Cunningham v. Public Service Co. Oklahoma

ALMA WILSON, Justice.

The dispositive issue in this appeal is whether the trial court had jurisdiction to entertain the post-appeal motion for attorney fees, filed before mandate, where the trial court denial of a motion for attorney fees by the party was raised on appeal but not settled by the appellate opinion. We hold that in the unusual posture, narrowly delimited by the proceedings in this case, the trial court had jurisdiction over the post-decisional motion for attorney fees for trial related legal services.

Roger and Gloria Cunningham, plaintiffs/appellees, (Cunninghams) sued Public Service Company and Statewide Service Company, Inc., defendants/appellants, (PSO) to recover for the wrongful destruction of a shade tree from the Cunninghams’ property. The jury returned a verdict in favor of the Cunninghams in the amount of $1,600.00. The Cunninghams moved for an award of attorney fees pursuant to 12 O.S. 1981, § 940. The trial court entered judgment on the jury verdict but denied the motion for attorney fees. The Cunning-hams appealed the denial of attorney fees and PSO cross appealed the jury verdict. In this prior appeal, the Court of Appeals reversed the jury verdict and noted the issue of attorney fees but did not dispose of it. On certiorari, the judgment on the jury verdict was affirmed by memorandum opinion of this Court.¹

Before mandate issued in the prior appeal, the Cunninghams again sought attorney fees pursuant to 12 O.S.1981, § 940 and costs before the trial court. The trial court awarded the Cunninghams attorney fees for trial on the merits in the amount of $1,700.00 and costs in the amount of $311.50 against PSO. PSO appealed the grant of attorney fees. In this second appeal, the Court of Appeals reversed the order awarding attorney fees for want of jurisdiction. Certiorari was previously granted.

Prior to issuance of the mandate in the prior appeal, the Cunninghams could have requested trial related and appeal related attorney fees in this Court.² They did not. The Cunninghams again sought prevailing party attorney fees in the trial court. The power of the trial court or the appellate court, if the case is appealed, to award attorney fees is well recognized. Hamilton v. Telex Corp., 625 P.2d 106, 109 (Okla.1981) and National Educational Life Insurance Co. v. Apache Lanes, Inc., 555 P.2d 600, 602 (Okla.1976). The right to seek statutorily authorized prevailing party attorney fees by motion in a post-decisional stage of appeal before mandate is issued is established. Riffe Petroleum Co. v. Great National Corp., 614 P.2d 576, 581 (Okla.1980). And, for purposes of prevailing party attorney fees, if the case is appealed, the party that has an affirmative judgment at the conclusion of the entire case is the prevailing party. The Company, Inc. v. Trion Energy, 761 P.2d 470, 471-472 (Okla.1988).

Pursuant to 12 O.S.1981, § 940 the prevailing party in an action for tortious injury to property shall be allowed reasonable attorney fees.³ In this case, the Cunning-hams were the prevailing party at the conclusion of the jury trial. At that stage of the proceedings, the Cunninghams were entitled to an award of attorney fees. PSO prevailed before the Court of Appeals, accordingly there was no need to correct the trial court erroneous denial of the Cunning-hams’ motion for § 940 attorney fees. On certiorari from the Court of Appeals, the Cunninghams again became the prevailing party and were entitled to prevailing party attorney fees under 12 O.S.1981, § 940.

The order of the trial court, erroneously denying the Cunninghams’ request for trial related attorney fees, was vulnerable to reversal throughout the pendency of the first appeal in this cause. Its finality was tolled until the issuance of the mandate therein. Cartwright v. Atlas Chemical Industries, Inc. 623 P.2d 606, 610 (Okla.1981). Before finality attached, the second motion for attorney fees was filed in the trial court. The post-appeal motion for attorney fees filed by the Cunninghams in the trial court, prior to mandate, sought reconsideration of their attorney fee request as the prevailing party at the conclusion of the entire case.⁴ Upon consideration of the above authorities and the unusual procedural posture of this case, we conclude that the trial court had jurisdiction over the Cunninghams’ post-decisional motion for trial related attorney fees. The opinion of the Court of Appeals is vacated and the order of the trial court is affirmed.

CERTIORARI PREVIOUSLY GRANTED. OPINION OF THE COURT OF APPEALS VACATED. ORDER OF THE TRIAL COURT AFFIRMED.

HODGES, V.C.J., and HARGRAVE, SUMMERS and WATT, JJ., concur. OPALA, C.J., and LAVENDER, SIMMS and KAUGER, JJ., dissent.

1 . Neither the opinion of the Court of Appeals nor the memorandum opinion by this Court dealt with the attorney fee issue. "The settled-law-of-the-case doctrine operates to bar relit-igation of only those issues that were actually settled by an appellate opinion.” Willis v. Nowata Land and Cattle Co., Inc., 789 P.2d 1282, 1285, note 10 (Okla.1989).

2 . Supreme Court Rules, Rules 31 and 32, 12 O.S.1991, ch. 15, app. 1, and Rules on Practice and Procedure in the Court of Appeals and on Certiorari to That Court, Rule 3.20, 12 O.S.1991, ch. 2, app. 3.

3 .12 O.S.1981, § 940, recodified 12 O.S.1991, § 940, without substantial change, provides: "In any civil action to recover damages for the negligent or willful injury to property ... the prevailing party shall be allowed reasonable attorney's fees”....

4 . The motion to assess attorney fees and costs does not request both trial-related and appeal-related attorney fees. It does include the first appeal within the allegations of the five year litigation process from 1983 through 1987. The dissent states that the trial court awarded trial-related and appeal-related attorney fees. The transcript of the argument on the second motion reveals that the exhibit setting forth the hours of legal services presented to the trial court in support of the first motion was also the exhibit presented in support of the second motion. (Record, p. 241.) The Cunninghams sought attorney fees for 111 hours of service (Record, pp. 195-207) at the rate of $100.00 per hour for a total attorney fee of $11,100.00. More than 80 hours were expended in trial-related services, while only 27.4 of the hours related to post-trial legal services. The trial court awarded the Cunninghams an attorney fee in the amount of $1,700.00, that is, 17 hours of legal services. Inclusion of appeal-related attorney fees within the award cannot be ascertained with any certainty from the record.