JOHN F. FISCHER, PRESIDING JUDGE:
¶1 Mark and Rachel Hall filed this appeal challenging two attorney fee orders
and two orders denying their request for treble damages in this surface damage
case. Calyx also appealed the first of the attorney fee orders challenged by the
Halls. The parties have failed to demonstrate any error by the district court.
We modify the first of the attorney fee orders to correct a mathematical error
and otherwise affirm the orders appealed.
BACKGROUND
¶2 Calyx filed this action pursuant to the Oklahoma Surface Damages Act, 52 O.S.2011 §§ 318.2 to 318.9,1 to determine
the amount it owed the Halls for conducting drilling operations on the Halls'
real property. The Halls demanded a jury trial seeking surface damages in excess
of the amount determined by the appraisers. They also sought treble damages
pursuant to section 318.9 of the Act and joined with their demand a separate
tort claim. Much of the history of this litigation is set forth in this Court's
Opinion in Calyx Energy, LLC v. Hall, 2013 OK CIV APP 4, 295 P.3d 30 (Calyx I). The
Halls' appeal in that case of three of the orders at issue in this appeal was
dismissed for lack of appellate jurisdiction. Specifically, Calyx I held
that because the Halls' request for treble damages based on the notice and
negotiation provisions of section 318.9 of the Surface Damages Act remained
unresolved, none of the orders related to the surface damage claim were
appealable. Calyx I did not resolve, and we do not resolve here, whether
the Halls' tort claim is a separate claim or part of one cause of action for the
damage caused by Calyx's drilling operations. The tort claim was tried and
reduced to judgment in favor of the Halls on March 6, 2012, has been satisfied,
and is not a part of this or any other appeal.2 As a result of further proceedings in
the district court after our decision in Calyx I, the attorney fee and
treble damage orders are now appealable.
STANDARD OF REVIEW
¶3 Whether a party is entitled to an attorney fee pursuant to a statute is a
question of law, reviewed de novo. Boston Ave. Mgmt., Inc. v. Associated
Res., Inc., 2007 OK 5, ¶ 10,
152 P.3d 880, 884-85. See
also, Finnell v. Jebco Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. The standard of
review of the reasonableness of the attorney fees awarded is abuse of
discretion. Tibbetts v. Sight'n Sound Appliance Ctrs., Inc., 2003 OK 72, ¶ 3, 77 P.3d 1042, 1046 (citations
omitted). "[A]buse occurs when the ruling being reviewed is based on an
erroneous legal conclusion or there is no rational basis in the evidence for the
decision." Id.
¶4 An operator's liability for treble damages for violation of the Surface
Damages Act is reviewed de novo. 52
O.S.2011 § 318.9; Houck v. Hold Oil Corp., 1993 OK 166, ¶ 23, 867 P.2d 451, 458. "In that § 318.9
provides the issue of violation is a de novo one in the event of an appeal the
standard of appellate review is a nondeferential one, according no weight to a
lower tribunal's determination of the issue." Id.
ANALYSIS
¶5 On June 16, 2010, the jury verdict in favor of the Halls on the surface
damage aspect of their claim against Calyx was reduced to judgment and filed in
this case. Because the Halls recovered a "more favorable verdict than the
assessment award of the appraisers," their motion for attorney fees and costs
based on that judgment was granted. 52 O.S.2011 § 318.5(F). The order
granting that motion was filed January 3, 2011. Pursuant to Title 52 O.S.2011 § 318.9, the treble
damage aspect of the Halls' claim was tried to the district court on January 4,
2011. In an order dated January 31, 2011, and filed February 7, 2011, the Halls'
request for treble damages based on Calyx's failure to post a location bond was
denied by the district court. The Halls then filed a second motion for attorney
fees based on the work done litigating the treble damage aspect of their claim.
The order denying that motion was filed June 6, 2011. The Halls' request for
treble damages based on the notice and negotiation aspects of their surface
damage claim was denied as reflected in the order filed December 28, 2012.
I. The Attorney Fee Orders
¶6 Citing general authority that one who accepts the benefit of a judgment
cannot appeal that judgment, Calyx argues that the Halls have waived the right
to appeal the award of attorney fees by executing on the location damage bond
and subsequent replenishments of that bond. Calyx has not demonstrated the
applicability of that general authority in this "special statutory proceeding."
Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 7, 64 P.3d 1113, 1114. Because section
318.5(F) of the Act requires Surface Damages Act cases to be tried in the same
manner as railroad condemnation cases, "it is appropriate to look to
condemnation law for guidance . . . ." Id. In railroad condemnation
cases, "the owner shall be entitled to the immediate receipt of the compensation
awarded, without prejudice to the right of either party to prosecute further
proceedings for the judicial determination of the sufficiency or insufficiency
of said compensation." 66 O.S.2011 §
54.
The clearly established policy in Oklahoma in relation to condemnation
actions is to allow the condemnee to be compensated for the taking of his
interest as soon as possible after that taking has occurred. To that end the
Legislature, at 66 O.S.1981 §
54 , has provided that the condemnee is immediately entitled to the
receipt of the compensation awarded without prejudice to the right of either
party to prosecute further proceedings regarding the
award.
Dyco Petroleum Corp. v. Smith, 1989 OK 51, ¶ 14, 771 P.2d 1006, 1009. "The purpose of
the Surface Damages Act is to promote the prompt payment of compensation of a
surface owner whose land is taken for oil and gas exploration." Schlumar,
2006 OK 32, ¶ 10, 136 P.3d at
659. The Halls have not waived the right to appeal the Janruary 3, 2011,
attorney fee order.
¶7 There is no dispute that the Halls are entitled to "reasonable attorney
fees" with respect to the surface damage aspect of this litigation. "[A]ll court
costs including reasonable attorney fees shall be assessed" against Calyx
because the Halls obtained a judgment for more than the amount assessed by the
appraisers. 52 O.S.2011 §
318.5(F). The Halls contend that the amount of that fee is determined by the
contract with their attorney. Whether "reasonable attorney fees" as that term is
used in section 318.5(F) is determined solely by a surface owner's contractual
obligation to an attorney has not been previously decided.
¶8 The Halls entered into a contract with their attorney to represent them in
this litigation for an amount equal to a specified hourly rate multiplied by the
time devoted to their representation. They requested $90,998.40 in attorney fees
based on the number of hours spent by their attorney multiplied by the
contractual hourly rate. The hourly rate is not in dispute, but the number of
hours expended by the Halls' attorney is disputed. After a hearing on the
attorney fee issue, the district court, although noting uncertainty with respect
to the controlling authority, applied the factors set forth in State ex rel.
Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, and awarded the Halls
$43,375.00 of the $90,998.40 in attorney fees requested and $5,843.40 in costs.
The Halls argue it was error for the district court to apply the Burk
factors and reduce the amount of attorney fees awarded below the amount they are
contractually obligated to pay their attorney.
¶9 In support of this contention, the Halls rely on State ex rel. Dep't of
Transp. v. Allied Tower Co., Inc., 2006 OK CIV APP 71, 136 P.3d 718, and State ex rel.
Dep't of Transp. v. Downey, 2007
OK CIV APP 107, 172 P.3d
225. Both cases stand for the proposition that if a landowner in a
condemnation case is entitled to attorney fees, the amount is determined by the
landowner's contractual obligation to the attorney in the absence of any
evidence that the contractual obligation was excessive or unreasonable. Both
cases also interpreted the attorney fee provision in the eminent domain statute,
27 O.S.2011 § 11(3): "the owner
of any right, title or interest in such real property may be paid such sum as in
the opinion of the court will reimburse such owner for his reasonable attorney .
. . fees actually incurred because of the condemnation proceedings." Noting that
this language was identical to the attorney fee statute in 66 O.S.2011 § 55(D) governing
railroad condemnation cases, and that the eminent domain statutes provide that
cases would be conducted pursuant to the procedure for railroad condemnation
cases, the Allied Tower and Downey Courts followed the Supreme
Court's holding in Oklahoma Turnpike Authority v. New Life Pentecostal Church
of Jenks, 1994 OK 9,
870 P.2d 762 and Root v. KAMO
Electric Coop., Inc., 1985
OK 8, 699 P.2d 1083. Those
cases held that to be fully compensated for the taking of private property for a
public purpose a landowner must be awarded any contractual attorney fee
obligation as long as the obligation was not unreasonable or excessive. In part,
the Allied Tower and Downey Courts derived that obligation from
the statutory language entitling a landowner in a condemnation proceeding to
reasonable attorney fees "actually incurred" 66 O.S.2011 § 55(D).
