Waits v. Viersen Oil & Gas Co.

Decision Date20 December 2019
Docket NumberCase No. 117,192
Citation456 P.3d 1149
Parties Robert Kirk WAITS, individually, Plaintiff/Appellee, v. VIERSEN OIL & GAS CO., an Oklahoma corporation, Defendant/Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Gary L. Richardson, Charles L. Richardson, Jason C. Messenger, RICHARDSON RICHARDSON BOUDREAUX, Tulsa, Oklahoma, for Plaintiff/Appellee

Craig E. Hoster, Susan E. Huntsman, CROWE & DINLEVY, A PROFESSIONAL CORPORATION, Tulsa, Oklahoma, for Defendant/Appellant

OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Viersen Oil and Gas Co. appeals a decision of the district court denying prevailing party fees after Plaintiff Robert Waits dismissed his claims. On review, we affirm the decision of the district court.

BACKGROUND

¶2 This is the third time this case has reached the appellate courts. It springs from a compensation dispute between Waits and Viersen. In early 2011, Waits was fired from his position as vice president of Viersen. In August 2011, Waits filed suit against Viersen, alleging, among other issues, that he had been fired without cause, and was therefore contractually entitled to a severance payment equivalent to five percent of the value of all issued and outstanding shares of Viersen. Waits sought a doubling of this "wage" claim pursuant to 40 O.S.2011 § 165.3, alleging there was no bona fide dispute as to his entitlement to the severance payment.

¶3 In November 2013, Viersen filed a motion for partial summary judgment arguing, in part, that there was a bona fide dispute whether Waits had been fired for cause, and hence Waits was not entitled to a doubling of his claim pursuant to § 165.3. The district court granted this motion. Waits then dismissed his remaining claims without prejudice, and Viersen dismissed its counterclaims.

¶4 Waits appealed in April 2015, as Appeal No. 113,970. On May 26, 2015, while this first appeal was pending Viersen filed a motion in the district court seeking attorney fees, which the district court stayed pending appeal. In July 2015, this Court found that an order deciding if a damages enhancement is available is not an independently appealable order in the absence of a damages judgment. Nor did it become one simply because the underlying damages claim was dismissed. As such, we found no appealable order, and no jurisdiction to hear the first appeal.

¶5 The same month, Waits re-filed his case in the district court as CV-2015-67, in the form of a petition to compel arbitration. This petition was dismissed by the district court in March 2016, and the case journeyed to the appellate courts for a second time. In April 2017, Division I of this Court agreed that, by filing his 2011 petition and litigating the case up to and including the appellate level, Waits had engaged in acts that waived his contractual right to arbitrate.1 At the conclusion of this appeal, the district court then considered Viersen's 2015 request for over $800,000 in fees. In June 2018, the district court issued an order denying Viersen's fee request. Viersen now appeals this denial of fees.

STANDARD OF REVIEW

¶6 When the appeal raises an issue of the reasonableness of an attorney's fee awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. State ex rel. Burk v. Oklahoma City , 1979 OK 115, ¶ 22, 598 P.2d 659. However, the question here, whether a party is entitled to an award of attorney fees and costs, presents a question of law subject to the de novo standard of review. Hastings v. Kelley , 2008 OK CIV APP 36, ¶ 8, 181 P.3d 750.

ANALYSIS

¶7 The question presented here is whether Viersen became a "prevailing party" entitled to fees after Waits' dismissal. Previous case law has indicated that a party becomes a potential "prevailing party" at the time that party receives some form of "affirmative relief." If the suit is later dismissed by the opponent, and the party obtained affirmative relief before the dismissal, he or she may become the prevailing party for fee purposes. The details of this rule are far from well defined, however.

I. THE BASIS OF THE "AFFIRMATIVE RELIEF" OR "SUCCESS" RULE

¶8 In Professional Credit Collections, Inc. v. Smith , 1997 OK 19, 933 P.2d 307, the last Supreme Court decision to fully analyze this question, the Court provides an analysis based on the 1991 version of 12 O.S. § 684, which at the time of Professional Credit , had remained unchanged since 1910, and stated:

A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of the costs and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal shall not prejudice the right of the intervenor or defendant to proceed with the action.

