State Ex Rel. Department of Transportation v. Allied Tower Co.

2006 OK CIV APP 71, 136 P.3d 718, 2006 Okla. Civ. App. LEXIS 42, 2006 WL 1688368
CourtCourt of Civil Appeals of Oklahoma
DecidedJanuary 17, 2006
Docket100,109, 100,467
StatusPublished
Cited by5 cases

This text of 2006 OK CIV APP 71 (State Ex Rel. Department of Transportation v. Allied Tower Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Department of Transportation v. Allied Tower Co., 2006 OK CIV APP 71, 136 P.3d 718, 2006 Okla. Civ. App. LEXIS 42, 2006 WL 1688368 (Okla. Ct. App. 2006).

Opinions

Opinion by

JOHN F. REIF, Judge.

¶ 1 Appeal No. 100,109 and No. 100,467 arise from the same condemnation proceeding in which the Oklahoma Department of Transportation (ODOT) acquired property from Allied Tower Company, Inc. ODOT brought Appeal No. 100,109 alternatively seeking a new trial or remittitur. ODOT contends that the trial court erred by admitting, over objection, incompetent evidence of the value of a spooling machine that, in turn, resulted in the jury returning a verdict that exceeded the commissioners’ award by more than 10%. Allied brought Appeal No. 100,-467 seeking reversal of the trial court’s attorney fee award. Allied contends that the trial court erred in basing the fee on the Burk1 [720]*720factors, rather than its contractual obligation to its attorneys. Because these appeals involve judgments from the same case in the district court, and judicial economy would be served by their review and disposition together, this court sua sponte consolidates these appeals for decision by a single opinion to be filed in each case. Supreme Court Rule 1.27(d), 12 O.S.2001, ch. 15, app. 1.

I.

¶ 2 Prior to the taking, Allied used the spooling machine in making guy wires for the towers it manufactured. The loss of the land taken by ODOT prevented continued use of the spooling machine. Allied built a new spooling facility and included the cost of the new facility as one of its costs to cure. However, the spooling machine in question could not be moved to the new facility due to the way it was affixed to the land. In effect, it became unusable salvage equipment.

¶ 3 The controversy over the value of the spooling machine arose in the course of testimony by Allied’s expert witness. This witness, an engineer, testified about the detrimental effect of the taking on Allied’s operations and use of the remaining land. This witness was allowed to give an opinion about the salvage value of the unusable spooling machine over objection of counsel for ODOT. This witness concluded the spooling machine had a salvage value of about $2,500.

¶ 4 ODOT argues that this witness was not an expert in appraising the value of property and that his opinion lacked both a factual foundation and methodology. ODOT points out that $2,500 is more than 10% of the commissioners’ award, and basically argues the jury must have considered this amount in returning a verdict that exceeded the commissioners’ award by more than 10%.

¶ 5 The chief problem with this reasoning is that Allied did not seek to recover the value of the spooling machine as an item of damage separate from the cost to cure the loss of its use. The loss of use of the spooling machine was reflected in the cost of the new spooling facility.

II6 It was perfectly clear that the spooling machine itself was not taken and, in context, it is much more probable that the jury subtracted the salvage value of the spooling machine from Allied’s cost to cure, rather than adding the salvage value to other damages the jury found Allied had sustained. In either case, the effect of admitting this evidence is purely speculative in view of the general verdict, and affords no basis to disturb the judgment on the jury verdict.

II.

¶ 7 Under the jury verdict which we have left undisturbed, Allied received an award that “exceed[ed] the award of the court-appointed commissioners by at least ten percent (10%)” and, as such, Allied is entitled to be paid “such sum as in the opinion of the court will reimburse such owner for his reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings.” 27 O.S.2001 § 11(3). Allied Tower contends that State ex rel. Department of Transportation v. Norman Industrial Development Corp., 2001 OK 72, ¶ 11, 41 P.3d 960, 964, interpreted section 11 to mean a landowner is entitled to recover the attorney fee “for which the landowner is contractually liable.”

¶ 8 The rationale for this contractual obligation rule is that “landowners are constitutionally entitled to full compensation for property subjected to the government’s eminent domain powers.” Id. at ¶ 17, 41 P.3d at 965 (footnote omitted). Such full compensation means “full indemnification by just or fair compensation [that places the owner] as fully as possible in the same position as that [occupied] before the government’s taking.” Oklahoma Turnpike Auth. v. New Life Church, 1994 OK 9, ¶ 12, 870 P.2d 762, 766.

¶ 9 The New Life case, citing Root v. Kamo Elec. Coop., Inc., 1985 OK 8, 699 P.2d 1083, observes that “in condemnation proceedings a landowner’s quest for an attorney’s fee ... is measured by the extent of the landowner’s obligation to its lawyer unless, of course, the obligation is excessive.” The New Life case further observes that courts will resolve “any doubt as to the quantum of the fee [by] lookfing] to the limits on reasonableness or excessiveness of the oumer-in-[721]*721curred obligation.” New Life, 1994 OK 9, ¶ 11, 870 P.2d at 765.

¶ 10 The Norman Industrial Development case interprets these pronouncements as directing a court to undertake “two tasks ... when considering the appropriate attorney fees to impose pursuant to ... § 11.” 2001 OK 72, ¶ 12, 41 P.3d at 964. The first task is “to determine the extent of the landowner’s contractual obligation to its counsel,” while the second task is “to consider whether the quantum of the fee obligation is reasonable.” Id.

¶ 11 The Norman Industrial Development case goes on to state that “the winning party’s lawyer must ... go forward with proof to establish all elements of the plea [for attorney fees],” but “a contract-based fee is governed primarily by the landoumer’s valid obligation to the lawyer.” Id. at ¶ 13, 41 P.3d at 964. After counsel for the landowner has produced evidence on the issues of the contractual amount and its reasonableness, the condemnor who challenges the lawyer-landowner fee contract “has the burden of proving the obligation’s unconscionability or unreasonableness.” Id.

¶ 12 In the case at hand, Allied’s counsel testified that Allied had a contract with his law firm to pay “the higher of fifty percent of the difference between the commissioners’ award and the amount recovered at trial or our regular hourly rate based upon our usual customary hourly rates.” Counsel added, however, that “we specifically discussed with [Allied] that we anticipated that we would be dealing strictly with a lodestar rate times hour calculation.” The hourly rate charged by counsel was $175 per hour and ODOT stipulated this was a reasonable rate.

¶ 13 Allied’s counsel also testified concerning the time and services he provided in representing Allied. He also introduced two exhibits detailing the time and services he provided. He stated Allied was obligated to pay for the time and services reflected in the exhibits.

¶ 14 Allied’s counsel further indicated that he was “familiar with the factors that have been identified by the Oklahoma Supreme Court for determining reasonable attorney fees.” The factors that counsel addressed in his testimony appear to be the Burk factors. At the outset of counsel’s testimony, ODOT stipulated that counsel for Allied was “an expert attorney and a member of the bar and is competent to testify with regard to his fees sought in this case.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CALYX ENERGY, LLC v. HALL
2015 OK CIV APP 1 (Court of Civil Appeals of Oklahoma, 2014)
State Ex Rel. Department of Transportation v. Downey
2007 OK CIV APP 107 (Court of Civil Appeals of Oklahoma, 2007)
State Ex Rel. Department of Transportation v. Allied Tower Co.
2006 OK CIV APP 71 (Court of Civil Appeals of Oklahoma, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 71, 136 P.3d 718, 2006 Okla. Civ. App. LEXIS 42, 2006 WL 1688368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-transportation-v-allied-tower-co-oklacivapp-2006.