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Winn-Tech, Inc. v. Lawson

Court of Appeals of Oklahoma, Division III

April 21, 2017

WINN-TECH, INC., Plaintiff/Appellee,
v.
NOBUKO LAWSON, Defendant/Appellant.

          Mandate Issued: 05/18/2017

         APPEAL FROM THE DISTRICT COURT OF WOODWARD COUNTY, OKLAHOMA HONORABLE JUSTIN P. EILERS, JUDGE

          Aaron R. Sims, SIMS, PRICE & PRICE, P.L.L.C., Woodward, Oklahoma, for Plaintiff/Appellee,

          Bryan L. Billings, BILLINGS & BILLINGS, Woodward, Oklahoma, for Defendant/Appellant.

          Bay Mitchell, Presiding Judge

         ¶1 Defendant Lawson appeals an order granting prevailing-party attorney fees to Plaintiff Winn-Tech after Winn-Tech accepted an offer of judgment made by defendant Lawson pursuant 12 O.S. §1101.

         ¶2 Winn-Tech filed this case to foreclose a mechanic's and materialman's lien for work done on Lawson's house. Winn-Tech sought the sum of $11, 014.34 plus monthly late fees of $35.00 per month. Two years after the suit was filed, Lawson served an offer of judgment on Winn-Tech's attorney. The two-sentence offer of judgment was as follows:

Defendant, Nobuko Lawson, pursuant to 12 O.S. §1101, offers to allow judgment to be taken against her for the amount of $9, 000.00. This offer shall expire if not accepted within five (5) days of its service upon plaintiff's counsel."

         Within the allowed five days, Winn-Tech filed its acceptance of the offer of judgment. Subsequently, a judgment based on the accepted offer was entered in favor of Winn-Tech for $9, 000.00. The issue of attorney fees was reserved pending an application for same.

         ¶3 Immediately thereafter, Winn-Tech filed a motion for attorney fees and costs pursuant to 12 O.S. §936 and 42 O.S. §176. Winn-Tech sought attorney fees of $8, 520 (42 hours at $200 per hour) and an additional "incentive" or "bonus" fee of $3, 408. Detailed time records were submitted with Winn-Tech's motion. Lawson's response to Winn-Tech's motion argued that Winn-Tech was not entitled to any attorney fees under 12 O.S §1101.1 and, in any event, the fees request was unreasonably high. At the attorney fees hearing, the trial court considered the submitted time records, noted that the reasonableness of the $200 hourly rate was stipulated to and considered the attorneys' arguments. [1] The trial court found, among other things, that the offer of judgment was made pursuant to 12 O.S. §1101 and that §1101.1 was not applicable; Winn-Tech was entitled to recover attorney fees under 12 O.S. §936 and 42 O.S. §176; that 34.6 hours were reasonable and necessary in Winn-Tech's prosecution of the case and Winn-Tech should be awarded attorney fees of $6, 920 (34.6 hrs. x $200 per hr.).

         ¶4 The primary issue on appeal is Lawson's contention that 12 O.S. §1101.1 precludes Winn-Tech's right to recover any attorney fees. In pertinent part, §1101.1 provides:

B. Other actions.
1. After a civil action is brought for the recovery of money or property in an action other than for personal injury, wrongful death or pursuant to Chapter 21 of Title 25 or Section 5 of Title 85 of the Oklahoma Statutes, any defendant may file with the court, at any time more than ten (10) days prior to trial, an offer of judgment for a sum certain to any plaintiff with respect to the action or any claim or claims asserted in the action. An offer of judgment shall be deemed to include any costs and attorney fees otherwise recoverable unless it expressly provides ...

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