author: OPALA, V.C.J.

text:
    2003 OK 35
    Bill FINNELL and Sandra Finnell, Plaintiffs/Appellees, v. Jebco SEISMIC and Jebco Seismic L.P., Defendants/Appellants, and PGS ONSHORE, INC., Third-Party Defendant/Appellant.
    No. 97,342.
    Supreme Court of Oklahoma.
    April 1, 2003.

      Jack W. Ivester and Thomas S. Ivester, Ivester, Ivester & Ivester, Sayre, Oklahoma, for Appellees.
    Mitchell A. Hallren, Fairview, Oklahoma, for Appellants.
   OPALA, V.C.J.

T1 The dispositive issues tendered on certiorari are (1) do the terms of 12 0.8.2001, § 940 entitle plaintiffs/appellees to a counsel-fee award? and if so, (2) is the fee that was awarded reasonable? We answer both questions in the affirmative.

I

ANATOMY OF LITIGATION

12 Jebeo Seismic, Inc. (Jebeo) entered into an agreement in late 1997 or early 1998 with Bill Finnell (Finnell) which granted permission to Jebeo and/or its assigns to conduct a 3-D seismic survey on Finnell's property. As consideration for Finnell's permission to conduct the survey and as compensation for normal and customary damage to the land, Jebeo agreed to pay Finnell $5,200.00 plus damages to specified crops. The contract recites that Jebeo will conduct the survey "in accordance with good standard practices and in a prudent and careful manner."

13 The survey was conducted (at least in part) by Jebeo's assignee, PGS Onshore, Inc. (PGS). When Finnell discovered that the survey had caused injury to his property beyond that covered by the agreed compensation, he demanded that Jebeo pay for the damages. Jebco refused. Finnell then brought suit against Jebeo in the District Court, Beckham County, seeking monetary damages in the amount of $74,000.00.

T4 Before Jebeo filed its answer, the parties stipulated to an amendment to the petition to add Jebeo Seismic L.P. as a defendant (Jebeo and Jebeo Seismic L.P. will together be referred to as Jebeo). Jebco denied Finnell's claim and filed a third-party petition against PGS, alleging that damages, if any, to Finnell's property were caused by the third-party defendant, and not Jebco. Finnell then amended his petition to state his claim against Jebeo Seismic, Jebeo Seismic, LP., and PGS (defendants). PGS denied causing any damage to Finnell's property. The petition was again amended by stipulation to add Sandra Finnell, Finnell's wife, as a party plaintiff (plaintiffs or the Finnells).

115 Prior to trial Jebco and PGS admitted liability, leaving only the damages issue for resolution. That issue was tried to a jury and a verdict for plaintiffs in the amount of $26,000.00 was returned. Judgment was entered against defendants, and PGS was ordered to hold Jebeo harmless from the judgment.

T6 Plaintiffs timely applied for an attorney's fee award pursuant to the provisions of 12 0.8.2001, § 940 (§ 940). Defendants objected. After hearing argument and evidence, the trial court awarded plaintiffs an attorney's fee in the amount of $17,005.00. Defendants appealed. The Court of Civil Appeals, Division II, reversed, holding that the gravamen of plaintiffs' claim was breach of contract and that § 940 does not apply to a contract claim. Plaintiffs sought certiorari. We now vacate the appellate court's opinion and affirm the trial court's attorney's fee award.

II

STANDARD OF REVIEW

T7 Two issues are presented on certiorari. The first is whether plaintiffs' claim entitles them to an attorney's fee award under the provisions of § 940. This issue presents a question of law which we review de novo. The court has plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings.

T8 The second issue, which need be decided only if plaintiffs are entitled to the statutory award in the first instance, is whether the fee awarded is reasonable. The amount to be awarded as a fee for the services of a legal practitioner is a matter left to the discretion of the trial court and will not be disturbed absent an abuse of discretion. Discretion is abused when a trial judge makes a clearly erroneous conclusion and judgment, against reason and evidence.

IH

PLAINTIFFS ARE ENTITLED TO A COUNSEL-FEE AWARD UNDER THE PROVISIONS OF 12 O.S. 2001, § 940

T9 The provisions of § 940 state in pertinent part:

"A. In 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." (emphasis added)

110 As the prevailing party in this action, plaintiffs applied for an attorney's fee award in reliance on this section, characterizing their claim to be for a money judgment for the physical injury to property. Defendants challenged the application, arguing that § 940 was inapplicable to plaintiffs' claim because their petition's allegations pressed only a demand for breach of contract, and not one "to recover damages for the negligent or willful injury to property" as required by § 940. The trial court overruled defendants' objection and granted plaintiffs a fee for their attorney's services. We find no error in this ruling.

T11 This court remains committed to the American Rule in assessing litigation expenses against a vanquished opponent. Except where a statute or contract provides otherwise, or where litigation misconduct calls for the exercise of a tribunal's equitable power to assess expenses incurred in litigation-related misconduct, every litigant is responsible for his (or her) own litigation costs, including the obligation to pay for an attorney's services. The parties in this case did not contract for one or the other to pay the costs of a lawsuit nor was there any allegation of litigation misconduct. Hence, plaintiffs may secure an attorney's fee only if that award is authorized by statute. Accordingly, the question for our review is whether plaintiffs action is one "to recover damages for the negligent or willful injury to property" as required by § 940. We hold that it is.

With the adoption of the Oklahoma Pleading Code in 1984, Oklahoma became a notice pleading state. Notice pleading requires of the petition only that it give "fair notice of the plaintiff's claim and the grounds upon which it rests." This requirement is contained in the provisions of 12 0.9.2001, § 2008(A), which direct a party to set forth a short and plain statement of the claim consisting of simple, concise, and direct averments showing that the pleader is entitled to relief. For most claims, the use of terms of art or legal phraseology is no longer necessary." This state's notice pleading regime abolishes any requirement that a litigant correctly identify a theory of recovery or describe the remedy affordable for an asserted right's vindication. The doctrine of mandatory election of remedies is now an anachronism. At the submission stage, the court must charge the jury on all theories of recovery the evidence may support. The court will craft the available relief which the facts justify.

113 Oklahoma law has long recognized that an action for breach of contract and an action in tort may arise from the same set of facts. The court has held that where a contract is the mere inducement creating the state of things that furnishes the occasion for a tort, the tort, not the contract, is the basis of the action. This is so because there is inherent in every contract a common-law duty to perform its obligations with care, skill, reasonable experience and faithfuiness. A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach-of-contract or tort theory, or both, but even if the evidence supports both, the claimant can achieve but a single recovery. In the instant case, the contract contains an express undertaking to perform in a prudent and careful manner. Its terms hence provide a basis for recovery for a breach of contract. At the same time, the contract provides the factual background for a claim ex delicto, the basis of which is defendants' tortious conduct in the performance of a duty derived from the contractual relationship. The petition's allegations give adequate notice of the dual nature of plaintiffs' claim.

