                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       January 23, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ARNOLD OIL PROPERTIES, L.L.C.,

             Plaintiff-Appellee,

v.                                                        No. 11-6247
                                                   (D.C. No. 5:08-CV-01361-D)
SCHLUMBERGER TECHNOLOGY                                   (W.D. Okla.)
CORPORATION,

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      Arnold Oil hired Schlumberger to help construct an oil well. When the well

wasn’t finished properly, each side blamed the other. Ultimately, Arnold Oil sued for

breach of contract and negligence; Schlumberger returned fire with a counterclaim

alleging it was Arnold Oil that breached the parties’ contract. At trial, a jury returned


*
      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 case is 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a verdict for Arnold Oil and awarded $350,000 in damages. See Arnold Oil Props.

LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1204 (10th Cir. 2012) (affirming

damages award).

          That was not the end of the matter. After trial, Arnold Oil sought to recover

its attorney’s fees under Okla. Stat. tit. 12, § 936(A). The district court agreed that

§ 936(A) applied to this diversity dispute and, after carefully scrutinizing Arnold

Oil’s bills, issued an award that was about 25% less than what Arnold Oil sought

($229,743.37 out of $304,929.82 claimed).

          Now Schlumberger returns to this court seeking to overturn this fee award.

Schlumberger acknowledges that § 936(A) authorizes attorney fees for parties

prevailing on claims seeking to recover for “labor and services rendered.” ONEOK,

Inc. v. Ming, 962 P.2d 1286, 1288 (Okla. 1998). But it notes that the section does not

necessarily apply to every claim seeking “damages arising from the breach of an

agreement relating to labor and services.” Id. Claims “collaterally relat[ed] to labor

and services, such as [for] loss of profits on a contract involving the rendition of

labor and services” are not covered. Id. Yet, Schlumberger argues, that’s exactly

what Arnold Oil’s suit involved — an effort to recoup consequential damages arising

from the fact it had to pay a third party to finish the job and repair Schlumberger’s

errors.

          The district court disagreed with Schlumberger and held that Arnold Oil’s

breach of contract (though not its negligence) claim fell within the scope of § 936(A)


                                            -2-
and entitled the company to fees. We do not, however, have to decide even that

much to affirm its award. We don’t because everyone before us agrees that

Schlumberger’s counterclaim alleged Arnold Oil failed to pay for “labor and

services” performed under the parties’ contract; that the prevailing party on the

counterclaim was therefore entitled to attorney fees under § 936(A); and that Arnold

Oil was the prevailing party on the counterclaim. At least for its work on the

counterclaim, then, Arnold Oil was surely entitled to an award of fees. See, e.g.,

CCMS Pub. Co., Inc. v. Dooley-Maloof, Inc., 645 F.2d 33, 38 (10th Cir. 1981)

(affirming award of attorney’s fees to plaintiff under § 936(A) as the prevailing party

on defendants’ counterclaim).

      Schlumberger replies that even if Arnold Oil is entitled to some fees for

prevailing on the counterclaim it isn’t entitled to as much as the district court

awarded. Schlumberger rightly notes that Oklahoma courts generally apportion

attorney’s fees between fee-bearing claims — those with statutory authority for an

award — and non-fee-bearing claims — those lacking statutory authority. See Green

Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d 1091, 1098 (Okla. 1996).

Here, Schlumberger argues, the district court properly denied any fees for work done

on Arnold Oil’s negligence claim, but it failed to try to apportion fees between

Arnold Oil’s breach of contract claim and Schlumberger’s breach of contract

counterclaim. At least this, Schlumberger says, was error.




                                          -3-
      We are unable to agree. While apportionment is the rule, it bears an exception.

If a court finds all of the time devoted to the alleged non-fee-bearing claim (here,

Arnold Oil’s breach of contract claim) “would have been necessarily incurred” in

connection with a claim that is fee-bearing (here, Schlumberger’s breach of contract

counterclaim), then apportionment is not required. Transpower Constructors v.

Grand River Dam Auth., 905 F.2d 1413, 1423 (10th Cir. 1990). In this case, the

district court expressly held this exception applies, finding Arnold Oil’s breach of

contract claim and Schlumberger’s counterclaim to be “direct corollaries of one

another, as reflected in the jury instructions and verdict form utilized at trial.” Aplt.

App. at 143. We are given no persuasive reason to doubt this conclusion. In fact, the

parties themselves even stipulated that if Arnold Oil proved its claim, Schlumberger

could not recover on its counterclaim — and that if Arnold Oil failed to prove its

claim, Schlumberger’s counterclaim would succeed. As such, apportionment was not

necessary.

      The judgment of the district court is affirmed.

                                                 Entered for the Court


                                                 Neil M. Gorsuch
                                                 Circuit Judge




                                           -4-
