¶ 1 Defendant appeals the denial of his Motion to Vacate an order awarding $3,300 attorneys fees and $120 in costs filed December 18, 1998. Plaintiff, a court reporter, successfully sued Defendant, a lawyer, under the small claims procedure for $485.25 for a deposition which Defendant had requested but not paid for.
¶ 2 Defendant raised three propositions in his Motion to Vacate. First, Defendant claimed that attorneys fees should be limited to 10% of the judgment pursuant to a provision of the Small Claims Procedure Act:
In those cases which are uncontested, the amount of attorneys fees allowed shall not exceed ten percent (10%) of the judgment.
12 O.S. 1991 § 1751[12-1751] (C) (emphasis added). Although Defendant asserted that Plaintiff's small claims action was uncontested; Defendant filed a Motion to Dismiss (August 6, 1998) and a Motion to Dismiss or in the Alternative Motion to Transfer Due to Lack of Venue (August 18, 1998). These motions were filed after a July 3, 1998 Notice that the case was set for hearing September 1, 1998. Plaintiff responded to these motions August 21, 1998. Defendant failed to appear at the September 1, 1998 hearing and when the trial court telephoned Defendant during the hearing, Defendant indicated he had elected not to appear in order to limit Plaintiff's potential attorneys fee award under § 1751(c). At the hearing, Defendant's motions were denied, and default judgment was entered for Plaintiff.
¶ 3 As a result of Defendant's motions to dismiss and to transfer venue, this case was not "uncontested" under the meaning of § 1751(C).1 In order to cap attorneys fees at 10% of the judgment under this section, I interpret "uncontested" to mean that the defendant acknowledges liability or does not interpose any defense to the claim. One cannot file motions seeking dismissal of an action or contesting venue, then fail to show up at the hearing, but also seek the protection of an attorneys fee cap based on not contesting the action.
¶ 4 In this case, had Defendant not contested the claim, the statute would have capped attorneys fees at $49.00. Instead, he raised legal issues to which Plaintiff was required to respond, then failed to appear to present his motions, which had the effect of requiring Plaintiff to prepare for a hearing on the motions as well as a trial on the merits. Subsequent to the default judgment on the small claims action, Defendant filed a Motion to Dismiss Due to Settlement of the Parties and a Motion to Compel. Then, Defendant objected to Plaintiff's Motion for Attorneys Fees, which resulted in a hearing over a two day period. After Defendant failed to appear at the continued hearing on December 17, 1998, despite having notice and a specific order from the trial judge to appear, the trial court filed the $3,300 attorneys fee award December 18, 1998. Defendant filed his Motion to Vacate the attorneys fee award January 12, 1999. Plaintiff was required to respond to each of these motions. After the Motion to Vacate was overruled, Defendant filed this appeal, which Plaintiff was required to defend.
¶ 5 Undoubtedly, Defendant had the right to defend this case. As a lawyer, he is fully aware of the statutes applicable to small claims proceedings and the ability to recover attorneys fees and costs when suing to collect for services rendered. He is also aware of the burden that attorneys fees and costs can have on litigants. When a litigant chooses to aggressively defend a case in which attorneys fees are available to the prevailing party, then he should expect to pay the attorneys fees incurred by the plaintiff in responding to the aggressive defense if he does not prevail. And, where a statute caps potential attorneys fees based on a defendant's choice not to contest the action, a defendant should expect *Page 1007 that in aggressively defending he may subject himself to a fee award exceeding such cap amount.2
¶ 6 The second issue in Defendant's Motion to Vacate was that the attorneys fee award was unreasonable. The majority essentially concludes that the $3,300 fee award is so disproportionate to the $458.25 judgment that it is per se unreasonable. The majority states that although the Journal Entry recites that the trial court considered the Burk factors, there is no record showing consideration.
¶ 7 However, the merits of the attorneys fee award is not before us. The issue before us is whether the trial court abused its discretion in denying Defendant's Motion to Vacate the attorneys fee award. The test for measuring the correctness of a trial court's response to a timely-filed § 1031.1 motion is whether the trial court exercised sound discretion upon sufficient cause shown to vacate, modify, open or correct the earlier decision, or to refuse the relief sought. Hotels,Inc. v. Kampar Corp., 1998 OK CIV APP 93, 964 P.2d 933, 935, citingAdvanced Machining Fabricating, Inc. v. Doty, 1994 OK CIV APP 172,894 P.2d 1139, 1140.
