¶ 1 Defendant in this small claims action appeals from the trial court's order denying his motion to vacate an order granting attorney fees to Plaintiff.
¶ 2 Plaintiff, a court reporter, sued Defendant for $458.25. Defendant advised the court he agreed not to contest the action, and thus he did not appear at the hearing. The trial court granted default judgment to Plaintiff for that amount.
¶ 3 After an initial abortive attempt1 by Plaintiff to obtain an order granting her request for attorney fees, the trial court entered an order giving Plaintiff $3,300.00 for attorney fees and $120.00 in costs. Due to scheduling conflicts, Defendant could not appear at the hearing which had been reset without agreement by Defendant. The trial court entered this order on December 17, 1998. Defendant did not appeal or file a motion for new trial.
¶ 4 On January 12, 1999, Defendant filed a motion to vacate the December 17 award. Although not so denominated by Defendant, his motion was filed within 30 days of the judgment and will be considered as a 12 O.S. 1997 Supp. § 1031.1(B) motion. The trial court overruled his motion, and he appeals.
¶ 5 The trial court has discretion to vacate its own judgment, and refusal to vacate is not reversible error unless abuse of discretion is shown. Craig v. Cabelka, 1992 OK CIV APP 98, 838 P.2d 532. Although under this section, the trial court's power is almost unlimited, the application may be granted only for sufficient cause shown. Jones v.Strain, 1979 OK CIV APP 48, 603 P.2d 353.
¶ 6 In his motion to vacate and on appeal, Defendant argues the award of attorney fees should have been limited to 10% of the judgment as set out in 12 O.S. 1998 Supp. § 1751(C). That section provides in cases "which are uncontested, the amount of attorneys fees allowed shall not exceed ten percent (10%) of the judgment." He claims the parties agreed Plaintiff was entitled to $458.25 as judgment in the action. Based on the agreement, Defendant allowed the default judgement to be entered against him hoping to limit attorney fees to the statutory 10%.
¶ 7 Plaintiff asserts the action could scarcely be called uncontested. Defendant appeared on the date the case was initially set and announced ready for trial. However, because all the judges in Cleveland County recused, the hearing was continued. Defendant also filed two motions in an effort to have the case dismissed. Plaintiff points out that simply because Defendant chose not to appear for the reset hearing on the merits, does not mean the matter was uncontested. We agree. The attorney fee cap does not apply under these circumstances. Plaintiff's attorney spent time drafting responses to Defendant's motions and appeared in court several times.
¶ 8 12 O.S. 1997 Supp. § 1764 provides, in pertinent part, that "any statute providing for an award of attorney fees shall be applicable to the small claims' division if the attorney makes an appearance in the case, whether before or after judgment or on *Page 1004 hearing for disclosure of assets." Plaintiff filed this action to recover charges for her services in taking and transcribing a deposition for Defendant. 12 O.S. 1991 § 936[12-936] authorizes attorney fees for the prevailing party in such an action for labor or services. Plaintiff is clearly entitled to attorney fees.
¶ 9 Defendant also argues the amount of attorney fees bears no relation to the amount of the judgment and is unreasonable. The determination of the reasonableness of an attorney's fee is particularly within the province of a trial court. We review the district court's award of attorney's fee for abuse of discretion. Marvel v. Miken,1994 OK CIV APP 150, 889 P.2d 903. An attorney in Oklahoma is clearly prohibited from receiving a fee which is excessive or unreasonable. American National Bank andTrust Co. of Shawnee v. Clarke Van Wagner Inc,1984 OK CIV APP 37, 692 P.2d 61. However, an attorney fee award is not unreasonable simply because it exceeds the amount of the judgment. AME,Inc. v. Consolidated Freightways, 1989 OK CIV APP 57, 783 P.2d 499.
¶ 10 Because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits, and default judgments are not favored. Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219. In his motion to vacate, Defendant points to several contested issues. He claims he mailed Plaintiff's lawyer a check for $586.62 with a cover letter stating $45.83 was for attorney fees which Plaintiff cashed. Plaintiff admits cashing the check but states she did not see the cover letter and offered to return the $45.83. Defendant, an attorney, also points out that he had two other hearings set at the time the trial court held the hearing on attorney fees. He advised the court of the conflicts, but the judge stated in his order that he had contacted the other court and made arrangements to postpone the proceeding. Defendant claims his client would not agree.
¶ 11 The Supreme Court, in reviewing a trial court's ruling refusing to vacate a default judgment has considered several factors: 1) default judgments are not favored; 2) vacation of a default judgment is different from vacation of a judgment where the parties have had at least one opportunity to be heard on the merits; 3) judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice; 4) a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has not. The Court also considered whether substantial hardship would result from granting or refusing to grant the motion to vacate. FergusonEnterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, 13 P.3d 480. This Court may also consider whether any rights of a stranger would be affected. Also, if the motion could be granted without substantial delay or injustice and its denial might work a serious injustice, a denial would constitute an abuse of discretion and should be reversed on appeal. Latson v. Eaton, 1957 OK 105, 311 P.2d 231.
¶ 12 Here, the trial court stated in its order overruling Defendant's motion to vacate that it considered the Burk2 factors. However, there is no record before us supporting this finding. $3,300.00 in attorney fees to prosecute an action for $485.25 appears to be unreasonable, especially in a small claims case. See, Roofing SheetMetal Supply company of Tulsa, Inc., v. Golzar-Nejad Khalil, Inc.,1996 OK 101, 925 P.2d 55, 60.
¶ 13 Accordingly, the judgment refusing to vacate the default judgment for attorney fees is reversed and the cause remanded with directions to grant Defendant a full hearing on the amount of attorney fees to be awarded Plaintiff.
¶ 14 REVERSED AND REMANDED
¶ 15 Garrett, J., concurs.
¶ 16 Buettner, P.J., dissents.