by reason thereof defendants became entitled to the costs provided for in section 1255a of the Code of Civil Procedure.

This section provides that, upon abandonment, “a judgment shall be entered dismissing the proceeding and awarding the defendants

their costs and disbursements,

which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees. These costs and disbursements, including expenses and attorney fees, may be claimed in and by a cost bill, to be prepared, served, filed and taxed as in civil actions; ...” (Italics added). Such a judgment of dismissal and award of costs was duly entered herein.

Defendants included in their cost bill an item of $10,000 for attorney fees. Plaintiff’s motion to tax this item was granted in its entirety. Defendants have appealed from the order.

Defendants had employed their attorney under an oral agreement that he was to receive, as his fee for legal services, either (1) 5 per cent of the total amount paid by plaintiff to the defendants for the property taken or (2) 50 per cent of the difference between the net recovery by defendants for such property and the amount which plaintiff originally had offered to pay therefor, whichever of these two amounts was the greater. The agreement contained no provision for a fee in the event of an abandonment.

The trial court in its findings and conclusions held that the attorney had a contingency fee contract with the defendants, that there was no arrangement requiring payment of any fee in the event of an abandonment, and that there was no obligation on the part of defendants to pay their attorney any fee in the event of an abandonment.