Jlee Co. v. Reneau Seed Co.

• Decision Date: 16 June 2014
• Docket Number: No. 110,931.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,110,931.
• Citation: 332 P.3d 297
• Parties: JLEE COMPANY, L.L.C., Plaintiff/Appellant, v. RENEAU SEED COMPANY, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

332 P.3d 297

JLEE COMPANY, L.L.C., Plaintiff/Appellant,

v.RENEAU SEED COMPANY, Defendant/Appellee.

No. 110,931.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,

Division No. 1.

April 18, 2014.

Certiorari Denied June 16, 2014.

Appeal from the District Court of Kingfisher County, Oklahoma; Honorable Paul K. Woodward, Judge.

REVERSED AND REMANDED.

Frank E. Walta, Hennessey, Oklahoma, for Appellant.

Matthew R. Oppel, Kingfisher, Oklahoma, for Appellee.

LARRY JOPLIN, Presiding Judge.

¶ 1 Plaintiff/Appellant, JLEE Company, L.L.C., was the prevailing party in a breach of contract action filed in Kingfisher County District Court. After prevailing in the underlying action, Appellant filed a motion for attorney fees and costs, pursuant to 12 O.S.2001 § 936. After a June 15, 2012 hearing, the trial court issued its order on June 28, 2012, granting costs in the amount of $262.30 and denying Plaintiff/Appellant's request for attorney fees, finding “no evidence was presented as to the reasonable value for the services performed.” From this order Appellant brings this appeal.

¶ 2 In its appeal, Appellant asserted the trial court erred when it ruled Plaintiff/Appellant presented no evidence. Appellant's second proposition of error asserted the trial court's ruling is inconsistent with 12 O.S.2001 § 936 and State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. In its third proposition, Appellant argued there were no procedural deficiencies in the evidence presented to support Plaintiff/Appellant's attorney fee motion. Appellant's final proposition argued it was an abuse of discretion for the trial court to deny the continuance request of Plaintiff/Appellant's counsel, so that an expert witness might be called to support the reasonableness of the fee request.

¶ 3 In August 2011, Plaintiff/Appellant filed a motion for summary judgment in the underlying breach of contract action. The trial court informed the parties of its ruling in Plaintiff/Appellant's favor on February 8, 2012 and memorialized the judgment in July 2012. Defendant/Appellee filed a motion for new trial which was denied. On April 13, 2012, after the court had informed the parties of its ruling, Plaintiff/Appellant filed a motion for attorney fees and costs, requesting $14,512.50 in attorney fees. The motion was accompanied by a detailed affidavit from Plaintiff/Appellant's counsel, outlining the time records, dates, tasks, and billing in the case.

¶ 4 On June 15, 2012, the trial court conducted a hearing on the attorney fee motion. Counsel for Appellant explained some of the underlying reasons for the fee, including billing that was omitted from the fee request, and asked the court award $14,512.50 in attorney fees to Plaintiff/Appellant, as prevailing party. Defendant/Appellee, Reneau Seed Company, agreed to the reasonableness of counsel's hourly fee rate, but objected to the reasonableness of the overall fee request of $14,512.50, arguing the time billed was excessive and unreasonable under the circumstances of the case, because the recovery was modest and the case did not involve novel or complex legal issues. Appellee's counsel then “demurred” to Appellant's attorney fee motion. The court asked Appellant's counsel if he was prepared to present expert testimony in support of the motion. Counsel asked for a continuance in order to present expert testimony. The continuance was denied. The trial court indicated its ruling would favor defense counsel's demurrer, although the court was going to take the motion under advisement and allow the parties time to present authority in support of their respective positions. The court told Appellant's counsel that he had presented “no evidence” in support of his fee request and the court could not simply rely on the motion itself, unless it was agreed to by both parties, which it was not in this case. Plaintiff/Appellant's counsel renewed his request for a continuance to call an expert, which was again denied.

¶ 5 A question regarding entitlement to an award of attorney fees or costs presents a question of law for the appellate court to review de novo. Finnell v. Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. Where the issue before the appellate court is one of the “reasonableness” of the award, the appellate court will review the trial court's decision to determine if there has been an abuse of discretion. Burk, 598 P.2d at 663.

¶ 6 Appellant first alleges the trial court erred in finding Plaintiff/Appellant presented “no evidence” in support of its motion for attorney fees. Appellant points out it submitted a sworn, notarized affidavit from Appellant's attorney with the motion for attorney fees, outlining the attorney's billing, including dates, the work or task performed on that date and the amount of time billed for the work.

