ALABAMA SUPREME COURT RULES THAT CONDEMNEE IS NOT ENTITLED TO DAMAGES AND ATTORNEY'S FEES WHERE THE CONDEMNING AUTHORITY HAS DISMISSED THE PROCEEDINGS PRIOR TO THE ASSESSMENT OF DAMAGES AND COMPENSATION

LEGAL COUNSEL WERE ENGAGED BY THE CONDEMNEES WHEN THE CITY OF EFAULA INSTITUTED EMINENT DOMAIN PROCEEDINGS WHICH WERE THEN DISMISSED BEFORE COURT COULD ASSESS CONDEMNATION DAMAGE AND COMPENSATION. THE ALABAMA STATUTE GOVERNING PAYMENT OF ATTORNEY'S FEES IN SUCH CASES REQUIRES THAT THE CONDEMNING AUTHORITY BE LIABLE FOR COSTS WHEN IT FAILS TO PAY "THE DAMAGES AND COMPENSATION ASSESSED AT ANY TIME WITHIN 6 MONTHS AFTER ASSESSMENT THEREOF." THE PLAINTIFFS CLAIM THAT THE OBLIGATION IS INITIATED BY THE CONDEMNATION PROCEEDING ITSELF AND THEREFORE IN A CASE WHICH DOES NOT CULMINATE IN ASSESSMENT OF DAMAGES AND COMPENSATION, THE CITY WILL BE LIABLE. THE CITY MAINTAINS THAT THE ACTUAL ASSESSMENT OF DAMAGE AND COMPENSATION IS A PREREQUISITE BEFORE THEY (THE CITY) CAN BE PENALIZED. BOTH PARTIES AGREE THAT FAILURE TO PAY WITHIN 6 MONTHS WILL RESULT IN ALL COSTS BEING CHARGED TO THE CITY. THE INTERPRETATION URGED BY THE CONDEMNEES THAT THE CITY IS LIABLE FOR COSTS AND FEES IN ANY EMINENT DOMAIN PROCEEDING THAT IS NOT TERMINATED BY PAYMENT OF AN AWARD TO THE LANDOWNER WITHIN 6 MONTHS, WAS CONSIDERED BY THE COURT AS A DEROGATION OF THE PRIOR COMMON LAW AND RULED THAT SUCH COSTS AND DAMAGES IN THE EMINENT DOMAIN PROCEEDINGS ARE IMPOSED ONLY WHERE THERE IS AN ASSESSMENT OF DAMAGES AND COMPENSATION. THE ONLY EXCEPTION TO THE RULE HAS BEEN TO PREVENT RECOVERY AGAINST THE STATE ON A THEORY OF SOVERIEGN IMMUNITY.

  • Publication Date: 1969-2

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Filing Info

  • Accession Number: 00200866
  • Record Type: Publication
  • Report/Paper Numbers: Memo 199
  • Files: TRIS
  • Created Date: Jul 24 1973 12:00AM