Gamble, Simmons & Co. v. Kerr-McGee Corp.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 19 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GAMBLE, SIMMONS & COMPANY,
Plaintiff-Appellant,
v. Nos. 02-6248 & 03-6051
(D.C. No. CIV-95-256-C)
KERR-MCGEE CORPORATION, (W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases
are therefore ordered submitted without oral argument.
We have consolidated these appeals for purposes of disposition. In case
No. 02-6248, Gamble, Simmons & Company (“Gamble Simmons”) appeals from
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s order (1) denying Gamble Simmons’ motion for entry of final
judgment; (2) granting defendant Kerr-McGee Corporation (“Kerr-McGee”)’s
motion for entry of final judgment; (3) vacating the district court’s previous
orders awarding attorney’s fees and costs to Gamble Simmons; and (4) reinstating
an earlier order granting attorney’s fees to Kerr-McGee. In case No. 03-6051,
Gamble Simmons appeals from the district court’s order granting Kerr-McGee’s
motion for an additional award of attorney’s fees against Gamble Simmons and
setting the amount of fees to be awarded. We affirm in part, vacate in part, and
remand.
This is the fourth time this case has come before us. Gamble, Simmons &
Co. v. Kerr-McGee Corp. , 175 F.3d 762 (10th Cir. 1999) ( “Gamble Simmons I” );
Gamble Simmons & Co. v. Kerr-McGee Corp. , 30 Fed. Appx. 764 (10th Cir.
Jan. 31, 2002) ( “Gamble Simmons II” ); Gamble Simmons & Co. v. Kerr-McGee
Corp. , 43 Fed. Appx. 205 (10th Cir. July 22, 2002) ( “Gamble Simmons III ”). The
issues raised in this appeal are nearly identical to those raised in the previous
appeals. The parties continue to dispute whether Kerr-McGee owes Gamble
Simmons any additional money under the parties’ contract for tax consulting
services, and which of them is the “prevailing party” entitled to attorney’s fees.
Although our order and judgment in Gamble Simmons II should have put
this issue to rest, Gamble Simmons continues to assert legal issues concerning the
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method of calculating the tax benefits it generated for Kerr-McGee. We
previously resolved those issues in favor of Kerr-McGee, however, and remanded
solely for a factual determination of “the amount of payments Kerr-McGee made
subsequent to the date of the agreement and their effect on the mathematical
calculation of Gamble Simmons’ compensation.” Gamble Simmons II , 30 Fed.
Appx. at 767. On remand, in its order of July 5, 2002, the district court
performed the required calculation and determined that the evidence showed that
Gamble Simmons had been paid in full. Gamble Simmons does not take issue
with the facts underlying this determination; instead, it attempts to re-argue at
length its contention that “Kerr-McGee is not entitled to [have] its cake and eat it
too by denying Gamble Simmons its forty percent (40%) fee on the full
$276,142.10 of tax benefits it generated.” Aplt. Br., No. 02-6248, at 18. This
issue has been decided against Gamble Simmons, and we now affirm the district
court’s determination that Gamble Simmons has been paid in full.
Our affirmance of the district court’s order on the merits moots Gamble
Simmons’ claim for prejudgment interest and its argument that the district court
should reinstate its prior attorney fee award in favor of Gamble Simmons. We
further reject Gamble Simmons’ argument that Kerr-McGee’s position was
unreasonable, that Gamble Simmons is therefore entitled to “attorney’s fees since
at least June of 1997,” and that the district court’s prior award of attorney’s fees
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in favor of Kerr-McGee is insufficient in light of the undisputed facts. Id. at
21-22. We also decline Gamble Simmons’ invitation to vacate our order of March
12, 2002, awarding Kerr-McGee a bill of costs and appellate attorney’s fees to be
calculated by the district court. Kerr-McGee is the prevailing party in this entire
litigation and is entitled to its reasonable attorney’s fees. See GRP of Tex., Inc. v.
Eateries, Inc. , 27 P.3d 95, 98 (Okla. 2001).
Finally, Gamble Simmons complains that on remand from Gamble Simmons
III , the district court simply reinstated its December 18, 1997 order of attorney’s
fees in favor of Kerr-McGee, without conducting an evidentiary hearing to
determine whether the amount of fees was reasonable. Kerr-McGee does not
contend that there has been a sufficient evidentiary hearing or that the amount of
fees was reasonable; in fact, its briefs fail to address these issues at all. As long
ago as Gamble Simmons I , Gamble Simmons complained that the attorney fee
award was unreasonable and that it was not given an evidentiary hearing on the
attorney fee issue. We left this issue open “for unfettered reconsideration by the
district court at the conclusion of these proceedings on remand.” Gamble
Simmons I , 175 F.3d at 774.
It is unclear from the district court’s order of July 5, 2002, whether it
considered the evidentiary hearing and reasonableness issues that we specifically
reserved for its further consideration when it reinstated the attorney fee award in
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favor of Kerr-McGee. 1
We therefore vacate that portion of the district court’s
order reinstating its attorney fee order of December 18, 1997, and remand for
what we emphasize is a strictly limited consideration of, together with any
necessary further proceedings and findings appropriate to, the following issues:
(1) whether Gamble Simmons is entitled to an evidentiary hearing on the issue of
the attorney’s fees originally awarded on December 18, 1997; (2) whether the
amount of the fees originally awarded in the order of December 18, 1997 was
reasonable; and (3) whether, in light of any findings concerning reasonableness of
the amount of the fees awarded, the December 18, 1997 order should be reinstated
or modified.
The judgment of the district court in case No. 03-6051 is AFFIRMED. The
judgment of the district court in case No. 02-6248 is AFFIRMED in part;
VACATED in part, and REMANDED for further, limited proceedings as detailed
in this order and judgment.
Entered for the Court
Wade Brorby
Senior Circuit Judge
1
Evidently, the district court did conduct an evidentiary hearing on remand
from Gamble Simmons I , culminating in an award of fees to Gamble Simmons .
Aplt. App., No. 03-6051, Vol. II, at 405. That award has now been vacated. If
the issues Gamble Simmons wishes to have heard were fully considered at the
prior hearing, however, no further evidentiary hearing would appear to be
necessary.
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