Evans v. Evans
| Decision Date | 08 May 2018 |
| Docket Number | 115600,Comp to 114270,Case Number: 115034 |
| Citation | 439 P.3d 418 |
| Parties | In re the Marriage of: Jana Drummond EVANS, Petitioner/Appellant, v. George Edward EVANS, Respondent, and Kirk & Chaney, PLLC, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Christopher A. Wood, CHRISTOPHER A. WOOD & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Appellant
Thomas J. Daniel, IV, Allen Campbell, KIRK & CHANEY, Oklahoma City, Oklahoma, for Appellee
¶ 1 Jana Drummond Evans (Client) appeals an April 29, 2016, order granting Kirk & Chaney's (Law Firm) motion to enforce attorney's lien. Based upon our review of the record and applicable law, we affirm.
¶ 2 This is one of three companion appeals assigned to this Court arising from a divorce action. In Appeal No. 114,270, Client seeks review of the trial court's August 10, 2015, order denying her motion to correct, open, modify, or vacate the Decree of Dissolution of Marriage. In Appeal No. 115,600, Client seeks review of the trial court's November 9, 2016, order granting Law Firm's application for an attorney's fee, which sought fees incurred in enforcing the attorney's lien. In the present case, Appeal No. 115,034, Client seeks review of the trial court's April 29, 2016, order granting Law Firm's motion to enforce attorney's lien.
¶ 3 Briefly, Law Firm represented Client in a divorce action which culminated in a divorce decree entered on May 11, 2015. On April 7, 2015, Law Firm filed a notice of attorney's lien pursuant to 5 O.S.2011 and Supp. 2014, § 6. On September 1, 2015, Law Firm filed a motion to enforce attorney's lien, asserting Client owed Law Firm $47,891.82. Client filed multiple objections, asserting Law Firm's fee was excessive and unreasonable because Law Firm made legal and mathematical errors during the legal representation resulting in a reduced division of the marital estate.
¶ 4 On December 4, 2015, Client filed a counterclaim for negligence. Client sought reimbursement of excessive fees paid and damages. In addition, on December 9, 2015, Client filed an objection to jurisdiction of special judge and motion to transfer to district court. Client asserted the special judge's jurisdiction was limited to $10,000.00 pursuant to 20 O.S.2011, § 123(A)(1). Law Firm responded, asserting the attorney-lien enforcement was an equitable proceeding ancillary to the original divorce proceeding. Thus, the special judge may decide this proceeding pursuant to 20 O.S.2011, § 123(A)(9). Finally, Law Firm asserted Client should file a separate action for alleged malpractice. By order filed on January 15, 2016, trial court denied Client's objection to jurisdiction and motion to transfer to district court. The court further dismissed Client's counterclaim as not properly filed with the court.
¶ 5 An evidentiary hearing was subsequently held on December 11, 2015, January 15, March 11, March 30, and April 4, 2016. By order entered on April 29, 2016, the trial court granted Law Firm's motion to enforce attorney's lien in the amount of $47,891.82. Client appeals.
¶ 6 When the appeal raises an issue of the reasonableness of an attorney's fee awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶ 32, 932 P.2d 1091, 1097 ; State ex rel. Burk v. Oklahoma City , 1979 OK 115, ¶ 22, 598 P.2d 659, 663. To establish an abuse of discretion, the appellant must show the trial court made a clearly erroneous conclusion, which resulted in a judgment against reason and evidence, before such an award may be reversed. Green Bay Packaging, Inc. , at ¶ 32, at 1097 ; Broadwater v. Courtney , 1991 OK 39, ¶ 7, 809 P.2d 1310, 1312 ; Abel v. Tisdale , 1980 OK 161, ¶ 20, 619 P.2d 608, 612.
¶ 7 Oklahoma law recognizes two types of liens by which an attorney may secure payment for his or her services: (1) a special or charging lien; and (2) a common-law possessory or retaining lien. Mehdipour v. Holland , 2007 OK 69, ¶ 20, 177 P.3d 544, 548. In the present case, Law Firm sought to enforce a special or charging lien. An action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Id . at ¶ 25, at 549.
¶ 8 Client challenged Law Firm's fee as excessive and unreasonable because of purported legal and mathematical errors made during their legal representation resulting in a reduced division of the marital estate. Because a court exercises its equitable powers in enforcing an attorney's charging lien, it may inquire into the reasonableness of the asserted fee for purposes of enforcing the lien.
