JOHN F. FISCHER, PRESIDING JUDGE:
¶1 Plaintiff/Appellant Austin Place, L.L.C. appeals the decision of the
district court awarding Defendants/Appellees Greg Marts, Earlene Marts a/k/a
Will Earlene Marts, Donald Willeford and Debbie Willeford attorney fees in
relation to Austin Place's forcible entry and detainer action. We reverse
finding that Defendants were not the prevailing parties on the forcible entry
and detainer action and the district court possessed no jurisdiction to award
attorney fees to the Defendants upon a claim that had been voluntarily
dismissed.
BACKGROUND
¶2 Plaintiff/Appellant Austin Place, L.L.C. (Austin Place) is the owner of a
subdivision known as Castaway Cove in Pittsburg County, Oklahoma. In the
District Court of Pittsburg County case number CV-10-105, Austin Place filed a
forcible entry and detainer action against Defendants/Appellees Greg Marts,
Earlene Marts a/k/a Will Earlene Marts, Donald Willeford and Debbie Willeford
(collectively Defendants) in relation to certain alleged unlawful encroachments
by the Defendants upon one of the roads in the subdivision known as Navajo
Trail.1 Austin
Place sought an order restraining the Defendants from interfering with its
surveyor hired to survey the portion of the subdivision at issue to determine
the amount of the Defendants' encroachments. Austin Place further requested that
the court award it possession of the portions of Navajo Trail unlawfully
encroached upon by the Defendants, and enjoin and restrain the Defendants from
interfering with its ownership and possession of such property.
¶3 In their Answer, the Defendants asserted that Austin Place's forcible
entry and detainer action was barred by the two-year statute of limitations, and
any remaining claims were barred by waiver and laches. The Defendants also
asserted a counterclaim against Austin Place. First, the Defendants sought an
easement implied from prior use upon all of the roads in Castaway Cove,
including but not limited to, Navajo Trail, Cheyenne, and Blackfoot Trail. The
Defendants alleged that they had relied upon the existence of the roads in
Castaway Cove when they purchased their lots, and they had maintained such roads
for several years. In the alternative, the Defendants sought possession of the
property by adverse possession and easements by way of prescription. Second, the
Defendants sought an injunction to prevent Austin Place from interfering with
their use and maintenance of such roads, including Navajo Trail. The Defendants
filed a Motion for Partial Summary Judgment on their claim for an easement
implied from prior use across all roads in Castaway Cove, including Navajo
Trail, Cheyenne and Blackfoot Trail in accordance with the unrecorded plat of
Castaway Cove. The district court granted the Defendants' motion and awarded
them the requested easement.
¶4 The Defendants then filed an Amended Answer and Counterclaims asserting a
cause of action against Third Party Defendants Daniel and Candace Barney (the
Barneys), owners of lots in Castaway Cove and the managers of Austin Place, for
alleged encroachments by the Barneys upon the Defendants' easements across
Cheyenne Trail. The Defendants sought an injunction against the Barneys to
prevent any interference with the Defendants' right to use and enjoy the roads
of Castaway Cove and to require the Barneys to remove such encroachments. The
Barneys denied the Defendants' allegations.
¶5 Austin Place filed an Amended Petition which recognized the easement
granted to the Defendants by the district court's partial summary judgment
order. As part of its forcible entry and detainer action, Austin Place claimed
the Defendants were unlawfully encroaching upon the road easements, and
requested that the Defendants be required to remove all such encroachments and
obstacles. Austin Place sought an injunction from the district court preventing
the Defendants from utilizing the easements for any purpose other than vehicular
ingress and egress. In its Answer to the Defendants' request for an injunction,
Austin Place agreed that the Defendants should be permitted and required to
maintain the roads of Castaway Cove and requested the district court establish
the standards of maintenance for the same.
¶6 Following the pretrial conference, the district court approved the
pretrial order and ordered the parties to submit briefs on the issue of the
statute of limitations. At the hearing on the issue of the statute of
limitations, counsel for Austin Place admitted that all but one of the
encroachments complained about had been in place longer than two years. However,
the district court allowed Austin Place to file a motion to amend its petition
in accordance with the changed positions of the parties following the order
granting the Defendants a permanent easement. As to the statute of limitations
issue, the district court stated: "I've found that the statute of limitations
applies to any alleged encroachments that were in existence more than two years
prior to the filing of this action, as to the forcible entry and detainer
claim." (Pittsburg County Case Number CV-10-105, Transcript of Proceedings,
December 16, 2011, p. 10). In its corresponding minute order, the district court
ruled: "The Court finds that as to Plaintiff's Forcible Entry and Detainer cause
of action, the statute of limitation is applicable regarding any alleged
encroachments existing more than two years prior to the filing of this action."
(Pittsburg County Case Number CV-10-105, Minute Order (Summary), December 16,
2011, R. 254).
