HALL v. DEARMON

OSCN Found Document:HALL v. DEARMON

OSCN navigation

Home

Courts

Court Dockets

Legal Research

Calendar

Help

Previous Case

Top Of Index

This Point in Index

Citationize

Next Case

Print Only

HALL v. DEARMON

2015 OK CIV APP 40

Case Number: 112759

Decided: 04/03/2015

Mandate Issued: 05/07/2015

DIVISION III

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

Cite as: 2015 OK CIV APP 40, __ P.3d __

ELIZABETH HALL,

Plaintiff/Appellee/Counter-Appellant,

v.

DORIS DEARMON,

Defendant/Appellant/Counter-Appellee.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE MARTHA RUPP CARTER, JUDGE

AFFIRMED

Scott R. Hall, Scott R. Hall & Associates, P.L.L.C., Tulsa, Oklahoma, for

Appellee/Counter-Appellant,

Greg D. Givens, Christopher T. Combs, Sheila R.

Benson, Givens Law Firm, Oklahoma City, Oklahoma, for

Appellant/Counter-Appellee.

Larry Joplin, Judge:

¶1 In the principal appeal, Defendant/Appellant/Counter-Appellee Doris

Dearmon (Defendant) seeks review of the trial court's order granting attorney's

fees and costs to Plaintiff/Appellee/Counter-Appellant Elizabeth Hall

(Plaintiff) on motion of Plaintiff after Plaintiff accepted Defendant's offer to

confess judgment. In the counter-appeal, Plaintiff asserts the trial court

abused its discretion in awarding less than the amount of the attorney's fees

and costs she sought.

¶2 The automobile owned and driven by Defendant collided with the automobile

owned and driven by Plaintiff. Plaintiff commenced the instant action to recover

damages for injury to her person and automobile. Defendant admitted the claim

for damage to Plaintiff's car but denied Plaintiff's claim for damages for

personal injury.

¶3 Defendant engaged an appraiser who estimated that the accident resulted in

the diminished value of Plaintiff's car of $2,788.00 after repairs. On June 2,

2012, Defendant offered to settle Plaintiff's claim on payment of $2,788.00,

attorney's fees in the sum of $3,001.00 and costs of $309.34. Plaintiff rejected

Defendant's offer.

¶4 On July 30, 2013, Defendant filed an offer to confess judgment in the

amount of $2,788.00, not including attorney's fees. On July 31, 2013, Plaintiff

accepted Defendant's offer to confess judgment.

¶5 On October 23, 2013, Plaintiff filed a motion to assess attorney's fees

and costs. To the motion, Plaintiff attached her attorney's time records

demonstrating the investment of 80.6 hours at the rate of $250.00 per hour for a

total attorney's fee claim of $19,950.00 on the claim for damage to property

alone, as well as costs of $1,052.75. Plaintiff asserted she was entitled to an

award of prevailing party attorney's fees for the prosecution of her claim for

damage to her automobile under 12

O.S. §940, and prevailing party costs under 12 O.S. §942.

¶6 Defendant responded. Defendant argued that Plaintiff claimed no physical

injury to her property, and that §940 did not permit an award of attorney's fees

for the successful recovery of only economic damages for the diminished value of

Plaintiff's car.

¶7 The parties appeared for hearing on February 18, 2014. Plaintiff presented

the testimony of an attorney, who opined that the claim for diminished value

constituted a claim for damage to property covered by §940, and that the number

of hours and hourly rate of compensation claimed by Plaintiff's attorney were

reasonable. Defendant presented the testimony of an attorney and former

associate district judge, who opined §940 did not authorize an award of

attorney's fees related to the successful recovery of economic damages for

diminished value, and that a reasonable attorney's fee would be $6,642.00,

calculated by multiplying a reasonable number of hours (49.2) related solely to

the claim for property damage times a reasonable hourly rate of $135.00 per

hour. The trial court took the matter under advisement.

¶8 By minute order dated March 17, 2014, memorialized by journal entry of

judgment filed April 22, 2014, the trial court granted attorney's fees and costs

to Plaintiff, holding:

After reviewing the motions, the arguments by counsel, and considering

all information and documentation offered in support of and opposition to

this motion, the Court determines that Plaintiff is entitled to fees and

costs pursuant to 12 O.S.

