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Usrey v. Wilson11/1/2002
torney offered only general estimates of the amount of time spent and made no attempt to demonstrate the date of services or even the specific nature of services performed. If Burk's requirement of detail is to mean anything, we must conclude that such vague testimony is insufficient to satisfy that requirement. The trial court would have abused its discretion if it had awarded attorney fees based on such evidence.
However, we cannot conclude that Wilson's evidence concerning the twelve hours spent in trial was similarly insufficient. Counsel for the Usreys conceded the trial took that much time, and that he was "not arguing with that." Accordingly, Wilson established entitlement to attorney fees for the twelve hours during which his attorney was engaged in the trial of this case.
The Usreys argue that Wilson failed to establish his hourly rate was reasonable in the community, and therefore the trial court's order was appropriate. However, Wilson's attorney testified that he charged $250 per hour for trial time and that his fee request was "fair." The trial court specifically found that Wilson had satisfied his obligation to show the "reasonable value for the services performed." That finding is not clearly against the weight of the evidence.
On the undisputed evidence, Wilson was entitled to an attorney fee award of $3,000 for the time spent in trial. The trial court abused its discretion in not making that award. The trial court's order is modified to award Wilson attorney fees of $3,000 to be included as costs, and as modified, the trial court's order is affirmed. Wilson's request for appellate attorney fees, which was mentioned only in the last sentence of his Brief-in-Chief and was not separately identified as required by 12 O.S.2001 § 696.4(C), will not be considered.
AFFIRMED AS MODIFIED
HANSEN, P.J., dissents with opinion; and MITCHELL, J., concurs.
CAROL M. HANSEN, Presiding Judge, dissenting:
Title 12 O.S. 1991 §§ 936 and 940 provide that in actions involving contracts for the sale of goods and services and in suits involving negligent injury to property, the prevailing party shall be entitled to a reasonable attorney fee to be taxed as a cost of the action. Under these Oklahoma statutes, an award of attorneys fees to a prevailing party in civil action to recover on contract relating to labor or services is mandatory, but determination of reasonableness and amount of award is generally left to sound discretion of district court. Gamble, Simmons & Co. v. Kerr-McGee Corporation, 175 F. 3d 762, 773, (10th Cir. 1999). To deny any attorney fees to the prevailing party under these statutes is contrary to law.
Wilson asked for attorney fees based on $200.00 per hour for out-of-court work and $250.00 per hour for in-court work. Plaintiffs did not challenge Wilson's hourly rate or argue it was unreasonable. However, Wilson did not present written documentation of the time spent to the court. It was on this basis the trial court denied his request.
The Oklahoma Supreme Court in State ex rel. Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659, held, that in the future, attorneys 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. In Burk, the transcript indicated the attorneys for the appellees did not keep time records of their work as the litigation progressed, but rather they reconstructed the number of hours spent in various legal endeavors.
In our view, nothing in Burk or its progeny allows a trial court to deny any attorney fee to a prevailing p
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