JANE P. WISEMAN, PRESIDING JUDGE:
¶1 Mike Alexander Company, Inc. (MACI), appeals a trial court order denying
its request for attorney fees. The issue on appeal is whether the trial court
erred as a matter of law in its order. After review of the record, we find no
error and affirm the trial court's order.
FACTS AND PROCEDURAL BACKGROUND
¶2 In its petition against defendants Ronnie L. Bichsel d/b/a Bichsel
Construction and MACI, Mill Creek Lumber & Supply (Mill Creek) alleged that
Bichsel entered into an open account relationship with Mill Creek for Bichsel to
buy building materials from Mill Creek on credit and to pay Mill Creek according
to its invoice terms. Mill Creek's lawsuit claims that in June 2009, Bichsel
acquired materials for which it owes $12,172.52 in past due charges. Mill Creek
seeks to recover on claims for open account, foreclosure of a materialmen's
lien, foreclosure of a personal property lien, and declaratory judgment. The
materialmen's lien attached to the petition shows that Mill Creek filed the lien
on September 2, 2009, and materials worth $12,172.52 were used to construct a
boat dock on property owned by MACI in Delaware County. On January 21, 2011,
Mill Creek dismissed without prejudice its claim against Bichsel for foreclosure
of the personal property lien.
¶3 MACI filed an answer and asserted the following affirmative defenses: (1)
a materialmen's lien could not attach to the property because the boat dock is a
floating dock attached to the property only by bolts and chains, (2) the
materials for the dock were not delivered on the date on the invoice and the
materialmen's lien was not timely filed, (3) Mill Creek failed to timely serve
the pre-lien notice, and (4) the personal property lien was also not timely
filed. MACI asserted a cross-claim against Bichsel for breach of contract.
¶4 On March 2, 2011, MACI filed a request for pretrial conference which the
court set for early August 2011. Mill Creek filed an amended petition on June 1,
2011, asserting claims for an open account and "foreclosure of bond to discharge
mechanic's lien." On this second claim, Mill Creek alleged that it had a valid
and enforceable mechanic's or materialmen's lien, MACI discharged the lien from
the property by posting a lien discharge bond, and "Mill Creek is entitled to
judgment in rem against the Discharge Bond in the sum of $12,172.52, plus
attorney's fees, costs, and interest." Mill Creek stated that MACI, as principal
on the discharge bond, and American Safety Casualty Insurance Co., as surety on
the discharge bond, should appear and establish their positions with respect to
Mill Creek's claims. American Safety filed an answer and asserted affirmative
defenses similar to those asserted by MACI and also filed a cross-claim against
Bichsel.
¶5 The pretrial conference was passed to January 2012. Mill Creek filed a
motion for partial summary judgment on the issue of the enforceability of the
lien, and MACI also filed a motion for partial summary judgment on the issue of
whether the materialmen's or mechanic's lien attached to its property. The trial
court denied both motions for summary judgment stating "there are fact[] issues
concerning lien enforceability which must be resolved by a fact finder as to
whether the boat dock at issue constitutes a fixture to the land."
¶6 MACI filed a demand for jury trial, and Mill Creek filed a request to set
the case for non-jury trial. After Mill Creek sought and received permission to
file a second amended petition, Mill Creek filed its second amended petition
against MACI and American Surety, claiming that it entered into an open account
with Bichsel, Bichsel acquired materials from it to build a boat dock for MACI,
Bichsel failed to pay for $12,172.52 in materials, and Mill Creek had pursued
its open account action against Bichsel. Mill Creek further alleged Bichsel had
filed a Chapter 7 bankruptcy case on January 6, 2012, in the Eastern District of
Oklahoma, which stayed Mill Creek's prosecution of its open account action
against Bichsel. Mill Creek filed an adversary proceeding against Bichsel,
obtained a nondischargeable judgment against Bichsel for $12,172.52, and then
reached a settlement pursuant to which Bichsel paid Mill Creek $3,000.
¶7 Mill Creek sought foreclosure of the bond to discharge a mechanic's lien
alleging that the mechanic's or materialmen's lien remains valid and enforceable
as to the unpaid balance of $9,172.52. Mill Creek sought this sum plus attorney
fees, costs, and interest and asked that both MACI and American Surety appear
regarding its claims.
