ROBERT L. WHEELER, INC., d/b/a Robert Leyton Wheeler, Inc., Appellant, v. Robert L. SCOTT, Appellee.
No. 74284
Supreme Court of Oklahoma
Oct. 1, 1991
818 P.2d 475
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF APPEALS VACATED;
JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS.
HODGES, V.C.J., and LAVENDER, DOOLIN, KAUGER and SUMMERS, JJ., concur.
OPALA, C.J., concurs in result.
SIMMS and HARGRAVE, JJ., dissent.
SIMMS, Justice, dissenting:
I must respectfully dissent. In my opinion plaintiff subcontractors did not have a remedy against defendant architectural firm based on the tort theory of “negligent design” as a matter of law. Whatever recovery they were able to pursue for claims stemming from the delay of their contractual performance was limited to contract law. The major contractual issues between the parties were apparently resolved in the companion case. Remaining contractual issues, if any, which may have been presented initially in the instant matter appear to have been waived in this appeal by Metro and MBA.
I would hold that judgment was properly entered in favor of FSB because Metro and MBA did not state a tort claim against FSB; not because the statute of limitations had run on a tort action.
I am authorized to state that Justice HARGRAVE joins with me in the views expressed herein.
Donald K. Blackwell and Joseph A. Fox, Moricoli, Wilson, Harris, Cottingham & Hurst, Oklahoma City, for appellee.
ALMA WILSON, Justice:
The present appeal is from a judgment of the trial court which heard the cause upon remand from a prior appeal, Robert L. Wheeler, Inc. v. Scott, 777 P.2d 394 (Okla. 1989). The appellant, Robert L. Wheeler, Inc., filed an action against the appellee, Robert L. Scott, to collect unpaid attorney fees. Wheeler billed Scott $140,116.87, which the trial court reduced to $125,723.00. The Court of Appeals affirmed the trial court. This Court vacated the opinion of the Court of Appeals, and reversed and remanded the judgment of the trial court finding that the fee was still excessive. We directed the trial court to determine a reasonable attorney‘s fee in accordance with the standards enunciated in State ex rel. Burk v. Oklahoma City, 598 P.2d 659 (Okla.1979), and Oliver‘s Sports Center v. National Standard Ins., 615 P.2d 291 (Okla.1982).
Upon remand, the trial court issued a letter opinion, signed and filed by the trial judge, reducing the attorney‘s fee from $125,723.00 to $75,500.00. The trial court added $1,349.00 for expenses, and subtracted $52,606.00 as the amount previously paid by Scott. This resulted in a judgment for $24,243.00. The trial court subsequently awarded attorney‘s fees and costs to the appellant in the amounts of $14,059.75 and $1,349.00, respectively. Both parties appealed.
I. MOTION TO DISMISS WHEELER‘S APPEAL
On July 19, 1990, Scott filed a motion to stay the execution of the judgment, or alternatively, to dismiss the appeal of Wheeler. In his brief supporting the motion, Scott alleged that Wheeler had taken inconsistent positions by filing an appeal of his judgment while simultaneously executing on the judgment. Attached as an exhibit to Scott‘s brief is a copy of a garnishment affidavit filed May 3, 1990, and a garnishment summons issued the same date.1 The affidavit states that Scott is indebted to Wheeler in the sum of $24,243.00 and for an attorney fee of $14,059.75 and $1,349.00 for the costs of the action. In his brief objecting to Scott‘s motion, Wheeler does not deny that he has sought to collect the judgment amount.
The rule is well established that any act by an appellant that recognizes the validity of a judgment either expressly or by implication, operates as a waiver of the appellant‘s right to appeal from the judgment. Mosier v. Mosier, 121 Okl. 4, 246 P. 1099 (1926). Litigants who voluntarily accept the fruits of a judgment cannot bring an appeal to reverse it because accepting the benefits of the judgment waives the right to appeal the portion detrimental to that litigant. Adams v. Unterkircher, 714 P.2d 193, 196 (Okla.1985). Although
The issue is whether an attempt by an appellant to execute on the judgment from which he appealed results in a waiver of the appeal under the “acceptance of benefits” doctrine, even though the appellant received nothing from the attempted execution. The issue before us is one of first impression. The authority on this issue is meager.