114 Defendants also point to the jury instructions in support of their argument that the case was tried as a breach of contract action only, but we see nothing in the trial court's instructions to the jury that calls for this conclusion. The jury instructions indicate that the defendants at some point prior to trial admitted liability for the damage to plaintiffs' property. The damage issue alone was tried. The same quantum of monetary recovery is plaintiffs' due whether their claim be deemed actionable in contract or in tort. The trial court instructed the jury on the measure of damages for injury to land in terms consistent with a tort theory of recovery. The jury returned a general verdict. Nothing in the instructions or in the verdict precludes tort as the basis of plaintiffs' action or of the jury's award.

T15 Statutes in derogation of the common law are to be liberally construed so as to effect legislative intent. The words negligent and willful are legal terms of art that refer to tortious conduct. The legislature's use of these terms in § 940 indicates its intent that § 940 apply to claims arising from tortious conduct, and not from breach of contract, rather than to distinguish between types of tortious conduct. As long as an action sounds in tort, the provisions of § 940 apply even if the words negligent or willful are not specifically pled. We have held that, as used in § 940, willfully denotes an action proceeding from a conscious motion of the will, an action that is intentional, knowing or voluntary as distinguished from accidental. The words willful and negligent in § 940 simply represent the continuum of actionable tortious conduct from simple negligence to intentional infliction of harm. Defendants' admission of liability for the damage to plaintiffs' property necessarily falls somewhere within that continuum. If is not necessary for the pleadings or the judgment to identify where it falls for § 940 to entitle plaintiffs to an award of their litigation expenses.

IV

THE ATTORNEY'S FEE AWARDED TO PLAINTIFFS IS REASONABLE

116 We now turn to review the question of the reasonableness of the attorney's fee awarded by the trial court. Plaintiffs' fee application shows 169.1 hours performed by two attorneys for a total fee claimed of $16,655.00, or approximately $98.50 per hour. Defendants object that the fee claimed and awarded is excessive for a case in which the issues were simple, the amount recovered was small relative to the amount sought, the trial was of short duration, and the lead attorney's inexperience caused him to spend an excessive amount of time in preparation. After hearing evidence, the trial court awarded plaintiffs a fee of $17,005.00. Judged by the applicable common-law standard of review, the trial court's fee assessment cannot be said to constitute an abuse of discretion as a matter of law.

An attorney's fee must in every instance be reasonable. The criteria for determining a reasonable fee for legal services are set out in State ex rel. Burk v. City of Oklahoma City." An attorney seeking an award must submit to the trial court detailed time records and must offer evidence of the reasonable value of the services performed based on the standards of the legal community in which the attorney practices. The correct procedure for arriving at a reasonable fee is (a) first to determine from the detailed time records a baseline fee by multiplying hours expended times the attorney's hourly rate and (b) then to enhance that fee by adding an amount arrived at by applying the factors set out in Burk, taken from federal court practice, or those provided in Rule 1.5 of the Oklahoma Rules of Professional Conduct. The final determination of an appropriate fee is further subject to the rule that it must bear some reasonable relationship to the amount in controversy.s

118 The record shows that the trial court followed these guidelines in assessing the amount of the award. The baseline amount was arrived at from the detailed time records submitted with the application by multiplying the hours expended by an hourly rate just under $100.00 per hour. A hearing was conducted at which two experienced local practitioners familiar with civil litigation testified that the minimum hourly rate in the local legal community is $100.00 per hour. Each also testified that he had reviewed the time records submitted with the fee application and had concluded that the hours expended were reasonable. Defendants called a third local attorney to testify, who opined that an hourly rate of $90.00 per hour would be more reasonable given the experience level of plaintiffs' primary attorney. He also testified that an experienced attorney would probably have spent only one hundred hours, rather than one-hundred sixty nine hours, on the case. The trial judge accepted the testimony of the two attorneys who found the baseline amount to be reasonable and awarded a fee in that amount with a relatively negligible enhancement of $850.00. On this record, we cannot say that the trial judge's decision was clearly erroneous or without a basis in reason or evidence.

{19 Defendants contend that an award which amounts to sixty-five percent (65%) of the amount recovered is excessive on its face. We disagree. While we are committed to the rule that a fee for legal services must bear some reasonable relationship to the judgment, we have never identified a percentage above which a fee's relationship to the damage award must be deemed unreasonable per se. In Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., we approved a $3,000 fee award for a suit in which the plaintiff sought $3,867 and the defendant confessed judgment for $1,500. In Arkoma Gas Company v. Otis Engineering Corporation, we affirmed a fee award of $5,500 in a breach of warranty case in which the plaintiff sued for more than $70,000 and ultimately recovered only $100. In Catlin Aviation Company v. Equilease Corporation the court approved a fee of $600 on a recovery of $1,167 where the plaintiff had sued for $17,000. The allowance awarded in the instant case is clearly within the range of fees in relation to damages previously approved by the court.

120 Defendants urge us to consider the fact that there is a contingency fee arrangement extant between plaintiffs and their attorneys under which plaintiffs' attorneys are entitled to fifty percent (50%) of the award on appeal. Defendants contend that plaintiffs' attorneys will garner a windfall by collecting both the contingency fee ($18,-000.00) and the statutory fee ($17,005.00). Our pronouncement in State ex rel. Oklahoma Bar Association v. Weeks, which prohibits an attorney from retaining both a contingent fee and a statutory award, provides a complete answer to this concern.

We hold that the trial court's counsel-fee award to plaintiffs of $17,005.00 rests on competent evidence. The reasonableness of an attorneys' fee request is a question of fact for the trier. The trial court is in a far better position to judge the demands of the case than are we. Upon the record submitted, we cannot say that the award is clearly erroneous or that it is unsupported by reason and evidence.

122 Plaintiffs have timely applied to this court for an appeal-related attorney's fee. An appeal-related counsel fee may be awarded in cases where there is statutory authority to award a fee for legal services rendered in the trial of a cause. Plaintiffs’ motion is granted, and the cause is remanded to the trial court for an adversarial hearing to determine a reasonable fee for legal services provided to plaintiffs in appeal- and certiorari-related proceedings.

Y

SUMMARY

¶ 23 The two issues presented for certio-rari review are resolved in a manner to be stated: We hold that plaintiffs pressed a claim “to recover for damages for the negligent or willful injury to property” within the meaning of § 940 and are hence entitled to an attorney’s fee under that statute. We also hold that the amount of the fee awarded was arrived at by a process consistent with the pronouncements of this court and that the amount awarded does not exhibit an abuse of the discretion given the trial court to set a fee award.

¶ 24 THE COURT OF CIVIL APPEALS’ OPINION IS VACATED; THE TRIAL COURT’S COUNSEL-FEE AWARD IS AFFIRMED; UPON REMAND THE TRIAL COURT IS AUTHORIZED TO DETERMINE THE AMOUNT OF PLAINTIFFS’ REASONABLE APPEAL- AND CERTIORARI- RELATED ATTORNEY’S FEE.

