ORDER ON REHEARING AND MOTION FOR ATTORNEY'S FEES
Decided: 02/06/2017
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: OK, __ P.3d __
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�0 ORDER ON REHEARING AND MOTION FOR ATTORNEY'S FEES
�1 The City of Norman and the Norman Police Department filed a petition for rehearing. Their petition for rehearing is denied.
�2 The OAB filed a motion for attorney's fees. The motion for attorney's fees is granted in part and denied in part against the City of Norman and the Norman Police Department, and the amount of reasonable attorney's fees shall be determined in the District Court as instructed herein after issuance of the appellate mandate. The motion for appeal-related attorney fees against the District Attorney's Office (D.A.) is conditionally granted in part and denied in part provided the OAB prevails against the D.A. on remand to the District Court in CJ-2014-1360.
�3 Attorney fees may be granted when authorized by contract or statute, or where the fee is an item of damage caused by the wrong itself rather than an item of expense incurred in attempting to secure redress for the wrong.1 A party is statutorily entitled to reasonable attorney's fees by prevailing in a District Court proceeding when enforcing the Open Records Act and seeking declaratory or injunctive relief and access to a record. 51 O.S.2011 � 24A.17(B).2 This section states a prevailing party is entitled to attorney's fees when that party prevails on a particular cause of action and when seeking the statutorily specified remedies.
�4 An appeal is a continuation of the action brought in the trial court,3 and if the right to attorney's fees is granted by statute to a prevailing party in the trial court, then that right is also granted for the prevailing party in the appeal unless specifically restricted by the authorizing statute.4 The authorizing statute, � 24A.17(B), does not restrict a prevailing party's right to attorney's fees incurred in an appeal.
�5 Although the appeal is a continuation of the trial court proceeding, a party's adjudicated right to an attorney's fee must be determined in the court where the fees were incurred.5 An appellate court is statutorily required by 12 O.S. � 696.46 to adjudicate a party's right to appellate attorney's fees, and then direct the trial court to determine the reasonable amount of the fee upon remand.7 However, if a party has prevailed on appeal but not "ultimately prevailed" on the cause of action to which the right for attorney's fee is based, then a conditional award of attorney's fees may be made by the appellate court with the trial court enforcing that conditional award upon that party subsequently prevailing on the cause of action after appellate remand.8
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�6 When prevailing party status is the basis of the right to attorney's fees, we have explained prevailing party status is tied to prevailing on the cause of action which is identified in the authorizing statute. Examples of this principle are found in our opinions explaining opposing parties may both be prevailing parties but on different causes of action in the same case.9 The OAB has ultimately prevailed on its Open Records Act cause of action and the right of the OAB to a copy of the video as a open record is no longer at issue. The OAB is entitled to appeal-related attorney's fees incurred in this appeal. 51 O.S.2011 � 24A.17(B).
�7 The City of Norman and the Norman Police Department object to OAB's motion for attorney's fees, and argue the motion cites two activities by counsel for the OAB which are not related to the appeal in Okla. Sup. Ct. No. 113,973. They object to the motion for appellate attorney's fees including (1) OAB's fees from an extraordinary writ proceeding in Okla. Sup. Ct. No. 114,827, and (2) OAB's fees related to a 2016 Open Record's Act request in the District Court. Their objections are incorrect as to the former, but correct as to the latter.
�8 An award of attorney's fees involves a mixed question of law and fact,10 and this Court determines the right to an attorney's fee. The typical proceeding filed in this Court for a supervisory extraordinary writ is an independent and separate proceeding from the related District Court proceeding when a party seeks to control either the discretion or exercise of jurisdiction by a trial court.11 An original jurisdiction writ case seeks an adjudication on the elements of mandamus or prohibition causes of action, and not an adjudication of the underlying trial court cause of action for which attorney's fees are authorized. Prevailing on a cause of action for which attorney's fees are authorized does not create a right to an attorney's fee in related but separate and independent court proceedings. For example, in Natkin & Co. v. Midwesco, Inc.,12 we explained an attorney's fee awarded in a District Court could not include the fees incurred for services provided in the related federal action between the parties, and we remanded to the District Court for separating the actions for the basis of an attorney's fee award.13 The usual application of these authorities results in the principle that a party is not entitled to attorney's fees for prevailing in an extraordinary writ case before this Court although that party has also prevailed in the District Court involving related subject matter.
