* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 23 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OKLAND OIL COMPANY,Plaintiff - AppellantCross-Appellee, v. CONOCO, INC., a Delaware corporation,Defendant - AppelleeCross-Appellant. Nos. 97-6343 & 97-6371 (D.C. No. CIV-96-83-M) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BALDOCK , BRORBY and LUCERO , Circuit Judges.

In diversity cases, federal courts apply state law to determine the propriety of attorney fee awards. See Boyd Rosene & Assocs. v. Kansas Mun. Gas Agency , 123 F.3d 1351, 1352 (10th Cir. 1997). Under Oklaho ma law, the award of attorney fees is within the discretion of the trial court and will not be disturbed- 2 -

absent abuse of that discretion. See Green Bay Packaging, Inc. v. Preferred Packaging, Inc. , 932 P.2d 1091, 1097 (Okla. 1996). Underlying det erminations of state law, however, are properly reviewed de novo . See Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp. , 959 F.2d 868, 871 (10th Cir. 1992). We have have reviewed the briefs of the parties and the attached record, and determine that the district court committed no error of law or abuse of discretion in its award of attorney fees. Having f ailed to assist in a meaningful manner the district court’s determination of which fees were traceable to the tort claims, Okland cannot now complain that the proport ional division made by the district court was beyond its discretion. Indeed, under the circumstances presented, that division strikes us as eminently pr agmatic and reasonable. Further, we are unpersuaded that any of the tort cl aims were brought pursuant to § 570.10 of Oklahoma’s Production Revenue Standards A ct. See Okla. Stat. Ann. tit. 52 § 570.10 (West Supp. 1998). Consequently, we see no legal error in the determination that fees should be denied Okland on its tort claims. Finally, we see no merit to Okland’s claim that the district court’s refusal to award a bonus was erroneously made under federal law. The district court specifically referenced the factors relevant to bon us determinations from the leading state law case, Burk v. City of Oklahoma Ci ty , 598 P.2d 659 (Okla. 1979). We do not construe the district court’s ref erence to Judge Cauthron’s- 3 -

exposition of federal practice to mean that the dis trict court misunderstood its discretion under Oklahoma law. Rather, the distric t court appears to have determined, consistent with Oklahoma law, that, in this case, the Burkfactors were adequately “subsumed in the rate times hours c alculation.” Appellant’s Br., tab A, at 2 (quoting Robin J. Cauthron, Proving Att orney’s Fees in Federal Court , 61 Okla. B.J. 2813, 2817 (1990)). Had the districtcourt relied on “rate times hours” as the single relevant factor, that would be an abuse of discretion under Oklahoma law, see Adams v. Unterkircher , 714 P.2d 193, 197 (Okla. 1986) (citing Sneed v. Sneed , 681 P.2d 754, 756 (Okla. 1984)), but the court expressly stated to the contrary. AFFIRMED

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge