Hess v. Volkswagen Group of America, Inc. , 2017 Okla. Civ. App. LEXIS 15 ( 2017 )

THORNBRUGH, V.C.J.,

concurring in part and dissenting in part:

¶ 11 concur in this opinion, except for that part of the decision holding that post-judgment interest should run only from the date of the final trial court ruling on remand. I dissent from the latter holding.

¶ 2 I recognize that this issue is unsettled in Oklahoma law, but I would apply the rule exemplified in Missouri-Kansas-Texas R. Co. v. Edwards, 1961 OK 192, 401 P.2d 303. In a prior opinion in that case, the Supreme Court had required a remittitur of $371,207 in damages, leaving plaintiff with $278,793 of the original judgment. The case later returned to the Supreme Court on the question of when post-judgment interest on the remaining $278,793 began to accrue. The Court adopted the following principle as set forth in American Jurisprudence:

No general rule is deducible from the decisions passing on the question, but it may be observed that in a majority of the cases interest is held to run from the date of the original judgment or decree appealed from, and not from the date of the judgment as modified.

1961 OK 192 at ¶ 18, 401 P.2d 303 (quoting 30 Am. Jur. ‘Interest’, Sec. 46, p. 40).

¶ 3 I find no basis, as the majority does, for a system in which an award modified by an appellate court bears interest from a different date than an award modified by a trial court on remand.

¶4 Two hypothetical scenarios illustrate the inequity of such a rule. The first involves the common practice of an appellate court returning a fee decision for the lack of an adequate Burk analysis. Even if the trial court makes the required analysis and reaches the same conclusion, the innocent prevailing party is denied interest from the date of the original judgment, as the decision on remand is a “new calculation.”

¶ 5 The second scenario involves the situation in which in which a trial court increases an award on remand. Again, the innocent prevailing party is penalized by a loss of post-judgment interest because the trial court made a new calculation, even though the party’s right to the original award was confirmed. Although the trial court in the case before us modified the lodestar fee by some 70 percent on remand, it still confirmed that a portion of the original judgment was valid. I would, therefore, hold that, as in Missouri-Kansas-Texas R. Co. v. Edwards, interest on this portion of the judgment began to accrue from the date of the original judgment.