�9 It is possible that an application for a remedial extraordinary writ seeking enforcement of appellate rights within an appeal will not be an independent action, but a Rule 1.37 request for relief as part of a pending appeal to provide an opportunity to make that party's appellate remedy effective,14 and a writ may issue when usual appellate review by motion or petition in error is not an effective remedy.15
�10 The OAB's motion for attorney's fees refers to Okla. Sup. Ct. No. 114,827, filed March 22, 2016. After the opinion was issued by the Court of Civil Appeals in No. 113,973, and while this appeal was pending, the District Judge issued an order to correct the appealed Journal Entry, stated therein the video was not part of the court record, and directed the City of Norman to retain custody of the video. Contemporaneous with this order the OAB sent a letter to the trial court clerk with a new Open Records Act request where the OAB was seeking to enforce a right of access to the video it may have gleaned from the pre-certiorari Court of Civil Appeals' opinion. This new 2016 Open Records Act request was filed in CJ-2014-1360, although the Open Records Act cause of action alleged by the OAB in that case had already been merged into judgment16 and appealed one year earlier.
� 11 After the trial court's mid-appeal attempt to change the journal entry, the OAB sought an extraordinary writ in this Court to preserve the video as part of the court record and to continue its 2016 Open Records Act request. The City of Norman supported the judge's decision and argued the video was (1) never part of the trial court record because it was not offered or admitted into evidence, and (2) a trial court record does not include evidentiary materials.17 This Court issued a writ of prohibition to prevent enforcement of the trial court's order, and this Court expressly relied on Rule 1.37 of this Court's Rules for granting relief.18
� 12 The OAB's request for a writ in No. 114,827 included preserving the status quo pending the appeal in No. 113,973, thus protecting any right to the video it would obtain by a favorable appellate opinion in No. 113,973. Trial court orders issued during an appeal and which attempt to alter a litigant's right which is also subject to the appeal most often occur in the context of enforcing or staying a previous trial court order. The Supreme Court's review of such orders typically occurs by a Rule 1.37 motion in the appeal as an ordinary and effective remedy.19 Because the original jurisdiction writ proceeding occurred in this Court for the purpose of preserving a party's right subject to the appeal in No. 113,973, as provided in Rule 1.37, the OAB is entitled to appeal-related attorney's fees for No. 114,827. The District Court shall determine the reasonable fee on remand.
�13 The City of Norman and the Norman Police Department also object to fees based upon the OAB's 2016 Open Records Act request relating to letters from its counsel filed in CJ-2014-1360. We agree with this objection. This Court has explained that a cause of action (or claim for relief) is defined using the transaction, occurrence, or wrongful act.20 The letters of counsel involve alleged wrongful conduct occurring in 2016 concerning access to the video in 2016, i.e., an alleged 2016 cause of action based upon the Open Records Act. The letters are not the CJ-2014-1360 cause of action which was merged into the judgment, and then appealed in 2015 and prevailed upon herein. Unlike the supervisory writ proceeding which challenged the mid-appeal trial court order, the OAB's mid-appeal District Court 2016 Open Records Act request letters are not shown by the record to be seeking relief that is both ancillary to the pending appeal and necessary for protecting rights of the OAB in appeal No. 113,9793. While the writ issued by this Court in No. 114,827 had an effect on both the pending appeal in No. 113,973, and the 2016 trial court litigation, the authority cited in the writ shows its primary purpose was for the pending appeal in No. 113,973. Attorney's fees awarded by the Court herein must be appeal-related to the cause of action merged into judgment and tied to prevailing party status on appeal, and this does not include on the record before us the District Court 2016 efforts by the OAB with an additional Open Records Act request.
�14 The OAB's motion for appeal-related attorney's fees in No. 113,973 is GRANTED against the City of Norman and the Norman Police Department. The OAB's request for appeal-related attorney's fees granted by motion in No. 113,973, to include OAB's attorney's fees in No. 114,827 is GRANTED against the City of Norman and the Norman Police Department. The OAB's request for appeal-related attorney's fees granted by motion in No. 113,973, to include OAB's attorney's fees related to its 2016 filings in the District Court is DENIED as to the City of Norman and the Norman Police Department.
�15 The District Attorney Office for the Twenty-first Judicial District objects to OAB's motion for appeal-related attorney fees because the District Attorney has never had "custody or control" of the video, which is the public record the OAB sought to obtain and make copies. The D.A. asserts it is not the custodian of the public record either in fact or in law. Appeal-related attorney's fees are based upon success in the trial court cause of action. 51 O.S.2011 � 24A.17(B). Our opinion indicates the Norman Police Department (Department) controlled access to the video. When the OAB made an Open Records Act request for a copy of the video on October 30, 2014, the D.A. responded and informed the OAB it did not possess a copy of the video. The video was being held by the City of Norman when the OAB made its Open Records Act request and when the OAB filed its action in the District Court. The cause of action filed by the OAB pursuant to 51 O.S. � 24A.17(B) was for injunctive and declaratory relief and obtaining a copy of the video. The OAB's cause of action was filed in the District Court on November 3, 2014.