¶ 8 Defendant did not designate Plaintiff's Motion for Attorneys Fees to be part of the record. (Plaintiff did counter-designate her Motion for Attorneys Fees but inexplicably the Motion is not part of the record.) The Motion was heard November 20 and December 17, 1998 and a Journal Entry was filed December 18, 1998. The Journal Entry reflects that the trial court considered sworn testimony and the Burk factors. Defendant did not designate a transcript of the hearing for the appellate record, nor did he prepare a narrative statement pursuant to Supreme Court Rule 1.30.
¶ 9 An appellant has the responsibility of incorporating into the appellate record all materials necessary to secure the relief from the trial court's alleged erroneous decision. Davidson v. Gregory,1989 OK 87, 780 P.2d 679. Additionally, this court has explained that an appellant has the burden of causing a record to be prepared which demonstrates the trial court erred. Atchley v. Hewes,1998 OK CIV APP 143, 965 P.2d 1012, 1013, citing Hulsey v. Mid-America Preferred Ins.Co., 1989 OK 107, 777 P.2d 932; see also Supreme Court Rule 1.28, 12 O.S.Supp. 1997, Ch. 15, App. Further, legal error may not be presumed from a silent record. McNickle v. Phillips Petrol. Co., 2000 OK 28, 2000 WL 369805. Yet, the majority opinion has rewarded Defendant's failure to designate a sufficient record by finding a ground to reverse in the lack of a record. When the appellate record contains no evidence on a particular issue, a presumption arises that the judgment was responsive to the proof adduced at trial. Hamid v. Sew Original, 1982 OK 46,645 P.2d 496, 497. Likewise, an appellate court normally indulges every presumption of the correctness of the trial court's judgment in the absence of a record. Davidson, supra. We presume the trial court found every fact necessary to support its judgment. Id.
¶ 10 While Defendant did not designate the evidence supporting the attorneys fee award, he did include in the record on appeal his Objection to Plaintiff's Application for Attorneys Fees. Defendant raised two issues in his objection: (1) fees were limited to 10% of the judgment in accordance with 12 O.S. 1991 § 1751[12-1751] (C), and (2) the motion did not meet the required standard of proof. We have held that § 1751(C) was not applicable to this case. We are unable to review Defendant's second issue because Defendant did not designate either the Motion for Attorneys Fees *Page 1008 or the evidence considered by the trial court at the hearing.
¶ 11 Even if we were to speculate on the substance of the Motion for Attorneys Fees, the only factor the majority relies upon is the proportionality of fees to the claim. However, in any case covered by a prevailing party fee statute (such as 12 O.S. 1991 § 936[12-936]) the claim necessarily includes the reasonable attorneys fees expended to collect the amount due. Additionally, simply deciding the award was excessive is not synonymous with finding the trial court abused its discretion in denying a motion to vacate the award, particularly considering that Defendant elected not to appear in order to challenge the fee request.
¶ 12 The trial court had before it the following evidence (with all inferences in favor of the Plaintiff):
a) Defendant filed unauthorized motions in a small claims case which required Plaintiff to respond and prepare for hearing;
b) Defendant failed to appear at trial, then obstinately used that fact to argue the case was "uncontested," despite his earlier motions to dismiss and to contest venue;
c) Defendant admitted he owed $458.25 to Plaintiff for a deposition he took some time prior to the filing of the Small Claim Affidavit in April 1998.
d) Defendant communicated directly with Plaintiff after the litigation commenced knowing Plaintiff was represented by counsel;
e) Defendant filed a motion to dismiss the attorneys fee claim, in which he alleged the attorneys fee award was settled when he sent Plaintiff a check for the judgment plus costs, to which motion Plaintiff again had to respond;
f) Plaintiff presented evidence that a cover letter used by Defendant as support for his motion in (e) was not sent with the check;
g) Plaintiff had to schedule a hearing on assets to obtain payment of the $458.25 plus costs judgment.
h) The hearing on attorneys fees began November 20, 1998 and was continued (at Defendant's request) to December 17, 1998. Defendant was specifically ordered by the trial court to appear. The trial court eliminated the court conflict of Defendant. Nevertheless, Defendant failed to appear and the trial court took evidence and entered an award of attorney fees.