¶ 25 WATT, C.J., HODGES, LAVENDER, KAUGER and WINCHESTER, JJ. concur.

¶ 26 SUMMERS, J., concurs in Parts I and II, concurs in result in Part III and dissents from Part IV.

¶ 27 BOUDREAU, J., concurs in result.

¶ 28 HARGRAVE, J., dissents.

      . Although the letter-agreement was addressed to both Finnell and his wife, Sandra, only Finnell's signature appears on the instrument.

      . The procedure governing third-party petitions is set forth in 12 0.$.2001, § 2014.

      . Because this is an appeal from the postjudgment attorney's fee award, the appellate record omits all trial-related paperwork between the initial pleadings and the instructions to the jury. It is by the jury instructions that we are informed that defendants as well as the third-party defendant admitted liability.

      . For the provisions of § 940, see the opening text of Part III.

      . Plaintiffs also sought and obtained their costs in the amount of $1,481.66. Defendants' appeal does not challenge the costs award.

      . Kluver v. Weatherford Hosp. Auth., 1993 OK 85, T14, 859 P.2d 1081, 1083 ("issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court's legal rulings"); Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

      . CNA Ins. Co. v. Krueger, Inc., of Tulsa, 1997 OK 142, 119, 949 P.2d 676, 680; Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 132, 932 P.2d 1091, 1097; Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 118, 737 P.2d 1186, 1189; State ex rel. Burk v. City of Okla. City, 1979 OK 115, ¶ 22, 598 P.2d 659, 663.

      . Green Bay Packaging, Inc., supra note 7 at ¶ 32, at 1097; Broadwater v. Courtney, 1991 OK 39, ¶ 7, 809 P.2d 1310, 1312.

      . In Woods Petroleum Corp. v. Delhi Gas Pipeline Corp., 1984 OK 94, 700 P.2d 1011, we held that an attorney's fee is recoverable under § 940 only in those actions for damages for negligent or willful physical injury to property. Id. at ¶ 13, at 1013.

      . The relevant allegations of plaintiffs' petition are as follows:
      "2. On or about February 3, 1998, the Plaintiff entered into a written contract with the Jebco Seismic LP. The contract was to be performed in Beckham County, Oklahoma. PGS Onshore, Inc. substantially performed the geophysical activity stated in the contract. The contract is attached as Exhibit "A" and made a part hereof. Plaintiff has incurred damages in the amount of $74,000 resulting from the contract.
      3. That demand has been made upon the Defendants for payment of damages resulting from work done under the contract and payment has not been received."

      . See Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶ 11, 977 P.2d 357, 362-63; Barnes v. Okla. Farm Bur. Mutual Ins. Co., 2000 OK 55, ¶ 46, 11 P.3d 162, 178-79; Moses v. Hoebel, 1982 OK 26, ¶ 5, 646 P.2d 601, 603.

      . State ex rel. Tal v. City of Okla. City, 2002 OK 97, ¶ 26, 61 P.3d 234, 247.

      . Morgan, supra note 11 at ¶ 11, at 362; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 13, 829 P.2d 15, 22.

      . See the provisions of 12 0.$.2001, § 2001 et seq.

      . Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 3, 913 P.2d 1318, 1320.

      . Title 12 0.$.1991 2008(A) provides in pertinent part:
      "A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain:
      1. A short and plain statement of the claim showing that the pleader is entitled to relief; and
      2. A demand for judgment for the relief to which he deems himself entitled. .... *

      . Niemeyer v. United States Fidelity and Guaranty Co., 1990 OK 32, 15, 789 P.2d 1318, 1321.

      . Silver v. Slusher, 1988 OK 53, ¶ 5, n. 7, 770 P.2d 878, 881 n. 7, cert. denied, Silver v. Farmers and Merchants Ins. Co., 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989); Doss Oil Royalty Co. v. Texas Co., 1943 OK 154, ¶ 21, 137 P.2d 934, 939 (decided under the Code of Civil Procedure, 12 O.S.1981, § 1 et seq.).

      . Although the Code of Civil Procedure, which governed Oklahoma pleading before its repeal in 1984, was designed to eliminate some of the extreme technicalities of common-law procedure, a pleader was still required to elect between inconsistent remedies. With the enactment of the federal notice pleading regime, the doctrine of mandatory election of remedies before submission became an anachronism. See the provisions of 12 0.$.2001, § 2008(B)(2); Howell v. James, 1991 OK. 47, ¶ 14, 818 P.2d 444, 446-48.

      . Bradley Chevrolet, Inc. v. Goodson, 1969 OK 25, ¶¶ 7-9, 450 P.2d 500, 502; Vogel v. Rushing, 1949 OK 275, ¶ 12, 212 P.2d 665, 667.

      . Doss, supra, note 18 at % 21, at 939 ("[when a plaintiff states and proves the facts, he is not required to designate the theory upon which relief may be granted. He is entitled to any relief which the facts may justify.... This is the very heart of the code. To require him to correctly name his theory would be a step backward toward the old practice of pleading forms of action, the very thing the code was designed to abolish.").

      . Leak-Gilbert v. Fahle, 2002 OK 66, 120, 55 P.3d 1054, 1059; Great Plains Federal Savings & Loan Association v. Dabney, 1993 OK 4, ¶ 7, 846 P.2d 1088, 1092; Flint Ridge Dev. v. Benham-Blair & Affiliates, 1989 OK 48, ¶ 7, 775 P.2d 797, 799.

      . Morriss v. Barton, 1947 OK 260, 141, 190 P.2d 451, 457; Independent Torpedo Co. v. Carder, 1933 OK 477, 25 P.2d 62, 64; Jackson v. Central Torpedo Co., 1926 OK 434, 18, 246 P. 426, 428 ("If the transaction complained of had its origin in a contract which placed the parties in such a relation that, in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action on the case.").

      . Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 134, n. 58, 796 P.2d 276, 290, n. 58; Lewis v. Farmers Ins. Co., Inc., 1983 OK 100, 15, 681 P.2d 67, 69; Keel v. Titan Constr. Corp., 1981 OK 148, ¶ 14, 639 P.2d 1228, 1232.

      . Great Plains Federal Savings and Loan Ass'n v. Dabney, 1993 OK 4, 12, 846 P.2d 1088, 1095, (Opala, J. with whom Kauger, J. joins, concurring); Howell v. James, supra note 19 at ¶ 11, at 447.

      . We note that the addition of Mrs. Finnell as a party plaintiff supports a tort theory of recovery inasmuch as she was not a signatory to the contract.

      . Instruction No. 4 states in part:
      "Tebco Seismic and PGS Onshore, Inc. have admitted responsibility for any injury Bill and Sandra Finnell sustained as a result of the seismic survey."