�16 In the District Court hearing on the City's motion to dismiss, the D.A. joined the City of Norman's motion, and the trial court did not rule on the D.A.'s defenses asserted in its Answer, e.g., D.A. being an improper party for equitable relief pursuant to the Open Records Act because it did not possess the video. Our opinion on the merits did not adjudicate OAB's cause of action with reference to the D.A.'s defenses raised in its Answer.21 On remand these defenses raised by the D.A. remain pending in the District Court.22 The OAB's cause of action against the City of Norman and the Norman Police Department was completely adjudicated on the legal issue concerning access to the video as a public record, and copying the video, but the OAB's cause of action against the D.A. was not fully adjudicated and an unconditional award of appeal-related attorney's fees is not proper at this time. However, we award conditional appeal-related attorney's fees to the OAB for No. 113, 973 and No. 114,82723 against the D.A. provided the OAB prevails on its action against the D.A. on remand to the District Court.24 This conditional award does not include the 2016 filings in the District Court made by the OAB and for which it seeks fees herein.
�17 The District Court shall, upon proper notice with an adversary hearing, determine the amount of the OAB's reasonable appeal-related attorney's fees in appeal No. 113,973 and the OAB's reasonable attorney's fees related to No. 114,827, which are both hereby granted to the OAB and against the City of Norman and the Norman Police Department. The conditional award of appeal-related attorney's fees herein against the Office of the D.A. must be based upon the OAB ultimately prevailing on its Open Records Act request against the D.A. in CJ-2014-1360 on remand to the District Court.
�18 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 6th DAY OF FEBRUARY, 2017.
�19 CONCUR: GURICH, V.C.J.; KAUGER, WATT, WINCHESTER, EDMONDSON, and REIF, JJ.
�20 CONCUR IN PART and DISSENT IN PART: COMBS, C.J.
�21 DISSENT: COLBERT, J.
/S/VICE CHIEF JUSTICE
FOOTNOTES
1 Eagle Bluff, LLC v. Taylor, 2010 OK 47, �� 15, 16, 237 P.3d 173, 179.
2 51 O.S.2011 � 24A.17(B): "Any person denied access to records of a public body or public official: 1. May bring a civil suit for declarative or injunctive relief, or both, but such civil suit shall be limited to records requested and denied prior to filing of the civil suit; and 2. If successful, shall be entitled to reasonable attorney fees."
3 McGinnity v. Kirk, 2015 OK 73, n. 62, 362 P.3d 186, 205; Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, n. 28, 270 P.3d 113, 122 (rule stated and citing opinions from 1928, 1947, 1993, and 2001).
4 Hamilton v. Telex Corp., 1981 OK 22, 625 P.2d 106, 108-109 (observing the plain meaning of 12 O.S. � 936 would be distorted if only the fees incurred at the trial stage were recoverable and the fees incurred during the appeal were not; and also observing that � 936 had no express limitation for a prevailing party's right to appellate attorney's fees).
5 GRP of Tex., Inc. v. Eateries, Inc., 2001 OK 53, � 6, 27 P.3d 95, 98 ("counsel fees on appeal, like taxable appellate costs, must be authorized by an appellate court in the case in which the services were performed.") quoting Chamberlin v. Chamberlin, 1986 OK 30, � 14, 720 P.2d 721, 728.
6 12 O.S.Supp. 2012 � 696.4 (C), states in part: "The appellate court shall decide whether to award attorney fees for services on appeal, and if fees are awarded, it shall remand the case to the trial court for a determination of their amount."
7 GRP of Tex., Inc. v. Eateries, Inc., 2001 OK 53, � 6, 27 P.3d 95, 98 (12 O.S. � 696.4 requires the appellate court to decide whether to award attorney's fees for services on appeal and remand to the trial court for a determination of the amount; and we noted this statute is consistent with our earlier opinions fee), citing Deloney v. Downey, 1997 OK 102, n. 6, 944 P.2d 312, 320; TISI v. Department of Corrections, 1998 OK 108, �� 18-19, 970 P.2d 166, 172-73.
8 GRP of Tex., Inc. v. Eateries, Inc., 2001 OK 53, � 7, 27 P.3d 95, 98 (explaining a party's designation as the prevailing party on a cause of action may be altered during the course of litigation, and this alteration of status would alter whether awarding attorney's fees was proper since the award would be based upon prevailing party status), citing Thompson v. Independent School Dist. No. 94, Garfield County, 1994 OK 139, 886 P.2d 996, 997-998; and Roofing and Sheet Metal Supply Company of Tulsa, Inc. v. Golzar-Nejad Khalil, Inc., 1996 OK 101, 925 P.2d 55, 60.
