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Evidence (OK)

2010-09-03T21:57:31Z

Under the Daubert/Kuomo standard, the Court can apply the same tests both to cases involving novel scientific expertise and to cases where the expert is simply testifying from "personal knowledge or experience.":

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	== Expert Testimony ==		== Expert Testimony ==
		+
		+	=== Controlling statutes and evidentiary rules. ===
		+
		+	:¶5 In Oklahoma the testimony of an expert is controlled by the applicable statutes found in the Oklahoma Evidence Code, 12 O.S.2001 § 2702 (Testimony by Experts); § 2703 (Bases of Opinion Testimony by Expert); § 2704 (Opinion on Ultimate Issue); and § 2705 (Disclosure of Facts or Data Underlying Expert Opinion). The Oklahoma Evidence Code was adopted in 1978 by our Legislature and was modeled, in most parts, after the then current Federal Rules of Evidence. 1 L. Whinery, Oklahoma Evidence, The Guide to the Oklahoma Evidence Code, Preface, (1985); 1978 Okla.Sess.Laws c. 285 (eff. Oct. 1, 1978).
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== Oklahoma adopts the Daubert and Kuomo standards. ===
		+
		+	:¶4 Plaintiffs alleged that they were injured by airborne chemicals that they inhaled while attending a circus in the State Fair Arena. Defendants filed a motion in limine to exclude the testimony, opinions, and exhibits of Plaintiffs' expert on the issue of the causation of Plaintiffs' injuries. The trial court granted the motion, stating that plaintiffs' expert "is not competent to give a medical opinion on the cause of injury based upon the test set forth in Daubert v. Merrell Dowell Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and their progeny." First, we must determine if Daubert and its progeny apply, and then if so, whether Daubert was applied correctly.
		+
		+	...
		+
		+	:¶14 Nothing in Daubert or Kumho conflicts with our Evidence Code. Our Court of Criminal Appeals has already adopted Daubert for criminal proceedings in Oklahoma Courts. Today we likewise adopt Daubert and Kumho as appropriate standards for Oklahoma trial courts in deciding the admissibility of expert testimony in civil matters.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== Under the Daubert/Kuomo standard, the Court can apply the same tests both to cases involving novel or conventional scientific expertise and to cases where the expert is simply testifying from "personal knowledge or experience." ===
		+
		+	:¶13 In Kumho Tire Co., supra, the Court explained that a trial court has some latitude in applying the Daubert factors of reliability: "Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho, 526 U.S. at 153. Thus, the Daubert factors are not a rigid standard applicable in every case.
		+
		+	::The Daubert factors "may" bear on a judge's gatekeeping determinations, how:ever. The four Daubert factors "'may or may not be pertinent'"; it will all depend ''on the nature of the issue, the expert's particular expertise, and the subject of his testimony.'" Determining which factors are indicative of reliability in a particular case cannot be accomplished solely by a categorical a priori characterizations about the particular field in question. The Court explained: "Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. . . . In other cases, the relevant reliability concerns may focus upon personal knowledge or experience." In all cases, a court must exercise its gatekeeping obligation so that the expert, whether relying on "professional studies or personal experience," will, when testifying, employ "the same level of intellectual rigor" that the expert would use outside the courtroom when working in the relevant discipline.
		+	:::Federal Judicial Center, Reference Manual on Scientific Evidence, 19 (2d ed.2000), quoting, Kumho, supra.
		+
		+	:A trial court must thus make a determination of the appropriate factors of reliability for the particular controversy before it based upon the nature of that controversy.
		+
		+	[Also see ¶11]
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== The trial court is to act as a "gatekeeper." ===
		+
		+	:¶9...Thus a trial judge's decision to prevent improper testimony from an expert witness is not new to our jurisprudence. Our Evidence Code currently recognizes the gatekeeping capacity of a trial judge, and Daubert is but a refinement of this role.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== The trial court must make sure that the expert is applying the same intellectual standards in the court room that would be applied outside the court room in that discipline. ===
