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Mittal v. Bluestem Emergency Medical P.L.L.C.

Court of Appeals of Oklahoma, Division I

January 7, 2019

BHARAT MITTAL, Plaintiff/Appellant,
v.
BLUESTEM EMERGENCY MEDICAL P.L.L.C., a professional limited liability company, and THOMAS W. BRITT, ROGER J. COTNER, HOLLY B. FOUTS, RONALD L. HAY and RUTH M. THOMPSON, Defendants/Appellees.

          Mandate Issued: 11/07/2019

          APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA HONORABLE RUSSELL C. VACLAW, JUDGE

          Johnny P. Akers, Frederick S. Esser, Law Center of Akers & Esser, Bartlesville, Oklahoma, for Appellant,

          James M. Elias, Rick D. Tucker, Robinett King Elias Buhlinger Brown and Kane, Bartlesville, Oklahoma, for Appellees.

          LARRY JOPLIN, JUDGE

         ¶1 Plaintiff/Appellant Bharat Mittal seeks review of the trial court's order awarding attorney's fees to Defendants/Appellees Bluestem Emergency Medical P.L.L.C., a professional limited liability company, and Thomas W. Britt, Roger J. Cotner, Holly B. Fouts, Ronald L. Hay and Ruth M. Thompson (Defendants), after the Court of Civil Appeals affirmed the trial court's order granting the Defendants' motion for summary judgment in Mittal v. Bluestem Emergency Medical P.L.L.C., et al, Case No. 112, 890 (Ok. Civ. App. Div. II, July 21, 2015) (Mittal I), and on remand after the Plaintiff's appeal from the trial court's initial award of attorney's fees to Defendants in Mittal v. Bluestem Emergency Medical P.L.L.C., et al, Case No. 113, 483 (Ok. Civ. App. Div. IV, February 25, 2016) (Mittal II). In this second appeal from the award of attorney's fees, Plaintiff complains that, contrary to the specific directions of the Court of Civil Appeals in Mittal II, the trial court on remand failed to make the requisite findings to sustain the trial court's award of attorney's fees.

         ¶2 We take the following facts from Mittal II. "Mittal filed suit against Defendants, claiming that Defendants breached various contracts, breached their fiduciary duty and tortiously interfered with his contracts." Mittal II, p. 2. "The district court granted Defendants' motion for summary judgment and Mittal appealed" in Mittal I. Id.

         ¶3 "While [ Mittal I ] was pending, Defendants filed a post-trial motion for attorney fees and costs." Mittal II, p. 2. Defendants asserted that they were entitled to an award of attorney fees pursuant to 12 O.S. 2011 §936 and 12 O.S. 2011 §1101.1." Id. "Additionally, Defendants argued that they were entitled to an award of attorney fees pursuant to the court's inherent equitable authority to award fees where a party engaged in oppressive litigation conduct." Id.

         ¶4 "The district court granted the motion over Mittal's objection." Mittal II, p.3. "The court's order states that it found 'cause to sustain the motion for each of the different claims Defendants raised[, ] [and] [f]urthermore, the fees and costs assessed by counsel for the Defendant, and the time associated thereto, are reasonable time and expenses for this case.'" Id. "Mittal filed a Motion for a New Trial, asserting that the grant of attorney fees and costs was an abuse of discretion, that the district court failed to apportion the fees, and that the award was not sustained by evidence[, ] [but] [t]he district court denied Mittal's motion" for new trial. Id. Plaintiff then commenced his appeal in Mittal II.

         ¶5 On appeal in Mittal II, the Court of Civil Appeals reversed the trial court's order awarding attorney's fees to Defendants and remanded for further proceedings. In reversing, the Court of Civil Appeals held:

Lawyers seeking an award of attorney fees are required to "present detailed time records to the court and to offer evidence of reasonable value for the services performed, predicated on the standards within the local legal community." Green Bay [ Packaging, Inc. v. Preferred Packaging, Inc., ] 1996 OK 121, ¶48 [ 932 P.2d 1091 ], (quoting Oliver's Sports Ctr. v. Nat'1. Standard Ins. Co., 1980 OK 120, ¶5, 615 P.2d 291). Thereafter, the court must specifically state the basis and calculation for its determination that the fee awarded is reasonable. Green Bay, 1996 OK 121 at ¶49. Furthermore, in a multi-faceted case involving a judgment in which only some of the matters authorize attorney fees the court must distinguish, on the record, between the compensable and non-compensable attorney time and effort, where possible. Id.
Mittal asserts two propositions of error on appeal, but one is dispositive. Because the order awarding fees does not reflect the requirements of State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, that order must be reversed. Burk demands that a fee award "should set forth with specificity the facts, and computation to support [the] award." Id. at ¶ 22. The order in this case does not satisfy the Burk directive.
Defendants asserted alternate theories of recovery in this case: breach of contract, breach of fiduciary duty and tortious interference with contract. Not all of these authorize an award of attorney fees. If the court accepted Defendants' request for fees pursuant to 12 O.S. 2011 §936, then the time spent on the tort claims must be apportioned out of the total awarded amount. If the court accepted the Defendants' request for fees pursuant to 12 O.S. 2011 §1101.1 (B), then the award must be calculated from the date of the first offer of judgment. Here, it cannot be discerned from the district court's order or from the record what the district court relied upon, as a matter of law, as grounds for its award. Furthermore, the district court did not distinguish between the compensable and non-compensable matters in its award of attorney fees.
Burk further requires that the district court specify the facts and computation supporting how it arrived at its award. The court must first determine the "lodestar" fee amount, based on time records submitted by the requesting party and the hourly rate for that work. The lodestar amount may be adjusted based on the court's analysis of several factors, such as novelty or difficulty of issues, loss of opportunity for other employment, or results obtained. The order ...

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