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Vance v. Enogex Gas Gathering, L.L.C.

Court of Appeals of Oklahoma, Division III

August 26, 2016

RUFUS VANCE and GLENDA ROBERTSON, Plaintiffs/Appellees,
v.
ENOGEX GAS GATHERING, L.L.C., an Oklahoma Corporation, Defendant/Appellant.

          Mandate Issued: 03/21/2017

         APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, OKLAHOMA HONORABLE RICHARD VAN DYCK, TRIAL JUDGE

          Kenneth R. Johnston, Wes Johnston, Jonathan Allen, Johnston & Associates, Chickasha, Oklahoma, for Plaintiffs/Appellees,

          Robin F. Fields, Bryan J. Wells, Heidi M. Nichols, Conner & Winters, LLP, Oklahoma City, Oklahoma, for Defendant/Appellant.

          Wm. C. Hetherington, Jr., Judge

         ¶1 These consolidated cases [1] are appealed first in case number 112, 783 from trial by jury verdict in favor of Rufus Vance and his sister Glenda Robertson (collectively Vance) and against Enogex Gas Gathering, LLC. (Enogex) resulting from alleged oil field pipeline leakage and pollution of Vance's property. Case number 113, 027 is an appeal by Vance of the resulting attorney fee action order in favor of Vance and against Enogex. Finding no abuse of discretion or misapplication of law as to the trial court's instructions to the jury or on its award of attorney fees to Vance, we affirm both journal entry orders.

         FACTS

         Case No. 112, 783 (Pollution Case)

         ¶2 In 2010, Vance discovered what they believed to be "bubbling, gurgling, foamy liquid discharging out of a hole in the ground" on their land. Investigation revealed this to be a natural gas gathering pipeline leak from a natural gas well and line owned by Enogex. The record shows there was no denial of a leak by Enogex. Enogex alleged, however, that there was a three week intentional delay between the time of the Vance discovery of the leak and when Vance reported the leak to Enogex so Vance could "prepare a lawsuit instead of working fairly and honestly with Enogex." What Enogex alleged and presented at trial was that during that three week period, Vance retained an expert and materially altered the scene of the leak and the surrounding area. Enogex then said Vance concealed that information and results of a lab test from Enogex in an effort, they contend, intended to show the jury "conditions starkly different than those seen by Enogex's pipeline operators" at trial. Enogex presented evidence the leak was a "pinhole" in size, that no fluid had escaped during the period of the leak and they saw no indication of resulting ground water or soil contamination.

         ¶3 Vance produced the pictures and videos they had taken showing the "oily, gurgling, foamy fluid coming from the hole, eyewitness testimony of the liquid in the hole, the test results from the fluid in the hole and actual samples of the fluid from the hole". They pointed out the pictures taken by Enogex showed "gurgling fluid had splashed out and melted spots in the surrounding snow" and argued Enogex intentionally buried hydrocarbons and buried and impacted soil to hide the pollution in violation of Oklahoma Corporation Commission regulatory rules thus causing pollution and damage to their entire 160 acre property.

         ¶4 Enogex countered they did not hide any hydrocarbons, repaired the pinhole leak with an approved "clamp" and did not hear any complaints from Vance until two years later when they received notice of a claim and were served with process. Enogex then had its expert investigate and introduced his testimony and report indicating again, no groundwater pollution and a "tiny amount of soil contamination."

         ¶5 Vance requested an award for diminution in value of their property of $400, 000 and punitive damages. The jury returned a verdict signed by ten jurors in favor of Vance for $25, 000 damage to property but awarded no damages on Vance claims for personal inconvenience, annoyance and discomfort. The jury also found by checking the appropriate box, clear and convincing evidence Enogex had acted in reckless disregard of the rights of Vance. The trial court polled each juror who signed the verdict and they each agreed it was their verdict.

         ¶6 During second stage deliberations after brief testimony and instructions in the punitive damage stage, the jury sent out an unsigned note that indicated the ten jurors who signed the first verdict form checking the box that Enogex's actions were in reckless disregard of the rights of Vance, had done so in error. Following discussion with counsel, the trial court then advised the jury it had been clearly instructed on the verdict form and it could not undo its first stage verdict. The jury then returned a verdict for Vance for $25, 000 in punitive damages signed by eleven jurors who were also polled by the trial judge and each confirmed this was their verdict.

         ¶7 Enogex appeals from the judgment only as to the award of punitive damages and does not challenge the compensatory damage award. [2]

         Case No. 113, 027 (Attorney Fee Case)

         ¶8 Vance requested attorney fees under 12 O.S. § 940 as prevailing party. Vance argued for a "lodestar" attorney fee of $425, 327.50. Their fee evidence showed 1, 937.70 hours of attorney time in a heavily litigated case with extensive pre-trial issues and an eleven day jury trial. Enogex contested the fee request as to time expended, the amount requested being excessive and not supported by the "lodestar" standards, and excessive relative to the obtained result. Vance countered Enogex conducted a "scorched-earth" defense, not motivated by economic interests, but defended in a manner described by Enogex's expert as a "precedential" case. Vance argued this means not a precedential case in the legal sense, but a strategy "aimed at dissuading others from bringing similar claims against Enogex." The trial court conducted a full hearing and awarded Vance an attorney fee award of $50, 000 from which Vance appeals.

         Pollution ...


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