      . Instruction No. 4 states in part:
      ''The issues in this case to be determined by you are: What injury Plaintiffs Bill and Sandra Finnell sustained as a direct result of this occurrence and what damages they should recover to compensate them for this injury."

      . The measure of a promise-based obligation's breach is the amount which will compensate the injured party for all the detriment proximately caused by the breach. The provisions of 23 ©.S.2001, § 21, governing contract damages, state;
      "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract, which are not clearly ascertainable in both their nature and origin."
      Tort reparations include compensation for all proximately caused harm, whether foreseeable or not. The terms of 23 0.$.2001, § 61, governing non-contract damages, state:
      "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not."

      . Instruction No. 5 states:
      ''The amount of damages recoverable by the Plaintiffs for land damage is limited to reasonable cost of repair or the reduction in value of land whichever is less. Reasonable cost of repair includes loss of crops and cost of restoring land to production. The reduction in the value of land is the difference between the actual value immediately before and immediately after the damage is sustained."

      . The terms of 25 0.$.2001, § 29 state:
      ''The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice."

      . Because liability was not an issue in the case, it was not necessary for plaintiffs to offer proof of defendants' tortious conduct. Hence, there was no jury determination of the precise nature of defendants' conduct, i.e. where it fits on the tort continuum.

      . Schaeffer v. Shaeffer, 1987 OK 30, ¶ 9, 743 P.2d 1038, 1040.

      . The Court of Civil Appeals' opinion did not address this issue. Our pronouncement in Hough v. Leonard, 1993 OK 112, 867 P.2d 438, teaches that the prevailing party in the Court of Civil Appeals may obtain this court's review of issues properly raised and briefed on appeal, but not addressed by the intermediate appellate court, without filing a petition for certiorari. Id. at ¶18, at 446; Rule 1.180, Oklahoma Supreme Court Rules, 12 0.9.2001, Ch. 15, App. 1.

      . Rule 1.5, Rules of Professional Conduct, 5 ©.$.2001, Ch. 1, App. 3-A. The federal court approach to this question is also based on the reasonableness of the value placed on the necessary legal services. Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir.1998).

      . 1979 OK 115, ¶ 8, 598 P.2d 659, 661. The criteria set forth in Burk are: time and labor required; novelty and difficulty of the questions; skill requisite to perform the legal service properly; preclusion of other employment by the attorney due to acceptance of the case; customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or circumstances; amount involved and the results obtained; experience, reputation and ability of the attorneys; "undesirability" of the case (Le., risk of non-recovery); nature and length of professional relationship with the client; and awards in similar cases. See also Morgan v. Galilean Health Enterprises, Inc., supra note 11 at ¶ 12, at 364 (holding that the amount owed under a contingency-fee contract may not serve as the basis for assessment of the value of legal services due the prevailing party against its vanquished opponent); but see Okla. Turnpike Auth. v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶ 11, 870 P.2d 762, 765 (holding that in a condemnation proceeding the quantum of a counsel-fee award against the condemnor "is measured by the extent of the landowner's obligation to its lawyer unless, of course, the obligation is excessive.").

      . Oliver's Sports Center, Inc. v. National Standard Ins. Co., 1980 OK 120, ¶ 8, 615 P.2d 291, 295; Green Bay Packaging Inc., supra note 7 at ¶ 48, at 1099-1100.

      . The terms of Rule 1.5 of the Rules of Professional Conduct, 5 0.$.2001, Ch.1, App. 3-A, provide in pertinent part:
      "(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent."
      In Burk, supra, note 36, we held that along with the standards set forth by the Oklahoma Rules of Professional Responsibility, trial courts in this state may apply the standards utilized by the federal courts. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The federal standards are substantially similar to those contained in Rule 1.5 and an exhaustive application of either list will almost always lead to a just and reasonable result. See also Robert L. Wheeler, Inc. v. Scott, 1989 OK 106, 777 P.2d 394; Robert L. Wheeler, Inc. v. Scott, 1991 OK 95, 818 P.2d 475.

      . Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, ¶ 17, 737 P.2d 1186, 1189; Arkoma Gas Company v. Otis Engineering Corp., 1993 OK. 27, ¶ 6, 849 P.2d 392, 395.

      . Inasmuch as the record is silent on the reason for the enhancement, we assume that the $350.00 awarded to plaintiffs beyond that which they sought by their fee application represents an addition based on unarticulated Burk factors. Because defendants did not assail the addition as unauthorized, its allowance is not in contest.

      . See id. for citations establishing this rule.

      . Supra note 39.

      . Id. at ¶ 21, at 1190.

      . Supra note 39.

      . Id. at ¶ 8, at 394.

      . 1981 OK 13, 626 P.2d 857.

      . Id. at ¶ 21, at 861. See also Williams & Kelley Architects v. Independent School District No. 1, Okmulgee County, 1994 OK CIV APP 113, ¶ 14, 885 P.2d 691, 695 (approving a $25,000 fee on a quantum meruit confessed judgment of $25,100 where recovery sought was $164,000.00).

      . 1998 OK 83, 969 P.2d 347, cert. denied, Weeks v. Okla. Bar Ass'n, 525 U.S. 1042, 119 S.Ct. 593, 142 L.Ed.2d 535 (1998).

      . Sisney v. Smalley, 1984 OK 70, ¶ 20, 690 P.2d 1048, 1051 ("Whenever there is statutory authority to award attorney fees in the trial of a matter, additional fees may be allowed (to the prevailing party) for legal services rendered in the appellate court.”). See also Rule 1.14(b), Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1.

      . 12 O.S.2001, § 696.4(C) states in pertinent part:
      "C.... The appellate court shall decide whether to award attorney fees for services on appeal, and if fees are awarded, it shall remand the case to the trial court for a determination of their amount. The trial court’s order determining the amount of fees is an appealable order.”


source: Caselaw Access Project

author: LARRY JOPLIN, Viee-Chief Judge:

license: Public Domain

text:
    2003 OK CIV APP 19
    Frances O. CEBUHAR, Plaintiff/Appellee, v. William J. BOVAIRD, Marian Bovaird, William P. Huckin and Freda Huckin, Defendants/Appellants, Newport Realty Corporation, an Oklahoma Corporation; HJ. Trinder, III, Deborah Trinder; Edward E. Packel, Kathryn D. Packel; Sooner Federal Savings and Loan Association; Western National Bank of Tulsa, a national banking association; Bank of Oklahoma, Broken Arrow, N.A., a national banking association; Ridgely M. Bond and Maxine V. Bond, Defendants.
    No. 96,144.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 11, 2002.
    Certiorari Denied Dee. 18, 2002.

