Mandate Issued: 11/07/2019
FROM THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA
HONORABLE RUSSELL C. VACLAW, JUDGE
P. Akers, Frederick S. Esser, Law Center of Akers &
Esser, Bartlesville, Oklahoma, for Appellant,
M. Elias, Rick D. Tucker, Robinett King Elias Buhlinger Brown
and Kane, Bartlesville, Oklahoma, for Appellees.
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.
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.
"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."
"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.
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
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 ...