All American Pipeline Company v. Jensen Enterprises

all am. pipeline v. Jensen IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-89-261-CV ALL AMERICAN PIPELINE COMPANY, APPELLANT vs. JENSEN ENTERPRISES, ET AL., APPELLEES FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 21,736, HONORABLE CHARLES E. LANCE, JUDGE This appeal arises out of a dismissal of condemnation proceedings instituted by appellant ("All American") and the trial court's subsequent award of attorney's fees to appellees. All American argues that the trial court abused its discretion in awarding appellees attorney's fees for the time they expended in preparing for trial. We will affirm the judgment of the trial court. All American instituted condemnation proceedings against property owned by appellees. The case was set for a jury trial on September 13, 1989. On September 6, 1989, All American moved for a continuance. (1) The trial court denied the motion. At approximately 3:00 p.m. on September 12, 1989, All American filed a motion for nonsuit, which the trial court granted. The trial court scheduled a hearing for the following day to determine the amount of reasonable and necessary fees appellees were entitled to recover for attorneys, appraisers, and photographers, as well as for other expenses incurred to the date of the hearing. See Tex. Prop. Code Ann. § 21.019 (1984 & Supp. 1991). Mark M. Humble, Aaron L. Jackson, and John Henderson testified as to appellees' reasonable and necessary fees. Based on this testimony, the trial court awarded appellees $51,000 for reasonable and necessary attorney's fees earned by Mark M. Humble, $6,300 for reasonable and necessary attorney's fees earned by Aaron L. Jackson, and $5,000 for expert witness fees earned by John Henderson. The trial court also awarded appellees $7,000 as reasonable and necessary fees in the event of an appeal to this Court, $2,500 as reasonable and necessary fees in the event of an appeal to the supreme court, and $2,500 as reasonable and necessary fees in the event that the supreme court grants application for writ of error. The trial court also awarded appellees all court costs. All American argues on appeal that the trial court erred in awarding attorney's fees and expenses to appellees because the sums awarded were unreasonable and unnecessary. The Texas Property Code states that a court granting a motion to dismiss a condemnation proceeding "shall make an allowance to the property owner for reasonable and necessary fees for attorneys, appraisers, and photographers and for the other expenses incurred by the property owner to the date of the hearing." Tex. Prop. Code Ann. § 21.019(b) (Supp. 1991). See also McCullough v. Producers Gas Co., 616 S.W.2d 702, 705 (Tex. Civ. App. 1981, writ ref'd n.r.e.). The only criteria to be considered by a trial court in determining whether to award these fees is whether they are "reasonable and necessary." City of Wharton v. Stavena, 771 S.W.2d 594, 595 (Tex. App. 1989, writ denied). The allowance of attorney's fees rests in the sound discretion of the trial court, and its judgment will not be reversed in the absence of a showing of an abuse of that discretion. Keller Industries, Inc. v. Reeves, 656 S.W.2d 221, 228 (Tex. App. 1983, writ ref'd n.r.e.). Appellees presented sufficient evidence to suggest that both the work performed and the fees charged by their attorneys and appraisers were necessary to prepare for the condemnation proceedings and were reasonable by community standards. All American did not controvert the testimony elicited from attorneys Humble and Jackson and from appellees' expert witness Henderson. Since the trial court properly found from the evidence that the fees satisfied the criteria provided in § 21.019(b), it did not err in ordering All American to pay those fees. See Stavena, 771 S.W.2d at 596. We therefore overrule All American's point of error. In a cross-point of error, appellees urge that the district court erred in denying their motion for discovery sanctions. Appellees argue that the nonsuit by All American could not deprive them of rights they would have had if the case had not been dismissed. See Tex. R. Civ. P. Ann. 162 (Supp. 1991); Tex. Prop. Code Ann. § 21.018(b) (1984). We have reviewed appellees' motion for discovery sanctions and note that it does not ask for monetary sanctions; the motion requests only other means of relief available under Tex. R. Civ. P. Ann. 215 (Supp. 1991). Appellees' request for relief became moot when All American abandoned the condemnation proceedings and filed its motion for nonsuit and dismissal. Therefore, appellees' cross-point is overruled. The judgment of the trial court is affirmed. Mack Kidd, Justice [Before Justices Powers, Aboussie and Kidd] Affirmed Filed: August 14, 1991 [Do Not Publish] 1. Appellant attempts to present the Court with facts extracted from the hearing on the motion for continuance. However, the record on appeal does not include a transcript of the statement of facts from this hearing. We will therefore consider and refer only to the statement of facts of the district court proceedings that have been presented on appeal. See Tex. R. App. P. Ann. 74(f) (Pamph. 1991).