Evans v. Evans
Evans v. Evans
Opinion of the Court
¶ 1 Jana Drummond Evans (Client) appeals an April 29, 2016, order granting Kirk & Chaney's (Law Firm) motion to enforce attorney's lien. Based upon our review of the record and applicable law, we affirm.
BACKGROUND
¶ 2 This is one of three companion appeals assigned to this Court arising from a divorce action. In Appeal No. 114,270, Client seeks review of the trial court's August 10, 2015, order denying her motion to correct, open, modify, or vacate the Decree of Dissolution of Marriage. In Appeal No. 115,600, Client seeks review of the trial court's November 9, 2016, order granting Law Firm's application for an attorney's fee, which sought fees incurred in enforcing the attorney's lien. In the present case, Appeal No. 115,034, Client seeks review of the trial court's April 29, 2016, order granting Law Firm's motion to enforce attorney's lien.
¶ 3 Briefly, Law Firm represented Client in a divorce action which culminated in a divorce decree entered on May 11, 2015. On April 7, 2015, Law Firm filed a notice of attorney's lien pursuant to 5 O.S.2011 and Supp. 2014, § 6. On September 1, 2015, Law Firm filed a motion to enforce attorney's lien, asserting Client owed Law Firm $47,891.82. Client filed multiple objections, asserting Law Firm's fee was excessive and unreasonable because Law Firm made legal and mathematical errors during the legal representation resulting in a reduced division of the marital estate.
¶ 4 On December 4, 2015, Client filed a counterclaim for negligence. Client sought reimbursement of excessive fees paid and *420damages. In addition, on December 9, 2015, Client filed an objection to jurisdiction of special judge and motion to transfer to district court. Client asserted the special judge's jurisdiction was limited to $10,000.00 pursuant to 20 O.S.2011, § 123(A)(1). Law Firm responded, asserting the attorney-lien enforcement was an equitable proceeding ancillary to the original divorce proceeding. Thus, the special judge may decide this proceeding pursuant to 20 O.S.2011, § 123(A)(9). Finally, Law Firm asserted Client should file a separate action for alleged malpractice. By order filed on January 15, 2016, trial court denied Client's objection to jurisdiction and motion to transfer to district court. The court further dismissed Client's counterclaim as not properly filed with the court.
¶ 5 An evidentiary hearing was subsequently held on December 11, 2015, January 15, March 11, March 30, and April 4, 2016. By order entered on April 29, 2016, the trial court granted Law Firm's motion to enforce attorney's lien in the amount of $47,891.82. Client appeals.
STANDARD OF REVIEW
¶ 6 When the appeal raises an issue of the reasonableness of an attorney's fee awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. Green Bay Packaging, Inc. v. Preferred Packaging, Inc.,
ANALYSIS
¶ 7 Oklahoma law recognizes two types of liens by which an attorney may secure payment for his or her services: (1) a special or charging lien; and (2) a common-law possessory or retaining lien. Mehdipour v. Holland ,
¶ 8 Client challenged Law Firm's fee as excessive and unreasonable because of purported legal and mathematical errors made during their legal representation resulting in a reduced division of the marital estate. Because a court exercises its equitable powers in enforcing an attorney's charging lien, it may inquire into the reasonableness of the asserted fee for purposes of enforcing the lien.
¶ 9 Rule 1.5 of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch.1, app.3-A, provides attorneys have a professional responsibility not to make an agreement for, charge, or collect unreasonable fees or expenses. In re Adoption of Baby Boy A ,
¶ 10 Parties are free to contract for a reasonable attorney's fee. However, if the fee is challenged as excessive or unreasonable, the trial court should take evidence as to the reasonableness of the fee and has the power to fix an attorney's fee that is reasonable and commensurate with the work performed by the attorney. In re Adoption of Baby Boy A ,
¶ 11 Because "the determination of the reasonableness of an attorney's fee is particularly within the province of a trial court," Marvel v. Miken ,
¶ 12 In the present case, Law Firm addressed the Burk factors at the hearing before the trial court. Law Firm introduced detailed time records of the work it performed for Client, affirmatively testifying that its time records accurately reflected the time and labor required in the case. In addition, counsel for Law Firm testified he has considerable experience in divorce matters, having practiced primarily domestic law for over twenty-nine years, has an AV rating in Martindale-Hubbell, and is listed in the area of family law as one of the "Best Lawyers in America." Counsel noted they represented Client for approximately twenty-one months against very capable opposing counsel in a hard-fought divorce case that consisted of a marital estate valued at almost $4.5 million dollars. Issues included separate property, significant stock and stock options, support alimony, child support, contempt, and child custody. Law Firm asserted that due to its efforts, Client was awarded separate assets worth over $1.2 million, plus stock and stock options, as well as $790,000.00 in property division alimony, $4,000.00 per month in support alimony for three years, and $3,500.00 per month for child support. With respect to separate property issues, Law Firm noted Husband claimed over $2 million of Client's property was marital property. The trial court ultimately found only $91,322.00 was marital property and the rest was Client's separate property.
¶ 13 Law Firm also introduced a copy of its attorney fee contract with Client that established the agreed hourly rate. Client did not object to the agreed hourly rate as unreasonable.