¶ 9 Rule 1.5 of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch.1, app.3-A, provides attorneys have a professional responsibility not to make an agreement for, charge, or collect unreasonable fees or expenses. In re Adoption of Baby Boy A , 2010 OK 39, ¶ 25, 236 P.3d 116, 124. Rule 1.5 lists eight factors to be considered in determining the reasonableness of the contract, charge, or fee. Id . In addition, State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, established a two-part reasonableness test for an attorney's fee: 1) a base fee calculated by multiplying hours worked by an hourly rate, and 2) a bonus or incentive fee calculated under eight factors.1 In re Adoption of Baby Boy A , 2010 OK 39, ¶ 26, 236 P.3d 116, 124. Generally referred to as the Burk criteria, the same eight factors are listed for determining the amount of an attorney's fee: 1) time and labor required, novelty and difficulty of the questions involved, and skill requisite to properly perform the legal services; 2) the likelihood the representation will preclude other employment by the attorney; 3) customary charge in the community for similar legal services; 4) amount involved and results obtained; 5) time limitations imposed by the client or the circumstances; 6) nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the attorney performing the legal service; and 8) whether the fee is fixed or contingent. Id . at ¶ 25 fn. 9, 129 fn. 9. The Burk criteria are the standard by which courts test the reasonableness of attorney fee contracts as well as fee awards. Id . at ¶ 27, at 124.
¶ 10 Parties are free to contract for a reasonable attorney's fee. However, if the fee is challenged as excessive or unreasonable, the trial court should take evidence as to the reasonableness of the fee and has the power to fix an attorney's fee that is reasonable and commensurate with the work performed by the attorney. In re Adoption of Baby Boy A , 2010 OK 39, at ¶ 33, 236 P.3d at 126. The Supreme Court has long held the party moving for an attorney's fee has the duty of demonstrating the reasonableness of the fee to the trial court. Id. See also Oliver's Sports Center, Inc. v. National Std. Ins. Co. , 1980 OK 120, ¶ 8, 615 P.2d 291 (). The reasonableness of an attorney's fee is a question for the trier of fact, Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, ¶ 8, 849 P.2d 392, 394, and the fee must be supported by evidence and reason. Finnell v. Seismic, 2003 OK 35, ¶ 18, 67 P.3d 339, 346–47.
¶ 11 Because "the determination of the reasonableness of an attorney's fee is particularly within the province of a trial court," Marvel v. Miken , 1994 OK CIV APP 150, ¶ 6, 889 P.2d 903, 905, we will affirm a trial court's award of an attorney's fee absent an abuse of discretion. Abel v. Tisdale , 1980 OK 161, ¶ 20, 619 P.2d 608, 612. An abuse of discretion will only be found where the trial court made a "clearly erroneous conclusion and judgment against reason and evidence." Id . See also Oklahoma Turnpike Auth. v. Asher , 1993 OK 136, ¶ 7, 863 P.2d 1205, 1207. Furthermore, a trial judge's decision comes to a court of review clothed with a presumption of correctness. Willis v. Sequoyah House, Inc. , 2008 OK 87, ¶ 15, 194 P.3d 1285, 1290.
¶ 12 In the present case, Law Firm addressed the Burk factors at the hearing before the trial court. Law Firm introduced detailed time records of the work it performed for Client, affirmatively testifying that its time records accurately reflected the time and labor required in the case. In addition, counsel for Law Firm testified he has considerable experience in divorce matters, having practiced primarily domestic law for over twenty-nine years, has an AV rating in Martindale-Hubbell, and is listed in the area of family law as one of the "Best Lawyers in America." Counsel noted they represented Client for approximately twenty-one months against very capable opposing counsel in a hard-fought divorce case that consisted of a marital estate valued at almost $4.5 million dollars. Issues included separate property, significant stock and stock options, support alimony, child support, contempt, and child custody. Law Firm asserted that due to its efforts, Client was awarded separate assets worth over $1.2 million, plus stock and stock options, as well as $790,000.00 in property division alimony, $4,000.00 per month in support alimony for three years, and $3,500.00 per month for child support. With respect to separate property issues, Law Firm noted Husband claimed over $2 million of Client's property was marital property. The trial court ultimately found only $91,322.00 was marital property and the rest was Client's separate property.
¶ 13 Law Firm also introduced a copy of its attorney fee contract with Client that established the agreed hourly rate. Client did not object to the agreed hourly rate as unreasonable.2 In...
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