Xtel Corporation, an Oklahoma Corporation v. Deka Corporation, a California Corporation

931 F.2d 900 Unpublished Disposition NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. XTEL CORPORATION, an Oklahoma corporation, Plaintiff-Appellant, v. DEKA CORPORATION, a California corporation, Defendant-Appellee. No. 90-6309. United States Court of Appeals, Tenth Circuit. April 30, 1991. Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges. ORDER AND JUDGMENT* JOHN P. MOORE, Circuit Judge. [1] This is an appeal from two orders of the district court denying post-judgment motions for prejudgment interest and attorney fees. We affirm. [2] After reading the briefs and examining the record, we are persuaded the district court correctly held that plaintiffs were not entitled to prejudgment interest because the amount in controversy was not certain nor capable of being made certain, nor was it due on a day certain. Okla.Stat. tit. 23, Sec. 22; Fidelity-Phenix Fire Ins. Co. v. Board of Educ. of Town of Rosedale, 204 P.2d 982, 987 (Okla.1949); Jesko v. American-First Title and Trust Co., 603 F.2d 815, 820 (10th Cir.1979). We also agree that the action was for breach of a contract to sell a business; hence, it was not subject to the Oklahoma attorney fee statute. See R.V.I, tab. 166, D.C. Order, Aug. 9, 1990, denying attorney fees. [3] AFFIRMED. Footnotes [-s] * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3