Waits v. Viersen Oil & Gas Co., 122019 OKCIL, 117192

Docket Nº:117192
Opinion Judge:P. THOMAS THORNBRUGH, JUDGE
Party Name:ROBERT KIRK WAITS, individually, Plaintiff/Appellee, v. VIERSEN OIL & GAS CO., an Oklahoma corporation, Defendant/Appellant.
Attorney: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
Judge Panel:REIF, S.J. (sitting by designation), and FISCHER, P.J., concur.
Case Date:December 20, 2019
Court:Court of Appeals of Oklahoma
 
FREE EXCERPT

2020 OK CIV APP 2

ROBERT KIRK WAITS, individually, Plaintiff/Appellee,

v.

VIERSEN OIL & GAS CO., an Oklahoma corporation, Defendant/Appellant.

No. 117192

Court of Appeals of Oklahoma, Division II

December 20, 2019

Mandate Issued: 01/15/2020

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DAMAN H. CANTRELL, TRIAL JUDGE

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

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 Vierson. 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...

To continue reading

FREE SIGN UP