		+
		+	:¶13...In all cases, a court must exercise its gatekeeping obligation so that the expert, whether relying on "professional studies or personal experience," will, when testifying, employ "the same level of intellectual rigor" that the expert would use outside the courtroom when working in the relevant discipline.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== The Daubert factors for admissibility of expert testimony. ===
		+
		+	:¶8 Daubert provided a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: 1. Can the theory or technique be, or has it been, tested; 2. Has the theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Daubert, 509 U.S. at 593 - 594.9 The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. Id. 509 U.S. at 595.
		+
		+	:¶9 The evidence must also "assist the trier of fact to understand the evidence or to determine a fact in issue." This requirement "goes primarily to relevance." Daubert, 509 U.S. at 591. Rule 702 thus "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 592.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== The trial court's role in deciding admissibility under Daubert. ===
		+
		+	:The [Supreme Court in Daubert] then explained the trial judge's role:
		+
		+	::Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.
		+	:::Daubert, 509 U.S. at 592 - 593, notes omitted.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, ¶9, 65 P.3d 591
		+
		+	=== Motions in limine and "Daubert hearings." ===
		+
		+	:¶48 In our case today the Daubert issue was raised by motions in limine. Daubert challenges to evidence are routinely raised by a motion in limine, and may also require an evidentiary hearing, or "Daubert hearing," to properly inform the trial judge. The Tenth Circuit federal court has stated that federal courts may decide whether a Daubert challenge is decided upon special briefing or some other procedure, and has further explained that a common method is a Daubert hearing, although such a hearing is not specifically mandated. U.S. v. Turner, 285 F.3d 909, 912 -913 (10th Cir. 2002), cert. denied, 2002 WL 1575769 (U.S. Oct. 07, 2002) (No. 02-5120), quoting, Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). As explained by one group of authors, "Decisions about admissibility under all three rules [Federal Rules 403, 702, and 703] hinge on factual issues that can be resolved meaningfully only if a court is adequately informed." Expert Evidence: A Practitioner's Guide to Law, Science, and the FJC Manual, 29 (B. Black, P. Lee ed. 1997). A procedure creating a record of facts, whether by formal hearing with an opportunity for cross-examination, or argument on special briefs with attached documents and admitted facts of what the evidence will show, "creates a record that allows a judge to rule on admissibility after due consideration." Expert Evidence, supra, at 29-30.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	=== Daubert hearings should be held when expertise of expert, or reliability of opinion, can not be taken for granted. ===
		+
		+	:Our Court of Criminal Appeals has determined that Daubert shall apply to novel scientific evidence in criminal proceedings. Taylor v. State, 1995 OK CR 10, 889 P.2d 319, 328. See Gilson v. State, 2000 OK CR 14, ¶¶ 62-64, 8 P.3d 883, 907, (noted adoption in Taylor and then applied Daubert). After Kumho the court held that Daubert should be applied to all novel expert testimony. Harris v. State, 2000 OK CR 20, ¶¶ 8-9, 13 P.3d 489, 492-493, cert. denied, 532 U.S. 1025, 121 S.Ct. 1971, 149 L.Ed.2d 764 (2001). Then in Kumho the U.S. Supreme Court stated that when the evidence is not novel a trial court may make that determination and avoid a prolonged Daubert inquiry. The Court stated that a federal trial judge possesses the authority "needed both to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Kumho Tire Co., Ltd. v. Carmichael et al., 526 U.S. 137, 152, emphasis added. We agree with the Court of Criminal Appeals that a Daubert inquiry will be limited to circumstances where the reliability of an expert's method cannot be taken for granted.11 Thus, a Daubert challenge includes an initial determination of whether the expert's method is one where reliability may be taken for granted.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, ¶11, 65 P.3d 591