¶10 The attorney fee statute applicable in this case is distinguishable from
the statutes at issue in New Life Pentecostal, KAMO Electric,
Allied Tower and Downey. Title 52 O.S.2011 § 318.5(F) only
authorizes an award of "all court costs including reasonable attorney fees."
Unlike the attorney fee provisions in the condemnation statutes, the
authorization for an award of attorney fees "actually incurred" does not appear
in the Surface Damages Act attorney fee statute. "[T]he general rule is that
nothing may be read into a statute which was not within the manifest intention
of the legislature as gathered from the language of the act." Stemmons, Inc.
v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216. Further, the
Surface Damages Act attorney fee statute was enacted after the railroad and
eminent domain statutes and, therefore, the statutes providing for attorney fees
"actually incurred" were clearly known to the Legislature adopting section
318.5(F). Consequently, the fact that the Legislature could have but did not use
the "actually incurred" language is significant. "The law-making body is
presumed to have expressed its intent in a statute's language and to have
intended what the text expresses." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219.
¶11 This conclusion is compelled by Andress v. Bowlby, 1989 OK 78, 773 P.2d 1265. In Andress,
the surface owners sought to recover their expert witness fees as part of their
costs noting that section 318.5 of the Surface Damages Act provides that the
surface damage trial "shall be conducted and judgment entered in the same manner
as railroad condemnation actions tried in the court." The surface owners argued
that they were entitled to their expert witness fees because the railroad
condemnation statute authorized the recovery of "reasonable attorney, appraisal,
engineering, and expert witness fees actually incurred because of the
condemnation proceeding." 66 O.S.2011
§ 55(D). The Andress Court was not persuaded.
We must reject appellees' argument that the statement in § 318.5(F) that
directs that actions tried to the jury be conducted in the same manner as
railroad condemnation cases necessarily implies that the statutory provision
which allows the assessment of expert witness fees in such cases, 66 O.S.1981 § 55 (D), applies to
authorize their recovery here. Although § 318.5(F) indicates that such cases
are to provide a procedural framework for surface damage acts, the same
provision also contains its own provision for assessing court costs and
attorney fees. Were we to take the approach proposed by appellees, we would
necessarily find this language regarding court costs and attorney fees to be
mere surplusage. This would be contrary to basic tenets of statutory
construction. Here the Legislature has set forth a provision for assessment
of costs and attorney fees which applies specifically to surface damage act
cases. We must read the act so as to give full effect to the language
used.
Bowlby, 1989 OK 78, ¶
13, 773 P.2d at 1268. Although section 318.5(F) of the Surface Damages Act
mandates that the "trial" of such cases shall be conducted and judgment entered
in the same manner as railroad condemnation cases, as recognized by the
Andress Court, there are substantive differences in the two acts. The
"language used" in section 318.5(F) contains its "own provision" for awarding
attorney fees and does not include authority for recovery of attorney fees
"actually incurred."
¶12 Further, and contrary to the Halls' argument, Burk does apply.
"The Burk criteria are the standard by which our courts test the
reasonableness of attorney fee contracts as well as attorney fee awards." In
re Adoption of Baby Boy A, 2010 OK 39, ¶ 27, 236 P.3d 116, 124-25. And, in every
case, an attorney fee must be reasonable whether the fee is paid by the client
or by the losing litigant. Morgan v. Galilean Health Enters., Inc., 1998 OK 130, ¶ 14, 977 P.2d 357, 364. The Halls'
argument that they were entitled to an attorney fee award based solely on the
contract with their attorney in this Surface Damages Act case is not persuasive
and is contrary to controlling authority.
¶13 Consequently, we review the reasonableness of the attorney fee awarded in
the January 3, 2011, order. "The trial court here was in a singularly proper
position to determine the reasonableness of the expenditures of time claimed in
this case." Tower Oil & Gas Co., Inc. v. Keeler, 1989 OK 104, ¶ 6, 776 P.2d 1277, 1279. The Halls have
not demonstrated any abuse of discretion by the district court in determining
what attorney time was reasonably expended in this case.