¶ 14 The trial court conducted a thorough hearing addressing the reasonableness of the fee charged for the services performed, specifically reviewing each alleged error in representation. The trial court found Law Firm did submit the arguments to the trial court on Client's behalf and "did fervently fight for the calculations and computations that were ultimately not determined by the Court." In short, the trial court found Law Firm met their burden of proving reasonableness of their requested attorney's fee and that the charging lien should be enforced. Notably, Client's own expert witness testified Law Firm's fee was reasonable given the issues involved in the case.
¶ 15 Client further contends the trial court erred by dismissing her negligence counterclaim. Client contends it is a compulsory counterclaim pursuant to 12 O.S.2011, § 2013(A).
¶ 16 Compulsory counterclaims are creatures of 12 O.S.2011, § 2013(A). Robinson v. Texhoma Limestone, Inc. ,
¶ 17 Oklahoma has not addressed whether a negligence, or malpractice, claim is a compulsory counterclaim required to be pled in response to a motion to enforce a attorney's charging lien.
¶ 18 In Computer One, Inc. v. Grisham & Lawless P.A. ,
¶ 19 The New Mexico Supreme Court reversed, finding the malpractice claim was not a compulsory counterclaim because there was no adversarial relationship between Computer One and the law firm. The Court held its compulsory counterclaim rule, which is identical to Oklahoma's rule, is triggered by its "opposing party" provision. "An 'opposing party' must be one who asserts a claim against the prospective counterclaimant in *423the first instance. In other words, it is the adversarial nature of the relationship between the parties from the beginning that ... trigger[s] the compulsory counterclaim rule and its attendant res judicata effect." Id ."[O]ne must first be a 'party' before one can be an 'opposing party[,]' " and "an attorney does not transform his former client into either, merely by taking steps to secure attorney fees in the same underlying proceeding." Id . at 1182. Conversely, if the law firm had filed a separate suit for breach of contract against Computer One for its attorney's fee, then Computer One would have had to press its legal malpractice claim as a compulsory counterclaim. Id . at 1182.
¶ 20 Similarly, in Tilzer v. Davis, Bethune & Jones, L.L.C. ,
By moving to enforce an attorney's fee lien in the underlying action, [the attorney] was proceeding against the judgment itself, not against the former client. Such an action does not transform the former client into an "opposing party " for purposes of the compulsory counterclaim rule. To invoke that rule, [the attorney] had to file an independent action against [the client], i.e. , had to become a "party" in the first instance.
Id . at 624 (emphasis added).
¶ 21 We find these authorities persuasive. As previously stated, an action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Mediphour, at ¶ 25, at 549. In the present case, Law Firm filed its motion to enforce attorney's charging lien in a proceeding ancillary to the underlying divorce action. By seeking to enforce its attorney's fee lien in the underlying action, Law Firm was proceeding against the judgment itself and not against Client. Client did not become an opposing party for purposes of the compulsory counterclaim rule merely by Law Firm seeking to enforce its charging lien in the underlying action. Accordingly, the trial court properly dismissed Client's negligence/malpractice counterclaim as it was not a compulsory counterclaim. This assertion of error is therefore denied.
¶ 22 For her final assertion of error, Client contends the trial court erred by retaining jurisdiction in a matter that exceeded the jurisdiction of special judges.
¶ 23 Pursuant to 20 O.S.2011, § 123(A)(1), the jurisdictional limit of special judges is $10,000.00 for a claim and $10,000.00 for a counterclaim or setoff. However, § 123(A)(9) provides, "[a]ny matter, regardless of value, at any stage, whether intermediate or final, and whether or not title to property, real, personal, tangible, intangible, or any combination thereof, is to be determined, in a probate, divorce, domestic relations, ...."
¶ 24 Again, an action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Mediphour, at ¶ 25, at 549. Law Firm filed its motion to enforce attorney's lien as an ancillary proceeding to the original divorce proceeding. Thus, we reject Client's assertion that the trial judge lacked jurisdiction or authority to hear and determine the motion to enforce attorney's lien.
¶ 25 The trial court's April 29, 2016, order granting Law Firm's motion to enforce attorney's lien is therefore affirmed.
¶ 26 AFFIRMED .
BARNES, P.J., and RAPP, J., concur.
The Court has used the Burk criteria in cases where there is no incentive or bonus fee. In re Adoption of Baby Boy A ,
Client did object to a rate increase from $300.00 per hour to $325.00 per hour during Law Firm's representation of Client. The trial court found the attorney fee contract provided for the increase and that the increase was within the normal course of practice and therefore reasonable. We find no abuse of discretion.
Client has filed a separate lawsuit for legal malpractice against Law Firm.
Client contends, inter alia , that Law Firm did not hire an expert despite her request, that Law Firm failed to raise certain math errors in ex-husband's exhibits in its closing argument, Proposed Findings of Fact and Conclusions of Law, or the Response to Motion to Settle Journal Entry and Counter-Motion to Settle, and that Law Firm submitted a Proposed Decree of Dissolution of Marriage to the trial court that contained an error. Law Firm disputes Client's assertions, asserting it did not make any errors. Law Firm contends it presented all arguments to the trial court, noting Client has acknowledged that Law Firm did raise or address the purported errors with the trial court at trial, or in some instances, in the Motion to Settle Journal Entry or Counter-Motion. Law Firm further disputed that a Motion to Settle Journal Entry is the proper avenue to raise such errors with the trial court.
Trial, April 4, 2016, p. 26, ll. 4-8.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.