By Kaylee P. Davis-Maddy, Associate Attorney of Doerner, Saunders, Daniel & Anderson, LLP

The availability and award of attorney’s fees has recently become a hot legal news topic. When the Oklahoma Legislature abolished the “American Rule,” an outcry from attorneys on both sides of the bar (e.g. Plaintiffs’ and Defendants’ counsel) caused the American Rule to quickly be reinstated. Why all the chaos? Let’s review the American Rule to evaluate when you can be awarded your attorney’s fees versus when they may be awarded against you.

With the exception of a few weeks earlier this year, Oklahoma has always followed the “American Rule” concerning the award of attorney fees.[1] Simply stated, each party pays for their own legal representation, unless the American Rule is modified by a specific statute or contract.[2]As such, the courts are without authority to award attorney’s fees – absent some exception to the American Rule.

Exceptions allowing the award of attorney fees depend on whether that party has prevailed. If a statute allows attorney’s fees to the prevailing party, this means s/he must have received an affirmative judgment in his/her favor, e.g. “won” in some way.[3] However, each statute is specific – sometimes the statute will authorize attorney’s fees to the Plaintiff if s/he prevails, but not to the Defendant. Below is a detailed list about each exception and who may be entitled to fees if they prevail. This is not an exhaustive list, but provides helpful information during the litigation process.

A few things to keep in mind while reading the below list:

• Only the claims that authorize fees can be eligible for an award. If you have two claims, and only one is authorized for an award of attorney fees, the time spent on the non-fee claim will not authorize fees for you, meaning you may still be paying out of pocket after winning your case.
• Even if an exception authorizes you fees as the prevailing party, the fee must be reasonable. This means that, although you may have paid your attorney for the time incurred, the Court may not award you total reimbursement if it finds the time spent and charged was not reasonable. Reasonableness depends on the circumstances and courts will review several factors before making its decision for what the reasonable value of the services rendered is.
• You and your attorney may need to prove the reasonableness of your requested fees using expert witnesses and in an evidentiary hearing. Although you may have spent the money, prevailed on the case, and a statute authorizes you fees, it isn’t automatic.

Okla. Stat. tit. 12 § 940 Action to recover damages for negligent or willful injury to property	Yes	Yes	Defendant may limit these fees under these circumstances: Defendant may make an offer of judgment within 10 days of being served. If Plaintiff does not accept and judgment is in favor of Defendant or for Plaintiff but less than the offer, Plaintiff is not entitled to recover attorney’s fees.
Okla. Stat. tit. 12 § 941 Action brought by state agencies, if the action was brought without reasonable basis or is frivolous	No	Yes
Okla. Stat. tit.12 § 1101.1 (A) Offer of judgment in actions for personal injury and wrongful death	Yes, under specific circumstances after Defendant makes an offer of judgment.	Yes, under specific circumstances after Defendant makes an offer of judgment.
Okla. Stat. tit. 12 § 1101.1 (B) Offer of judgment in actions for the recovery of money or property, not in personal injury or wrongful death cases	Yes, under specific circumstances after Defendant makes an offer of judgment.	Yes, under specific circumstances after Defendant makes an offer of judgment.
Okla. Stat. tit. 12 § 1141 Action to quiet title, if the correction of title defect is refused without reasonable cause	Yes	Yes