¶7 Austin Place filed a motion to amend its Petition and vacate the pretrial
order asserting a theory of recovery based on ejectment and also seeking an
injunction. Austin Place sought to vacate the existing pretrial order so that a
new pretrial order could be entered consistent with its amended petition. The
Defendants objected and following a hearing on the matter, the district court
denied Austin Place's motion to amend and motion to vacate. Austin Place
subsequently dismissed its forcible entry and detainer claim in Pittsburg County
case number CV-10-105 without prejudice leaving the Defendants' counterclaims
the only claims pending in that case. Following the dismissal, the Defendants
filed a Motion for Attorney Fees contending they were the prevailing parties as
to the forcible entry and detainer cause of action. The district court denied
the Defendants' motion without prejudice.
¶8 Austin Place filed a second Petition against the Defendants in the
District Court of Pittsburg County, case number CV-12-25, the same day it
dismissed case number CV-10-105 seeking a permanent injunction to prohibit the
Defendants from obstructing the streets of Castaway Cove and all activity upon
such roads other than ingress or egress but not reasserting forcible and
detainer. The Defendants sought dismissal of Pittsburg County case number
CV-12-25 on the grounds that the same issues were being litigated in CV-10-105
and Austin Place's claim was barred by claim preclusion. The district court
denied the motion to dismiss. By agreement of the parties, the district court
then consolidated cases CV-10-105 and CV-12-25. A non-jury trial was conducted
after which the district court ordered the parties to submit additional
authority on the issue of co-tenancy in relation to the defense raised by Austin
Place to Defendants' theory of recovery based on adverse possession. Austin
Place argued that the parties were co-tenants in the use and enjoyment of the
streets of Castaway Cove, and because no ouster had occurred the Defendants'
possession of the encroachments could not be adverse. The district court found
in favor of the Defendants and against Austin Place on the basis of adverse
possession, laches and waiver.
¶9 Following the district court's ruling, the Defendants' reurged their
motion for attorney fees as the prevailing parties on Austin Place's forcible
entry and detainer claim in case number CV-10-105. Following a hearing on the
matter, the district court granted the Defendants' motion for attorney fees
finding:
1. Before consolidation with this case, the Defendants were the
prevailing parties, pursuant to 12 Okl.St.Ann. § 1148.9, in the action for
forcible entry and detainer filed by the Plaintiff in Pittsburg County Case,
case number CV-2010-105.
2. That the Defendants prevailed in Pittsburg County Case, case number
CV-2010-105, based on the Defendants' affirmative defense that the statute
of limitations had expired on the forcible entry and detainer claim set
forth in Plaintiff's Petition in CV-2010-105.
(Pittsburg County Case Number CV-12-25, Order Granting Defendants'
Application for Attorney Fees, R. 158). It is from the order granting the
Defendants' attorney fees that Austin Place instituted the present appeal.
STANDARD OF REVIEW
¶10 Whether a party is entitled to an attorney fee pursuant to a statute is a
question of law, reviewed de novo. Boston Ave. Mgmt., Inc. v. Associated
Res., Inc., 2007 OK 5, ¶ 10,
152 P.3d 880, 884-885. See
also, Finnell v. Jebco Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. De novo
review requires a non-deferential, plenary and independent review of the
trial court's legal rulings. Id.
ANALYSIS
¶11 On appeal, Austin Place contends the district court erred in awarding the
Defendants attorney fees, because the Defendants were not the prevailing party
on its forcible entry and detainer action. Austin Place argues that factual
questions remained following the district court's ruling upon the statute of
limitations in case number CV-10-105 regarding whether each of the alleged
encroachments existed and if so, when the encroachments first occurred. Austin
Place claims that because no determination was made by the district court
regarding such issues prior to Austin Place's dismissal of the forcible entry
and detainer claim, no party prevailed upon such claim.
¶12 Title 12 O.S.2011 § 1148.9
provides that in forcible entry and detainer actions "A reasonable attorney fee
shall be allowed by the court to the prevailing party." The Oklahoma Supreme
Court has declared that "Statutes authorizing the award of attorney's fees must
be strictly construed, and exceptions to the American Rule are carved out with
great caution because liberality of attorney's fees awards against the
non-prevailing party have a chilling effect on open access to the courts."
Eagle Bluff, L.L.C. v. Taylor, 2010 OK 47, ¶ 16, 237 P.3d 173, 179.
¶13 "'Prevailing party,' as a non-legal term, ordinarily means the stronger
party or the victorious party. Coinciding with its ordinary meaning, 'prevailing
party,' as a legal term of art, means the successful party who has been awarded
some relief on the merits of his or her claim." Sooner Builders & Inv.,
Inc. v. Nolan Hatcher Constr. Serv., L.L.C., 2007 OK 50, ¶ 17, 164 P.3d 1063, 1069. See also,
Professional Credit Collections, Inc. v. Smith, 1997 OK 19, ¶ 12, 933 P.2d 307, 311 ("The definition
of a prevailing party cannot narrowly be confined to one who obtains judgment
after a trial on the merits. The operative factor under § 936 is success, not
the particular stage at which success is achieved").
