C & L Enterprises Inc. v. Citizen Band Potawatomi Tribe of Oklahoma

WINCHESTER, J.,

dissenting.

¶ 1 I dissent insofar as the majority reverses the trial court's award of an attorney fee. No contemporaneous objection was made in the trial court, and the error was not preserved for appellate review. Missouri-Kansas-Texas Railroad Co. v. Callison, 1963 OK 145, 383 P.2d 696.

*7OPALA, J.,

dissenting.

T1 The court today (a) demies the Citizen Band Potawatomi Tribe of Oklahoma (Tribe) the opportunity for a postremand attack upon the validity of its arbitration contract with C & L Enterprises (contractor) and (b) remands the cause for an inquiry into the Tribe's certiorari challenge to the counsel-fee award.

T2 I cannot accede to the court's pronouncement. The sine qua non predicate for the relief the Tribe seeks on certiorari is a compulsory district-court counterclaim (to the contractor's demand for the arbitration award's confirmation) for statutory relief from the arbitrator's decision. That relief, which was available, is described as (1) vacation, (2) modification and (8) correction.1 Because the Tribe at nisi prius attacked neither the arbitration contract nor the validity of the process leading to the arbitral award, the trial judge correctly concluded as a matter of law that (a) a confirmation judgment on the arbitration award was the contractor's due and (b) no legal impediment stood posed to a contract-based assessment against the Tribe of an attorney's fee for legal services rendered for the contractor in the district court. I would hence affirm the trial court's judgment confirming the arbitration award (as well as the counsel-fee component of that adjudication). But I would (1) reverse the district court's postjudgment counsel-fee award (entered upon the Tribe's default for want of appearance and for lack of any responsive pleading) for legal services rendered before that court because that reversal is mandated by nis? prius failure to hold an evidentiary hearing to inquire (a) into the nexus, if any there was, between services rendered for the contractor in other cases and their legal necessity to secure the trial court's confirmation judgment and (b) into the nature and value of the services and (2) remand the cause solely for re-examination of the quantum to be awarded against the Tribe for the reasonable value of legal services (in this and other cases) necessary to secure the confirmation judgment.2

I

THE ANATOMY OF LITIGATION

T3 The contractor obtained an arbitration award against the Tribe. One of this award's components is a counsel fee to the victorious party. The contractor then brought a district-court suit for confirmation judgment upon the arbitration decision. The sole challenge to the contractor's confirmation quest was the Tribe's dismissal motion rested on its claim to federal-law immunity from civil liability. The district court confirmed the entire arbitration award. In postjudgment proceedings the court assessed a counsel fee in favor of the contractor for its legal services incident to confirmation. The Tribe appealed from both (1) the confirmation judgment and (2) the postjudgment counsel-fee award (for district-court services). Earlier in this litigation the U.S. Supreme Court had vacated two Court of Civil Appeals' (COCA) opinions in this disputed case. Its last pronouncement holds that the Tribe did indeed waive its governmental immunity by entering into an arbitration contract. COCA's (third) opinion now on review affirmed the trial court's confirmation judgment in its entirety as well as the attorney's fee assessed by the district court. Certiorari was granted on the Tribe's petition.

II

THE SINE QUA NON PREREQUISITE FOR ANY RELIEF FROM THE ARBITRATION AWARD AND FROM ITS ATTORNEY'S-FEE COMPONENT IS BY COMPULSORY COUNTERCLAIM IN THE DISTRICT COURT FOR A STATUTORY REMEDY OF MODIFICATION, CORRECTION OR VACATION OF THE ARBI-TRAL DECISION

T4 The trial court's authority to review an arbitral award is strictly cireumseribed by

*8the terms of the Oklahoma Uniform Arbitration Act.3 Its terms authorize judicial vacation, modification or correction of an arbitration decision upon a claim (or compulsory counterclaim) in the district court. In the absence of a timely sine qua non plea for relief by the Tribe, the plain statutory language inexorably commands that the court confirm the award.4

The Arbitrator's Award and Allowance of Counsel Fee

15 A counterclaim to vacate, modify or correct the award (or the award's counsel-fee component) was the only authorized pleading by which the Tribe could avoid the contractor's plea for the confirmation judgment and the nisi prius counsel-fee award for district court-related legal services. The Tribe forever lost its opportunity for the relief it now seeks on certiorari by not pressing below a statutory counterclaim. That claim is compulsory 5 and it is now much too late to press it in the course of corrective proceedings on review.

The Award of Additional Counsel Fee For Services in the District Court

T 6 The Tribe's failure to attack the validity of the arbitration award's counsel-fee component required the trial judge's conclusion-as a matter of law-that the arbitration contract's terms were sufficiently broad to include, at the confirmation stage, a further allowance for services in the district, court proceedings. In the absence of the Tribe's sine gua non counterclaim the trial judge could correctly conclude that the arbitration contract posed no legal impediment either to the confirmation judgment or to a further assessment of a counsel-fee award for legal services in the district court.

*9III

THIS CAUSE SHOULD BE REMANDED FOR RE-EXAMINATION OF THE QUANTUM OF COUNSEL FEE TO BE AWARDED FOR SERVICES PERFORMED IN THE DISTRICT COURT

17 The Tribe's appellate and certiorari briefs argue that the trial court erred in its counsel-fee assessment of the services' value for the district-court work. According to the Tribe, a major portion of the claimed fee is for services in (state and federal) litigation conducted dehors this case, including one in which a counsel-fee quest was denied. The Tribe also urges that no proof was adduced for the quantum of the trial court's post-judgment counsel-fee allowance.

