Housing Authority v. Green

Paul Ward, Justice. This appeal is a continuation of the litigation involved in the case of The Housing Authority of the City of North Little Rock v. Amsler, Judge, 239 Ark. 592, 393 S. W. 2d 268 (decided May 31, 1965), to which reference may be made for fuller details. In that case the Housing Authority asked the trial court for permission to withdraw its suit after the july had returned a verdict favorable to the landowner. The trial court allowed the withdrawal, but held the Housing Authority’ must pay the landowner all reasonable expenses for defending the litigation. The trial court then set a hearing on November 13,1964 to determine the “amount, if any, to be awarded to'” . . . the owner.' • Before the hearing could be held on NovembéíTT3) 1964, appellant filed a petition in this Court to prohibit the trial court from proceeding further, contending it had no jurisdiction to award appellee said expenses. On May 31, 1965 we denied the petition and held the trial court did have inherent jurisdiction to award expenses under the circumstances. Following the decision of this Court, the trial court then found that appellee was entitled to the sum of $12,562.92- — hence this appeal. One. We find no merit in appellant’s contention that the trial court had no authority to award expenses. Our decision in the prohibition proceeding is now the law in this case, and refutes appellant’s contention on this point. Appellant makes the contention however that our previous decision is not conclusive here because there was evidence to show appellant acted in good faith in dismissing the original suit. Again, we find no merit in this contention. Even though it be conceded for the purpose of this opinion, that a showing of lack of good faith is a prerequisite to jurisdiction, still appellant cannot prevail. The trial court held that appellant failed to show g’ood faith and we think the trial court was correct, in so holding. Three witnesses testified for appellant on this point. Their testimony, in substance, was that .it did not have enough money to pay the amount of the jury verdict. We cannot be impressed with their reasoning, especially when this acute money situation was not revealed in advance to appellee or the court. Certainly, the situation cannot be attributed to any fault of appellee. ■Two. We have concluded the allowance of $12,-562.92 made by the trial court is excessive. Testimony on the part of appellee, to justify that amount, was that he had paid two appraisers the sum of $1,400; that he had paid $162.92 for maps, and that his attorney should have- $10,000 for his services. The testimony regarding the last item was far from convincing. It is true that a reputable attorney testified that, in his opinion, a fee of $10,000 was reasonable. However, that testimony appears to have been based on the fact that a verdict of $45,-000 was returned in favor of appellee. The fact, however, is that appellee was not allowed to collect anything. Appellee is entitled to he reimbursed only for all reasonable expense incidental to defending the suit. We refrain from setting out in detail the testimony relative to the claimed expense because we have concluded the judgment is excessive by the amount of $5,-000. Therefore, if appellee will, within seventeen calendar days, enter an acceptance of a judgment in the amount of $7,562.92 such judgment will be affirmed, otherwise the judgment will he reversed and the cause remanded for a new trial. Harris, O. J. & McF addin, J., dissent. Amsler, J., not participating.