Stump v. Cheek , 2007 Okla. LEXIS 126 ( 2007 )

WATT, J.

concurring in part and dissenting in part:

¶ 1 I agree with the majority that the Nonjudieial Marketable Title Procedures Act (the Act), 12 O.S.2001 § 1141.1 et seq., allows the prevailing party complying with the act to recover attorney fees, costs and expenses when the clouded title results from a judgment. Nevertheless, I would remand the matter only to determine the appropriate attorney fees, costs and expense award.

¶ 2 The trial court clearly indicated in its statement, on the record and cited by the majority,¹ that if this Court were to determine a cloud on title could be created by a judgment, an attorney fees award would be entered. Furthermore, the trial court deleted a statement from its order regarding the lack of compliance with the procedural steps,² clearly indicating that the matter was no longer at issue. Therefore, rather than remanding for a re-examination of the heretofore resolved procedural issues, I would remand only for a determination of the appropriate attorney fees award.

1 .Footnote # 22 of the majority opinion providing:

"The Honorable Robert G. Haney, Transcript of the Motion Hearing held June 7th, 2006, p. [sic] 3-5 provides in pertinent part:

... My order in this particular case was I denied your motion for attorney fees based upon the fact that that statute says on any claim other than based on a judgment then you can get fees, but if it’s based on a judgment, you can't get fees. And what I ruled was, was you can't get fees because your claim was based upon the judgment.... And it’s simply, if the Court of Appeals or the Supreme Court, whichever one ends up with it, if they agree with your position and reverse it and send it back, then you're entitled to your attorney fees....” [Emphasis provided.]

2 .Footnote # 23 providing:

"Order Denying Plaintiff's Application for Attorney Fees, Costs, and Expenses, Record, p. 277. In fact, the trial court struck the following language from the proposed order:

... 2. The plaintiff failed to comply with the procedural requirements of the statute.

3.The proposed curative document that was tendered prior to the filing of suit varied from the relief ultimately granted....”