The authority which exists supports a rule that benefits must actually be received by an appellant in order to waive his right to an appeal.3 Oklahoma case law recognizes similar principles. In Bras v. Gibson, 529 P.2d 982, 983-984 (Okla.1974), this Court held that a party who accepts the benefits of the part of the judgment favorable to him waives the right to appeal the portion that is unfavorable. The Court explained:
Bras needed only to appeal the trial court‘s actions to protect his interest. His act in cashing the voucher was voluntary and for his benefit. That act was not done in defense of and to protect his rights. As to the trial court‘s orders, Bras could do nothing more than object and appeal. As to the voucher, Bras could accept or refuse. This was his choice. [Emphasis added.]
The implication of the emphasized sentence in Bras is that acts done in defense of or to protect one‘s rights may not constitute a waiver of a party‘s right to appeal under the acceptance-of-benefits doctrine. Such a case is now before this Court. In order to constitute a waiver, a party must intend to relinquish a known right, either expressly or by such conduct as warrants an inference of such a relinquishment. Atlas Life Ins. Co. v. Schrimsher, 179 Okl. 643, 66 P.2d 944, 948 (1937).4 A mere attempt to collect a judgment does not relinquish the right to appeal because no fruits of the judgment have been accepted. Wheeler‘s attempt to collect his judgment may have been motivated by a desire on Wheeler‘s part to force Scott to post a supersedeas bond.5 Use of such a tactic is not improper and is not inconsistent with
Scott also moves this Court to stay execution of the judgment citing Rule 1.31(b) of the Rules of Appellate Procedure in Civil Cases,
II. WHEELER‘S APPEAL
Wheeler argues that the trial court erred by utilizing only certain facts emphasized in this Court‘s opinion in Wheeler‘s first appeal. Wheeler challenged several facts as stated in the opinion alleging that these facts were contrary to testimony during the first hearing before the trial court. In the second hearing, following the remand to the trial court, Wheeler addressed his concerns to the trial court that testimony and documents were cited by this Court that were not a part of the record. He argued that the trial court was not bound by the factual determinations that were addressed in this Court‘s opinion. Wheeler admitted to the trial judge that he had not petitioned for rehearing. The trial judge answered that he did not have the authority to find that the Supreme Court had gone outside the record or erred in its opinion.
In this appeal, Wheeler sets out the facts listed in this Court‘s opinion he considered to be erroneous and not supported by the record. One purpose of permitting a rehearing is to allow a party to assert what he perceives to be errors in factual statements cited in an opinion of this Court. By failing to petition for rehearing, Wheeler waived his right to challenge any of those statements. This does not prevent this Court from reviewing the trial court judgment to determine if the trial court followed this Court‘s directions. Where a case is remanded, the trial court is bound by the settled law of the case. The settled law of the case bars relitigation of only those issues that have been settled by an appellate opinion. Mobbs v. City of Lehigh, 655 P.2d 547, 549, 31 A.L.R. 4th 1 (Okla.1982).
The trial court had set the attorney fee in the remanded case at $125,723.00. The opinion analyzed the fee pursuant to the twelve guidelines listed on pages 395 and 396 of the opinion. Our opinion concluded that the fee allowed by the trial court was excessive. Robert L. Wheeler, Inc., 777 P.2d at 398-399. But we added that making an initial determination of questions of fact was not the function of this Court. Id. at 399. The opinion determined that the attorney fee awarded was too high, and articulated the legal method to be used in setting the fee. This left the trial court free to make initial determinations of fact. Upon remand the trial court made new findings of fact, which the trial court had the authority to do.