¶14 Calyx's counter-appeal contends that the amount of attorney fees awarded
by the district court pursuant to the January 3, 2011, order was "excessive and
certainly should not be increased." In essence, and to the extent Calyx disputes
the amount of attorney fees awarded to the Halls, Calyx's argument centers on a
few instances of attorney time perceived to be excessive or unnecessary. Calyx
has not demonstrated that, if accepted, its argument would result in more of a
reduction than ordered by the district court from the $90,998.40 originally
requested by the Halls. And, with respect to its specific contentions, we once
again rely on the district court "to determine the reasonableness of the
expenditures of time claimed in this case." Id.
¶15 Finally, however, the Halls contend, and Calyx concedes, that there was a
mathematical error in the award of fees and costs in the January 3, 2011, order.
The total amount of attorney fees and costs due to the Halls pursuant to that
order is $51,218.40, not $45,375.00. The January 3, 2011, order of the district
court is modified to reflect that amount and affirmed.
A. The March 6, 2011, Attorney Fee Order
¶16 As previously discussed, the Halls' request for treble damages was tried
to the district court and denied pursuant to the January 31, 2011, order. After
the trial on the treble damage aspect of their Surface Damages Act claim, the
Halls filed a second motion for attorney fees seeking fees for the time expended
with respect to the trial of that matter. They appeal the denial of that motion
contending that even though they did not prevail on the treble damage issue,
they were the prevailing parties on their surface damage claim of which the
treble damage issue was part.
¶17 As the Halls argue and this Court held in Calyx I, the Halls
request for treble damages is "part of the statutory remedy provided by the
[Surface Damages] Act to landowners for damage to the surface of their property
resulting from oil and gas drilling operations." Calyx I, 2013 OK CIV APP 4, ¶ 15, 295 P.3d
at 34. However, the treble damages statute provides that an operator's
compliance with the location damage bond and notice provisions of the Surface
Damages Act "shall be a fact question, determinable without jury . . . ." 52 O.S.2011 § 318.9. As such, the
district court is required to conduct a "separate hearing" to determine a treble
damage issue. Tower Oil & Gas Co., Inc., v. Harmon, 1989 OK 127, ¶ 6, 782 P.2d 1355, 1357. The Halls
correctly cite the general rule that a party need not prevail on every issue in
order to receive an award of attorney fees as the prevailing party in the
Surface Damages Act case. It is not necessary that a party be completely
successful in order to be the prevailing party. Commercial Commc'ns, Inc. v.
State ex rel. Oklahoma Bd. of Pub. Affairs, 1980 OK 93, ¶ 8, 613 P.2d 473, 476. The general rule,
however, is inapplicable in this Surface Damages Act case.
¶18 The right of the Halls to recover attorney fees is governed by the
American Rule. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 13, 829 P.2d 15, 22. This rule is firmly
established and provides that courts are without authority to award attorney
fees in the absence of a specific statute or exceptions not applicable here.
Id. Unlike section 318.5(F), the treble damages statute does not contain
any authorization for awarding attorney fees. Further, section 318.9 of the
Surface Damages Act is in the nature of a penal statute and must be strictly
construed. Houck v. Hold Oil Corp., 1993 OK 166, ¶ 25, 867 P.2d 451, 459. We agree with
this Court's conclusion in Samson Resources Company v. Cloud, 1991 OK CIV APP 55, ¶ 10, 812 P.2d 1378, 1381: "While Section
318.9 provides that '[d]amages collected pursuant to this act shall not preclude
the surface owner from collecting any additional damages caused by the operator
at a subsequent date', attorney's fees . . . are not included in the provision."
The Halls would not be entitled to attorney fees with respect to their request
for treble damages even if they had prevailed on that issue.3
II. The Treble Damages Order
¶19 In their final proposition of error, the Halls contend that the district
court erred in denying their request for treble damages. The relevant statute
provides:
Upon presentation of clear, cogent and convincing evidence that the
operator willfully and knowingly entered upon the premises for the purpose
of commencing the drilling of a well before giving notice of such entry or
without the agreement of the surface owner, the court may, in a separate
action, award treble damages. The issue of noncompliance shall be a fact
question, determinable without jury, and a de novo issue in the event of
appeal.
Any operator who willfully and knowingly fails to keep posted the
required bond or who fails to notify the surface owner, prior to entering,
or fails to come to an agreement and does not ask the court for appraisers,
shall pay, at the direction of the court, treble damages to the surface
owner.
Damages collected pursuant to this act shall not preclude the surface
owner from collecting any additional damages caused by the operator at a
subsequent date.