      William P. Huckin, Jr., Tulsa, OK, for Appellants.
    Louis Levy, and James F. Gassaway, Tulsa, OK, for Appellee.
   Opinion by LARRY JOPLIN, Viee-Chief Judge:

LARRY JOPLIN, Viee-Chief Judge:

T1 Defendants/Appellants William J. Bo-vaird, Marian Bovaird, William P. Huckin and Freda Huckin (separately, the Bovairds and the Huckins, or collectively, Appellants) seek review of the trial court's order granting attorney's fees to Plaintiff/Appellee Frances 0. Cebuhar (Appellee) as prevailing party on her successful claims challenging validity of certain covenants and restrictions affecting her real property. In this proceeding,

Appellants assert Appellee is not entitled to an award of attorney's fees under the governing statutory authority, 60 O.S8. § 856.

1 2 In 1950, L.D. and Laura McKay, owners of Lots 1, 2 and 3, Block 1, Braniff Hills Addition to the City of Tulsa, conveyed Lot 3 to Rhea Burke by Warranty Deed containing restrictive covenants proscribing Burke's subdivision and sale of Lot 8 otherwise than as a "single tract," and the MceKays' subdivision of "any of their remaining land abutting upon and adjacent to" Lot 3. In 1956, the McKays filed a "Restriction Agreement" imposing some limits on improvements to Lot 1: 1. No portion of the land ... described shall be used except for residential purposes. 2. No residence may be constructed on any portion of the land ... described which portion is less than one acre in area including any land subject to easements.

1. No portion of the land ... described shall be used except for residential purposes.
2. No residence may be constructed on any portion of the land ... described which portion is less than one acre in area including any land subject to easements.
These covenants shall run with the land and shall be binding upon us and all persons claiming under us until August 1, 1976, at which time these covenants shall be automatically extended for successive periods of five (5) years, unless by vote of the majority of the then owners of the lands ... described, it is agreed to change the said covenants in whole or in part.

183 Notwithstanding the covenants contained in the conveyance of Lot 3, between 1956 and 1964, the McKays subsequently subdivided, sold and conveyed parts of Lots 1 and 2 to Appellee (and her husband, now deceased), the Bovairds, the Hucking' predecessor-in-interest, and the other individual defendants or their predecessors-in-interest. In a subsequent 1970 suit by Burke against the McKays and the other then owners of property in Braniff Hills, the district court vacated the covenants proscribing subdivision of Lots 1, 2 and 3 for failure of the McKays or any other grantee to demand compliance therewith. By that judgment, the district court also recognized the right of Appellee and Burke to mutual, reciprocal and exclusive use of Golden Pond, a small, specifically described lake located wholly upon Lot 3 and Appellee's portion of Lots 1 and 2.

T4 In 1983, Appellee conveyed to Defendant Newport Realty Corporation all or part of her interest in Lots 1 and 2, in consideration for which, Defendant Newport executed a promissory note secured by a mortgage.

1 5 In 1984, the purported "majority of the owners of lands in Lot 1" executed and filed an amendment to the 1956 Restriction Agreement, striking the one-acre lot-size minimum. However, in a subsequent suit by Appellants and the other then owners, the district court vacated the 1984 amendment as ineffective.

T6 In 1986, Appellants and some of the owners of the land in Lot 1, "being a majority of the owners," and after notice to the remaining owners of record, executed and filed an "Agreement Respecting Covenants" (ARC), whereby they "ratified, renewed and ratified" the terms of the 1956 Restriction Agreement. The ARC further specified:

4, No structure may be erected in or overhanging any part of the area presently occupied by Golden Pond, being defined as that part of Lot 1, Block 1 lying below 750.8 feet mean sea level, nor may the contours of that area be changed, nor may any part of that area be included in caleu-lating the lot area for the purposes of paragraph 2 [the one acre minimum lot size restriction] hereof.

T7 In 1988, Appellee commenced the instant action to foreclose her mortgage upon Defendant Newport's default. Appellee named Appellants as defendants who "may claim some right, title or interest in and to the mortgaged premises arising from" the 1986 ARC, and sought an adjudication of the superiority of her claim. One or more of the named defendants challenged the foreclosure and any attendant forced sale of the mortgaged parcel as an impermissible "lot-split," proscribed by both statute and prior rulings of the Tulsa County Metropolitan Planning Commission.

[8 In 1990, the trial court granted foreclosure, and directed issuance of a Special Execution and Sale of the mortgaged premises. The trial court, however, specifically held "the issue of the validity of the restrictive covenants of record ... reserved for future determination."

T9 In 1999, Appellee filed her motion for summary judgment, seeking a determination of the invalidity of the 1986 ARC provision proscribing construction near Golden Pond, i.e., on "that part of Lot 1, Block 1 lying below 750.8 feet mean sea level," as unreasonable and not adopted by a majority of landowners. Defendants H.J. Trinder, III, and Deborah Trinder filed a response and counter-motion for summary judgment, asserting validity of the 1986 ARC. The trial court denied summary relief to both parties.

10 In 2000, the parties subsequently presented evidence and testimony to the trial court without a jury. On consideration of the evidence, the trial court set aside the 1986 ARC and granted judgment to Appel-lee.

111 By postjudgment motion, Appellee sought an award of attorney's fees as prevailing party under 60 0.8. § 856, which the trial court granted. On the sole issue of the application of § 856, Appellants appeal.

1 12 Section 856 provides:

Any person owning property in a real estate development shall be entitled to bring action against any other person owning property in such development to enforce any of the restrictions or covenants of the real estate development which are specified by the covenants or restrictions. In any action to enforce any restriction or covenant pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorney's fees to be fixed by the court, which shall be taxed as costs in the action.

Appellants argue here, as they did below, that the plain language of § 856 expressly limits its application to actions "to enforce any ... restrictions or covenants." (Emphasis added.) So, say Appellants, because Ap-pellee sought to vacate the restrictive covenant affecting her property, and because they never sought to "enforce" any of the restrictive covenants, § 856 does not support an award of prevailing party attorney's fees to Appellee.

113 We cannot aseribe to § 856 the restrictive reading that Appellants advance. First, § 856 plainly directs an award of attorney's fees to the prevailing party-either to a successful plaintiff or to a successful defendant-in any action to enforce restrictive covenants. Second, however, and as a practical matter, there will always be a party seeking to enforce a covenant or restriction, and a party seeking to avoid the restriction, in every controversy concerning the application of restrictive covenants. Consequently, it seems to us, to limit the application of § 856 based on which party seeks to enforce the covenant or restriction runs contrary to the practical realities of this type of litigation and the plain wording of the statute mandating an award of attorney's fees to either the prevailing plaintiff or the prevailing defendant. Because § 856 clearly contemplates an award of attorney's fees to the prevailing party plaintiff or defendant in any controversy concerning the enforcement (or non-en-foreement) of a restrictive covenant, we hold the trial court did not err in granting fees to Appellee as prevailing party.

1 14 The order of the trial court is therefore AFFIRMED.

BUETTNER, J., concurs; and JONES, J., dissents.