Okla. Stat. tit. 15 § 421	Depends	Depends	Indemnitee may recover its attorney’s fees incurred in defending against indemnified, provided fees were incurred in good faith.
Okla. Stat. tit. 15 § 689 Action based on violation of Invention Development Services Act	Yes	No
Okla. Stat. tit. 15 § 721 Action to enjoin requests for payment for unsolicited goods	Yes	Yes
Okla. Stat. tit. 15 § 776.7 Action for damages from unsolicited or commercial electronic mail messages	Yes	No	Also authorized for an injured electronic mail service provider.
Okla. Stat. tit. 16 § 79 Slanderous notices of claim in quiet title action	Yes	No
Okla. Stat. tit. 23 § 72 Action for wrongful injuries to timber	Yes	Yes
Okla. Stat. tit. 23 § 103 Action for damages for personal injury or to personal rights	Yes, if non-prevailing party asserted the defense in bad faith.	Yes, if non-prevailing party asserted the claim in bad faith.	This is capped at $10,000.
Okla. Stat. tit. 27 § 12 Inverse condemnation proceeding	Yes	No
Okla. Stat. tit. 36 § 1105 Action against surplus lines insurer where insurer failed for 30 days after demand to make payment without reasonable cause	Yes, capped at 1/3rd the amount Plaintiff is entitled to recover against the insurer.	No
Okla. Stat. tit. 36 § 1219 Action based on failure of insurer to reimburse “clean claim” in accident and health policy within 45 days of receipt of claim	Yes	Yes

Okla. Stat. tit. 36 § 3629 Action between insurance company and insured based on rejection of claim	Yes	Yes	The insurer is the prevailing party where the judgment does not exceed the written offer of settlement.
Okla. Stat. tit. 41 § 105 Action for breach of rental agreement or to enforce any right or obligation under Residential Landlord & Tenant Act	Yes	Yes
Okla. Stat. tit. 42 § 176 Action to enforce lien	Yes	Yes
Okla. Stat. tit. 50 § 1.1 Action for agricultural activity alleged to be a nuisance, where action is found frivolous	Yes	Yes
Okla. Stat. tit. 51 § 256 Action against government based on allegation that s/he was substantially burdened by a violation of the Oklahoma Religious Freedom Act	Yes	No
Okla. Stat. tit. 51 § 24A.17 Action for declaratory or injunctive relief to enforce Open Records Act	Yes	Yes, if the court finds the suit was clearly frivolous.
Okla. Stat. tit. 52 § 318.5 Action under Surface Damages Act	Depends	Depends	Assessment of attorney’s fees depends on whether either party demanded a jury trial. If the party demanding a jury trial does not recover a more favorable verdict that the assessment by the appraisers, attorney fees will be assessed.
Okla. Stat. tit. 52 § 581.10 Action under Natural Gas Market Sharing Act	Yes	Yes
Okla. Stat. tit. 54 § 1-701 Action by disassociated partner to determine buyout price or other terms.	Depends	Depends	The Court may assess attorney’s fees and costs against a party the Court finds acted arbitrarily or not in good faith.

Okla. Stat. tit. 54 § 500-1005A Derivative Action under Uniform Limited Partnership Act of 2010	Yes	No
Okla. Stat. tit. 60 § 175.57 Breach of trust action	Depends	Depends	This statute doesn’t specify “prevailing party,” but instead authorizes the Court, in its discretion, to award attorney’s fees and costs to any party or from the subject trust.
Okla. Stat. tit. 60 § 837 Action under Residential Property Condition Disclosure Act	Yes	Yes
Okla. Stat. tit. 60 § 852 Action to enforce lien authorized under  Real Estate Development section	Yes	Yes
Okla. Stat. tit. 70 § 6-149.5 Action against school or education employee	Yes	Yes	This only applies if the proceeding is not brought by another education employee or school.
Okla. Stat. tit. 78 § 54 Action under Oklahoma Deceptive Trade Practices Act	Yes	Yes	In the event the Defendant willfully engaged in a deceptive trade practice or Plaintiff acted in bad faith instituting the action, the Court must award fees to the prevailing party.
Okla. Stat. tit. 78 § 89 Action under Uniform Trade Secrets Act, where either claim is made in bath faith, or misappropriation is willful and malicious	Yes	Yes
Okla. Stat. tit. 79 § 205 Action under Oklahoma Antitrust Reform Act	Yes	No

If you would like to speak with a knowledgeable Oklahoma attorney about the recovery of attorney’s fees, Doener’s attorneys are well-versed and have experience as expert witnesses in fee application hearings. Contact Kaylee Davis-Maddy at 405-319-3513 or kmaddy@dsda.com for more information.