52 O.S.2011 §
318.9. Section 318.9, therefore, authorizes the district court to impose
treble damages in two circumstances: (1) an operator enters the premises before
giving notice or obtaining the agreement of the surface owner, (2) an operator
does not post a location bond. The Halls allege that Calyx violated both
provisions. The location bond issue was resolved in the district court's January
31, 2011, order; the notice and negotiation issue was resolved in its December
28, 2012, order.4
A. The Location Damage Bond Issue
¶20 The operator of an oil and gas well is required to post a "plugging bond"
(17 O.S.2011 § 518) and a
location damage bond (52 O.S.2011
§318.4). It is undisputed that after beginning its drilling operations on
the Halls' property in May 2008, Calyx did not post the required location damage
bond until September of 2009. It is also undisputed that Calyx did post the
required plugging bond before it began drilling. At the hearing on this issue on
January 4, 2011, two Calyx representatives testified. The testimony established,
as the district court found, that the two bonds were in the same amount, that
Calyx representatives confused the two bond requirements and that this mistake
was made in good faith.
¶21 It was the Halls' burden to prove that Calyx "willfully and knowingly"
violated section 318.9 by failing to post the location damage bond. Section
318.9 of the Surface Damages Act is penal in nature and must be strictly
construed. Houck, 1993 OK
166, ¶ 25, 867 P.2d at 459. As such, the Halls were required to prove "some
form of wrongful intent or motive . . . to invoke the strictures of the
penalty." Id. (citing Maxwell v. Samson Res. Co., 1993 OK 23, 848 P.2d 1166). The district court
concluded that the Halls had failed to do so. The Halls have advanced no
argument in this appeal showing that the district court erred in doing so. Based
on our de novo review of the hearing transcript and exhibits offered at the
January 4 hearing, we conclude, as did the district court, that the Halls have
failed to show that Calyx's failure to post the location damage bond resulted
from the kind of "willful and wanton" conduct required for the imposition of
treble damages. The district court's January 31, 2011, order is affirmed.
B. The Notice and Negotiation Issue
¶22 The Halls also contend that they are entitled to treble damages based on
the first sentence of section 318.9: "Upon presentation of clear, cogent and
convincing evidence that the operator willfully and knowingly entered upon the
premises for the purpose of commencing the drilling of a well before giving
notice of such entry . . . ." As the Halls construe section 318.9, the "notice"
required by this provision is the same as the notice required by section 318.3.
Section 318.3 requires an operator to notify a surface owner before entering the
property and provide the approximate date and location of the proposed drilling
operations. The Halls concede that there is no specific requirement in section
318.9 for the operator to negotiate in good faith. However, they derive this
obligation from section 318.3: "Within five (5) days of the date of delivery or
service of the notice of intent to drill, it shall be the duty of the operator
and the surface owner to enter into good faith negotiations to determine the
surface damages." The Halls argue that the district court erred when it
"declined to hear evidence" on this issue and that the case should be remanded
for a determination of whether Calyx provided the required notice.
¶23 First, adopting the Halls' construction of these statutes, section 318.3
imposes a duty on "the operator and the surface owner to enter into good
faith negotiations to determine the surface damages." (Emphasis added).
Consequently, the Halls would first have to prove that they satisfied their duty
to negotiate in good faith before being able to argue a breach of that duty by
Calyx. The evidence of the Halls' good faith is not contained in this record. At
the hearing on the treble damages issue, Mr. Hall testified that he received a
letter from Calyx dated April 7, 2008. The letter notified the Halls that
"pursuant to the requirements of Title 52 O.S. § 318.3" Calyx intended to
drill on their property, expressed Calyx's desire to resolve their surface
damages by negotiation rather than an action in district court, and gave them
contact information for a Calyx representative they could call to begin those
negotiations. By April 10, 2008, the Halls' attorney had contacted the Calyx
representative and advised that he would try and get settlement authority from
his clients. On April 21, 2008, the Calyx representative transmitted a copy of
the petition it had filed in the surface damage case to the Halls' attorney
noting that he had not heard anything since his April 10 letter and presumed the
Halls' "position remains unchanged and that they dispute [Calyx's] right to
drill and are not interested in negotiating a surface damage settlement."
Nonetheless, the letter concluded with an offer to meet at the Halls'
convenience in an attempt to settle the surface damage issue. Further, in an
offer of proof, Calyx referred to testimony by Mrs. Hall to the effect that the
Halls were not willing to accept compensation from Calyx for an agreement to
drill on their property.