§§940 and 942. The diminution in value of Plaintiff's vehicle caused by

the accident is an element of injury to property, entitling Plaintiff to an

attorney fee award. Because of the marital relationship existing between

Plaintiff and Plaintiff's husband, the nature of some of the itemized

services (those services typically performed by the vehicle owner rather

than the attorney), as well as, the lack of evidence of a fee agreement or

an agreed-to fee between the attorney and client, the Court determines that

those limited legal services were for self-representation, subjecting those

services to the clear and convincing standard and the requirements of

Weaver v. Lamb , [1977 OK

242,] 574 P.2d 609 (Okla.

1977). The Court orders that judgment is hereby awarded to the Plaintiff,

and against the Defendant, for attorney's fess in the amount of $8,850.00,

based on 59 hours of necessary legal services at the reasonable hourly rate

of $150.00, and recoverable court costs in the amount of $1002.75.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is hereby

entered in favor of the Plaintiff and against the Defendant, Doris Dearmon,

for the total sum of $9,852.75, plus statutory interest to accrue until paid

in full.

¶9 In the principal appeal, Defendant first asserts §940 does not authorize

an award of prevailing party attorney's fees based solely on the recovery of the

purely economic loss for diminished value of Plaintiff's vehicle, and §940

permits an award only based on the successful recovery for actual

physical damage to Plaintiff's car. Defendant secondly argues that the

attorney's fees allowed are wholly unreasonable, excessive and disproportionate

to the actual amount in controversy. Defendant lastly challenges the award of

costs as unauthorized by §942.

¶10 In the counter-appeal, Plaintiff asserts the trial court abused its

discretion and arbitrarily reduced the amount of attorney's fees claimed,

especially considering the testimony of its expert establishing the

reasonableness of the number of hours expended and the hourly rate of

compensation. Plaintiff secondly asserts the trial court erroneously failed to

properly award "enhancement/incentive" attorney's fees allowed by Spencer v.

OG&E , 2007 OK 76, 171 P.3d 890, and Burk v.

Oklahoma City , 1979 OK 115,

598 P.2d 659. Plaintiff lastly

asserts the costs awarded were proper and reasonable under 12 O.S. §942.

¶11 The question of whether an award of attorney's fees is authorized

presents a question of law, subject to de novo review on appeal. Corr

v. Smith , 2008 OK 12, ¶15,

178 P.3d 859, 863; Finnell v.

Seismic , 2003 OK 35, ¶7, 67 P.3d 339, 342. The amount of

"[a] trial court's attorney fees award is reviewed for abuse of discretion."

Spencer , 2007 OK 76, ¶13,

171 P.3d at 895; Tibbetts v. Sight 'n Sound Appliance Centers, Inc. , 2003 OK 72, ¶3, 77 P.3d 1042, 1046.

¶12 Section 940(A) of title 12, O.S., provides:

In any civil action to recover damages for the negligent or willful

injury to property and any other incidental costs related to such action,

the prevailing party shall be allowed reasonable attorney's fees, court

costs and interest to be set by the court and to be taxed and collected as

other costs of the action.

Section 942 of title 12, O.S., authorizes an award for certain items as

costs.

¶13 Generally speaking, "attorney fees recoverable under the provisions of .

. . §940 by the prevailing party contemplate only those actions for damages for

the negligent or willful physical injury to property." Woods Petroleum

Corp. v. Delhi Gas Pipeline Corp. , 1984 OK 94, ¶13, 700 P.2d 1011, 1013. (Emphasis

original.) So, the prevailing party on a claim for damage to real property from

seismic operations, or damage to a water source as the result of the

construction of a sewage lagoon, or for destruction of growing crops, and

temporary and permanent injury to farmland attributable to the well

operator-defendant's willful or negligent acts, was entitled to an award of

attorney's fees under §940(A) because the claims arose directly from some

physical injury to property. Finnell v. Seismic , 2003 OK 35, 67 P.3d 339 (damage to real

property from seismic operations); Schaeffer v. Shaeffer , 1987 OK 30, 743 P.2d 1038 (damage to water

source); Briscoe v. Harper Oil Co. , 1985 OK 43, 702 P.2d 33 (damage to crops and

farmland). See also, BP Pipelines (North America) Inc. v. C.D. Brown Const.,

Inc. , 473 Fed.Appx. 818 (10th Cir. (Okl.) 2012). 1 On the other hand, the prevailing

party on a claim for slander of title, or conversion, or mis-measurement of gas

taken from a mineral estate, was not entitled to attorney's fees under §940

because the claims did not arise directly from some physical injury to property.

