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; jury later awarded $525,000 (>10% over commissioners).
- Landowners (Cedars Group/Coury defendants) retained Renegar under a written contingency agreement (40% of difference); parties later testified they abrogated the written agreement and substituted an oral agreement under which landowners would keep the jury award and Renegar would be paid whatever the court awarded.
- Landowners applied for reimbursement under 27 O.S. § 11(3) and 66 O.S. § 55(D) for attorney, appraisal, engineering, expert witness fees, costs, and expenses.
- Trial court allowed appraisal fees but denied attorney, most engineering/expert fees, and most litigation expenses, finding fees were not "actually incurred" and rejecting Burk enhancements.
- Oklahoma Court of Civil Appeals affirmed; Oklahoma Supreme Court granted certiorari, vacated the COCA opinion, and remanded in part, holding some denials were error and clarifying standards.
Issues
| Issue | Plaintiff's Argument (ODOT) | Defendant's Argument (Coury/Renegar) | Held |
|---|---|---|---|
| Whether attorney fees "actually incurred" are recoverable when client has not paid counsel but has an oral obligation to pay court-awarded fees | No obligation existed under the oral agreement; fees not "actually incurred" | Oral agreement created a contractual obligation to pay any court-awarded fees, so fees were "actually incurred" | Reversed trial court: attorney fees (trial and appellate) may be awarded because defendants are contractually liable for court-awarded fees; trial court erred in denying all fees |
| Whether Burk enhancement (fee incentive) may be added to condemnation fee awards | Burk enhancement inappropriate in contract setting and not "actually incurred" | Requested enhancement to reflect time/contingency factors | Affirmed: Burk incentive not available in condemnation proceedings (statutes limit recovery to fees "actually incurred") |
| Whether engineering/surveying fees for relocating underground storage tanks were "because of the condemnation proceedings" | Relocation was unilateral; not necessitated by condemnation; not recoverable | Relocation (and subsequent writ of assistance) arose from condemnation and were reasonably incidental | Reversed trial court: engineering and related attorney fees for tank relocation were recoverable as incurred because they were reasonably incidental to condemnation |
| Whether expert witness fees, costs, and litigation expenses (e.g., appraisal fees, Westlaw, photocopies, filing fees) are recoverable | Many items are firm overhead or not separately recoverable; Westlaw and routine copy/postage should be denied | Expert fees and allowable costs per statute should be reimbursed | Mixed: appraisal and expert witness fees recoverable; routine overhead (Westlaw, copying, postage) not recoverable; trial court must determine allowable costs under 12 O.S. § 942 and award $100 appellate clerk fee previously granted |
Key Cases Cited
- Root v. Kamo Elec. Co-op., Inc., 699 P.2d 1083 (Okla. 1985) (discussing contingent fee contracts and "actually incurred" concept)
- Oklahoma Turnpike Authority v. New, 853 P.2d 765 (Okla. 1993) (condemnation verdict > commissioners entitles landowner to recover trial costs under statutory scheme)
- Oklahoma Turnpike Authority v. Little, 860 P.2d 226 (Okla. 1993) (expert witness fees recoverable for determining attorney-fee awards)
- State ex rel. Dept. of Transportation v. Norman Industrial Dev. Corp., 41 P.3d 960 (Okla. 2001) (statutory "actually incurred" caps recovery; contract terms define outer limits)
- State ex rel. Burk v. City of Oklahoma City, 598 P.2d 656 (Okla. 1979) (Burk factors for awarding fee enhancements)
- Oliver's Sports Center, Inc. v. National Standard Ins. Co., 615 P.2d 291 (Okla. 1980) (Burk criteria apply when no contract or statute fixes fee)
- Wilson v. Glancy, 913 P.2d 286 (Okla. 1995) (disallowing reimbursement for Westlaw charges)
- Kluver v. Weatherford Hosp. Auth., 859 P.2d 1081 (Okla. 1993) (standard of review for legal questions on attorney-fee entitlement)
- State ex rel. Dept. of Transportation v. Carter, 107 P.3d 593 (Okla. 2005) (appellate attorney fees may follow where statute authorizes trial fee awards)