Housing Authority of the City of Greensboro v. Farabee

194 S.E.2d 553 (1973) 17 N.C. App. 431

HOUSING AUTHORITY OF the CITY OF GREENSBORO, North Carolina
v.
Mabel L. FARABEE and spouse, if any, et al.

No. 7318SC56.

Court of Appeals of North Carolina.

February 21, 1973. Certiorari Granted April 30, 1973.

Frye, Johnson & Barbee, by Ronald Barbee, Greensboro, for petitioner-appellant.

Smith, Patterson, Follin & Curtis, by Marion G. Follin, III, Greensboro, for respondents-appellees.

Certiorari Granted by Supreme Court April 30, 1973.

BROCK, Judge.

The sole question presented by this appeal is the authority of the court under G. S. § 160A-243.1 to order attorneys fees for the landowners taxed in court costs to be paid by the Housing Authority. The pertinent portions of G.S. § 160A-243.1 read as follows:

"The court having jurisdiction of an action instituted by a city or an agency, board or commission of a city to acquire any interest in real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable cost, disbursements, and expenses, including reasonable attorney fees, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if the final judgment in the action is that the city or agency, board or commission of a city cannot acquire such real property or interest therein by condemnation, or if the proceeding is abandoned by the city, agency, board or commission of a city.

"The judge rendering a judgment for the plaintiff in a proceeding brought under Chapter 40 of the General Statutes awarding compensation for the taking of property by a city or an agency, board or commission of a city shall determine and award or allow to such plaintiff, as a part of such judgment, such sum as will in the opinion of the court reimburse such plaintiff for his reasonable cost, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding."

In our opinion the first paragraph quoted above directs the court to award attorney fees to the landowner when the city, agency, board or commission abandons a condemnation proceeding; or when it is adjudicated that the city, agency, board, or commission cannot acquire the property, or interest, by condemnation. This paragraph clearly does not authorize an award of attorney fees to the landowner when judgment is entered awarding title to the condemnor and compensation to the landowner for the taking in a proceeding instituted by the condemnor.

In our opinion the second paragraph quoted above directs the court to award attorney fees to the landowner when the city, agency, board, or commission takes possession of the landowner's property, or interest therein, without first instituting a condemnation proceeding, and the landowner institutes an action against the city, agency, board, or commission and recovers damages for the taking. It does not authorize an award of attorney fees to the landowner when judgment is entered awarding title to the condemnor and compensation to the landowner for the taking in a proceeding instituted by the condemnor.

We are advertent to the provisions for the award of attorney fees contained in the Urban Redevelopment Law, particularly G.S. § 160-456(2), but in our opinion it expresses a legislative intent different from that expressed in G.S. § 160A-243.1. It appears to us that G.S. § 160A-243.1 is intended to accomplish the same purpose as that expressed in G.S. § 136-119. The wording of these last two mentioned statutes is very similar.

The portion of the judgment of the trial tribunal which awards an attorney fee to respondent as a part of the court costs taxed against petitioner is

Reversed.

CAMPBELL and GRAHAM, JJ., concur.