Barby Energy Corp. v. Marlin Oil Corp. , 70 O.B.A.J. 1975 ( 1999 )

OPINION

CARL B. JONES, Chief Judge:

¶ 1 On September 8,1997, the trial court, pursuant to a settlement agreement, gave judgment to Appellant, Barby Energy Corporation. The order stated that Barby should have judgment for costs, exclusive of attorney fees “permitted under 12 O.S. §§ 1106, 928, 942 or any other applicable law, the amount to be determined by the Court.” On November 7, 1997, Barby filed its motion to assess costs. Marlin received Barby’s motion and the same day advised his counsel that the motion was untimely filed.

¶ 2 At hearing on Barby’s motion, Marlin argued strenuously that the costs requested were unwarranted and excessive. However, the main thrust of its objection was that the motion was not filed within thirty days of the judgment and thus was untimely under 12 O.S.1997 Supp. § 696.4(B). That section provides:

If attorney’s fees, costs or interest have not been included in the judgment, decree or appealable order, a party seeking any of these items must file an application with the court clerk along with the proof of service of the application on all affected parties in accordance with Section 2005 of this title. The application must set forth the amount requested and include information which supports that amount. The application must be filed with thirty (30) days after the filing of the judgment, decree or appealable order.

¶ 3 The trial court agreed and denied Barby’s motion. The court stated at the hearing that it found “to recover the costs in the case the application for costs would have to be timely filed and in this case they were not.” Barby appeals.

¶ 4 Barby argues § 696.4(B) is not applicable to his motion in that costs were included in the judgment. He cites Victore Insurance Company v. Foster, 1997 OK CIV APP 23, 940 P.2d 236 in support of his thesis. That case also involved a judgment where costs were included in the judgment but was silent as to the amount. While recognizing § 696.4 was not in effect at the time of the judgment, that court pointed out attorney fees and costs were included in the judgment. Clearly that statement is nothing more than obiter dicta and not ruling case law.

¶ 5 In this action, liability for costs was fixed, (costs were included in the judgment) but the amount remained to be determined. Where liability has been determined but the amount of that liability has not been determined there is no judgment. Illustrative of this principle is the fact that the judgment for costs and fees could not have been executed upon in that undetermined state. A “judgment” is the final determination of the rights of the parties in an action, and must finally determine the rights of the parties and preclude further inquiry into the issues joined by the pleadings, leaving nothing to be done except to carry it into execution. Mabry v. Baird 1950 OK -, 219 P.2d 234, 203 Okla. 212.

¶ 6 For the first time on appeal Marlin calls this Court’s attention to subsection A of § 696.4. That section provides:

A judgment, decree or appealable order may provide for costs, attorney’s fees and interest or any of these items, but it need not include them. The preparation and filing of the judgment, decree or appeal-able order shall not be delayed pending the determination of these items. Such items may be determined by the court if a timely request is made regardless of whether a petition in error has been filed.

¶ 7 Marlin’s argument at the hearing addressed only the 30-day restriction, and correctly so. There was no judgment for costs, and thus subsection (B) directly controls this action. The attorneys fees and costs had not been finally determined, and subsection (B) controls. Hence, the applicant had thirty days to file an application along with proof of service and information supporting the amount sought. The application was clearly out of time, as the trial court held. The trial court did not err in applying the 30 day rule of § 696.4(B) in its decision. Accordingly, the judgment is affirmed.

¶ 8 AFFIRMED.

ADAMS, J., concurs. HANSEN, P.J., dissents with separate opinion.