See, Stites v. Duit Const. Co., Inc. , 1999 OK CIV APP 113, 992 P.2d 913 (conversion); Turner

Roofing & Sheet Metal, Inc. v. Stapleton , 1994 OK 36, 872 P.2d 926 (slander of title);

Woods Petroleum , 1984 OK

94, ¶¶13-14, 700 P.2d at 1013 (mis-measurement of gas). However, the parties

cite, and we find, no pronouncement of the Oklahoma appellate courts speaking

directly to the issue presented in this case, and that is, whether the

prevailing party on a claim for the diminished value of personal property caused

by the willful or negligent act of another is entitled to an award of attorney's

fees under §940(A).

¶14 Defendant cites cases from other jurisdictions construing the phrase,

"property damage," defined in policies of property insurance as "physical damage

to property," as not including claims for economic damages such as diminished

value. See, Goodstein v. Continental Cas. Co. , 509 F.3d 1042 (9th Cir.

(Wash.) 2007); Auto-Owners Ins. Co. v. Carl Brazell Builders, Inc. , 588

S.E.2d 112 (S.C. 2003); Hartford Acc. & Indem. Co. v. Pacific Mut. Life

Ins. Co. , 861 F.2d 250 (10th Cir. (Okl.) 1988); Federated Mut. Ins. Co.

v. Concrete Units, Inc. , 363 N.W.2d 751 (Minn. 1985); Wyoming Sawmills,

Inc. v. Transportation Ins. Co. , 578 P.2d 1253 (Or. 1978). However, insofar

as these cases involve the construction of specific contract language of an

insurance policy defining "property damage," we do not find them instructive

here.

¶15 Plaintiff cites a decision of the Oklahoma Supreme Court which we find

supports application of §940(A) in the present case. In Brennen v. Aston ,

2003 OK 91, 84 P.3d 99, plaintiff sued

defendant to recover, inter alia, damages for the post-repair diminished value

of his vehicle, obtained judgment, and the trial court awarded plaintiff

attorney's fees. 2003 OK 91, ¶5,

84 P.3d at 101. On appeal, but without discussion of the attorney's fee award,

the Oklahoma Supreme Court held that the proper measure of damages to personal

property included not only the cost of repairs, but also the post-repair

diminution in value of the property, and affirmed judgment for plaintiff.

Brennen , 2003 OK 91, ¶12,

84 P.3d at 102.

¶16 In this respect, Plaintiff argues that the trial court's award of

attorney's fees to plaintiff in Brennen could only be based on §940(A)

and plaintiff's status as prevailing party on his claim to recover the

post-repair diminished value of his personal property. So, says Plaintiff,

Brennen tacitly supports the trial court's award of §940(A) prevailing

party attorney's fees to her in this case on her claim to recover for the

post-repair diminished value of her car.

¶17 Although the Supreme Court did not specifically address the application

of §940(A) in Brennan , we are satisfied the reasoning expressed in

Brennen supports the application of §940(A) in the present case. The

Supreme Court in Brennen specifically held that damages for diminished

value constituted a proper element of damages in a suit to recover for

damage to personal property. The damages for diminished value flow directly from

and are a part of the damage to the personal property. If damages for diminished

value constitute a proper element of recovery in a suit for damage to personal

property, it necessarily follows that the claim for damage to personal property,

including damages for diminished value, constitutes a claim for the negligent or

willful damage to property within the scope of §940(A).

¶18 The gravamen of Plaintiff's recovery in the present case was for damage

to Plaintiff's vehicle. Plaintiff recovered a sum representing the post-repair

diminished value of her car, and was the prevailing party on her claim for

damage to her personal property. As prevailing party, Plaintiff was entitled to

an award of attorney's fees under §940(A), and we hold the trial court did not

err as a matter of law in awarding her such fees.

¶19 In the principal appeal, Defendant also asserts the trial court erred in

awarding wholly excessive and unreasonable fees, disproportionate to the actual

amount in controversy. In the counter-appeal, Plaintiff asserts the trial court

erred in arbitrarily awarding less than the amount of attorney's fees claimed,

supported by competent expert testimony establishing the reasonableness thereof,

and without an award of an "enhanced" fee authorized by Spencer and

Burk .