9 Tomahawk Resources, Inc. v. Craven, 2005 OK 82, 130 P.3d 222 (Tomahawk was prevailing party on foreclosure of its mechanic's lien and the opposing parties, the Cravens, were prevailing parties on their breach of contract counterclaim); Midwest Livestock Systems, Inc. v. Lashley, 1998 OK 68, 967 P.2d 1197 (opposing parties were entitled to recover their attorney fees from each other where one prevailed on foreclosure of a mechanic's lien and the other on a breach of contract claim). Cf. Keel v. Wright, 1995 OK 18, 890 P.2d 1351, 1354 ("Plaintiff's right to the fee did not come into being until prevailing party status was created upon adjudication of the underlying cause of action.").
10 See, e.g., Robert L. Wheeler , Inc. v. Scott, 1991 OK 95, 818 P.2d 475, 480-481 (discussion of mixed question of law and fact, and then identifying the authority for awarding the fee as deciding a question of law).
11 Christian v. Gray, 2003 OK 10, n. 12, 65 P.3d 591, 600.
14 12 O. S. Supp. 2013 Ch. 15, App. 1, Oklahoma Supreme Court Rules, Okla. Sup. Ct. Rule 1.37 (c) "Remedial Writs within an Appeal. All applicants to the Supreme Court seeking relief in the form of remedial or extraordinary writs pursuant to the court's appellate jurisdiction shall conform to Rule 1.191." (Emphasis added).
Cf. Reeds v. Walker, 2006 OK 43, 157 P.3d 100 (after appeal was commenced a party sought extraordinary relief to prevent enforcement of a judgment pending appeal, the Court assumed original jurisdiction in a consolidated appeal and denied a writ of mandamus, but did not discuss the alleged inadequacy of the usual remedies involving enforcement of judgments).
15 Orders ancillary to the judgment on appeal will be reviewed by motion in the appellate court or by petition in error. Okla. Sup .Ct. R. 1.37(b):
Review of Trial Court's Rulings Pending Appeal. Except as provided in Subdivision (a)(3) & (10), review of the trial court's ruling upon any of the matters set forth in part (a) of this Rule shall be by motion filed in the Supreme Court which shall be entertained in the principal appeal. However, a petition in error or amended petition in error shall be filed in the Supreme Court to seek review of the trial court's ruling when statute or the Rules of the Supreme Court require review of the trial court's ruling by a petition or amended petition in error. See, e.g., Rule 1.36(k). When review of a trial court's ruling is sought by motion, it must be filed in the Supreme Court within thirty (30) days of the date the trial court's ruling is filed in the trial court.
See also Tate v. Tate, 1996 OK 17, 912 P.2d 320, 321-322 (during an appeal involving an interspousal contest the trial court possesses jurisdiction to make temporary adjustments of the parties' rights by orders reviewed by motion in the appeal).
Extraordinary writs are remedies based upon the ineffectiveness of the usual and ordinary remedies. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1, 2 (an extraordinary writ of prohibition cannot be used in place of the usual and ordinary remedies); Maree v. Neuwirth, 2016 OK 62, � 6, 374 P.3d 750, 752 (an element of mandamus is the absence of a plain and adequate remedy in the ordinary course of the law).
16 McGinnity v. Kirk, 2015 OK 73, n. 27, 362 P.3d 186, 194 (A cause of action is merged into the judgment, and the cause of action then ceases to exist.).
17 Response of City of Norman and Norman Police Department, Okla. Sup. Ct. No. 114,827, filed April 7, 2016, at p.1, and relying on Schetrompf v. Hines, 1925 OK 326, 235 P. 603, 604, ands 12 O.S. � 32.1.
18 Order, Okla. Sup. Ct. No. 114,827, May 9, 2016.
19 Rule 1.37 (a) (4): "(a) Trial Court Jurisdiction. After a petition-in-error has been filed, the trial court retains jurisdiction in the case for the following purposes: . . . (4) To decide motions in regard to staying the enforcement of judgments, decrees or final orders or of interlocutory orders appealable by right, whether subject to stay of enforcement as a matter of statutory right, or subject to a discretionary stay order."
Rule 1.37(b) at note 15 supra.
20 Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, n. 3, 87 P.3d 598, 601, citing Retherford v. Halliburton Company, 1977 OK 178, � 11, 572 P.2d 966, 968-969; Chandler v. Denton, 1987 OK 38, � 13, n. 20, 741 P.2d 855, 863-864; Resolution Trust Corp. v. Greer, 1995 OK 126, � 11, n. 5, 911 P.2d 257, 260; Greenberg v. Wolfberg, 1994 OK 147, n. 42, 890 P.2d 895.
21 See 2016 OK 119, note 2, where we explained issues concerning defenses raised by the D.A. were not before the Court.
22 McGinnity v. Kirk, 2015 OK 73, n. 30, 362 P.3d 186, 195.
23 The D.A. participated in No. 114,827, and objected to issuance of the writ.
24 GRP of Tex., Inc. v. Eateries, Inc., 2001 OK 53, 27 P.3d 95.
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