¶14 The Oklahoma Supreme Court stated in General Motors Acceptance Corp.
v. Carpenter, 1978 OK 39, 576 P.2d 1166 that: "Our decisions
in cases defining 'prevailing party' hold that a prevailing party is one who
finally prevails upon the merits. In this case, defendant in trial court had not
prevailed prior to dismissal." Id. ¶ 7, 576 P.2d at 1168. The Supreme
Court found in Underwriters at Lloyd's of London v. North Am. Van Lines,
1992 OK 48, 829 P.2d 978: "The essence of the
question involves whether a defense, though successful in limiting plaintiff's
damages, but not resulting in a judgment for the defendant, entitles the
defendant to prevailing party status under 12 O.S.1981 § 940. Under the facts
submitted, we answer in the negative." Id. ¶ 11, 829 P.2d at 981.
¶15 Title 12 O.S.2011 §
696.2(D) defines a judgment, decree or appealable order as follows: "The
following shall not constitute a judgment, decree or appealable order: A minute
entry; verdict; informal statement of the proceedings and relief awarded,
including, but not limited to, a letter to a party or parties indicating the
ruling or instructions for preparing the judgment, decree or appealable order."
In the present action, the district court did not enter a judgment on behalf of
the Defendants on Austin Place's forcible entry and detainer claim as set forth
in § 696.2(D).
¶16 At the hearing in case number CV-10-105 concerning the statute of
limitations, Austin Place conceded that only one encroachment had been in
existence for less than two years. No evidence was presented at the hearing
concerning the dates for the installation of any of the encroachments. The
district court stated on the record its finding that the two-year statute of
limitations was applicable to any encroachments in existence longer than two
years. The district court entered a minute order reflecting such finding. The
district court considered no evidence and made no findings at the hearing as to
which of the encroachments the statute of limitations would apply. Following the
district court's denial of its motion to amend, Austin Place dismissed its claim
for forcible entry and detainer.2
¶17 Following the entry of judgment in Defendants' favor in the consolidated
cases after the non-jury trial, the district court granted attorney fees to the
Defendants finding:
1. Before consolidation with this case, the Defendants were the
prevailing parties, pursuant to 12 Okl.St.Ann. § 1148.9, in the action for
forcible entry and detainer filed by the Plaintiff in Pittsburg County Case,
case number CV-2010-105.
2. That the Defendants prevailed in Pittsburg County Case, case number
CV-2010-105, based on the Defendants' affirmative defense that the statute
of limitations had expired on the forcible entry and detainer claim set
forth in Plaintiff's Petition in CV-2010-105.
(Pittsburg County Case Number CV-12-25, Order Granting Defendants'
Application for Attorney Fees, R. 158). However, at no time did the district
court in case number CV-10-105 enter an order finding that any of the alleged
encroachments were barred by the statute of limitations. Furthermore, the
district court did not enter final judgment on behalf of the Defendants on
Austin Place's forcible entry and detainer claim as set forth in 12 O.S.2011 § 696.2(D), nor did the
district court grant the Defendants any affirmative relief. Instead, Austin
Place dismissed its forcible entry and detainer claim, with no objection by the
Defendants. As such, the district court's subsequent finding that the Defendants
were the prevailing parties upon Austin Place's forcible entry and detainer
claim is unsupported by the record. Because no judgment was entered and no
affirmative relief granted by the district court in favor of the Defendants upon
Austin Place's forcible entry and detainer claim, the Defendants were not the
prevailing party as to that claim. Accordingly, the district court's award of
attorney fees to the Defendants upon Austin Place's forcible entry and detainer
claim in accordance with 12 O.S.2011
§ 1148.9 is hereby reversed.
¶18 Because we find the Defendants were not entitled to attorney fees
pursuant to 12 O.S.2011 § 1148.9
in the district court, the Defendants' motion for attorney fees on appeal is
denied.
CONCLUSION
¶19 We find that no judgment was entered nor any affirmative relief granted
by the district court in accordance with 12 O.S.2011 § 696.2(D) in favor of
the Defendants upon Austin Place's forcible entry and detainer claim in case
number CV-10-105 prior to Austin Place's dismissal of such claim. As such, the
Defendants were not the prevailing party upon the forcible entry and detainer
claim, thus the district court's subsequent award of attorney fees to the
Defendants pursuant to 12 O.S.2011 §
1148.9 is reversed. Because we find the Defendants were not entitled to
attorney fees pursuant to 12 O.S.2011
§ 1148.9 in the district court, the Defendants' motion for appeal related
attorney fees is denied.
RAPP, J., and THORNBRUGH, J., concur.