STATE ex rel. DEPT. OF TRANSPORTATION v. CEDARS GROUP, L.L.C.
2017 OK 12
| Okla. | 2017Background
- ODOT condemned two tracts; commissioners awarded $462,500 combined; a jury later awarded $525,000, exceeding the commissioners' awards by >10%.
- Landowners (Cedars Group/Centoma/Bush/A. Sam Coury — "Coury Defendants") hired Renegar law firm under a written contingency agreement (40% of difference) in 2008; parties later testified they abrogated the written contract and had an oral agreement under which the landowners would keep the jury award and would "support" Renegar’s application for any court-awarded fees (Renegar would be paid only what the court awarded).
- Coury Defendants applied for reimbursement of attorney, appraisal, engineering, expert witness fees, costs and expenses under 27 O.S. §11(3) and 66 O.S. §55(D).
- Trial court denied attorney, engineering and other expert fees as not "actually incurred," allowed appraisal fees, and disallowed Burk fee enhancement; Court of Civil Appeals affirmed; Oklahoma Supreme Court granted certiorari.
- Supreme Court held the trial court erred in denying attorney fees, appeal-related fees, engineering fees for underground storage tank relocation, and expert witness fees; affirmed denial of Burk enhancement and most overhead litigation expenses (e.g., Westlaw, copying), and remanded for determination of reasonable amounts and allowable costs under 12 O.S. §942.
Issues
| Issue | Plaintiff's Argument (ODOT) | Defendant's Argument (Coury/Renegar) | Held |
|---|---|---|---|
| 1) Are landowners entitled to reimbursement of attorney fees under the statutes when jury verdict > commissioners by ≥10%? | Statutes permit reimbursement only for fees "actually incurred"; here contractual arrangements negate an actual obligation. | Landowners say statutes apply; oral agreement obligates them to pay whatever court awards (thus "actually incurred"). | Held: Fees are recoverable — the oral contract created an obligation and fees were "actually incurred." Trial court erred to deny all attorney fees. |
| 2) May appellate attorney fees be awarded as part of statutory fee-shifting? | ODOT: no separate award beyond trial-stage fees. | Coury: statutes permit award of reasonable fees for appellate work. | Held: Appellate fees are recoverable where statute authorizes trial fees; trial court erred by not awarding appeal-related fees. |
| 3) Are Burk enhancements (fee multipliers/incentives) appropriate in condemnation fee awards? | ODOT: Burk incentives are inappropriate because statutes limit recovery to amounts "actually incurred." | Renegar: written/oral contract doesn't fix fee amount; Burk factors should apply to set a reasonable fee. | Held: Burk enhancements are not appropriate in condemnation proceedings; statutes limit recovery to fees "actually incurred," and preserving the public treasury bars such incentives. Trial court's denial of Burk affirmed. |
| 4) Are engineering, expert witness fees, and litigation costs recoverable (including underground storage tank work and overhead)? | ODOT: many expenses were overhead or unrelated (writ of assistance matters), so not recoverable. | Coury: tank relocation, engineering, and expert fees were incurred "because of the condemnation proceedings" and thus reimbursable; seek costs/expenses permitted by statute. | Held: Engineering fee for tank relocation and expert witness fees (e.g., appraisal expert re: attorney fee reasonableness) are recoverable as they were incurred because of the condemnation; routine litigation overhead (Westlaw, copying, mileage) generally not recoverable but trial court to reassess allowable costs under 12 O.S. §942 and award previously granted $100 appellate cost. |
Key Cases Cited
- Root v. Kamo Elec. Co-op., 699 P.2d 1083 (Okla. 1985) (discusses contingent-fee contracts in condemnation and concept of "actually incurred").
- Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 870 P.2d 762 (Okla. 1994) (addresses contingency-fee arrangements in condemnation context).
- State ex rel. Dept. of Transportation v. Norman Industrial Dev. Corp., 41 P.3d 960 (Okla. 2001) (holds "actually incurred" limits award to client’s contractual obligation; discussed burden of preserving public treasury).
- State ex rel. Burk v. City of Oklahoma City, 598 P.2d 656 (Okla. 1979) (establishes hours-times-rate plus incentive factors for fee awards).
- Oklahoma Turnpike Authority v. New, 853 P.2d 765 (Okla. 1993) (condemnation defendant entitled to recover costs of jury trial under statutes; distinguishes litigation expenses as firm overhead).
- State ex rel. Dept. of Transportation v. Carter, 107 P.3d 593 (Okla. 2005) (statutory fee awards may include appellate attorney fees).
- Wilson v. Glancy, 913 P.2d 286 (Okla. 1995) (refuses award of Westlaw charges as recoverable costs).