¶8 MACI objected to Mill Creek's request for non-jury trial. Both MACI and
American Surety filed answers to the second amended petition. An August 1, 2012,
order indicates the case was passed to the spring jury docket by agreement.
According to a January 15, 2013 order, the parties agreed to pass the pretrial
to the next pretrial docket.
¶9 On February 19, 2013, Mill Creek filed a dismissal with prejudice. MACI
then filed an application for attorney fees asserting that "Mill Creek's
decision to file a dismissal with prejudice should be considered a concession
that their case was without merit." MACI sought attorney fees pursuant to 42 O.S.2011 § 176, which provides,
"In an action brought to enforce any lien the party for whom judgment is
rendered shall be entitled to recover a reasonable attorney's fee, to be fixed
by the court, which shall be taxed as costs in the action." MACI also sought
prevailing party attorney fees pursuant to 12 O.S.2011 § 936 asserting Mill
Creek's action was one for an open account. MACI also sought costs pursuant to
12 O.S.2011 § 930, which
provides, "In other actions, the court may award and tax costs, and apportion
the same between the parties on the same or adverse sides, as in its discretion
it may think right and equitable." The affidavit as to attorney fees and costs
reflects the amounts of $46,645.25 in attorney fees and $1,390.26 in costs.1
¶10 In response, Mill Creek asserts that (1) it never conceded its position
that the lien was valid and enforceable, (2) 12 O.S.2011 § 936 is inapplicable
because the open account claim against Bichsel was dismissed as a result of
Bichsel's bankruptcy, (3) no judgment has been rendered in MACI's favor as
required by 42 O.S.2011 § 176,
and (4) Mill Creek had a statutory right to dismiss the case without liability
for attorney fees pursuant to 12
O.S. § 684.
¶11 After a hearing on the issue of attorney fees, the trial court denied
MACI's application on the ground that "42 O.S. § 176 requires that judgment
be rendered for a party in a lien claim case in order for that party to be
entitled to a reasonable attorney fee. In such a lien action, actual judgment
must be rendered to entitle anyone to an attorney fee. Swan-Sigler v.
Black, [1966 OK 90, 414 P.2d 300]." The court also found
that 12 O.S.2011 § 936 does not
apply because the open account transactions were between Bichsel and Mill Creek.
The court concluded MACI "is also not entitled to costs based on 12 O.S. § 930
as § 928 is the appropriate statute in this case and only allows costs for a
plaintiff who obtained judgment." MACI appeals from the trial court's order
denying its application for attorney fees.
STANDARD OF REVIEW
¶12 The question of a party's entitlement to attorney fees is a question of
law, which we review de novo. See Finnell v. Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339.
ANALYSIS
¶13 MACI asserts in its brief in chief that it is entitled to recover
attorney fees pursuant to 42 O.S.2011
§ 176, 12 O.S.2011 § 929, or
12 O.S.2011 § 936. We will
discuss MACI's argument regarding 42
O.S.2011 § 176 and 12 O.S.2011 §
936 in turn, but we must first note that we are unable to consider its
arguments regarding 12 O.S.2011 §
929 because, as Mill Creek points out in its answer brief, MACI did not
present this argument to the trial court. "Where not properly presented in the
trial proceedings . . . issues not properly presented to the trial court cannot
be considered by this Court on appeal." Oklahoma Dep't of Sec. ex rel. Faught
v. Wilcox, 2011 OK 82, ¶ 17,
267 P.3d 106. Even if this Court
could review this argument, 12
O.S.2011 § 929 does not support MACI's quest for attorney fees. Section 929
provides, "Costs shall be allowed of course to any defendant, upon a judgment in
his favor in the actions mentioned in the last section." 12 O.S.2011 § 929. Clearly, this
statute addresses costs, not attorney fees, and therefore would not support an
attorney fee award in favor of MACI.
¶14 MACI asserts § 176 provides a basis for the award of attorney fees in its
favor. As quoted above, § 176 provides, "In an action brought to enforce any
lien the party for whom judgment is rendered shall be entitled to recover a
reasonable attorney's fee, to be fixed by the court, which shall be taxed as
costs in the action." It asserts the "voluntary dismissal with prejudice
is equivalent to a judgment on the merits in [MACI's] favor, and [MACI] is
therefore entitled to an award of attorney's fees under either § 176 or §
929."
¶15 In support of its decision, the trial court cited Swan-Sigler v.
