Housing Authority of Asheville v. Pelaez , 23 N.C. App. 702 ( 1974 )

HEDRICK, Judge.

The only issue before us on this appeal is whether the court erred in fixing counsel fees in the amount of $1900.00 to be taxed as part of the costs and paid by petitioner to attorneys Narvel J. Crawford and Cecil C. Jackson, Jr. for their representation of respondent Surrency.

The statutory authority upon which the allowance of attorney fees in this case is based is G.S. 160A-503(2), which provides as follows:

“[I]f the power of eminent domain shall be exercised under the provisions of this Article, the property owner or owners or persons having an interest in property shall be entitled to be represented by counsel of their own selection and their reasonable counsel fees fixed by the court, taxed as a part of the costs and paid by the petitioners.” (Emphasis ours.)

When a statute provides for attorney fees to be awarded as. a part of the costs to be paid by the governmental authority which is appropriating the property, it is to be an amount equal to the actual reasonable value of the attorney’s services. Redevelopment Comm. v. Hyder, 20 N.C. App. 241, 201 S.E. 2d 236 (1973). In Redevelopment Comm. v. Hyder, supra at 246, Judge Baley enumerated the factors to be considered by the court in fixing reasonable attorney fees as follows: “ — the kind of case, the value of the properties in question, the complexity of the legal issues, the time and amount involved, fees customarily charged for similar services, the skill and experience of the attorney, [and] the results obtained . ... ”

Petitioner contends that the order appealed from does not contain findings of fact based on competent evidence sufficient to support the court’s conclusion that $1900.00 was a reasonable fee for respondent’s attorneys in this proceeding. We agree. When this case was argued in this court, counsel for respondent conceded that his affidavit filed in support of the motion was not correct in stating “that it was necessary for her [Jessie Lee Surrency] to defend herself by her attorneys, the undersigned petitioners [Cecil C. Jackson, Jr. and Narvel J. Crawford] , pending the outcome of actions involving all eight of the above-mentioned proceedings [and] [t]hat it was necessary for the said respondent, Jessie Lee Surrency, to file appropriate response in the above eight parcels of property.” .Mr. Jackson further conceded that the finding in the court’s order, “that said attorneys have done many legal services and performed extensive work in all of the above nine Special Proceedings on behalf of Jessie Lee Surrency” was also incorrect. The record before us clearly shows that only one proceeding was involved in the motion to have the counsel fees fixed by the court. Suffice it to say, therefore, a material fact found by Judge McLean is not supported by competent evidence. Furthermore, neither the record nor the findings of fact support the conclusion that $1900.00 is a reasonable fee to be taxed as a part of the costs and paid by petitioner to the attorneys representing respondent Jessie Lee Surrency. Redevelopment Comm. v. Hyder, supra.

The order is vacated, and the proceeding is remanded to the superior court for a new hearing in accordance with this opinion.

Vacated and remanded.

Judges Morris and Baley concur.