*1 212 Kucera, Kucera v. 117 N.W.2d
813 this Court held as (N.D.1962) follows: The MUNICIPAL AIRPORT AUTHORITY FARGO, OF the CITY OF North Da . . under the Rules of Civil Proce- kota, Appellant, Plaintiff dure Dakota, now force North v. by when issues the pleadings not raised Jacque Stockman, STOCKMAN Louise implied express tried or consent Respondents. Defendants and parties, they shall be tried
respects they as if had been raised The MUNICIPAL AIRPORT AUTHORITY FARGO, OF the CITY OF North pleadings. Necessary amendment of Da kota, Appellant, Plaintiff and pleadings to make them conform to be made motion v. party, judgment, of either after even George F. STOCKMANand Winnifred F. failure to amend does not affect the re- Stockman, Respond Defendants and sult (two of the trial Rule ants, cases). issues. 15(b), N.D.Rules of Civ.Proc.” The MUNICIPAL AIRPORT AUTHORITY FARGO, OF the CITY OF North Da The trial court saw heard both the kota, Appellant, Plaintiff plaintiff testify and the defendant under v. oath. The court found that the preponderance fair the evidence Jacque STOCKMAN, Defendant Respondent. proved its cause of action the de- fendant. The court further found that the The MUNICIPAL AIRPORT AUTHORITY prove defendant had failed fraud in the OF the CITY FARGO, OF North Da promissory execution of note. kota, Appellant, Plaintiff and v. appeal judgment from On en Betty William D. STOCKMANand Stock tered a case tried to the court without a man, Respondents. Defendants and jury appellant where the demands a trial Nos. 8777-8781. novo, de findings of the trial court will Supreme North Dakota. appreciable weight. Zerr v. Som mer, (N.D.1970); N.W.2d 330 Koisti June 1972.
nen v. Company Farmers Oil Union
Rolla, 179 (N.D.1970); N.W.2d 327 Auto Company
mobile Club Insurance v. Hoffert al.,
et (N.D.1972). N.W.2d 542
A testimony discloses review
that the of the trial court are am
ply supported by judg the evidence. The
ment district court affirmed.
ERICKSTAD, J., Acting C. and PAUL-
SON, TEIGEN, JJ., KNUDSON
cur.
STRUTZ, J., deeming C. himself dis-
qualified, participate; did not EMIL A. GIESE, Judge of the Sixth Dis- Judicial
trict, sitting in his stead.
tract attorney calling with their for an at- 33 n torney fee of percent of the amount recovery over and above the offer plaintiff. made The amount of the fees award- ed in each case was amount same *3 computed percent on the basis of 33}4 recovery of the additional in accordance contingent with the fee contract. In pro- eminent domain cases our statute may vides that the court in its discretion attorney fees, part award reasonable and in reads as follows:
The court in its discretion award to defendant . . . reasonable at- torney’s proceedings. judicial for all fees 32-15-32, Century Section North Dakota Code. presented
The issue to us on appeals Stewart, whether or not the trial Solberg, Fargo, Anderson & court abused its plaintiff appellant. discretion the award of attorney fees in each of the cases. five Wattam, Peterson, Vogel, Vogel & Far- The determination reasonableness of respondents. go, for attorney fees to con- awarded judicial
demnee is addressed to sound discretion of trial court. This court KNUDSON, Judge. will not rulings interfere with trial appeals These are from the award of at- court discretionary on matters unless an proceedings eminent domain shown, abuse of discretion is which abuse brought by plaintiff de- must County be a manifest Morton abuse. separate fendants in each of five actions Wetsch, Board of Park Commissioners v. consolidated for trial. citing N.W.2d 753 (N.D.1966), Bartholomay v. St. Thomas Lumber Com plaintiff contends that: pany, N.D., 124N.W.2d 481. granting 1. The trial court erred at- plaintiff contends that the awards torney fees contingent based on several fee solely fees is based on the re- contracts between the several defendants (the sults obtained difference between the attorney; and their offer and the amount of the verdict of the 2. The trial court abused its discretion jury) in accordance with the terms of the awarding attorney on the fees based contingent contracts, having fee the court contracts; contingent several principally consideration to the terms the, contracts, plain- contingent 3. The trial court abused its discretion contending tiff that the determination of in finding fees awarded to be principally fees on the basis reasonable fees. contingent not fee contracts is a deter- In these cases each of the several de- mination of a reasonable fee as contingent fendants entered into a fee con- intended a statute and constituted ability and by the trial skill of attor- manifest abuse of discretion defendants’ ney. further contends that court. awarding attor- court in thus trial In Morton County Board of Park Com-