	=== Expert opinion on causation must have analytical basis; it can not rest simply on the unsupported declaration (ipse dixit) of the expert. This is a question for the court. ===		=== Expert opinion on causation must have analytical basis; it can not rest simply on the unsupported declaration (ipse dixit) of the expert. This is a question for the court. ===

Appeal (OK)

2010-09-03T19:30:51Z

Review of trial court's ruling on the admission or exclusion of evidence:

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	::BIERMAN v. ARAMARK REFRESHMENT SERVICES, INC., 2008 OK 29 (Check for publication).		::BIERMAN v. ARAMARK REFRESHMENT SERVICES, INC., 2008 OK 29 (Check for publication).
		+
		+	=== Review of trial court's ruling on admissibility of expert testimony ===
		+
		+	:¶39 A clear abuse of discretion standard applies as to appellate review of the admissibility of expert testimony. Gray, 2003 OK 10, ¶ 42, 65 P.3d at 608. In Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, cert. dismissed, 528 U.S. 1014 (1999) we stated:
		+
		+	::A trial judge's decision to exclude evidence will not be overturned absent a clear abuse of discretion. 'Abuse of discretion' is the applicable standard of review regardless whether the excluded testimony is outcome-determinative. It is incumbent upon a trial judge in his/her role as the 'gatekeeper' of the evidentiary process to screen evidence, i.e., to determine its relevance and reliability.
		+
		+	:Cities Service Co., 1999 OK 14, ¶ 32, 980 P.2d at 132. (footnotes omitted; emphasis in original). In Gray [2003 OK 10, ¶ 43, 65 P.3d at 608, citing Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶ 12, 27 P.3d 477, 481], this Court stated, "[a]n abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." This standard, thus, may include both review of fact and law issues. Gray, 2003 OK 10, ¶ 43, 65 P.3d at 608. As to the factual part of the equation, abuse of discretion occurs when a trial court's factual exercise of discretion is clearly against reason and the evidence, or based on untenable grounds or is manifestly unreasonable. Gray, 2003 OK 10, ¶ 44, 65 P.3d at 609, quoting Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194, cert. denied, 528 U.S. 1188 (2000). As to the legal part of the equation an abuse of discretion would occur "if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law." Gray, 2003 OK 10, ¶ 43, 65 P.3d at 608, quoting Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701. A de novo review standard applies when the error is claimed to be one of law, such as whether the trial court applied a correct legal standard in ruling on a matter. See Gray, 2003 OK 10, ¶ 43, 65 P.3d at 608, citing Scoufos v. State Farm Fire & Casualty Co., 2001 OK 113, ¶ 1, 41 P.3d 366, 367.
		+
		+	::WORSHAM v. NIX & SCROGGS, 2006 OK 67, 145 P.3d 1055

	=== Review of the giving or refusing of jury instructions ===		=== Review of the giving or refusing of jury instructions ===

Evidence (OK)

2010-09-03T15:09:43Z

Expert opinion on causation must have analytical basis; it can not rest simply on the unsupported declaration (ipse dixit) of the expert. This is a question for the court.:

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	== Expert Testimony ==		== Expert Testimony ==
		+
		+	=== Expert opinion on causation must have analytical basis; it can not rest simply on the unsupported declaration (ipse dixit) of the expert. This is a question for the court. ===
		+
		+	:¶36 The sufficiency of an expert's evidence to support a conclusion is distinct from the reliability of the method used by the expert. However, the U. S. Supreme Court has not maintained a sharp distinction between the reliability of an expert's methods and conclusions. That Court has allowed courts to determine the validity of an expert's conclusion. In General Electric Co. v. Joiner, 522 U.S. 136, 139 L Ed 2d 508, 519, 118 S. Ct. 512 (1997) the Court said the following.
		+
		+	::But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (C.A.6), cert. denied, 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d 47 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.
		+	::General Electric Co. v. Joiner, 522 U.S. at 146, emphasis added.
		+
		+	:An expert's opinion on causation must be more than ipse dixit.[FN 19: '''ipse dixit - "He himself said it; a bare assertion resting on the authority of an individual."''' Black's Law Dictionary, 961 (4th ed. 1951).] As we noted above, "under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but must be 'scientific' and reliable." Daubert, 509 U.S. 579, at 589. Thus, when a expert's opinion relates to causation, reliability of that opinion is provided when the expert's opinion is based upon a reliable method for determining causation and the conclusion is analytically appropriate to that method. The reliability of the method is not shown merely because the expert states that causation exists.
		+
		+	:¶37 At the trial court hearing Plaintiffs focused upon what the doctor did know, e.g., spirometry, medical history, symptoms, etc., and the conclusion of the doctor. Defendants focused on what the doctor did not know, such as quantity of airborne lime, if any, at the time of the circus, published studies on airborne lime, and his opinion on possible alternative causes for Plaintiffs' symptoms. The trial court focused on what the doctor did not know and concluded from this that the doctor could not say with a reasonable degree of medical certainty whether Plaintiffs' exposure caused the injuries. The trial court statement is not completely clear whether the court is making a determination that the unknown facts are necessary as part of a proper method for determining toxic exposure, or that the expert's conclusion is analytically unsound based upon what he does know, or that the expert's opinion is not admissible for flaws in both method and conclusions. We construe the order as concluding that both method and conclusions were improper.
		+
		+	:¶38 In summary on the issue of causation, assuming that the expert's method for his conclusions is novel and reliability cannot be taken for granted, we hold that if expert testimony is necessary to show cause of an injury from exposure to a toxin, the testimony of the expert should reveal a reliable method for determining the quantity of the toxin necessary to cause injuries of the type experienced by plaintiff (general causation), unless plaintiff can show that the circumstances are such that general causation should not be necessary. See, e.g., Kuhn v. Sandoz Pharmaceuticals Corp., supra. Further, the expert's conclusion must be analytically appropriate for the expert's method.
		+
		+	::CHRISTIAN v. GRAY, 2003 OK 10, 65 P.3d 591
		+
		+	:¶37 Dr. Zent provided no evidence as to how much of the purportedly polluted well water, or how much of the constituent elements of the combined heavy metals, would be required to cause the illness Twymans contend their cows suffered. There is no independently reliable evidence that the well water was harmful. Further, Twymans failed to show the circumstances did not require a showing of general causation. "An expert's opinion on causation must be more than ipse dixit."15 Christian, at 607. The reliability of the method is not shown merely because the expert states that causation exists. Id.
		+
		+	::Twyman v The GHK Corp. 2004 OK CIV APP 53, 93 P.3d 51

	=== Summary of cases ===		=== Summary of cases ===

Attorneys Fees as Costs (OK)

2010-09-02T01:44:23Z

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	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS. 2010 OK CIV APP 79,___ P.3d ___ ]		::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS. 2010 OK CIV APP 79,___ P.3d ___ ]

		+	= Determination of amount of fees. =
		+
		+	== Amount of fees must bear some reasonable relationship to the amount in controversy. ==
		+
		+	=== Cases where fees may exceed judgment. ===
		+
		+	:¶19 Correctly pointing out that an attorney fee award must bear some reasonable relationship to the amount in controversy, Byers lastly argues that an award of $12,312.50 for attorney fees in a case where the judgment is $3,605 does not pass that test. This argument must fail for several reasons. The record clearly demonstrates that the parties stipulated to the hourly rate of $250 per hour and further supports the trial court's Burk analysis, which included findings that the amount of the fees are justified because the litigation was made necessary by Byers' wrongful acts, his removal of the action from small claims court to district court, and the length and complexity of the litigation. Further, Byers' own motion to strike the December 22, 2008 evidentiary hearing for determining a reasonable amount of attorney fees admits that at the November 5, 2008 hearing on the issue of entitlement "the parties advised [the Court] there was no dispute about the hourly rate sought and that there is no dispute about the numbers of hours spent on the case." (Emphasis added.) On this record, we cannot say that the trial judge's decision was clearly erroneous or without a basis in reason or evidence.
		+
		+	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS. 2010 OK CIV APP 79,___ P.3d ___ ]
		+
		+	== Apportionment between successful and unsuccessful claims. ==
		+
		+	=== Cases where apportionment is not appropriate. ===
		+
		+	:¶18 Byers alleges the trial court failed to apportion attorney fees between successful and unsuccessful claims, arguing the major dispute in the lawsuit revolved around ownership of the cabin and the trial court should have deducted the time spent by the Beavers' attorney in defense of his counterclaim regarding ownership of the cabin. Although we agree that the latter is not a theory upon which attorney fees may be awarded, our review of the record disputes Byers' identification of the "major dispute" as the ownership of the cabin and affirms the trial court's (1) express rejection of that argument, (2) its finding that the breach of contract and willful damage to property "were not minor issues," and (3) its finding that the "issues became inextricably interrelated" when Byers raised the issue of ownership of the cabin. Nor do we find any merit to Byers' allegation that the trial court's attorney fee award was intended to punish Byers for asserting his legal theories and defenses.
		+
		+	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS, 2010 OK CIV APP 79, ___P.3d___]