¶ 7 An affidavit is one of the methods by which witness testimony is taken. 12 O.S.2001 § 421. And affidavits may be considered as evidence:

To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form.

Residential Funding Real Estate Holdings, L.L.C. v. Adams, 2012 OK 49, ¶ 17, 279 P.3d 788, 793 (emphasis added).

Such a verified motion, “sworn under oath, as required by 12 O.S.2001 § 422,” and including “declarations of the affiant's actions and observations” to which he would otherwise be competent to testify, “constitutes the equivalent of an affidavit.” See Smith v. Teel, 2008 OK CIV APP 7, ¶ 8, 175 P.3d 960, 964–965. Inasmuch as Rule 13(c) specifically names an affidavit as “evidentiary material ” properly considered on motion for summary judgment, we conclude the trial court erred in holding Plaintiff failed to oppose Employer's motion for summary judgment with evidentiary support.

Kennedy v. Builders Warehouse, Inc., 2009 OK CIV APP 32, ¶ 14, 208 P.3d 474, 477. In another case, the appellate court found the paternity affidavit in question, signed before a notary, unequivocally acknowledging the child's paternity, was sufficient evidence to establish the child's legitimacy for purposes of intestate inheritance; and that the properly notarized and acknowledged document “ ‘imports verity’ that can only be overcome by clear and convincing evidence.” In re Estate of Gentry, 2004 OK CIV APP 34, ¶¶ 5–9, 90 P.3d 1015, 1017–18.

¶ 8 The appealed from order states, “[t]he Plaintiff presented no evidence, but did present argument.” The record shows Plaintiff/Appellant submitted a five page affidavit in support of its attorney fee motion, which contained detailed billing entries spanning a four year period from 2008 to 2012. The affidavit was a form of evidentiary material and the court was in error to find Appellant had submitted no evidence at all.

¶ 9 Appellant's second proposition asserts the trial court's ruling is contrary to Burk, 1979 OK 115, 598 P.2d 659, and 12 O.S. § 936, arguing Burk does not find that an affidavit is insufficient to support an attorney fee award. The court made the following statement at the hearing, “you [Plaintiff/Appellant] have to present the evidence. It's an evidence-driven question and I can't rely upon just a motion unless it's agreed to.” This statement and others indicate the trial court viewed the affidavit as merely part of the motion itself and not as evidence. Whether the court did so because of its reading of Burk is not clear from the record. However, we agree with Appellant that Burk does not address the issue of affidavits or whether an affidavit may be considered as evidence.

¶ 10 Appellant next argues that 12 O.S.2001 § 936(A) compels the award of a reasonable attorney fee to the prevailing party:

A. In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

(Emphasis added.) No party in this case has asserted that § 936 does not apply. The Oklahoma Supreme Court has held the prevailingparty who sought fees under § 936 was entitled to a reasonable attorney fee and “[t]he decision to award attorney fees in this case is not discretionary.” Ellis v. Lebowitz, 1990 OK 107, 799 P.2d 620, 621. The U.S. District Court, applying the Oklahoma statute, has reached a similar conclusion:

An award of fees under section 936 is mandatory, Arkla Energy Resources v. Roye Realty and Developing, Inc., 9 F.3d 855, 865 (10th Cir.1993) (citing Ellis v. Lebowitz, 1990 OK 107, 799 P.2d 620, 621); however, in all cases the amount of fees awarded must be reasonable. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶ 14, 977 P.2d 357, 364. The determination of reasonableness and the amount of the fee award are generally left to the sound discretion of the district court. Arkla Energy, 9 F.3d at 865 (citing Wilkerson Motor Co. v. Johnson, 1978 OK 12, 580 P.2d 505, 509); Gamble, Simmons & Co. v. Kerr–McGee Corporation, 175 F.3d 762, 773 (10th Cir.1999) (applying 12 O.S. § 936). An award of fees must be reasonable under the particular circumstances and must bear some reasonable relationship to the amount in controversy. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 737 P.2d 1186, 1189.

Oklahoma Natural Gas Co. v. Apache Corp., 355 F.Supp.2d 1246, 1253 (N.D.Okla.2004). Based on the mandatory language of the statute and the Oklahoma Supreme Court's decision in Ellis, we agree Appellant is entitled to a reasonable attorney fee award under § 936. Hurst v. Empie, 1993 OK 47, 852 P.2d 701, 706...