Black, 1966 OK 90, 414 P.2d 300, which also involved an
action for foreclosure of a materialmen's lien and a request for attorney fees
pursuant to 42 O.S.1961 § 176.
Section 176 has remain unchanged since it was enacted in 1910, so the version of
§ 176 in effect at the time Swan-Sigler was decided remains in effect
today. In Swan-Sigler, the plaintiff voluntarily dismissed an action to
foreclose a materialmen's lien. Id. ¶ 2. The trial court awarded attorney
fees to the defendants. Id. The Supreme Court reversed the decision of
the trial court. Id. ¶ 11. The Court held that pursuant to § 176, "no
attorney's fee may be allowed the attorney for the defendant unless the final
judgment be against the lien claim." Id. ¶ 0. The defendants asserted
they were the prevailing party after the plaintiff dismissed its lawsuit and
argued they were entitled to attorney fees pursuant to § 176. Id. ¶ 6.
The defendants also claimed they were the prevailing party pursuant to 12 O.S.1961 § 684, which then
provided in part, according to the Court: "'A plaintiff may, on the payment of
costs and without an order of court, dismiss any civil action brought by him at
any time before a petition of intervention or answer praying for affirmative
relief against him is filed in the action.'" Id. ¶ 4. The Court held that
the defendants were not a prevailing party entitled to attorney fees. The Court
stated:
In a lien foreclosure case, the defendants' prayer in their answer that
the plaintiff's petition be denied and that said defendants be allowed an
attorney fee pursuant to 42 O.S.
1961, Sec. 176, does not constitute prayer for affirmative relief within
the meaning of 12 O.S. 1961,
Sec. 684, so as to survive the dismissal of said cause by the
plaintiff.
Id. ¶ 0.
¶16 On appeal, MACI asserts "Swan-Sigler does not indicate whether or
not the dismissal was with or without prejudice, but 'unless otherwise stated in
the notice of dismissal or stipulation, [a] dismissal is without prejudice.'
Okla. Stat. tit. 12, § 684." MACI asserts the fact that Mill Creek's dismissal
was with prejudice renders Swan-Sigler inapplicable. We disagree.
¶17 In Swan-Sigler, the Court examined whether the defendants were a
prevailing party within the meaning of § 684. MACI asserts that "authority in
Oklahoma and in other jurisdictions clearly establishes that a dismissal with
prejudice is the practical equivalent to a judgment on the merits in other
contexts." We conclude the key in this case is not whether the dismissal is with
or without prejudice. Instead, we must read 42 O.S.2011 § 176 in conjunction
with 12 O.S.2011 § 684 to
determine whether MACI is entitled to an attorney fee award pursuant to § 176 as
the Court did in the Swan-Sigler decision.
¶18 In Professional Credit Collections, Inc. v. Smith, 1997 OK 19, 933 P.2d 307, a case relied on by
MACI in its argument regarding § 936, the Oklahoma Supreme Court framed the
issue before it as whether "after a defendant's success in vacating a default
judgment against her, the plaintiff may--by voluntarily dismissing her as a
party defendant in the action on an open account--avoid liability for her
pre-dismissal attorney's fees." The Court answered in the negative. Id. ¶
1. Title 12 O.S. § 936 provided
at the time of the Professional Credit Collections decision and still
provides that the prevailing party in a civil action on an open account "shall
be allowed a reasonable attorney fee to be set by the court, to be taxed and
collected as costs." 12 O.S.2001,
2011 § 936.2
¶19 The Court held that the plaintiff's "successful vacation of default
judgment entitles [the defendant] to prevailing-party status." Id. ¶ 2.
In Professional Credit Collections, the plaintiff sued a husband and wife
and obtained a default judgment against both defendants. Id. ¶¶ 3-4. The
wife filed a motion to vacate, which the trial court granted. Id. ¶¶ 4-5.
The trial court declined to award the wife attorney fees. Id. ¶ 7. The
Court noted that 12 O.S.1991 §
6843
allowed "a voluntary dismissal of an action without an order of court upon
payment of costs at any time before affirmative relief is sought against
the plaintiff." Id. ¶ 9. The Court stated that "the § 684 language must
be applied in harmony with the terms of § 936." Id. The Court concluded,
"The test for an effective cost-escaping § 684 voluntary dismissal does not
depend on whether a prevailing party has yet been determined. Instead, the key
is whether, before plaintiff's voluntary dismissal, the defendant has requested
affirmative relief against the plaintiff." Id. The Court found that the
wife's "motion to vacate the default judgment was indeed her quest for
affirmative relief." Id. ¶ 10. The Court held that "[b]y the
unmistakably clear § 936 standards [Wife's] success in vacating the judgment
placed her in the status of 'prevailing party' entitled to an
attorney's-fee award." Id.
