FACTS AND PROCEDURAL HISTORY
¶ 1 Prior to filing the condemnation proceedings the Appellee, Oklahoma Department of Transportation (ODOT), offered the Appellants, Cedars Group, L.L.C., an Oklahoma limited liability company; Centoma, an Oklahoma limited partnership; A. Sam Coury (Coury); and Bush, Ltd. d/b/a Deer Creek Texaco, (collectively, Coury Defendants), $562,500.00 for the acquisition of certain real property. The offer was not accepted and ODOT commenced two condemnation proceedings on October 3, 2007. In CJ-2007-8484, Oklahoma County, Oklahoma, the commissioners’ report was filed April 8, 2008, estimating the value оf just compensation for the property to be $285,000.00. This case was consolidated with the other condemnation proceeding, CJ-2007-8485, Oklahoma County, Oklahoma, on May 1, 2009. The commissioners’ report for CJ-2007-8485 was filed on April 3, 2008, estimating the value of just compensation for the property to be $177,500.00. The combined value of the two commissioners’ awards totaled $462,500.00.
¶ 2 On May 2, 2008, the Coury Defendants hired Gregg Renegar’s law firm to provide representation in the condemnation proceedings. Section 2 of the written attorney-client agreement provided:
Section 2. Attorney’s Fees. Client shall pаy to Attorney, as Attorney’s fees for the representation as provided in this Agreement, forty percent (40%) of the difference between the Commissioner’s award and the jury verdict or settlement amount with respect to the above-described claim. If attorney’s fees are statutorily allowed and awarded by the court, these will be added to the recovery and the above percentage taken of the total.
The written attorney-client agreement also provided that any modifications would have to be in writing.
¶ 3 A jury trial was held on February 14, 2011. The jury awarded just compensation in the amount of $525,000.00 for the two tracts. This amount exceeded the commissioners’ award ($462,500.00) by at least ten percent and therefore the Coury Defendants were entitled to be paid a sum in the opinion of the court which will reimburse their reasonable attorney, appraisal, engineering, and expert witness fees actually incurred because of the condemnation proceedings pursuant to
3. If the award of the jury exceeds the award of the court-appointed commissioners by at least ten percent (10%), the owner of any right, title or interest in such real property mаy be paid such sum as in the opinion of the court will reimburse such owner for his reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings. Such determination by the court shall be appealable to the Supreme Court in the same manner as any other final order. The final award of such sums will be paid by the person, agency or other entity which sought to condemn the property.
Title27 O.S. 11 (3).
(D) Where the party instituting a condemnation proceeding abandons such proceeding, or where the final judgment is that the real property cannot be acquired by condemnation or if the award of the jury exceeds the award of the court-appointed commissioners by at least ten percent (10%), then the owner of any right, title or interest in the property involved may bepaid such sum as in the opinion of the court will reimburse such owner for his reasonable attorney, appraisal, engineering, and expert witness fees actually incurred because of the condemnation proceeding. The sum awarded shall be paid by the party instituting the condemnation proceeding.
Title66 O.S. 66 (D).
¶ 4 On May 20, 2011, the Coury Defendants filed an application for attorney fees and a motion for costs. The trial court held the requests were untimely filed and denied the requests; the Coury Defendants appealed. On November 23, 2013, we issued our opinion finding the requests were timely and upon application we awarded $100.00 in costs to the Coury Defendants and awarded appeal-related attorney fees which were to be determined by the trial court upon remand.
¶ 6 On March 7, 2014, the Coury Defendants filed a second supplemental application for attorney fees in the trial court. In ODOT’s response brief filed April 14, 2014, it mentions Renegaris law firm had just recently informed ODOT that the original written attorney-client agreement had been orally modified. The Coury Defendants’ reply brief, filed April 23, 2014, explained the written attorney-client agreement had been abrogated prior to the February 14, 2011, trial. The reply states:
Second, the original Contingency Fee Agreement between Renegar’s law firm and the Defendants no longer exists as it was abrogated by the parties to the contract prior to the beginning of the trial of the case. A. Sam Coury (“Coury”) was deposed on April 21, 2014 by ODOT’s counsel and his testimony cоnfirmed that the parties abrogated the Contingency Fee Agreement prior to the beginning of the trial of the ease. Coury will be presented as a witness at the healing on this matter. In addition, as pointed out by ODOT on page 6 in its Response Brief, “... Coury, to date, has not paid his attorney any money for any fees’.,.” which is a clear indication, by virtue of the parties’ behavior, that the contract was abrogated, i.e., the parties’ actions are indicative of the abrogation of the contract.
