Comanche Nation of Oklahoma v. Coffey, 111720 OKSC, 117267

Docket Nº117267
Opinion JudgeKANE, J.
Party NameCOMANCHE NATION OF OKLAHOMA, a Federally Recognized Indian Tribe, ex rel. COMANCHE NATION TOURISM CENTER, Plaintiff/Appellee, v. WALLACE COFFEY, Defendant/Appellant
AttorneyMichael Salem, Salem Law Offices, Norman, Oklahoma, for Appellant.
Judge PanelCONCUR: Darby, V.C.J., Winchester, Edmondson, Colbert, and Kane, JJ. CONCUR IN RESULT: Rowe, J. DISSENT: Gurich, C.J., Kauger (by separate writing), and Combs (by separate writing), JJ. KAUGER, J., with whom GURICH, C.J., joins, dissenting: COMBS, J., dissenting.
Case DateNovember 17, 2020
CourtSupreme Court of Oklahoma

2020 OK 90

COMANCHE NATION OF OKLAHOMA, a Federally Recognized Indian Tribe, ex rel. COMANCHE NATION TOURISM CENTER, Plaintiff/Appellee,

v.

WALLACE COFFEY, Defendant/Appellant

No. 117267

Supreme Court of Oklahoma

November 17, 2020

UNPUBLISHED OPINION

ON APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, STATE OF OKLAHOMA HONORABLE IRMA NEWBURN, DISTRICT JUDGE

Michael Salem, Salem Law Offices, Norman, Oklahoma, for Appellant.

KANE, J.

¶0 Plaintiff/Appellant Comanche Nation of Oklahoma, a federally recognized Indian Tribe, ex rel. Comanche Nation Tourism Center, filed a lawsuit seeking a declaratory judgment that Defendant/Appellant Wallace Coffey was indebted to it for the amount of the outstanding balance on an open account. The trial court granted Coffey's motion to dismiss for lack of subject matter jurisdiction and dismissed the case with prejudice. Thereafter, Coffey filed an application for prevailing party attorney fees pursuant to 12 O.S.2011 § 936. The trial court denied Coffey's request for attorney fees, finding he was not the prevailing party because he had not prevailed on the merits of the action. Coffey appealed the order denying attorney fees, and this Court retained the appeal. We hold a defendant is not a "prevailing party" within the meaning of 12 O.S. § 936 when the court dismisses the action with prejudice for lack of subject matter jurisdiction. The trial court's order denying Coffey's motion for attorney fees is affirmed.

I. FACTS AND PROCEDURAL HISTORY

¶1 Comanche Nation filed the underlying lawsuit originally seeking a money judgment against Wallace Coffey on October 11, 2016. Comanche Nation alleged Coffey had purchased goods from it on an open account and failed to pay the balance of $18, 415.09. Comanche Nation amended its petition on November 7, 2016, alleging the same facts but seeking a declaratory judgment that Coffey was indebted to it for the amount of the outstanding balance on the open account and that Coffey was obligated to pay Comanche Nation's reasonable expenses for bringing and maintaining the action.

¶2 Coffey entered a special appearance and filed a motion to dismiss for lack of subject matter jurisdiction on February 8, 2017. Coffey argued that at all relevant times he was acting in his official capacity as Chairman of Comanche Nation and was, therefore, entitled to assert the defense of tribal sovereign immunity. 1 The trial court granted Coffey's motion to dismiss on November 16, 2017 and entered a final order dismissing the case with prejudice on February 15, 2018. In its order, the trial court found that all disputed transactions occurred on Tribal trust land. The trial court concluded that Tribal trust land is "Indian country" within the meaning of 18 U.S.C. § 1151 and, therefore, it lacked jurisdiction over a controversy involving Indian parties relating to conduct occurring in Indian country. Comanche Nation did not appeal the final order dismissing the case with prejudice.

¶3 On March 16, 2018, Coffey filed an application for attorney fees pursuant to 12 O.S.2011 § 936. The trial court found Coffey was not entitled to attorney fees, because he "was not a 'prevailing party' upon the merits of the cause of action." The Journal Entry denying Coffey's application for attorney fees was filed on July 26, 2018. 2 Coffey appealed.

¶4 This Court granted Coffey's motion to retain appeal. Comanche Nation has not entered an appearance or filed a Response to the Petition in Error. Therefore, the appeal will be decided without a response or additional record. 3

II. STANDARD OF REVIEW

¶5 This appeal presents issues of statutory construction and whether a party is entitled to attorney fees under 12 O.S. § 936. Both are questions of law. See Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d 841 (statutory construction); Finnell v. Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339 (entitled to attorney fees). Questions of law are reviewed de novo. See Fanning, 2004 OK 7, ¶ 8. Appellate courts have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal rulings. Id.

