Tillery v. Tulsa Christian Care Center, Inc.

2005 OK CIV APP 54, 118 P.3d 772, 76 O.B.A.J. 1884, 2005 Okla. Civ. App. LEXIS 41, 2005 WL 1971280
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 29, 2005
DocketNo. 99,585
StatusPublished
Cited by5 cases

This text of 2005 OK CIV APP 54 (Tillery v. Tulsa Christian Care Center, Inc.) 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
Tillery v. Tulsa Christian Care Center, Inc., 2005 OK CIV APP 54, 118 P.3d 772, 76 O.B.A.J. 1884, 2005 Okla. Civ. App. LEXIS 41, 2005 WL 1971280 (Okla. Ct. App. 2005).

Opinion

Opinion by

BAY MITCHELL, Judge.

¶ 1 Tulsa Christian Care Center, Inc. appeals from an award of attorney fees to Charles Tillery, the Personal Representative of the Estate of Audrey Louise Tillery. Till-ery sought attorney fees as the prevailing party in the underlying action after obtaining a jury verdict on his nursing home claim against Tulsa Christian Care. The jury awarded $5,000 in actual damages and $40,000 in punitive damages. The court then awarded $77,056.25 in attorney fees.

¶2 Tillery sought attorney fees in the amount of $115,375 pursuant to 63 O.S.2001 § 1 — 1918(F) of the Nursing Home Care Act. Tulsa Christian Care argued Tillery was not entitled to attorney fees because his claims, based on violations of the Nursing Home Care Act, were not presented to the jury, and also because § 1-1918(F) violates the Equal Protection Clause of the 14th Amendment of the United States Constitution and § 6, Art. II of the Oklahoma Constitution by only allowing attorney fees to successful plaintiffs. Tulsa Christian Care also argued the requested fees were excessive and requested a jury trial on this issue. The trial court found Tillery was entitled to attorney fees pursuant to § 1 — 1918(F); determined the attorney fee provision was constitutional; and denied Tulsa Christian Care’s request for a jury trial. The court also held an evidentiary hearing on the reasonableness of Tillery’s requested attorney fees, taking testimony from both parties’ expert witnesses. After reviewing the entire record, we find no error and affirm.1

¶ 3 On appeal, Tulsa Christian Care first contends they were entitled to a jury trial on the reasonableness of Tillery’s attorney fee request pursuant to 12 O.S.2001 § 556. This statute requires that issues of fact arising in actions for the recovery of money be tried by a jury unless this right is waived. However, the statutory grant of attorney fees in § 1-1918(F) specifically states the court shall assess the amount of reasonable attorney fees under the Nursing Home Care Act.2 Whenever a general statute and a specific statute conflict, the terms of the specific statute control. Duncan v. City of Nichols Hills, 1996 OK 16, ¶ 27, 913 P.2d 1303, 1310. Here, the Nursing Home Care Act specifies that the court shall assess the attorney fee award, which controls over the general statement of a jury trial right in § 556. We find no other authority that would require a jury to award attorney fees under the Nursing Home Care Act. Tulsa Christian Care’s first proposition is without merit.

¶4 Second, Tulsa Christian Care argues Tillery was not entitled to attorney fees pursuant to § 1-1918(F) because the trial court sustained Tulsa Christian Care’s de[775]*775murrer as to all Tillery’s causes of action “other than negligence.” Tillery filed claims for common law negligence, negligence per se for statutory violations under the Nursing Home Care Act and breach of contract. Tulsa Christian Care contends that, based on this ruling, the jury was only instructed on common law negligence, and not negligence per se for a violation of the Nursing Home Care Act. On the other hand, Tillery claims the jury was instructed on negligence per se for violations of the Nursing Home Care Act in Instruction No. 10.3

¶ 5 The appellate record is not completely clear regarding whether Instruction No. 10 was given to the jury or whether the trial court granted the demurrer as to the negligence per se claim. The record does not include an order ruling on the demurrer, nor does it include the transcript of the hearing on the demurrer or the full set of jury instructions given to the jury. Instruction No. 10 was in the record, however, attached to Plaintiffs Reply to Defendant’s Objection for Costs and Attorney Fees. It is the appellant’s burden to provide an appellate record adequate for this court to review. Smith v. Baptist Foundation of Okla., 2002 OK 57, ¶ 27, 50 P.3d 1132, 1144; Reeves v. Agee, 1989 OK 25, ¶ 15, 769 P.2d 745, 753 n. 19 (emphasizing if error cannot be determined from incomplete, deficient or equivocal record, appellate court must presume trial court decision was legally correct). The only evidence in the record regarding this instruction supports the Appellee, Tillery. Without evidence to the contrary we will not presume the court erred.

¶ 6 Further, Instruction 10 was almost identical to the instruction given in Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶ 7, 977 P.2d 357, 360 n. 6. In Morgan, the Oklahoma Supreme Court held that if a jury is instructed that a violation of the Nursing Home Care Act is negligence per se and then returns a general verdict, the plaintiff is entitled to attorney fees under the Act. Id., ¶ 11, 977 P.2d at 363. The rationale for this holding is that a general verdict includes a finding favorable to the prevailing party on every material fact upon which the jury was instructed. Id., ¶ 7, 977 P.2d at 361 n. 8. Because the jury in this case returned a general verdict, Tillery would thus be entitled to attorney fees pursuant to § 1-1918(F). We affirm the finding that Tillery was entitled to attorney fees under the Nursing Home Care Act.

¶ 7 Third, Tulsa Christian Care argues the amount of the attorney fee award was unreasonable. To assess a reasonable attorney fee, the trial court first determines the compensation based on an hourly rate, and then applies factors cited in State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶ 8, 598 P.2d 659, 661, to enhance the award. Morgan, ¶ 14, 977 P.2d at 364. An attorney fee award must also bear a rational relationship to the amount recovered. Hall v. Globe Life & Accident Ins. Co., 1998 OK CIV APP 163, ¶ 5, 968 P.2d 1260, 1262. However, this appellate record does not contain pre-trial pleadings, the trial transcripts, or any trial exhibits, so we must rely on the trial court’s perception of the case as to its complexity and the reasonableness of the time expended by Tillery’s counsel.4 See Arkoma Gas Co. v. [776]*776Otis Engineering Corp., 1993 OK 27, ¶ 8, 849 P.2d 392, 394.

¶ 8 The court was presented with conflicting expert testimony regarding the reasonableness of the number of hours and the hourly rates requested by Tillery’s counsel. This conflict is for the trier of fact to resolve. The trial court reviewed the time sheets provided by Tillery’s counsel and highlighted charges that were reasonable. The court eliminated approximately 120 hours. The court allowed 251.25 hours for lead counsel and 224.5 hours for associate counsel. The court set the associate’s hourly rate at $125, which was within the range found to be reasonable by Tulsa Christian Care’s expert. The court set the rate for lead counsel at $195, which was between the $150 suggested by Tulsa Christian Care and the $200-$250 suggested by Tillery’s expert. The court recognized two attorneys are sometimes necessary in nursing home negligence cases because of the volume of documents involved. In addition, the attorneys had to spend time preparing for trial twice because the case was set for trial once before and had to be continued. The court also noted the ease was factually complicated because it involved numerous incidents of negligence and also included an issue regarding false entries in the medical records. The court apparently did not enhance the fee pursuant to Burk,

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2005 OK CIV APP 54, 118 P.3d 772, 76 O.B.A.J. 1884, 2005 Okla. Civ. App. LEXIS 41, 2005 WL 1971280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tillery-v-tulsa-christian-care-center-inc-oklacivapp-2005.