The same document also provides:
ODOT acknowledges on page five of its Response Brief that Corny “has not paid his attоrney any money for any fees; .... ” Of course, the reason for this is that Coury and his attorney abrogated the original contingency fee agreement and Coury is acting in accordance with his agreement with his attorney, that being that Coury would get all of the proceeds from the jury verdict and that his attorney would get what is awarded by the court for attorney’s fees.
¶ 6 Along with the reply, the Coury Defendants filed a third application for attorney fees and costs. It sets out the following table showing the requested fees, costs and expenses:
These numbers did not include anticipated future attorney fees and litigation expenses. The Coury Defendants anticipated there would be another $13,400.00 in attorney fees plus some additional Westlaw charges.
¶ 7 On June 11, 2014, the trial court held an evidentiary hearing concerning the requested fees, costs and expenses. At the hearing Gregg Renegar and A. Sam Coury testified. The testimony provided the May 2, 2008, written attorney-client agreement was abrogated soon after it was executed and it was replaced with an oral agreement. This was done after they realized ODOT would be liable for attorney fees if the verdict exceeded the cоmmissioners’ award by at least ten percent. 1 Renegar testified the abrogation occurred sometime in 2009. 2 Under the oral agreement the Coury Defendants would keep the jury award and would support Renegar in applying for fees, costs and expenses. Renegar would be paid whatever amount the trial court awarded as attorney fees. A. Sam Coury testified that under the oral agreement there was no obligation whatsoever to pay any of Renegar’s attorney fees. 3 This was verified by Renegar’s testimony. 4 However, Renegar also stated the Coury Defendants are obligated to pay Renegar any attorney fees the court may award. They referred tо this oral agreement as a contingency agreement. Renegar also referred to the oral agreement as an “executed oral agreement” based on his interpretation that it became executed when the Coury Defendants received the jury award. 5 The trial court noted the'first application for attorney fees filed in 2011 attached the written contract and did not mention it had been abrogated. ODOT also noted other filings since the first application never mentioned the oral agreement.
¶ 8 At the evidentiary hearing, Renegar
¶ 9 On July 24, 2014, the trial court filed Findings of Fact and Conclusions of Law (Order) which held the Coury Defendants were not entitled to an award of any attorney fees because they had never actually incurred any of Renegar’s trial or appeal related fees. The court also determined that a Burk incentive was not appropriate because the statutes limit recovery of attorney fees to the amount that was actually incurred. The court allowed the appraisal fees of $37,320.00 because they were actually incurred. The trial court denied the surveying/engineering fees. 7 The Order made no determination concerning the amount of a reasonable attorney fee nor was a determination made concerning the requested costs, expenses, the $100.00 appeal related costs this Court granted earlier or the expert witness fees of Vicki Robertson who testified concerning the appropriateness of the attorney fees requested. On appeal, the Oklahoma Court of Civil Appeals affirmed the trial court. Thereafter, the Corny Defendants filed a petition for certiorari which this Court granted on September 19, 2016.
STANDARD OF REVIEW
¶ 10 Whether a party has a right to recover a statutory attorney’s fee is a legal question, and will be reviewed de novo by this Court. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings.
Kluver v. Weatherford Hosp. Auth.,
ANALYSIS
I. Attorney Fees
¶ 11 This Court has previously acknowledged the use of contingency fee agreements in condemnation cases:
Root v. Kamo Elec. Co-op., Inc.,
¶ 13 In
Norman,
Appellant’s argument that the various fees and costs were not actually incurred by appellees because they had not yet been paid or were, in fact, paid by appellees’ attorneys is entirely spurious. Webster’s New Collegiate Dictionary (1979), defines incur as “to become liable or subject to.” The evidence in this case clearly indicates that appellees bore the ultimate liability for these debts, and thus had “actually incurred” the attorney fees and costs.