III. DISCUSSION

A. Jurisdiction to Adjudicate Application for Attorney Fees

¶6 This Court has a duty to inquire into its own jurisdiction and the jurisdiction of the lower court. See Hall v. GEO Group, Inc., 2014 OK 22, ¶ 12, 324 P.3d 399. As an initial matter, we find the trial court had jurisdiction to adjudicate Coffey's application for attorney fees despite its lack of subject matter jurisdiction over the merits of the case. It follows that this Court has jurisdiction to review the trial court's order denying attorney fees.

¶7 Comanche Nation did not appeal from the underlying order sustaining Coffey's dispositive motion and dismissing the case for lack of subject matter jurisdiction, and that stands as the law of the case. The trial court had the inherent authority and duty to adjudicate whether it had jurisdiction over the matter before it. See Dutton v. City of Midwest City, 2015 OK 51, ¶ 15, 353 P.3d 532. Because the trial court had jurisdiction to determine it lacked subject matter jurisdiction and to enter an order dismissing the case, it also had jurisdiction to rule on Coffey's request for prevailing party attorney fees. The trial court's order denying attorney fees was ancillary to the underlying dismissal. Even if the trial court lacks subject matter jurisdiction over the merits of the case, it retains jurisdiction to adjudicate an application for attorney fees and costs. See Brown v. Desert Christian Ctr., 122 Cal.Rptr.3d 590, 594-596 (Cal.Ct.App. 2011) (costs incidental to judgment of dismissal); New v. Dumitrache, 604 S.W.3d 1, 20 (Tenn. 2020) (attorney fees incurred in determining the trial court lacked jurisdiction); see also In re De-Annexation of Certain Real Property from the City of Seminole, 2007 OK 95, ¶¶ 18-22, 177 P.3d 551 (reviewing the correctness of the trial court's order denying attorney fees after holding the trial court lacked subject matter jurisdiction over the merits of the case).

¶8 Applications for attorney fees and costs are routinely filed after a case has been dismissed. The parties have 30 days after the filing of the judgment, decree, or appealable order to file an application for attorney fees and costs. See 12 O.S.Supp.2012 § 696.4 (B); Haggard v. Haggard, 1998 OK 124, ¶ 13, 975 P.2d 439 ("If a party files a motion for new trial following the entry of a judgment, decree, or appealable order, we interpret § 696.4 to mean that the party will have thirty days after the filing of the order disposing of her motion for new trial within which to file her attorneys' fee application."). The February 15, 2018 order dismissing the case for lack of subject matter jurisdiction was an appealable order. Coffey timely filed his application for attorney fees on March 16, 2018. The trial court's prior order dismissing the case for lack of subject matter jurisdiction did not inhibit Coffey's right to request attorney fees or the trial court's power to rule on such a request.

B. Prevailing Party

¶9 Title 12, § 936 provides, in pertinent part:

In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

12 O.S.2011 § 936 (A) (emphasis added). The most obvious prevailing party is the single party for whom judgment is rendered after a trial on the merits. Here, the case was disposed of without a judgment for either party. The trial court dismissed the action with prejudice. The issue on appeal is whether a defendant is the "prevailing party" when the court dismisses the action with prejudice for lack of subject matter jurisdiction.

¶10 Statutes allowing an award of attorney fees are to be strictly construed. See Beard v. Richards, 1991 OK 117, ¶ 12, 820 P.2d 812, 816. The fundamental purpose of statutory construction is to ascertain and give effect to the intent of the Legislature. See In re City of Durant, 2002 OK 52, ¶ 13, 50 P.3d 218. To do this, we first look to the language of the statute. Id. If the statutory language is clear and unambiguous, this Court must apply the plain and ordinary meaning of the words. Id. Only when the legislative intent cannot be determined from the statutory language due to ambiguity or conflict should rules of statutory construction be employed. See Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882.

¶11 We are guided by our prior decisions construing "prevailing party," as used in various attorney fees statutes. Carter v. Rebrecht, 1940 OK 500, 108 P.2d 546, involved the then-effective usury statute. In an action to recover the penalty for usury, the prevailing party was entitled to a reasonable attorney fee. See 15 O.S.1931 § 268. This Court found the defendant was not the prevailing party where the plaintiff dismissed the action without prejudice before trial. See Carter, 1940 OK 500, ¶ 13, 108 P.2d at 548. In doing so, we defined "prevailing party" as the party who prevails on the merits as determined by final judgment: [T]he court has regarded as the prevailing party, the party who prevailed on the merits, and has regarded as the losing party, and the party subject to the additional penalty of an attorney's fee for his adversary, the party who lost upon the merits. That is, it appears to have been the policy to tax the attorney's fee only in those cases where the other party was determined by final...

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