I.C. Gas Amcana, Inc. v. Hood , 63 O.B.A.J. 2119 ( 1992 )

SUPPLEMENTAL OPINION ON REHEARING

SUMMERS, Justice:

Petitions for rehearing were filed by both Appellants and Appellees. Appellees’ petition for rehearing is denied. Appellants’ petition for rehearing is granted only for the limited purpose of addressing the question of attorney’s fees.

In light of our decision as to the jury trial issue, we must consider the attorney’s fees awarded by the trial court to Hood as the prevailing party. The attorney’s fees award to Hood were awarded under both the quiet title action and the counterclaims. Amcana is not contesting the title to the deep rights on appeal. Thus, under 12 O.S.1991, § 1141, we find that those attorneys fees attributable to the quiet title action are properly recoverable by Hood. However, those attorneys fees attributable to the counterclaims may not yet be recovered by Hood. Our determination that the claims of fraud entitle Amcana to a jury trial leaves the suit with no prevailing party. The propriety of attorney’s fees recoverable under 12 O.S. 1991 § 936 cannot be decided until there is a prevailing party. Hence, Hood may not recover at this time those attorney’s fees attributable to the counterclaims.

Otherwise Appellants’ Petition for Rehearing is denied.

HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE and WATT, JJ., concur.

KAUGER, J., concurs in result.

ALMA WILSON, J., dissents.