Kamo,
¶ 14 Contracts between attorneys and their clients regarding compensation stand on the same footing as any other contract and are upheld unless contrary to law, oppressive, fraudulent or the fee is obviously disproportionate to the services rendered.
State ex rel. Oklahoma Bar Association v. Friesen,
¶ 15 Whenever there is statutory authority to аward attorney fees in the trial of a matter, the prevailing party may be awarded additional fees for services rendered in the appellate court.
State ex rel. Dept. of Transportation v. Carter,
II. Underground Storage Tanks
¶ 16 The trial court refused to grant attorney fees аnd engineering fees related to the removal of the underground storage tanks (gas tanks) located on the Coury Defendants’ property. Both
¶ 17 This issue concerns the interpretation of “because of the condemnation proceedings” found in both
III. Other Expert Fees
¶ 18 The trial court awarded the Coury Defendants’ appraisal fees in the amount of $37,320.00 and that award is not contested. The trial court failed to award their expert witness fees for the work Vicki Robertson performed concerning the reasonableness of Renegar’s attorney fees. In
Oklahoma Turnpike Authority v. Little,
IV. Court Costs and Litigation Expenses
¶ 19 The Coury Defendants also requested costs in the amount of $2,001.78, litigation expenses ($17,325.12 incurred at the trial court level and $3,843.97 incurred at the appellate level with some additional anticipated future expenses) and appeal related costs of $100.00 previously awarded by this Court in our January 27, 2014, order. The trial court mentioned none of these in its Order. The right to recover attorney fees or costs in a condemnation proceeding, like other proceedings, must be provided by statute.
¶ 20 A review of the record shows the $17,325.12 litigation expenses at the trial court level was composed of photocopies, postage, internet research/Westlaw, mileage, parking, one deposition fee (Rick Carlisle) in the amount of $911.00, one court filing fee of $59.30, several expenses listed as “Court Records” and a witness fee—Vicki Robertson for $1,500.00. ROA pg. 576-578, Defendant’s Third Supplemental Application for Attorneys’ Pees and Reimbursement of Expenses, Appraisal and Engineering Fees, filed April 23, 2014. The $3,843.97 of “Appellate Court” expenses was composed of photocopies, postage, Westlaw research, lists two filing fees of $200.00 each listed for the same date 10/05/11, mileage, toll road, parking, copy service, and another filing fee of $100.00 dated 9/19/12. ROA pg. 480-481, Defendant’s Second Supplemental Application for Attorneys’ Fees and Reimbursement of Expenses, Appraisal and Engineering Fees, filed March 7, 2014.
¶ 21 Every party is responsible for its own litigation costs unless provided by statute.
State ex rel. Dept. of Transp. v. Lamar Advertising of Oklahoma, Inc.,
¶ 22 The trial court’s Order did not specifically mention the litigation expenses and thereby denied the request. We affirm the trial court’s denial concerning most of the litigation expenses including the Westlaw and research charges. These research expenses are part of the law firm’s overhead. Nor do we find the research expenses should be converted into attorney fees as the Coury Defendants have suggested. If research was conducted by the law firm then the time spent conducting the research should already have been accounted for as attorney billable time. However, some of the requested litigation expenses are appropriate such as the inclusion of-Vicki Robertson’s expert witness fees as already mentioned in this opinion. In addition, some of the listed items may be allowable as costs under
V. Burk Incentives in Condemnation Proceedings
¶23 At the June 11, 2014, evidentiary hearing, Renegar requested the trial court enhance any attorney fee award by various
Burk
incentives. The trial court denied the request determining such enhancements are not “actually incurred.” In
State ex rel. Burk v. City of Oklahoma City,
1. Time and labor required.
2. The novelty and difficulty of the questions.
3. The skill requisite to pеrform the legal service properly.
4. The preclusion of other employment by the attorney due to acceptance of the case.
5. The customary fee.
6. Whether the fee is fixed or contingent.
7. Time limitations imposed by the client or the circumstances.
8. The amount involved and the results obtained.
9. The experience, reputation and ability of the attorneys.
10. The ’undesirability’ of the case.
11. The nature and length of the professional relationship with the client.
12. Awards in similar cases.
Burk,1979 OK 115 at ¶ 8,598 P.2d 659 . See Oliver’s Sports Center, Inc. v. National Standard Ins. Co.,1980 OK 120 , ¶ 7,615 P.2d 291 .
