## Facts

- Boyd Rosene & Associates, Inc. sued Kansas Municipal Gas Agency (an interlocal municipal agency) and the City of Winfield, Kansas (a KMGA member) in federal court on diversity jurisdiction, asserting contract and tort claims.
- The parties’ contract contained a choice-of-law clause providing it would be governed and construed under Kansas law.
- The contract did not contain an attorney’s-fees provision.
- The district court entered summary judgment for defendants and initially required each party to bear its own fees.
- After appellate proceedings limited to attorney’s fees, the district court on remand applied Oklahoma’s fee statute, Okla. Stat. tit. 12, § 936, and awarded defendants a little over $134,000 in attorney’s fees.
- Rosene appealed the fee award.

## Issues

1. Under Oklahoma choice-of-law rules in a diversity contract case, does Oklahoma’s attorney’s-fee statute apply, or does the contract’s Kansas choice-of-law clause require applying Kansas law to the fee entitlement question?
2. If Kansas law governs, are prevailing defendants entitled to attorney’s fees when the contract is silent and no authorizing statute applies?

## Decision

- The Tenth Circuit reversed the district court’s attorney’s-fees award.
- Applying Oklahoma choice-of-law rules, the court concluded Kansas law governed attorney’s fees because the contract selected Kansas law and Oklahoma conflicts principles would honor that selection for incidents of the contract.
- Under Kansas law, attorney’s fees are not recoverable absent a contractual or statutory authorization; neither was present.
- The court denied defendants’ later request for rehearing and certification to the Oklahoma Supreme Court.

## Legal Principles

- In a federal diversity contract action, the forum state’s choice-of-law rules determine which state’s law governs attorney’s fees; fees are not automatically governed by the same law that resolves the merits without a conflicts analysis.
- Oklahoma choice-of-law principles generally enforce contractual choice-of-law clauses and can apply the chosen law to attorney’s-fees entitlement, absent a strong public-policy reason to displace the clause.
- Kansas follows the American rule: attorney’s fees are unavailable absent an express contractual provision or a statute authorizing fee shifting.

## Conclusion

The court held that Oklahoma conflicts rules required honoring the contract’s Kansas choice-of-law clause for attorney’s fees, so Kansas law controlled and barred a fee award to prevailing defendants because the contract and applicable statutes did not authorize fees.


Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas Agency, 174 F.3d 1115 (10th Cir. 1999)