Wheeler complains that our opinion should have been guided by the rules of contract instead of principles of equity. Whether this Court considers this case as one of contract, and therefore an action at law, or one in equity determines the extent of review, that is, how this Court views the facts found by the trial court. In cases of purely equitable cognizance, the entire record will be examined and the evidence weighed, but the judgment of the trial court will not be reversed unless it appears to be clearly against the weight of the
Neither the Burk case nor the Oliver‘s Sports Center case involved a contract for attorney fees between a lawyer and his client. Burk involved the fixing of attorney fees from a “common, equitable fund created for the City through the efforts of attorneys.” The Oliver‘s Sports Center case involved the awarding of attorney fees based upon
We agree with Wheeler that a simple, basic comparison of the billable hours of the advocates does not determine what is a reasonable “cap” on those billable hours. There are at least two parties to every lawsuit, and each party is faced with different research, modes of strategy and levels of preparation and paperwork. Likewise, the levels of proficiency, experience, and ability may not be equal. If one side of a lawsuit is considered to be “simple” then the opposing counsel may have a more complex and difficult task making a case to overcome that simplicity and prevail. The billable hours will likely reflect those differences. Unfortunately, the trial court read our opinion as placing an outer limit upon attorney‘s fees based on the billable hours of the prevailing party. Because there is some evidence that the number of billable hours should have been reduced, we do not reverse those factual findings of the trial court.
Nevertheless, there is a mixed question of law and fact concerning whether Wheeler‘s hourly rate should have been reduced. The parties agreed that the fee would be based on an hourly rate. Robert L. Wheeler, Inc., 777 P.2d at 397. The transcript of the first hearing, which was relied upon in the hearing after remand reveals that Scott admitted Wheeler had told him what the hourly fees would be. Scott: “He [Wheeler] told us that the hourly rates for his associates would be ninety dollars an hour and that his rate would be a hundred and thirty-five dollars an hour.” That Scott agreed to the hourly rate is uncontradicted. That Scott had prior dealings with lawyers is uncontradicted. Although the trial court may have found that he did not agree to an unreasonable number of hours, there is no evidence to show that he was overreached by agreeing to an hourly fee of ninety dollars for associates and one hundred and thirty-five dollars for Wheeler‘s fees. Therefore, as a matter of law, we find that the contract should be enforced at the rate agreed upon. The
III. SCOTT‘S CROSS-APPEAL
In his cross appeal, Scott claims that the fee awarded by the trial court was excessive. He argues that because Wheeler presented no new evidence on remand from the first appeal, no evidence exists to support the conclusion that Wheeler is entitled to any fee in excess of the amount that Scott had already paid Wheeler for the services, $54,275.37. The instructions given to the trial court in the “Conclusion” of the original appeal did not require the trial court to hear new evidence concerning the setting of attorney fees. Wheeler, 777 P.2d at 399-400. This Court ordered, “A reasonable attorney‘s fee should be determined on remand in accordance with an appropriate balancing of the Burk and Oliver‘s factors discussed herein.” Wheeler, 777 P.2d at 400. Scott does not show how the trial court failed to follow this Court‘s instructions upon remand. Scott‘s own expert testified in the first hearing that $75,500.00 was a reasonable compensation. Wheeler, 777 P.2d at 397. This Court has now determined that there was no error in the trial court‘s redetermination of the number of hours for Wheeler and his associates and has set a fee based upon the hourly rate to which Scott contractually agreed.
