State Ex Rel. Department of Transportation v. Cedars Group, L.L.C.
2017 OK 12
| Okla. | 2017Background
- ODOT condemned two tracts; commissioners awarded $462,500 combined; jury awarded $525,000, exceeding commissioners' awards by >10%.
- Landowners (Cedars Group/Coury defendants) retained Renegar under a written contingency contract (40% of difference) that was later orally abrogated and replaced by an oral agreement: landowners would keep the jury award and "support" a fee application; Renegar would be paid whatever the court awarded.
- Landowners applied for reimbursement under statutes (27 O.S. §11(3) and 66 O.S. §55(D)) for attorney, appraisal, engineering, expert witness fees, and costs; trial court awarded appraisal fees only and denied attorney, engineering, expert, and most costs.
- Trial court found fees were not "actually incurred" because client had not paid attorney; also denied Burk enhancements. Trial court awarded $37,320 appraisal fees.
- Oklahoma Supreme Court granted certiorari, vacated COCA opinion in part, and remanded: held trial court erred in denying attorney, certain engineering, expert, and statutory costs, but affirmed denial of Burk enhancement and disallowed most litigation overhead expenses.
Issues
| Issue | Plaintiff's Argument (ODOT) | Defendant's Argument (Coury/landowners) | Held |
|---|---|---|---|
| Whether landowners are entitled to reimbursement of attorney fees "actually incurred" when client has not paid counsel but orally agreed to pay any court-awarded fee | Fees not "actually incurred" because landowners never paid counsel and oral arrangement relieved payment obligation | Oral agreement created an actual contractual obligation: landowners obligated to pay any court-awarded fees; thus fees were "actually incurred" | Reversed: fees recoverable; "actually incurred" can include contractual obligations to pay awarded fees where client is ultimately liable |
| Whether Burk incentive (enhancement) may be added to attorney fee award in condemnation proceedings | Burk incentive not appropriate because parties rely on an oral contract | Burk enhancement appropriate because oral contract did not fix fee amount; Burk applies when fee not fixed by contract | Affirmed denial: Burk enhancement not available in condemnation proceedings (statutory scheme limits recovery and protects public treasury) |
| Whether fees/expenses related to underground storage tanks (attorney and engineering) are recoverable as incurred "because of the condemnation proceedings" | Tank relocation/engineering were unilateral acts of landowner and not part of condemnation costs | Relocation and engineer survey were necessary and reasonably incidental to condemnation and writ enforcement | Reversed: attorney fees and engineering fees related to tank relocation are recoverable as "because of the condemnation proceedings" |
| Whether expert witness fees, costs, and litigation expenses (e.g., Westlaw, copying, mileage) are recoverable | Many litigation expenses are overhead and not recoverable; expert fees unnecessary | Expert witness fees (e.g., to assess fee reasonableness) and some statutory costs are recoverable | Mixed: trial court erred by denying expert witness fees and statutory costs (including $100 appellate clerk fee); disallowed most litigation overhead (Westlaw, copying, mileage) but remand to determine allowable items under 12 O.S. §942 |
Key Cases Cited
- Root v. Kamo Elec. Co-op., 699 P.2d 1083 (Okla. 1985) (contingent-fee recovery framework in condemnation cases)
- State ex rel. Burk v. City of Oklahoma City, 598 P.2d 656 (Okla. 1979) (hourly fee plus incentive factors for reasonable attorney fees)
- Oklahoma Turnpike Authority v. New, 853 P.2d 765 (Okla. 1993) (condemnor liable for costs when jury exceeds commissioners; limits on recoverable litigation expenses)
- State ex rel. Dept. of Transportation v. Norman Industrial Dev. Corp., 41 P.3d 960 (Okla. 2001) ("actually incurred" fees limited by contractual obligation; protect governmental treasury)
- Oklahoma Turnpike Authority v. Little, 860 P.2d 226 (Okla. 1993) (expert witness fees recoverable for determining reasonableness of attorney-fee awards)
- Kluver v. Weatherford Hosp. Auth., 859 P.2d 1081 (Okla. 1993) (standard of review for legal questions)
- Wilson v. Glancy, 913 P.2d 286 (Okla. 1995) (Westlaw/research charges are overhead and generally not recoverable)