Arkoma Gas Co. v. Otis Engineering Corp.
| Decision Date | 23 March 1993 |
| Docket Number | No. 64063,64063 |
| Parties | ARKOMA GAS COMPANY, Appellant, v. OTIS ENGINEERING CORPORATION, Appellee. |
| Court | Oklahoma Supreme Court |
On Certiorari to the Court of Appeals, Oklahoma City Divisions.
Plaintiff sued defendant, asserting damages in excess of $70,000.00, to plaintiff's drilling operations caused by defendant's supplying a defective bridge plug. Case was tried to jury that returned a verdict for plaintiff for $100.00. Plaintiff moved to assess attorneys' fees as costs against defendant pursuant to 12 O.S.1981 § 936, which provides for allowance of a reasonable attorney fee to the prevailing party, to be taxed as costs. Plaintiff claimed attorney fees of $24,627.23 plus costs. Trial judge found that plaintiff was the prevailing party, but awarded attorneys' fees of $5,500.00, plus $1,313.35 in costs. Plaintiff appealed asserting that State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659 (Okl.1979), required trial judge to award attorneys' fees based on reasonable hours times a reasonable rate and that trial judge abused his discretion by considering any other factor in determining the fee. The Court of Appeals by unpublished order directed the trial court to award $24,627.23 to plaintiff. We find no abuse of discretion by the trial judge. Certiorari having been granted previously, we vacate the order of the Court of Appeals. Order of the trial court is affirmed.
Certiorari Previously Granted, Order of the Court of Appeals Vacated, Order of the Trial Court Affirmed.
Kenneth L. Buettner, Robert W. Dace and McAfee & Taft, Oklahoma City, for appellant.
Rodney J. Heggy, Cheek, Cheek & Cheek, Oklahoma City, for appellee.
Certiorari to Court of Appeals, Oklahoma City Divisions, to review an unpublished order of that court rendered on the accelerated docket. The issue is whether the trial court, in determining a reasonable attorney's fee under 12 O.S.1981 § 936, erred in considering the size of plaintiff's recovery and reducing the claimed attorney fee accordingly.
The plaintiff, Arkoma Gas Company, sued Otis Engineering Corporation for damages allegedly caused by defendant's supplying a defective bridge plug for use in plaintiff's drilling operation. Plaintiff originally alleged three grounds for recovery: negligence, products liability and breach of implied warranty, seeking in excess of $70,000.00 in damages. At the pretrial conference, defendant was permitted to interpose a counterclaim for $6,712.43, the unpaid purchase price of the plug.
The case was tried before a jury in October, 1984, only on the theory of implied warranty. The jury was instructed that a finding for the plaintiff would automatically defeat defendant's counterclaim. After a three-day trial, the jury returned a verdict for plaintiff for $100.00 on its claim and, accordingly, against defendant on its counterclaim. Plaintiff then moved for assessment of attorneys' fees against defendant as costs under 12 O.S.1981 § 936. 1 A hearing was held November 16, 1984 at which the trial judge determined the plaintiff was the prevailing party and set a hearing for February 26, 1985 to determine the amount of attorneys' fees. At the February 26, 1985 hearing, plaintiff's attorney submitted an affidavit and detailed time records reflecting 319.8 hours spent on the case. Plaintiff's attorneys computed the total hours times hourly rates ranging from $140.00 per hour to $45.00 per hour, for attorneys' fees of $23,397.23, inclusive of expenses, plus additional attorneys' fees for the attorney fee hearing totalling $24,627.23. Plaintiff had one attorney witness testify as to the reasonableness of the hours billed for the kind of case involved and as to the prevailing rates in the community. There was no real dispute that the hours spent or the rates charged were reasonable. The question was whether the claimed attorneys' fees were excessive in light of plaintiff's marginal success.
The trial judge found that the hours and rates asserted by plaintiff were reasonable, but felt that an award of $24,627.23 as attorneys' fees would be excessive and unfair where plaintiff recovered only $100.00. The trial judge recited that he had considered all of the factors in State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659 (Okl.1979), but felt that he was required to consider the entire circumstances to ensure that such award was fair and reasonable under the circumstances. The trial judge awarded plaintiff attorneys' fees based on compensating plaintiff's two lawyers fully for the three days of trial, at a rate of $160.00 per hour, and then increased the total amount to an award of $5,500.00, plus costs of $1,313.35.
The plaintiff appealed, contending that the trial judge abused his discretion by taking account any factors other than reasonable hours multiplied by a reasonable rate, which plaintiff claims was the mandate of State ex rel. Burk v. City of Oklahoma City, supra. Plaintiff's argument is, in effect, that once plaintiff is found to be the prevailing party and entitled to reasonable attorneys' fees under 12 O.S.1981 § 936, the trial judge is bound by State ex rel. Burk, supra, to award plaintiff a fee determined by multiplying reasonable hours spent by a reasonable hourly rate. The plaintiff contends that the "other factors" listed in State ex rel. Burk, supra, are to be used only in determining any bonus to plaintiff's attorneys. Since no bonus was requested, their argument goes, then the trial judge was not at liberty to consider any other factors in making the award of attorneys' fees. The Court of Appeals agreed with plaintiff and remanded to the trial court with directions to enter an award of attorneys' fees to plaintiff for $24,627.23, plus an additional attorney fee for the appeal. Subsequent to the decision of the Court of Appeals, we decided Southwestern Bell Telephone Company v. Parker Pest Control, Inc., 737 P.2d 1186 (Okl.1987), which effectively answered the question presented herein. We grant defendant's petition for writ of certiorari and vacate the order of the Court of Appeals.
In Southwestern Bell Telephone Company, supra, we recognized that the amount of the recovery, along with the amount sued for, may and should be taken into account by the trial judge in each case where an attorneys' fee is awarded. In that case Southwestern Bell sued Parker seeking $3,867.00 unpaid...
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