¶20 The key aspect of Professional Credit Collections applicable here
is the Supreme Court's recognition that § 684 must be applied in harmony with
the statute providing for the award of attorney fees. Since the decision
in Professional Credit Collections, § 684 has been amended three times,
in 2004, 2009, and 2013. In 2011 when Mill Creek filed its dismissal, § 684
provided in relevant part:
A. An action may be dismissed by the plaintiff without an order of court
by filing a notice of dismissal at any time before pretrial. After the
pretrial hearing, an action may only be dismissed by agreement of the
parties or by the court. Unless otherwise stated in the notice of dismissal
or stipulation, the dismissal is without
prejudice.
Thus, there is no longer an "affirmative relief" requirement as there was
when the Professional Credit Collections decision was handed down. Rather
than an "affirmative relief" requirement, the statute now provides that an
action may be dismissed at any time before pretrial. 12 O.S.2011 § 684. And, the
pretrial hearing had not taken place when Mill Creek dismissed its petition.
Mill Creek, therefore, had a right to dismiss the case without an order of the
court.
¶21 In accord with the opinion in Swan-Sigler, we conclude that Mill
Creek had the right to dismiss its petition before pretrial and MACI was
therefore not entitled to an attorney fee award. MACI had not prevailed on any
issue prior to dismissal, and there was no judgment in favor of MACI regardless
of whether the dismissal was with or without prejudice. The Swan-Sigler
Court's decision did not hinge on whether the dismissal was with or without
prejudice. Furthermore, the Court specifically noted that there was no judgment
in the Swan-Sigler case:
In the present case no judgment was entered for or against anyone
adjudging that the plaintiff did or did not have a valid lien against the
property of the defendants Blacks. The issue of the validity of the lien was
removed from this lawsuit by the filing of a voluntary dismissal by the
plaintiff.
Swan-Sigler, Inc. v. Black, 1966 OK 90, ¶ 7, 414 P.2d 300.
¶22 In the present case, there was also no judgment entered for or against
any party. We agree with the Supreme Court's determination in Swan-Sigler
that the issues pending in the lawsuit were rendered non-existent by Mill
Creek's voluntary dismissal and cannot be considered to have the same legal
effect as a decision on the merits reflected in a judgment. Although MACI argues
that a dismissal with prejudice is "equivalent to a judgment," the cases cited
for this proposition do not hold that such a dismissal constitutes an
adjudication on the merits of a plaintiff's claims for all legal purposes,
including recovery of prevailing party attorney fees--they clearly hold that the
legal effect of such a dismissal with prejudice is the same as that of a
judgment in prohibiting a plaintiff (or any claiming party) from reasserting the
dismissed claims.
¶23 It is well-established under Oklahoma law that statutes allowing the
award of attorney fees are to be strictly construed. See Beard v.
Richards, 1991 OK 117, ¶ 12,
820 P.2d 812. We are not
persuaded that to expand the language in 42 O.S.2011 § 176 allowing "the
party for whom judgment is rendered" to recover a reasonable attorney fee by
equating a dismissal with prejudice to an actual adjudication on the merits of
the pending claims, as anticipated by § 176's "judgment" language, follows
either the letter of the statute or the spirit of Oklahoma's precedent in this
area. The trial court correctly held that MACI was not entitled to attorney fees
pursuant to § 176.
¶24 On its remaining ground for entitlement to an attorney fee, MACI cannot
recover pursuant to 12 O.S.2011 §
936 because Mill Creek's action against MACI was not one to recover on an
open account. Mill Creek's only claim against MACI or American Security in its
second amended petition was for foreclosure of a materialmen's lien. Mill
Creek's claim to recover on an open account was asserted against Bichsel. The
trial court did not err in concluding MACI was not entitled to attorney fees
pursuant to § 936.
CONCLUSION
The trial court properly found that MACI was not entitled to an award of
attorney fees. The decision is affirmed.
BARNES, C.J., and GOODMAN, J., concur.