Falls County Water Control and Improvement District No. 1 v. Charles S. Haak and Wife, Lorena Haak--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00127-CV

Falls County Water Control

and Improvement District No. 1,

Appellant

v.

Charles S. Haak

and Wife, Lorena Haak,

Appellees

From the 82nd District Court

Falls County, Texas

Trial Court No. 34,680

O p i n i o n

Appellant Falls County Water Control and Improvement District No. 1 appeals the trial court s order granting attorney s fees in favor of Appellees Charles and Lorena Haak. We will affirm.

Background

The Water District filed a condemnation suit against the Haaks seeking to acquire an easement over their property. After filing the original petition, it amended its petition to enlarge the area sought to be condemned. The Haaks filed a Plea in Opposition to the Court s Jurisdiction alleging that the trial court did not have jurisdiction because the Water District failed to make a new, reasonable and bona fide offer for the taking of this property upon amending the petition. They also requested that the Court award them full reimbursement of attorney s fees and expenses which they have incurred in the defense of their rights and property in this proceeding.

  The trial court granted the plea to the jurisdiction and dismissed the proceeding. The Order of Dismissal was dated July 23, 2004. On September 24, 2004, the Haaks filed another motion to recover attorney s fees and other expenses pursuant to Texas Property Code section 21.019(c), and then filed an amended motion on October 27, 2004. Although they alleged the trial court maintained jurisdiction over the case, they also filed a Motion for Enlargement of Time to File Request for Attorney s Fees and Expenses pursuant to Texas Rule of Civil Procedure 5. The trial court granted the motion for recovery of attorney s fees.

Trial Court s Plenary Power

The trial court s plenary power expires thirty days after the date a final judgment is signed. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). A judgment is final "if it disposes of all pending parties and claims." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To determine whether a judgment disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case. Id. There must be some "clear indication that the trial court intended the order to completely dispose of the entire case." Id. at 205. The intention of the court is determined from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Id. at 203.

The Water District argues that claims must be asserted in a pleading and that a Motion in Opposition to the Court s Jurisdiction is not a pleading. The Texas Rules of Civil Procedure require that pleadings give fair notice of a claim asserted. See Tex. R. Civ. P. 45, 47. The purpose of the fair notice requirement is to provide the opposing party with sufficient information to prepare a defense. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988). We find that the motion was a sufficient pleading as it put the Water District on notice of the claim for attorney s fees. Because the record indicates that the July 23 order did not dispose of this claim, we find that the order was not a final judgment and the trial court s plenary power had not expired at the time of the Order Granting Recovery of Attorney s Fees. Accordingly, we overrule the Water District s first and second issues.

Reasonableness of Attorney s Fees

A court that renders a judgment denying the right to condemnation may grant the property owner reasonable and necessary attorney s fees. Tex. Prop. Code Ann. 21.019(c) (Vernon 2004). The determination of reasonable attorney s fees is a question for the trier of fact. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). Factors to be considered in determining the amount of reasonable attorney s fees include: (1) the time and labor required, novelty and difficulty of the question presented, and the skill required to properly perform the legal service; (2) the likelihood that the acceptance of employment precluded other employment by the lawyer; (3) the fee customarily charged in the locality for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Tex. Disciplinary R. Prof'l Conduct 1.04(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, 9); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). The court is not required to receive evidence on each of these factors. Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897-98 (Tex. App. Dallas 2003, no pet.). The court can also look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. Id.

The Haaks filed a Motion for Recovery of Attorney s Fees and Other Expenses and attached the affidavit of their attorney, R. Coke Mills, in support of their request for attorney s fees. In their amended motion, the Haaks set forth the procedural history of the case. It further explained that it was necessary for their attorney to spend more time on the case than the Water District s attorney because it was necessary for him to (1) make several trips to his clients property to determine the location of the easements being sought in the Original Petition and the different easements being sought in the Amended Petition; (2) determine the extent of damage the easements would inflict upon the improvements on the property; (3) meet with county officials to determine whether the county authorized the taking of a right-of-way for a county road and whether this easement was sought to provide access to county property.

In Mill s affidavit, he listed the pleadings he prepared and filed in the case. He also set forth his qualifications, his extensive experience in eminent domain litigation, and his knowledge of customary attorney s fees for eminent domain litigation.

As further proof of reasonableness of his fees, Mills evaluated the factors listed above. Mills stated that the hourly rates requested are within the range of reasonable and customary fees charged in the Central Texas area for cases of this nature; he has built a reputation for competence in this area of litigation; the hourly rate requested is in line with other attorney fee awards in eminent domain cases in the Central Texas area; and that the Haaks contracted to pay him a fixed fee of $175 per hour. Mills concluded that the reasonable and customary fee for his work at the trial level would be $16,712.50 (i.e., 99.5 hours at $175 per hour).

The Water District argued in the trial court and on appeal that although $175 per hour is not unreasonable, the amount of time Mills spent on the case is. It also complains that Mills did not distinguish the hours he expended on the case from that of the firm. However, Mills affidavit states that [a]ll work performed by Defendants counsel in connection with this matter has been necessary and reasonable.

In light of the affidavit testimony presented by attorney Mills, we find that the trial court had sufficient information upon which to determine that attorney s fees in the amount of $16,000 was reasonable. We therefore conclude that the trial court did not abuse its discretion. We overrule the Water District s third issue.

Conclusion

Having overruled the Water District s three issues, we affirm the order of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed February 7, 2007

[CV06]