                                                                           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      This order and judgment is not binding precedent, except under the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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