      . Comprising all the lots within the subdivision.


author: KENNETH L. BUETTNER, Judge.

text:
    2003 OK CIV APP 28
    Judith Ann SMITH, Plaintiff/Appellee, v. Stephen Michael SMITH, Defendant/Appellant.
    No. 96,752.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 5, 2002.
    Certiorari Denied March 4, 2003.

      Laura Haag McConnell, Hartzog, Conger & Cason, Oklahoma City, OK, for Plaintiff/ Appellee.
    Donelle H. Ratheal, Oklahoma City, OK, for Defendant/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge.

11 Defendant/Appellant Stephen Michael Smith (Father) appeals from the trial court's order modifying Father's child support obligation. Plaintiff/Appellee Judith Ann Smith (Mother) sought an increase in child support payments from Father based on changes in the parties' incomes as well as the expenses of the minor child. The trial court increased Father's child support obligation from $460 per month to $4,800 per month. Father also appeals the trial court's order that he pay attorney fees and costs incurred by Mother in the modification proceedings. Because we find the evidence supports the trial court's decision to modify child support, we affirm. However, we find the trial court abused its discretion in setting the monthly child support obligation far beyond the amount pre-seribed by the child support guidelines. We therefore modify the amount ordered to be paid as child support in the trial court's modification order. We affirm the order that Father pay an award of attorney fees to Mother.

T2 Mother and Father were married in 1981. Their only child was born August 11, 1984. The parties were divorced in 1988, and the decree awarded custody to Mother, granted visitation to Father, and ordered Father to pay $460 per month as child support. The decree had not been modified before Mother filed her motion to modify child support May 31, 2001, which led to this appeal.

T3 In her motion to modify, Mother asserted that since the decree was entered, the parties' incomes had changed substantially and that a modification of support was warranted by the increased income. Mother also averred that the needs of the minor child had changed, in that the child was enrolled in private school, and that such expense should be included in the child support caleulation.

T4 Father admitted that the parties' incomes had changed, but he asserted that he had been providing more support than the amount ordered in the decree. Father argued that he had paid for the child's private school tuition and that such amount should be credited toward his child support obligation in "whatever (amount) this Court may determine to be appropriate under the circumstances." Father also asked that any modification of child support include a credit to him for transportation costs, as well as a pro-rated waiver of child support paid by him during the child's summer visitation with Father.

1 5 Trial was held July 11, 2001. The trial court entered its order modifying child support July 31, 2001. In its order, the trial court noted that the parties had stipulated that a substantial and material change of circumstances had occurred since the entry of the decree, which justified a modification of child support. The court also noted that the parties' combined incomes exceeded $15,000 per month, requiring the court to determine child support pursuant to 43 O.S.Supp.2000 § 119(B).

T6 The court ordered Father to pay $4,300 per month as child support beginning June 1, 2001, "until the minor child reaches the age of 18 or through the age of 18, so long as the child is regularly and continuously attending high school. The court ordered Mother to maintain the child on her employer-sponsored health, dental and vision insurance, but ordered Father to pay 88% of the cost of such insurance. Father was also ordered to pay 88% of any uninsured health costs of the child. The child support computation was attached to the order.

917 Modification of child support obligations is a matter addressed to the sound discretion of the trial court. Riedel v. Riedel, 1992 OK CIV APP 166, 844 P.2d 184, 187. The trial court's decision in a modification proceeding will not be reversed without a showing of an abuse of the trial court's discretion, or that the determination of the support amount is against the clear weight of the evidence. Id.

T8 Father asserts that the instant case involves a question of first impression. Father alleges that the trial court in this modification proceeding extended the pre-divoree standard of living consideration to the determination of modified support. Father argues that Mother asserted that the minor child was deprived because Father's income had increased dramatically. Father argues that actually the child enjoyed a very good lifestyle before the modification, due to Mother's income and due to Father's voluntary payment of double his original $460 child support obligation as well as some other expenses of the child. Father argues the trial court erred in modifying child support to an amount above the "statutory cap."

T9 Father notes that 48 O0.$.8upp.2000 § 119(B) provides that in the event the parents' combined gross monthly income exceeds $15,000, the child support shall be the amount due under the guidelines for income of $15,000 (the amount at which the guidelines are capped) "and an additional amount determined by the court." The guidelines in effect at the time of the modification proceedings provided for the total monthly child support for one child of parents with combined monthly income of $15,000 to be $1,372, which is 9.15% of $15,000.

{10 The child support computation attached to the order modifying child support lists Father's monthly income as $46,015 and Mother's monthly income as $6,419. Accordingly, the combined gross monthly income of the parties was $52,484. It is clear from the child support computation attached to the modification order that the trial court multiplied that amount by 9.15% to calculate that the child support amount would be $4,797 under the guidelines. Father's percentage share of 88% of $4,797 would be $4,220. To that amount, the trial court added 88% of the child's monthly health insurance premium, $78, and rounded that number to $4,300, which was the amount of child support Father was ordered to pay in the modification order.

{11 Father urges that the trial court should not have simply extrapolated the amount due under the guidelines for the parties' incomes in this case. We note one commentary which urges that a simple mathematical extrapolation is not a well-received method of determining the support amount in cases involving parents with very high incomes. See Hogan, Child Support in High Income Cases, 17 J. Am. Acad. Matrim. Law 349, 351 (2001). That article noted that at least some consideration should be given to the child's actual needs, which may include consideration of the child's lifestyle. Id.

112 A review of the child support table found at 43 O.S.Supp.2000 § 119(A) reveals that as the parents' combined gross income increases, the proportion of that income which is designated for child support decreases. This is due in part to the fact that a child's needs, both essential and lifestyle-related, do not inherently increase regardless of the amount of income. This has been referred to as the "three pony rule," which is that no child needs three ponies, no matter that the parents might easily afford to provide them. 17 J. Am. Acad. Matrim. Law 349, 351. That article noted that, in the case of parents with very high incomes, determining child support on the basis of a simple percentage of income used to determine child support at a lower income level may result in such an exorbitant child support award that it effectively results in a redistribution of the wealthy parent's estate, rather than simply providing support for the child consistent with the child's reasonable needs. Id.

{13 At least two Oklahoma cases have addressed deviating from the child support guidelines as a result of the parents' combined gross monthly income exceeding the guidelines cap. Archer v. Archer, 1991 OK CIV APP 28, 813 P.2d 1059, involved an appeal from the original decree of divorce. The evidence in Archer was that the husband's income was at least $18,500 per month. Id. at 1060. The trial court determined that the high income was an extraordinary circumstance which excused compliance with the child support guidelines. Id. The trial court ordered the husband to pay $900 per month per child, for a total monthly obligation of $2,700. In his appeal, the husband argued that the trial court could only exceed the maximum amount provided by the guidelines if "exceptional needs" were shown. Id. The Archer court explained that child support in high income cases must be determined on a case by case basis, with the minimum support award being the capped amount under the guidelines. Id. at 1061. The court explained that the trial court is not limited to considering the child's bare bone needs, but may also consider the payor parent's affluent lifestyle in determining the proper amount of support. Id. The court noted that the husband's share of the total child support would be 80% and that, based on the amount the husband was ordered to pay, the total child support amount would have been $8,875. Id. at 1062. The court noted that the evidence presented showed that the children had a monthly need of $3,669, and therefore concluded that the amount awarded was not against the clear weight of the evidence. Id.