¶24 Second, during the January 4, 2011, hearing on the Halls' request for
treble damages, the district court announced its view that failure to negotiate
was a defense the surface owner could interpose when the operator filed a
petition for the appointment of appraisers before the operator began drilling
operations, but not a basis on which treble damages could be awarded. The
district court's view is supported by section 318.5(A):
Prior to entering the site with heavy equipment, the operator shall
negotiate with the surface owner for the payment of any damages which may be
caused by the drilling operation. If the parties agree, and a written
contract is signed, the operator may enter the site to drill. If agreement
is not reached . . . the operator shall petition the district court in the
county in which the drilling site is located for appointment of appraisers
to make recommendations to the parties and to the court concerning the
amount of damages, if any. Once the operator has petitioned for appointment
of appraisers, the operator may enter the site to
drill.
Compliance with section 318.5(A) is not an issue in this case. Prior to
filing its petition on April 21, 2008, Calyx attempted to negotiate with the
Halls. When those negotiations failed, Calyx did not enter the Halls' property
until May 16, 2008, after filing its petition.
¶25 The district court also relied on Tower Oil & Gas Company, Inc. v.
Harmon, 1989 OK 127,
782 P.2d 1355. The Harmon
Court reversed a treble damages award, in part, because "section 318.9 does not
provide that the failure to negotiate in good faith is a proper ground for award
of treble damages."5 The Halls contend the Supreme Court's statement
about the failure to negotiate in good faith as a basis for treble damages is
dicta because the treble damage award in Harmon had not been entered in
the separate proceeding required by section 318.9. We find the Halls' argument
unpersuasive. The Court stated two grounds for reversing the treble damage
award, the failure to conduct a separate hearing and the reliance on section
318.9 as a basis for awarding treble damages. Consequently, section 318.9 does
not authorize the imposition of treble damages for an operator's failure to
negotiate in good faith.
¶26 Section 318.9 does authorize treble damages for an operator's failure to
notify the surface owner or obtain the surface owner's agreement before
entering the property. However, the surface owner must provide "clear, cogent
and convincing evidence that the operator willfully and knowingly" did so. The
Halls admit that Calyx notified them before it entered their property.
Consequently, Calyx satisfied its obligation pursuant to the first sentence of
section 318.9, and treble damages cannot be imposed on this basis. What
additional evidence the Halls contend was improperly excluded by the district
court is unclear. Nonetheless, to demonstrate error by the district court it was
the Halls' "burden to offer evidence at the hearing which supported [their]
position, and, if excluded, to make an offer of proof." Fleck v.
Fleck, 2004 OK 39, ¶
13, 99 P.3d 238, 241. The Halls
did neither. In the absence of such evidence, this Court presumes the district
court did not err. See Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496.
CONCLUSION
¶27 A surface owner's contractual obligation to an attorney is not the sole
determinant in awarding attorney fees pursuant to 52 O.S.2011 § 318.5(F). Attorney
fees awarded pursuant to that statute must be reasonable. The district court's
January 3, 2011, attorney fee order is affirmed as modified to correct a
mathematical error. Pursuant to that order, the Halls are entitled to $43,375.00
in attorney fees and $5,843.40 in costs for a total of $51,218.40.
¶28 The Halls are not entitled to attorney fees for litigating the treble
damages aspect of their surface damages claim. Title 52 O.S.2011 § 318.5(F) does not
authorize an award of attorney fees with respect to the separate proceeding the
district court is statutorily required to conduct with respect to treble damages
issues. Consequently, the district court's March 6, 2011 order is affirmed.
¶29 Likewise, the court's January 31, 2011, location damage bond order is
affirmed. After our de novo review, we agree with the district court. The Halls
failed to prove that Calyx willfully and knowingly failed to post the location
damage bond.
¶30 Finally, failure to negotiate in good faith is not a basis on which
treble damages can be awarded pursuant to 52 O.S.2011 § 318.9. The Halls
concede that they were notified before Calyx entered their property. As a
result, Calyx satisfied its obligation imposed by the first sentence of section
318.9. Consequently, the district court's December 28, 2011, order is
affirmed.
¶31 AFFIRMED AS MODIFIED.
RAPP, J., and THORNBRUGH, J., concur.