ney its discretion view of abused Wetsch, missioners v. 136 N.W.2d (which it the character (N.D.1965), rejected we an award of attor- not- support award) contends does ney’s fees where was contin- based neces- withstanding that the court recited gent fee contract reason that the sary factors and established award improper was in the absence of a Supreme for the court finding that such fee was follow in the determination of N.D.C.C., required by 32-15-32, wherein § attorney’s reasonable fee. we said: allowance of costs and The matter brought on motion arriving at what is a reasonable at- *4 that the before the trial court defendants case, in each fee the court should case, supported affi- the the heard main the consider the character of services of of defendants and return davits the the attorney, rendered the the results Airport Authority. the which the obtained for his cli- ent, customary charged fee for of awards of In the matter and skill of the and fees, in the down this Court has laid attorney rendering The the services. factors, following stand- cases the Wetsch any single on one should not be based ards, for and the trial elements factor, all of matters be but these should determining in reasonable court to consider only The into consideration. re- taken in eminent domain cases: quirement that court is which the for in each must be reasonable fixes case services; of (1) Character Thus the services rendered. the fee obtained; (2) The results to be which trial court determines any given may case the reasonable fee in fee; customary (3) The be be than the amount less which would skill; ability and The (4) contract, in due on may more than such fee some cases be Careful, capable conscientious (5) may, court amount to. Or the would customary contingent manner— fee— considering factors which after ability and skill. fee contract— arriving at a rea- in be considered should fee, that to the conclusion sonable come any on The fee should be based due on such amount factor, matters one all of these single but par- reasonable contract would be The into should be taken consideration. fee, basis of such ticular case. only requirement is that the fee which however, in reasonable must be what is reasonable fixes in each case must be court proceeding. particular that rendered. the services County of Park Board In Morton the court Where awards Wetsch, in domain fees to eminent 142 v. N.W.2d Commissioners proceedings finding the court must make a held, Syllabus at we ¶2: fees, that such when based a contin on value of expert gent trial court have fee contract which defendants its own may consider legal attorney, in services with their fact in experience knowledge and ren based on the character of the services legal value of obtained, the reasonable dered, usually appraisal of charged rendered. the services And, Syllabus charged at for the services in rendered ¶3: Dakota, approved by North the North judge presided Where a at the Dakota State Bar Association. In addi- trial, knowledge had of the character tion, the Court found that the case litigation, observed skill carefully prepared been and handled presentation, received of the counsel, able fashion the defendant’s trial, preparation knowledge and had substantially gained that results were obtained, having results plaintiff’s above the offer and judg- coupled sidered factors with his appraisers, ment its that the fees experience, knowledge own made an moving as set forth papers, repre- attorney’s being award of fees as reason- senting one-third difference be- able, such determination will not be plaintiff’s prior tween the offer to trial appeal overturned the absence to the landowner and the verdict of the showing
an affirmative the trial jury, proper. are reasonable and court abused its discretion. awarded these five County Morton Board of Park Com aggregate cases amount Wetsch, (N. missioners v. N.W.2d $43,466.83, and was one-third of D.1965), we said that: the difference amount between the In arriving at a reasonable $448,173.00 amount offered of and the fee for the defendant in an $578,573.50. eminent-do- amount of the vferdictof main proceeding, various factors *5 by taken into consideration the trial by The reasons given the trial court, including the of character the fully judge comply with the factors and obtained, rendered, services the results by laid down this court in the services,
the customary charge for such
cases,
making
find
in
Wetsch
and we
ability
and
attorney
the
and skill of the
the determination
in
attorney
of the
fees
rendering
services.
[Citing
such
United these cases that
the trial court has not
Development Corp.
Highway
v. State
discretion,
its
considering
abused
and
of
Dept. (N.D.1965)
port Authority
not sustained the bur
has
The trial court made
orders
proof
its
affirmatively
den of
and has not
es
awarding
attorney
the
fees after the hear
tablished that the trial court has abused its
ing on the motion
the
of
for
allowance
at
in
discretion
the
of attor
awards
fees,
motion,
considering
and
the
ney
in
these cases.
affidavits,
Airport
the
the return of the
have reviewed the record in
We
these
Authority,
by
parties,
the briefs filed
the
cases and we find that the awards of attor-
the
presentations,
oral
and the files and
ney
supported
amply
by
fees are
the
case,
records in this
and stated as follows:
record.
considered were
in-
Likewise
the factors
arriving
volved in
at reasonable attor-
attorney
for the defendants was em-
ney’s
including
the character of the
ployed for the
in
December
rendered,
the results
the
which
1969, and the cases were tried in June
client,
defense
obtained for
counsel
his
1971, period
years
of over
and a half
one
the customary
charged
for such serv-
preparation
During
of
for trial.
that time
ices, the contingent fee contract executed expert appraisers
employed
were
to evalu-
landowner,
ability
the
and the
and
property,
begun
and research
ate the
was
skill of
rendering
the
the serv-
in
for
preparation
trial.
Following
ices.
arguments,
the
the
specifically
purchase
found
fee of
Formal offers to
were
that the
made
1970,
thereafter,
the
customarily
rejection
one
October
airport
offers,
being
the
for
separate
were
taken
lawsuits
purposes.
contingent-fee contracts
Such
brought against
several owners.
approved.
generally
Equity
Old
Life
cases
for
(consolidated
of the
The trial
Barnard,
Ga.App.
Insurance Co. v.
days.
a half
trial)
for three and
continued
(1969); Pocius v.