14 A year later the Oklahoma Supreme Court addressed this issue in the case of Moenik v. Moenik, 1992 OK 99, 838 P.2d 500. In Moenik, the trial court ordered the husband to pay child support of $2,000 per month, while the wife presented evidence that the children's expenses were over $4,700 per month. Id. at 507. On appeal, the court noted that the parties' joint monthly income was $19,548. Id. The court noted that the top amount of child support in the guidelines equaled 13.52% of income and the court multiplied that percentage by $19,548 and concluded that a proper child support amount would be $2,642.21, and that the husband owed 91% of that amount, or $2,404.41. Id. The court approved the trial court's reduced award of $2,000 per month based on the extensive visitation awarded to the husband. Id. The court affirmed the amount awarded as child support. Id.

115 However, the Moenik court's method of multiplying the parties' monthly income by the percentage of income used at the top bracket of the guidelines fails to consider the methodology of the guidelines. As explained above, as income increases, the percentage of income directed to child support decreases. A more accurate method of calculating child support for income amounts beyond the guidelines chart is to consider the decreasing percentage of income for each bracket as income rises. This would recognize that at some point, child support for each additional $1000 in income approaches zero. In this case, even if the percentage for the highest bracket of income (4%) is applied to income exceeding $15,000 per month, the result is total support of $2,869 per month. Absent other considerations, the trial court would have been justified in using this amount as an extrapolation of the guidelines.

T16 Mother submitted an exhibit detailing the child's monthly expenses which totaled $3,355.90 per month. A child's reasonable living expenses could justify a child support award in excess of an extrapolation for income exceeding the guidelines. However, we find it was an abuse of the trial court's discretion to award child support in an amount greater than even the liberal amount of expenses of the child asserted by Mother. We therefore modify the child support caleu-lations. Using the living expenses submitted by Mother, $8,855.90, Father's 88% share of that amount is $2,953.19 per month. Any greater amount would simply be a transfer of wealth from Father to Mother.

117 We now address Father's appeal from the order awarding attorney fees and costs to Mother. Mother filed her application for attorney fees August 7, 2001. Mother requested an award of costs and fees in the amount of $5,890.25. Father objected to Mother's application and asked that the court order the parties to each pay their own counsel fees. The trial court issued its order September 26, 2001, in which it ordered Father to pay $4,096 directly to counsel for Mother as an award of attorney fees and costs. Father asserts that due to the many errors he alleges the trial court made, it was an abuse of the trial court's discretion to order Father to pay attorney fees to Mother.

118 Title 48 O.S.Supp.1997 § 110(D) provides that a trial court has discretion in a modification proceeding to order one party to pay the counsel fees of the other. An award of fees is not based on prevailing party status or financial status, but must be based on a judicial balancing of the equities. Abbott v. Abbott, 2001 OK 31, 25 P.3d 291, 294. We note the evidence showing Father's income was approximately 20 times higher than it was at the time of the original decree. Yet Father continued to pay only twice his support obligation and none of that money went to Mother, but instead was paid directly to the child's private school for her tuition. Mother presented testimony that Father threatened to seek custody if Mother tried to modify child support. We find no abuse of discretion in the trial court's decision to award Mother part of her attorney fees.

T19 The trial court correctly determined that modification of child support was warranted in this case. However, we reduce the amount of Father's monthly child support obligation from $4,800 per month to $2,953.00 per month. The modification order is affirmed in all other respects.

AFFIRMED AS MODIFIED.

JOPLIN, V.C.J., and JONES, J., concur.

      . The child is now past her 18th birthday. Father has not briefed any issue regarding visitation, which would nonetheless be moot.

      . The child support computation attached to the divorce decree indicated that at the time of the 1988 divorce, Father's monthly income was $2,834 and Mother's monthly income was $1,500.

      . This amount represented 88% of the total child support obligation determined by the trial court, plus 88% of the health insurance premium for the child. The trial court determined Father's proportional share of the child support amount to be 88%.

      . This provision is consistent with the dictate of 43 0.$.Supp.2000 § 112(E).

      . Which amounts to an annual income of $552,180. The record contains a letter from Father's Colorado counsel stating that his 2000 income was $763,562.76 and his 2001 income was $540,000 (which was comprised of $250,000 annual salary, $40,000 cost of living adjustment, and $250,000 bonus). We disagree with Father's contention that the trial court erred in determining his monthly income.

      . Casey v. Casey, 1993 OK CIV APP 129, 860 P.2d 807, also involved income above the limits of the guidelines, but the opinion simply finds the amount of child support ordered not to be an abuse of discretion, with scant explanation. Ford v. Ford, 1992 OK CIV APP 123, 840 P.2d 36, also offers little in the way of analysis.

      . For example, the percentage for the first $1,000 in income is 20% ($200 in support for $1,000 in income). However, the percentage directed to support for the 15th thousand in income is only 4% ($1,372 support for $15,000 in income, minus $1,332 support for $14,000 in income equals $50 divided by $1,000 = 4%).

      . $2,869 is derived as follows: We start with $1,372 for $15,000 monthly income. The parties' combined monthly income, $52,434, minus the $15,000 guidelines maximum, equals $37,434. That amount times 4% (percentage of the $15,000 bracket) equals $1,497, which added to $1,372 equals $2,869.

      . We find it unnecessary to include all the items on Mother's exhibit, but the expenses listed included attributing to the child one-third of many of Mother's bills, including the mortgage, pool loan, pool closing costs, pool cover, utilities, and household expenses. The list also included Mother's entire car payment (because Mother gave her old car to the child), as well as the child's private schooling, summer camp, cell phone, travel expenses, monthly allowance, and travel costs.

      . Where the trial court's child support award is not just and equitable, the appellate court will render a proper judgment. Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, 668.

      . In his brief on appeal, Father urges that his monthly child support obligation should be $2,953.20.


author: KEITH RAPP, Judge:

text:
    2003 OK CIV APP 34
    Jerry D. DEAN and James H. Pilkington, individually and as Representatives of a Class of Claimants, Petitioners, v. MULTIPLE INJURY TRUST FUND f/k/a Special Indemnity Fund of the State of Oklahoma, Administered by the State Insurance Fund, Respondent.
    No. 97,260.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Dec. 24, 2002.