¶9 Analyzing this statute, Professional Credit stated that "The test for an effective cost-escaping § 684 voluntary dismissal does not depend on whether a prevailing party has yet been determined. Instead, the key is whether, before plaintiff's voluntary dismissal, the defendant has requested affirmative relief against the plaintiff." Id. , ¶ 9. The Court went on to note that "Because [plaintiff's] plea for affirmative relief was invoked before her dismissal from the action, there was no impediment to the trial court's post-dismissal consideration of her request for attorney's fees." Id. , ¶ 11. Thereby, Professional Credit held that, although she had not prevailed on the merits of her case, defendant was a prevailing party for fee purposes because she had obtained the "affirmative relief" of vacating a default judgment before the plaintiff dismissed its suit.

II. THE EXTENT OF THE RULE OF PROFESSIONAL CREDIT IS UNCERTAIN

¶10 Professional Credit is an opinion that states at least three bases for its holding, and, to date, had not been positively applied in a prevailing party fee question outside of one factual situation — a dismissal by the plaintiff after a default judgment was vacated. In Professional Credit , a collection agency brought action against a former husband and wife to recover on open account for medical charges incurred by husband. Wife was served by publication, and did not answer. The court awarded a default judgment against wife on an open account claim for a specific sum, which would constitute a final money judgment. Wife later succeeded in vacating this default judgment. The collection agency then voluntarily dismissed the action against wife.2

¶11 Wife sought attorney fees as the "prevailing party" in an action to collect on an open account pursuant to the open account fee statute, 12 O.S. § 936. Both the trial court and the COCA held that the dismissal of the case against her did not make her a prevailing party pursuant to § 936. The Supreme Court reversed, and held the wife was a prevailing party. Professional Credit cites several different rationales for this holding.

A. Reading a Fee Statute "In Conjunction" with the Dismissal Statute, 12 O.S.§ 684

¶12 The holding of Professional Credit mentioned the "affirmative relief" language of the then-current dismissal statute, 12 O.S. 1991 § 684, which stated:

A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. (Emphasis added).

This language was removed in 2013 and the revised version states:

An action may be dismissed by the plaintiff without an order of court by filing a notice of dismissal at any time before pretrial . After the pretrial hearing, an action may only be dismissed by agreement of the parties or by the court. (Emphasis added).

"Costs" are now payable only upon re-filing:

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

¶13 The reference to payment of costs if a case is dismissed after a "prayer for affirmative relief" is filed was noticeably removed by the Legislature in this subsequent version. "Where the meaning of a statute has been the subject of judicial determination, the subsequent amendment thereof reasonably indicates the legislative intention to change the law." Tom P. McDermott, Inc. v. Bennett , 1964 OK 197, ¶ 12, 395 P.2d 566.

¶14 Waits argues that this change in the statutory language removed the foundations of Professional Credit . If this was the sole language relied on by Professional Credit , the legislature likely intended to change that decision. Professional Credit cited, however, at least two bases for its decision that are independent of § 684. If the statutory change has any significance, it is that praying for affirmative relief, as opposed to obtaining affirmative relief, is no longer a basis for fees pursuant to Professional Credit. (See Asset Acceptance, LLC v. Smith , 2010 OK CIV APP 26, ¶ 7, 229 P.3d 1287, and Fentem v. Knox , 2013 OK CIV APP 50, ¶ 8, 305 P.3d 1043, both rejecting the theory that a prayer for relief entitles a party to fees under Professional Credit. ) The current case is not based upon praying for affirmative relief, however, but on the granting of relief. The change to § 684 is not, therefore immediately significant.

B. Equal Access and Asymmetric Fees

¶15 Professional Credit's second rationale was that a different result would violate equal access to the courts because it would treat, for attorney's fee purposes, a victorious plaintiff differently from...

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    ...1998 OK 3, n.11, 952 P.2d 41 ("A prevailing party is one in whose favor judgment was rendered.").6 See, e.g. , Waits v. Viersen Oil & Gas Co. , 2020 OK CIV APP 2, 456 P.3d 1149 (survey of appellate decisions citing Professional Credit ); Mill Creek Lumber & Supply Co. v. Bichsel , 2015 OK C......

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