	[[Category:Oklahoma_Civil_Procedure]] [[Category:Oklahoma]]		[[Category:Oklahoma_Civil_Procedure]] [[Category:Oklahoma]]

Appeal (OK)

2010-09-02T01:08:51Z

Review of an award of attorneys fees as to amount:

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	:OLTMAN HOMES, INC. v. MIRKES, 2008 OK CIV APP 64, ___ P.3d ___.		:OLTMAN HOMES, INC. v. MIRKES, 2008 OK CIV APP 64, ___ P.3d ___.
		+
		+	:Also see, BEAVERS v. BYERS, 2010 OK CIV APP 79, ¶ 17, ___ P.3d___.

	=== Review of trial court's ruling on the admission or exclusion of evidence ===		=== Review of trial court's ruling on the admission or exclusion of evidence ===

Attorneys Fees as Costs (OK)

2010-09-02T00:50:04Z

Removing fixtures from real property can qualify as damage to personal property.:

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	== Labor and services. ==		== Labor and services. ==

-	=== Breach of Agency agreement. ===	+	=== Breach of Agency agreement. 12 O.S. 936. ===
		+
		+	If an agency contract is wrongfully terminated, and part of the damages include payment for services already rendered, or commissions already earned, then, if the agent is prevailing party, the agent is entitled to collect attorneys fees as costs under the "labor and services" provision in 12 O.S. 936. See [http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=801+p.2d+717 Doyle v. Kelly, 1990 OK 119,801 P.2d 717.] This includes commissions already earned and payable in the future. [http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=149+p.3d+1048 STICKNEY v. KANSAS CITY LIFE INSURANCE CO., 2006 OK CIV APP 146, 149 P.3d 1048.]
		+
		+	== Sale of goods. 12 O.S. 936. ==
		+
		+	=== Attorneys fees recoverable for sale of goods even if seller is not a "merchant." ===
		+
		+	:¶13 Byers' only argument on appeal against the Beavers' entitlement of attorney fees under § 936 is that he is not a merchant and the Beavers are not a purchaser of goods of that kind. However, the authorities he cites, Oltman Homes, Inc. v. Mirkes, 2008 OK CIV APP 64, 190 P.3d 1182, and Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960, held attorney fees under § 936 may not be awarded when the action is one primarily to recover damages for breach of a contract to convey real estate. No such contract is presented by the evidence in this case.
		+
		+	:¶14 When specifically addressing § 936, the trial court found the parties had entered into a contract in which the Beavers offered to purchase from Byers certain personal property he had in the cabin on the Beavers' property for $2,500, they sent Byers a check for that amount, he accepted it but failed to deliver those items to the Beavers. The contract was established by testimony and documentary proof, i.e., letters from the Beavers to Byers identifying the specific personal property and the $2,500 check Byers accepted for that property. The Beavers clearly sought to recover on a contract relating to a purchase of goods, and the evidence supports the trial court's award of attorney fees based on § 936.
		+
		+	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS. 2010 OK CIV APP 79,___ P.3d ___ ]
		+
		+	== Damage to personal property. 12 O.S. 940. ==
		+
		+	=== Removing fixtures from real property can qualify as damage to personal property. ===
		+
		+	:¶15 We next address entitlement of attorney fees under § 940(A). This statute provides that "[i]n any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney's fees, court costs and interest to be set by the court and to be taxed and collected as other costs of the action."
		+
		+	:¶16 Byers makes two arguments. He contends the trial court did not initially find he had negligently or willfully injured the Beavers' property and only awarded them money "for items he removed from the cabin," not damages to the cabin. Both arguments fail to consider the December 3, 2008 Order, in which the trial court expressly found "[Byers] willfully and wrongfully removed fixtures, valued at $1,105, from a cabin belonging to [the Beavers]. . . the removal of such fixtures (identified therein) . . . constitutes wilful damage to [their] property." Byers has not argued any error with the trial court's "willful" or "fixture" determinations nor has he argued or cited legal authority that fixtures do not qualify as "property" under § 940(A). Considering the statutory definitions of "property" and "fixtures," the trial court properly determined the Beavers were also entitled to attorney fees under § 940(A).
		+
		+	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS. 2010 OK CIV APP 79,___ P.3d ___ ]

-	If an agency contract is wrongfully terminated, and part of the damages include payment for services already rendered, or commissions already earned, then, if the agent is prevailing party, the agent is entitled to collect attorneys fees as costs under the "labor and services" provision in 12 O.S. 936. See [http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=801+p.2d+717 Doyle v. Kelly, 1990 OK 119,801 P.2d 717.] This includes commissions already earned and payable in the future. [http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=149+p.3d+1048 STICKNEY v. KANSAS CITY LIFE INSURANCE CO., 2006 OK CIV APP 146, 149 P.3d 1048.]

	[[Category:Oklahoma_Civil_Procedure]] [[Category:Oklahoma]]		[[Category:Oklahoma_Civil_Procedure]] [[Category:Oklahoma]]

Appeal (OK)

2010-09-02T00:16:45Z

Review of trial court's authority to award attorneys fees:

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	'''Note: Indented text in this article is quotation from the cited cases.'''		'''Note: Indented text in this article is quotation from the cited cases.'''
		+
		+	==Appellate Jurisdiction==
		+
		+	===Mandatory Jurisdiction===
		+
		+	====Final Orders appealable by right.====
		+
		+	:¶5 "Our mandatory appellate jurisdiction from orders of the district court is limited to final orders or judgments and interlocutory orders appealable by right." First Capital Bank v. Tarrant, 2007 OK CIV APP 83, ¶2 169 P.3d 1210, 1211. A "final order" is "[a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment." 12 O.S.2001 § 953. For purposes of Byers' appeal, the September 24, 2008 Judgment fully resolved the Beavers' claim and Byers' counterclaim and therefore, it is the "final order" of the case that triggered the 30-day period within which a petition in error must be filed to commence a timely appeal. Byers did not file a petition in error within that period. Nor was any post-trial motion for new trial or equivalent motion filed "no later than 10 days" after the filing or the mailing of the September 24, 2008 Judgment which would have extended the time to commence an appeal until disposition of the post-trial motion. Okla.Sup.Ct.R. 1.22(c)(1).
		+
		+	::[http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=461145 BEAVERS v. BYERS, ___ P.3d. ___, 2010 OK CIV APP 79]
		+
		+

	== Scope of Review (what issues can be decided by the Court) ==		== Scope of Review (what issues can be decided by the Court) ==
Line 172:		Line 184:
	=== Review of trial court's authority to award attorneys fees ===		=== Review of trial court's authority to award attorneys fees ===

-	¶15 The sole issue presented on appeal is whether the district court had the authority to award attorney fees.5 This presents a question of law which we review de novo. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5 n.1, 932 P.2d 1100, 1103 n.1.	+	¶15 The sole issue presented on appeal is whether the district court had the authority to award attorney fees. This presents a question of law which we review de novo. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5 n.1, 932 P.2d 1100, 1103 n.1.

	::CORR v. SMITH, 2008 OK 12, 178 P.3d 859		::CORR v. SMITH, 2008 OK 12, 178 P.3d 859