concurring in result.
1[ 16 I agree that the trial court erred when it focused on the net recovery received by Downey as the amount in controversy or the amount of success achieved by landowner. Downey's success is the $85,000.00 award, and the amount in controversy was the varying amounts of compensation urged by DOT and Downey. In addition, it was clear that both parties thought it was reasonable to present an expert witness on attorney's fees, so the failure to award a reasonable fee for that expert was not justified.
€ 17 However, I disagree with the analysis of the majority opinion. Section 11(8) provides two factors to consider in awarding attorney, appraisal, and engineering fees: they must be reasonable and they must be actually incurred. There is no reason to suggest that the reasonableness of attorney fees under § 11(8) should not be governed by Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. As a result, the movant under § 11(3) has the burden of proving both that the requested fees are reasonable and were actually incurred.
[ 18 The majority says that after Downey proved that the fees were actually incurred, then the burden shifted to DOT to prove the fees were unreasonable. There is no authority cited for this proposition, and it is contrary to other statutory fee cases.
[ 19 This was not a contract-fee case such as the contingency fee contract at issue in Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9, 870 P.2d 762. In that case, after proving the existence of a 40% contingency fee contract (which was less than the statutory maximum of 50%) the Supreme Court ruled that the OTA must show the contract was unreasonable. In effect, because the 40% contract was less than the maximum, it was presumed reasonable. That is not the case here. In an hourly rate case, the party requesting fees must prove that the number of hours and hourly rate are both reasonable in order to receive any award. It is not enough to merely prove the fees were incurred.