                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 17 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BB&B CONSTRUCTION, INC.,

                Plaintiff-Appellant,

    v.                                              Nos. 99-7142 & 00-7015
                                                    (D.C. No. 99-CV-108-S)
    RICKY HOGAN,                                          (E.D. Okla.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
        Plaintiff BB&B Construction, Inc., the general contractor on a construction

project for a water district in Bryan County, Oklahoma, brought a breach of

contract claim against defendant Ricky Hogan, one of its subcontractors. Hogan

filed a counterclaim, asserting that BB&B had failed to pay him the contract price

and also owed him for work not covered by the contract. After a trial, the jury

returned a verdict against BB&B and in favor of Hogan, awarding him $33,229.00

under the contract and $72,172.63 for the extra work. The district court entered

judgment based on the jury verdict and later granted Hogan’s motion for attorney

fees.


                                     No. 99-7142

        In No. 99-7142, BB&B appeals the judgment entered upon the jury verdict.

We note initially that, contrary to BB&B’s assertions, Hogan’s quantum meruit

claim was adequately presented: both the counterclaim and the pretrial order made

it clear that he sought recovery for services not included in the contract. These

statements satisfied Fed. R. Civ. P. Rule 8(a)(2) by giving BB&B “fair notice” of

Hogan’s claim and “and the grounds upon which it rests.”     Conley v. Gibson , 355

U.S. 41, 47 (1957).

        BB&B’s primary argument is that Hogan was limited to contract damages

and not entitled to quantum meruit relief. From this premise, BB&B asserts that

the jury should not have been instructed on quantum meruit, that the jury verdict

                                          -2-
form should not have permitted recovery on the theory, and that the district court

should have granted a new trial or remittitur. We review de novo the question of

whether the district court’s quantum meruit determinations are in accordance with

the governing law.   See Feerer v. Amoco Prod. Co. , 242 F.3d 1259, 1262

(10th Cir. 2001) (stating de novo standard of review for questions of law. Since

this is a diversity action, Oklahoma, the forum state, provides the applicable law.

See Wood v. Eli Lilly & Co. , 38 F.3d 510, 512 (10th Cir. 1994).

       Oklahoma recognizes a legal action for quantum meruit, “grounded on

a promise that the defendant would pay to the plaintiff [for his services] as much

as he should deserve.”   Martin v. Buckman , 883 P.2d 185, 193-94 (Okla. Ct.

App.1994) (quotation and italics omitted). Although the doctrine of quantum

meruit generally applies in the absence of an express contract,   see Brown v.

Wrightsman , 51 P.2d 761, 763 (Okla.1935), a contract does not necessarily bar the

pursuit of a quantum meruit claim. Relief under a quantum meruit theory may be

permitted as long as it involves obligations outside the scope of the express

contract. See Reynolds v. Conner , 123 P.2d 664, 668 (Okla. 1941) (noting that

a quantum meruit action may be brought “despite the existence of an

express contract” and that evidence of the express contract can be admitted

“as a circumstance indicating” the “value of the services” rendered by the

plaintiff to the defendant).


                                            -3-
       The district court’s quantum meruit instructions and rulings are thus

consistent with principles of Oklahoma law. Furthermore, competent evidence

at trial supported Hogan’s quantum meruit theory.     See Allen v. Wal-Mart Stores,

Inc. , 241 F.3d 1293, 1297 (10th Cir. 2001) (stating that a party is entitled to an

instruction on his theory of the case if there is competent evidence on the issue or

theory). As a consequence, there was no abuse of discretion in instructing the

jury on the issue of quantum meruit, submitting verdict forms which allowed

recovery on a quantum meruit theory, or denying BB&B’s motion for a new trial

or remittitur.   See Webb v. ABF Freight Sys., Inc ., 155 F.3d 1230, 1248-49

(10th Cir. 1998) (applying abuse of discretion standard to review submission

of jury instructions and verdict forms);   Blanke v. Alexander , 152 F.3d 1224, 1236

(10th Cir. 1998) (applying abuse of discretion standard to denial of new trial

and remittitur based on excessive damages).

       BB&B’s secondary challenge concerns the admission of certain evidence.

After careful review of the record on appeal, in light of the parties’ arguments,

we conclude that none of the district court’s evidentiary rulings amounted to an

abuse of discretion. See Webb , 155 F.3d 1230 at 1246. The judgment of the

district court is AFFIRMED.




                                           -4-
                                           No. 00-7015

        In No. 00-7015, BB&B appeals the district court’s order awarding

$65,587.50 in attorney fees to Hogan. At the start, we determine that we have

jurisdiction to review this judgment, in that BB&B’s notice of appeal was timely

under the terms of the district court’s grant of an extension of time pursuant to

Fed. R. App. 4(a)(5).       See Estate of Harris v. Harris (In re Harris)   , 218 F.3d

1140, 1145 (10th Cir. 2000) (stating that Rule 4(a)(5)(C) “permits the district

court to extend the time to file a notice of appeal if a party so moves within thirty

days after the prescribed time”).

       BB& B claims that the fee award should be reversed for several reasons.

First, it asserts that Hogan’s motion for attorney fees failed to request a specific

amount and therefore should have been denied outright for lack of compliance

with Fed. R. Civ. P. 54(d)(2)(B).      1
                                           Second, BB&B maintains that the award

includes fees incurred in litigation of Hogan’s quantum meruit claim, and that the

applicable statute, Okla. Stat. tit. 12, § 936, authorizes only fees specifically tied

to a contract claim.    2
                            Third, BB&B argues that Hogan’s claimed fees are

1
       In pertinent part, Rule 54(d)(2)(B) states that, “[u]nless otherwise provided
by statute or order of the court, the [fees] motion . . . must state the amount or
provide a fair estimate of the amount sought.”

2
       Section 936 provides:

                                                                              (continued...)

                                               -5-
excessive because they are disproportionate to the amount in controversy and

also include redundant and unnecessary billed hours.

         Although we generally review an attorney fee ruling for an abuse of

discretion, we conduct a de novo review of “any statutory interpretation or other

legal analysis underlying the district court’s decision concerning attorney fees.”

Chesapeake Operating, Inc. v. Valence Operating Co.        , 193 F.3d 1153, 1157

(10th Cir. 1999). Here, the district court properly analyzed § 936, examined the

billing records, heard testimony concerning prevailing rates and the difficulty of

the litigation, and ultimately determined a reasonable fee. For substantially the

same reasons stated in the district court’s order of December 9, 1999, we

AFFIRM the attorney fee award.

                                           Entered for the Court

                                           Wade Brorby
                                           Senior Circuit Judge




2
    (...continued)
          In any civil action to recover on an open account, a statement of
          account, account stated, note, bill, negotiable instrument, or contract
          relating to the purchase or sale of goods, wares, or merchandise, or
          for labor or services, unless otherwise provided by law or the
          contract which is the subject [of] the action, the prevailing party
          shall be allowed a reasonable attorney fee to be set by the court, to be
          taxed and collected as costs.

                                             -6-