Finally, Scott appeals the amount awarded for attorney‘s fees and costs for Wheeler, as prevailing party in the remand hearing, in the amount of $14,059.75 for attorney‘s fees and $1,349.00 for expenses. Scott argues that because Wheeler failed to receive the full amount for which Wheeler prayed, Wheeler is not entitled to attorney‘s fees pursuant to
Scott bases his argument that Wheeler is not entitled to attorney‘s fees as the prevailing party upon policy. He states that § 936 suggests a policy designed to discourage the wrongful refusal to repay a debt owed by allowing the creditor to recover the costs incurred in judicially enforcing the creditor‘s rights. But Scott asserts that this policy is only served where litigation establishes that the creditor is entitled to the full amount or nearly the full amount claimed. Scott concludes that if the debtor were justified in withholding payment of a substantial portion of the amount claimed, the objective of discouraging the wrongful refusal to pay is not realized. Scott cites no case to support his argument. There is case law to the contrary.
In Hicks v. Lloyd‘s General Ins. Agency, 763 P.2d 85 (Okla.1988), the plaintiff/appellant, Hicks, sued for $186,000.00 for breach of an employment contract. The defendant/appellee, Lloyd‘s General Insurance Agency filed two formal offers to allow judgment to be taken in the amounts of $6,863.00 and $15,000.00. After a trial, the jury awarded the plaintiff $6,750.00. Both parties sought attorney‘s fees. The trial court awarded the plaintiff attorney‘s fees of $5,400.00, which fees were assessed up to the time the defendant made his first offer, and awarded the defendant attorney‘s fees of $12,760.00, which were assessed from the first offer until judgment. The Court of Appeals reversed the award of attorney‘s fees to the defendant, but this Court granted certiorari, vacated the opinion of the Court of Appeals and affirmed the judgment of the trial court.
The Court cited the “American Rule” and the policy behind it11 as the rationale for the holding that the defendant was the prevailing party where it had offered more in settlement prior to trial than the plaintiff had been awarded in judgment. The policy behind allowing the award of attorney‘s fees was to encourage settlement and to discourage the bringing of frivolous claims. Scott maintains in his “Brief of Appellee and Cross-Appellant” that Wheeler is not entitled to an amount over the $54,275.3712 previously paid to Wheeler by Scott. Scott‘s own expert witness testified that $75,500.00 was reasonable compensation. Robert L. Wheeler, Inc., 777 P.2d at 397. Wheeler is the prevailing party as the trial court awarded a $24,243.00 judgment to him. In part II of this opinion, we have increased the amount awarded by the trial court. Wheeler is entitled to that attorney‘s fee as the prevailing party. We find that the trial court did not abuse its discretion in the amount of the prevailing party fee awarded.
CONCLUSION
The judgment of the trial court is MODIFIED in order to set Wheeler‘s attorney fee at $94,081.50, for the reasons set forth in part II of this opinion. In the first appeal, this Court found that Scott had already paid Wheeler $54,275.37. Robert L. Wheeler, Inc., 777 P.2d at 396. The settled law of the case doctrine operates to bar relitigation of issues that have been settled by an earlier appellate opinion in the case. Muncrief v. Memorial Hosp. of Southern Oklahoma, 767 P.2d 400 (Okl.1988). Accordingly, Wheeler is awarded a judgment in the amount of $39,806.13 for his attorney‘s fees on his contract with Scott.
OPALA, C.J., and LAVENDER, DOOLIN and KAUGER, JJ., concur.
HODGES, V.C.J., concurs in part, dissents in part.
SIMMS and HARGRAVE, JJ., dissent.
SUMMERS, J., dissents: I would affirm the trial court.
SIMMS, Justice, dissenting:
I dissent for the reason expressed by me in my dissent in Wheeler I, 777 P.2d 394 (Okla.1989).
I am authorized to state that Justice HARGRAVE joins me in this dissent.
Notes
| ATTORNEY | HOURS | RATE | TOTAL |
|---|---|---|---|
| Wheeler | 390.7 | 90.00 | 35,163.00 |
| Brown | 420.6 | 60.00 | 25,236.00 |
| Gaidaroff | .6 | 80.00 | 48.00 |
| Titterington | 37.5 | 80.00 | 3,000.00 |
| Harrington | .6 | 80.00 | 48.00 |
| $63,495.00 |