Based on this evidence, and the failure to present a sufficient record, Defendant cannot show the attorneys fee award was so excessive that the denial of his motion to vacate that award was an abuse of discretion.
¶ 13 The third issue raised in Defendant's Motion to Vacate is that scheduling conflicts prevented Defendant from attending the continued hearing on attorneys fees December 17, 1998, which resulted in an award greater than requested.3 There is evidence that Defendant was properly notified of the hearing on December 17, 1998.
¶ 14 Defendant failed to present a sufficient appellate record to support a finding of abuse of discretion. The Order filed December 18, 1998 describes the alleged scheduling conflicts and states:
Defendant, David Leo Smith, fails to appear after the undersigned Judge specifically ordered and directed him to appear at this hearing. Defendant previously had this hearing continued because of a purported illness in his family. Additionally, Defendant complains to this Court that he had a possible conflict in another court. This Court arranged, via Oklahoma City Municipal Court Judge Manger, to have the conflicted case continued. The Defendant informed this Court the civil matter he had set on the date of this hearing at 1:30 p.m. would be taken care of and would not interfere with his presence at this hearing. On two (2) occasions after that this undersigned Judge clearly informed the Defendant, personally and his office, that he was to be present for the hearing or this Court would proceed in his absence.
¶ 15 In fact, Defendant's Motion to Vacate suggests the trial court's recital was inaccurate, *Page 1009 but does not say that Defendant was actually in another court representing a client. Defendant's statement: "The attempt to continue both hearings, but were unsuccessful" is not entitled to any weight in light of both the trial court's recitation of the facts and Defendant's failure to present any evidence.
¶ 16 The final argument, that the amount awarded exceeded the amount requested, cannot be sustained without the Plaintiff's Application for Attorney Fees. Defendant's only reference to support the argument is the September 1, 1998 Summary Order granting judgment to Plaintiff and allowing 10 days to file a motion for attorney's fees and costs.
¶ 17 A reading of the record presented on appeal shows a defendant manipulating the legal system and then claiming he should not be required to pay for the attorneys fees he forced Plaintiff to incur because the claim was only $458.25. Plaintiff did file a small claims action in April 1998 for $458.25, but the claim also included the attorneys fees and costs included in the collection effort. She did not recover a judgment for the amount due until September 1, 1998. The $458.25 was not paid until mid-October 1998. In accordance with Oklahoma law, Plaintiff was entitled to recover the attorney's fees expended in collecting the $458.25. Defendant has multiplied the proceedings and delayed the recovery of attorney's fees for over 2½ years. His efforts have resulted in success by convincing the majority that the fees are unreasonable solely on the basis of disproportionality to the $458.25 claim. But as noted above, the merits of the attorneys fee award is not before this court. The trial court did not abuse its discretion by denying Defendant's motion to vacate.
¶ 18 The concurring opinion notes that "(t)he trial court should not have allowed numerous motions and time consuming activity" in a small claims case. Yet the Small Claims Act is not self-enforcing. When a party exceeds the limits of the Act or multiplies the proceedings, it is up to the judge to respond. It can respond with sanctions, or award fees pursuant to a prevailing party fee statute. The concurrence suggests "the court can easily control the lawyer's activity and conduct of the hearing and trial, and should do so." Yet here, the court could not prevent the unauthorized filings, and Defendant rarely showed up in court. It was in part because Defendant did not show up in court, that additional fees were incurred. And, Defendant's out of court activities caused expenses and fees that could not be anticipated nor prevented by the judge, even in this small claims action. The judge did not need to consider sanctions in this case because attorneys fees were statutorily authorized to counteract Defendant's activities. The concurrence would disregard the prevailing party fee statute in this case based solely on the $458.25 claim. The plaintiff was entitled to a "quick, simple and inexpensive method" of adjudicating her claim which is being denied by the majority, which sends this case back for additional proceedings with additional fees which, according to the concurrence's rationale, cannot possibly be recovered. I respectfully dissent.