In
Oliver’s,
we determined
Burk
set the criteria for awarding a reasonable attorney fee “in the absence of a contract or a statute fixing the amount.”
Oliver’s,
¶ 24 In the present ease the oral agreement, which the testimony reflects was the controlling agreement between the Coury Defendants аnd Renegar, does not fix the amount of an attorney fee obligation. It is open-ended. The contractual obligation is for the Coury Defendants to pay Renegar any attorney fees the trial court may award. Therefore, under the reasoning in
Corbell
and
Oliver’s,
a
Burk
incentive would appear to be appropriate. However, even if an attorney-client agreement does not fix the amount of the attorney fee obligation, a
Burk
incentive in condemnation proceedings is not appropriate. A condemnation proceeding is not a civil action but is a special proceeding.
Gaylord v. State ex rel. Department of Highways,
¶ 25 In condemnation proceedings there is a balancing of the need to compensate the landowner with the need to protect
CONCLUSION
¶ 26 The trial court is affirmed in part and reversed in part. This cause is remanded to the trial court for a determination consistent with this opinion as to the reasonable amount of attorney fees (trial court and appeal related), engineering and expert witness fees, and costs the Coury Defendants are entitled.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED IN PART, REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION
Notes
. Transcript of Proceedings held June 11, 2014, pg. 104, Lines 13-20.
. Transcript of Proceedings held June 11, 2014, pg. 14, Lines 6-9.
. Transcript of Proceedings held June 11, 2014, pg. 48, Line 8,
. Transcript of Proceedings held June 11, 2014, pg. 26, Lines 23-24.
. Transcript of Proceedings held June 11, 2014, pg. 27, Lines 19-21.
.
State ex rel. Burk v. City of Oklahoma City,
. Following the commissioners' award ODOT notified the Coury Defendants that certain storage tanks would have to be moved. The Coury Defendants then relocated the storage tanks but they were inadvertently placed within the easement. ODOT obtained a writ of assistance to have the tanks relocated again. The Coury Defendants hired an engineer, Mr. Butler, to survey the property to determine the proper location. Although the trial court's Order was not specific it effectively held the surveying/engineering fees were not part of the condemnation proceedings.
. The record is unclear whether the gas tanks were placed in an existing easement or one newly acquired through this condemnation proceeding. A review of certain filings in the underlying consolidated cases, (December 23, 2009, Response to Defendant’s Motion to Vacate Writ of Assistance and Defendant’s January 13, 2010, Response to the Oklahoma Department of Transportation ("ODOT”) Application For Writ of Assistance And Mandatoiy Injunction For Removal of Structures Encroaching On State Easement and Right Of Way and Brief in Support) indicate the easement in question was newly acquired through this condemnation proceeding.
.
A judge of any сourt of this state may award the following as costs:
1. Any fees assessed by the court clerk or the clerk of the appellate court;
2. Reasonable expenses for the giving of notice, including expenses for service of summons and other judicial process and expenses for publication;
3. Statutory witness fees and reasonable expenses for service of subpoenas;
4. Costs of copying papers necessarily used at trial, limited to the amount authorized by law. If no amount is specified, costs of copying papers shall be limited to ten cents ($0.10) per page;
5. Transcripts of the trial or another proceeding that the court determines are necessary to resolve the case;
6. Reasonable expenses for taking and transcribing deposition testimony, for furnishing copies to the witness and opposing counsel, and for recording deposition testimony on videotape, but not to exceed One Hundred Dollars ($100.00) per two-hour videotape, unless the court determines that a particular deposition was neither reasonable nor necessary; and
7. Any other expenses" authorized by law to be collected as costs.