      Thomas A. Layon, John B. Nicks, Tulsa, OK, for Petitioners.
    Gary LeVine, Stephen G. Solomon, Oklahoma City, OK, for Respondent.
   Opinion by

KEITH RAPP, Judge:

11 The trial court petitioners, Jerry D. Dean and James H. Pilkington (Petitioners), appeal the decision of the Three-Judge Panel of the Workers' Compensation Court in favor of The Multiple Injury Trust Fund (MITF) deciding that a judgment against the MITF cannot be certified to District Court because of the ban imposed by 85 0.8. Supp.2002, § 42(A).

BACKGROUND

2 Petitioners have unpaid awards against MITF and desire to certify the award to the District Court. The workers' compensation trial judge declined to certify based upon the exeeption in favor of MITF given in Section 42(A). The Three-Judge Panel affirmed. Petitioners appeal urging that the statute may be construed in their favor, or alternatively, that if the statute does exempt MITF from its scope, then the statute suffers constitutional infirmities.

STANDARD OF REVIEW

T3 Where the facts are not disputed an appeal presents only a question of law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69. The appellate court has the plenary, independent and non-deferential authority to reexamine a trial court's legal rulings. Neil Acquisition, LLC. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. If an appeal asserts a violation of constitutional rights, the appellate court will exercise its own independent judgment, if it becomes necessary to determine the constitutional question. Ranola Oil Co. v. Corporation Commission of Oklahoma, 1988 OK 28, ¶ 7, 752 P.2d 1116, 1118. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

1 4 The question here is whether the wording of Section 42(A) excluding the MITF precludes certification of judgments against the MITF to District Court. In an analysis of Section 42(A) and the decisional precedents to its enactment, the Court of Civil Appeals specifically held that judgments for acerued unpaid portions of a permanent total disability award may be certified to District Court. Special Indem. Fund v. Maples, 1998 OK CIV APP 157, ¶ 12, 968 P.2d 839, 844. Here, Petitioners are also seeking to certify accrued unpaid portions of PTD awards and this Court holds that the rationale and ruling in Maples disposes of this appeal.

15 Maples was overruled in part regarding a second issue in the case by Samman v. Multiple Injury Trust Fund, 2001 OK 71, 33 P.3d 302 n. 10. In that footnote the Court stated, in part:

Approximately two (2) years before our pronouncement in Stidham v. Special Indemmity Fund, 2000 OK 33, 10 P.3d 880, the Court of Civil Appeals (COCA) issued an opinion in Special Indemnity Fund v. Maples, 1998 OK CIV APP 157, 968 P.2d 839. The Maples decision appears to con-tradiet the jurisdictional ruling of Stidham, reiterated today. To the extent Special Indemmity Fund v. Maples (as to the jurisdictional issue) is contrary to the holdings of Stidham and our pronouncement here, that opinion is overruled.

16 Because this Court has here disposed of this appeal on the authority of Maples, it is necessary to review Maples in light of Samman. Maples involved two issues. In addition to the certification question, the appeal concerned the timing of payments by the MITF. Thus, MITF maintained that, by statute, it did not have to begin payment until exhaustion of all weekly benefits for permanent partial disability. Maples had received a joint petition settlement in August 1996, and thereafter commenced an action against MITF. In January 1997, an order was entered awarding benefits against MITF beginning on the date of the order.

T7 In June 1997, Maples had not been paid and sought to certify the judgment to District Court. The trial court ruled that MITF had waived its right to postpone payment because it had not appealed the January 1997 order. The Court of Civil Appeals in Maples also sustained that ruling and rejected the argument that the January 1997 order was jurisdictionally void on the basis that it commenced payment before a statutory due date.

T8 The Samman Court did not address certification and certification was not an issue before the Court. In Samman, the Court ruled that MITF's payments did not commence until the statutory lapse of time and any provision to the contrary was void. Samman, at ¶ 11, at 306-07. Thus, the Court's footnote specifically limits Samman's correction of Maples to the single issue of timing of MITF payments.

19 Here, the Three-Judge Panel declined to follow Maples on the grounds that Section 42(A) clearly prohibited certification and Maples was not binding, but only persuasive pursuant to Okla. Sup.Ct. R. 1.200(c)(2). However, Maples is an authoritative, if not precedential, treatment of the issue under review, which this Court adopts.

T10 Therefore, this Court holds that judgments against MITF for accrued unpaid portions of a permanent total disability award may be certified to District Court. Unpaid in this context means unpaid sums that have accrued from and after the statutory beginning date governing such payments by MITF. Thus, for injuries occurring prior to June 1, 2000, the statute provides:

After all permanent partial disability payments by the employer or the insurance carrier of the employer have ceased, the remainder of the compensation shall be paid out of the Multiple Injury Trust Fund provided for in Section 178 of this title, in periodic installments.

85 0.8.2001, § 172(B)(1).

{11 For injuries occurring on or after June 1, 2000, the statute provides:

Such awards shall be paid from the date the court order finding the claimant to be permanently and totally disabled is filed.

85 0.8.2001, § 172(B)(2).

112 The Three-Judge Panel erred by refusing to certify the Petitioner's judgment to District Court.

113 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, P.J., and GOODMAN, J., concur.

      . As a result of earlier proceedings Petitioners constitute a class of injured persons who have an unpaid award against MITF. MITF was known formerly as the Special Indemnity Fund. Section 42(A) provides:
      A. If payment of compensation or an installment payment of compensation due under the terms of an award, except in the case of an appeal of an award or an award from the Multiple Injury Trust Fund, is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Court may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or Iump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award or an award of compensation from the Multiple Injury Trust Fund, shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction. On or after November 1, 2001, compensation ordered to be paid from the Multiple Injury Trust Fund shall bear simple interest only at the percentage rate applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes from the date of the award. Any award from the Multiple Injury Trust Fund prior to November 4, 1994, shall bear interest at the percentage rate applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes. Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation. (Emphasis added.)

      . Certiorari was denied by a unanimous Court.

      . This Court expressly does not rule on Petitioners' constitutional arguments.

      . In the appellate context precedent constitutes a decision or determination on a point actually presented for review, and which, after consideration is declared to be a rule to guide subsequent determinations when the facts and circumstances are the same or substantially the same. Empire Square Realty Co. v. Chase Nat. Bk. of City of New York, 43 N.Y.S.2d 470, 181 Misc. 752 (1943). Thus, decisional pronouncements of precedential value serve to provide certainty and consistency to the law as it evolves. A decision that carries weight but lacks precedent is said to be persuasive,. Black's Law Dictionary (7th Ed.1999). Nevertheless, the value of consistency must not be overlooked when confronted with a persuasive decision. Departure from that decision should be based upon reasoned grounds demonstrating that the nonbinding decision should not be followed. Here, this Court sees a decision left undisturbed by the Supreme Court, and finds no precedent or persuasive authority on which to rely in order to reach a contrary result. Merely to say that the language of Section 42(A) lacks ambiguity does not, in this Court's view, address the reasoning and analysis of Maples which go into the background of the statute.

      . This Court expresses no opinion concerning what actions and procedures may, or may not, be available to Petitioners upon certification of the judgment to District Court.