¶20 "Generally, the correct formula for calculating a reasonable fee is to:

(1) determine the compensation based on an hourly rate; and (2) enhance the fee

through consideration of the factors outlined in Burk v. Oklahoma City ,

1979 OK 115, 598 P.2d 659 ( Burk factors)."

Spencer , 2007 OK 76, ¶13,

171 P.3d at 895. (Footnotes omitted.) As the Supreme Court in Spencer

explained:

The factors set out in Burk v. Oklahoma City are: time and labor

required; novelty and difficulty of the questions; skill requisite to

perform the legal service; preclusion of other employment; customary fee;

whether the fee is fixed or contingent; time limitations; amount involved

and results obtained; experience, reputation and ability of the attorneys

involved; risk of recovery; nature and length of relationship with the

client; and awards in similar causes. An attorney seeking an award must

submit detailed time records and offer evidence of the reasonable value of

the services performed based on the standards of the legal community in

which the attorney practices. Thereafter, steps are taken to determine a

reasonable fee. First, from the detailed time records, a lodestar fee is

arrived at by multiplying the attorney's hourly rate by the hours expended.

Second, the fee may be enhanced by application of the Burk factors.

Finally, any fee so calculated is subject to the rule that it must be

reasonable and bear some reasonable relationship to the amount in

controversy.

2007 OK 76, ¶14, 171 P.3d at

895. (Footnotes omitted.)

¶21 As we have previously noted, the amount of "[a] trial court's attorney

fees award is reviewed for abuse of discretion." Spencer , 2007 OK 76, ¶13, 171 P.3d at 895.

"An abuse of discretion occurs when a decision is based on an erroneous

conclusion of law or where there is no rational basis in evidence for the

ruling." Id .

¶22 In the present case, Plaintiff claimed Burk "lodestar" attorney's

fees of $19,950.00 by multiplying the 80.6 hours invested by the hourly rate of

$250.00 per hour, costs of $1052.75, and presented expert testimony argued to

establish the reasonableness of the hours spent, the hourly rate and the costs

claimed. Defendant presented expert testimony argued to establish, under the

circumstances of this case, a reasonable attorney's fee of $6,642.00, based on

49.2 hours at an hourly rate of $135.00 per hour.

¶23 The trial court, upon consideration of the evidence and testimony,

awarded attorney's fees in the sum of $8,850.00, "based on 59 hours of necessary

legal services at the reasonable hourly rate of $150.00," and costs of $1002.75.

The amount of the trial court's award was within the range of reasonable fees

established by the expert testimony. The trial court explained its reasons for

awarding less than the amount claimed. The trial court was not persuaded the

case was of such a nature to warrant an incentive fee under the Burk

factors, and neither are we. On review of the record, we hold the amount of the

trial court's award of attorney's fees and costs was authorized by law, was

reasonable and not excessive, and is unaffected by an abuse of discretion.

¶24 The order of the trial court is AFFIRMED.

MITCHELL, P.J., and HETHERINGTON, C.J., concur.

FOOTNOTES

1 Relying

on Finnell , the 10th Circuit Court of Appeals held the prevailing party

on a claim to recover for damage to a buried pipeline and costs of remediation

to remove spilled oil from the surface estate was entitled to an award of

attorney's fees under §940(A).

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

1999 OK CIV APP 113, 992 P.2d 913, 70 OBJ 3781, Stites v. Duit Construction Co. Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1987 OK 30, 743 P.2d 1038, 58 OBJ 1192, Schaeffer v. Shaeffer Discussed

1994 OK 36, 872 P.2d 926, 65 OBJ 1326, Turner Roofing & Sheet Metal, Inc. v. Stapleton Discussed

2003 OK 35, 67 P.3d 339, FINNELL v. JEBCO SEISMIC Discussed at Length

2003 OK 72, 77 P.3d 1042, TIBBETTS v. SIGHT 'n SOUND APPLIANCE CENTERS, INC. Discussed

2003 OK 91, 84 P.3d 99, BRENNEN v. ASTON, Jr. Discussed at Length

2007 OK 76, 171 P.3d 890, SPENCER v. OKLAHOMA GAS & ELECTRIC COMPANY Discussed at Length

2008 OK 12, 178 P.3d 859, CORR v. SMITH Discussed

1977 OK 242, 574 P.2d 609, WEAVER v. LAUB Discussed

1979 OK 115, 598 P.2d 659, STATE EX REL. BURK v. CITY OF OKLAHOMA CITY Discussed at Length

1984 OK 94, 700 P.2d 1011, Woods Petroleum Corp. v. Delhi Gas Pipeline Corp. Discussed at Length

1985 OK 43, 702 P.2d 33, Briscoe v. Harper Oil Co. Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 940, Negligent or Willful Injury to Property - Attorney's Fees and Costs - Offer and Acceptance of Judgment Discussed

12 O.S. 942, Costs the Court Judge May Award Discussed