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Usrey v. Wilson11/1/2002
Plaintiffs Mark and Michelle Usrey hired Defendant Wilson to build a retaining wall. After the wall was finished, a section of it collapsed. They filed this action against Wilson for damages, plus costs and attorney fees. The jury returned a unanimous verdict in favor of Wilson. As prevailing party, Wilson filed a motion to tax costs, including an attorney fee. The trial court denied his motion, and he appeals.
Despite an argument by the Usreys to the contrary, the trial court concluded Wilson had a statutory right to an attorney fee award as the prevailing party in an action governed by 12 O.S.2001 § 936 . The Usreys do not challenge that conclusion in this appeal, and we can identify no error in the trial court's decision that § 936 applied to this case.
At the hearing on Wilson's motion, his attorney testified about the time he spent on the case and his normal hourly rate but produced no other documentation of that time. The trial court concluded Wilson had presented sufficient evidence of the reasonableness of the fees requested, but concluded he did not present "detailed time records" to support his request and thus had not shown the amount of attorney fee to which he was entitled.
The trial court based this conclusion on Oliver's Sports Center, Inc. v. National Standard Insurance Company, 1980 OK 120, , 615 P.2d 291, 294, which stated:
In Burk, this Court established that after the date of promulgation, January 24, 1979, attorneys would be required to present detailed time records to the court and to offer evidence of the reasonable value for the services performed, predicated on the standards within the local legal community.
In so stating, Oliver's was referencing the following statement in State, ex rel. Burk v. City of Oklahoma City, 1979 OK 115, , 598 P.2d 659, 663:
Hereafter, attorneys in this state should be required to present to the trial court detailed time records showing the work performed and offer evidence as to the reasonable value for the services performed for different types of legal work. Reasonable value of services should be predicated on the standards within the local legal community.
On appeal, Wilson argues the trial court improperly interpreted Burk as requiring contemporaneous records or at least written documentation of the time spent on the case. He argues his testimony was sufficient under Burk to satisfy his burden of presenting sufficient evidence upon which to base a reasonable attorney fee award.
Although it is not clear that the trial court interpreted Burk as requiring contemporaneous time records or at least written documentation of time spent on the case, we do agree with Wilson that nothing in Burk or Oliver's prevents an attorney fee award based on a reconstruction of the time spent on a case based upon other records which verify the activity in the case, such as the court file or the attorney's copies of letters, pleadings, or file memoranda.
However, Wilson was "obligated to provide the trial court with the data necessary to document the work performed." Payne v. Dewitt, 1999 OK 93, , 995 P.2d 1088, 1096. Because the trial court concluded Wilson had not fulfilled that obligation, it recognized Wilson's right to an attorney fee award but awarded nothing because Wilson's evidence was insufficient. Our task on appeal is to determine whether that decision by the trial court, which was essentially one concerning the amount of the attorney fee award, was an abuse of discretion. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091.
As to his time spent outside of trial, Wilson's at
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