18 The counsel-fee award for services rendered in the district court was entered upon default. The Tribe neither responded to the contractor's fee quest nor appeared at the postjudgment hearing. There is no recitation in the postjudgment order of an evi-dentiary hearing and of adduced proof showing that counsel's appearance in the other cases (for which a fee also was sought to be awarded) was absolutely necessary to protect the contractor's confirmation of the arbitration award here in contest.6 The contractor's district-court application for a counsel fee appears to be supported solely by an attachment that details the attorney's time sheets. It facially demonstrates that an appreciable part of legal services to be compensated was rendered dehkors the confirmation case.

T9 One's quest for counsel-fee allowance must be rested upon and supported by evidence tendered in a hearing 7 in which the facts and computation methods upon which the trial court is to rest its determination stand unfolded with a high degree of specificity.8 Because the counsel-fee award in contest here was entered upon the Tribe's default and there is no record trail of any nexus shown between the services performed in other cases and their legal necessity for securing the arbitral award's confirmation, I would reverse the district court's post-judgment counsel-fee award and remand the cause for re-examination of the quantum of counsel fee to be awarded for services that relate to the district-court confirmation action.9

IV

SUMMARY

10 The Tribe failed to demonstrate that at nisi prius it invoked the sine qua non predicate for the principal relief it seeks on certiorari. The plain language of the Oklahoma Uniform Arbitration Act must control the resolution of the main issue tendered for certiorari review. - Judicial review of an arbi-tral award tendered for confirmation is statutorily authorized only when the aggrieved party brings in the district court a compulso*10ry counterclaim (to the confirmation quest), pleading that the arbitrator's decision be vacated, modified or corrected. The confirmation defendant's timely counterclaim is an indispensable prerequisite for invoking judicial power to grant relief from an arbitration decision. By its failure to bring a timely district-court counterclaim, the Tribe lost its opportunity to mount an attack on any terms of the arbitration award.

I would affirm the confirmation judgment (as well as the counsel-fee component of that adjudication) and reverse the district court's postjudgment counsel-fee award (entered upon the Tribe's default) for failure to conduct an evidentiary hearing; I would remand the cause solely for re-examination of the quantum to be awarded against the Tribe as the reasonable value of the contractor's legal services necessary to secure the arbitration award's confirmation.

. See the Oklahoma Uniform Arbitration Act, 15 O.S.2001 §§ 809, 811, 812, 813, infra note 4.

. The Court of Civil Appeals granted the contractor's motion for appeal-related counsel fee and costs. Since the cause must be remanded for reassessment of the counsel-fee quantum due for services in the district court, I would vacate that COCA order and defer its consideration.

. 15 0.S$.Supp.2001 § 801 et seq. When a contract contains an agreement to settle disputes by arbitration, the trial court's power to review the arbitration award is limited to that provided by the terms of the Oklahoma Arbitration Act. For a similar statutory circumscription in other states see Johns Const. Co., Inc. v. Unified Sch. Dist. No. 210, 233 Kan. 527, 664 P.2d 821, 822 (1983) (the Kansas Uniform Arbitration Act governs the district court's scope of review in an arbitration award confirmation proceeding); Carolina Virginia Fashion Exhibitors, Inc. v. Gunter, 41 N.C.App. 407, 255 $.E.2d 414, 418 (1979) (district-court review of an arbitration award is limited to the specific statutory grounds advanced); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174, 177 (1996) (judicial review of an arbitration award is limited to vacation upon statutory grounds); Barnstead v. Ridder, 39 Mass.App.Ct. 934, 659 N.E.2d 753, 756 (1996) ("al matter submitted to arbitration is subject to a very narrow scope of review").

. The terms of 15 0.$.2001 §§ 809 and 811(E) provide: "Upon application of a party to the agreement, the court shall confirm an award, unless within the time limits imposed herein grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 12 and 13 of this act." (emphasis added).

The terms of 15 0.8.2001 § 812 prescribe the grounds upon which an arbitration award may be vacated. The terms of subsection § 812(E) provide: "If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award." (emphasis added). . The terms of 15 0.$.2001 § 813 prescribe th grounds upon which an arbitration award may be modified or corrected. The terms of subsection § 813(D) provide: "Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements, may be awarded by the court." (emphasis added).

. Failure to plead a compulsory counterclaim prevents a party from bringing a later action on that claim. Oklahoma Gas & Elec. Co. v. District Court, Fifteenth Judicial Dist., Cherokee County, 1989 OK 158, 110, 784 P.2d 61, 64. The Committee Comments to Oklahoma's compulsory counterclaim statute, 12 O.S.Supp.2001 § 2013, recognize this general rule. Section 2013(A) specifies two predicates which define a compulsory counterclaim: (1) a "claim" and (2) the claim must arise out of the "same transaction or occurrence." - The pertinent provisions of § 2013(A) are:

A. COMPULSORY COUNTERCLAIMS. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. ...

. The nisi prius postjudgment order indicates that at the hearing on the counsel-fee quest the trial judge considered the "statements" and time records of the contractor's counsel as well as its applications and the expenses incurred. The trial judge determined that the amount of counsel fee requested by the contractor ($10,545) was reasonable.

. Payne v. DeWitt, 1999 OK 93, ¶ 18, 995 P.2d 1088, 1096; State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 120, 598 P.2d 659, 663; Oliver's Sports Center, Inc. v. Nat'l Standard Ins. Co., 1980 OK 120, ¶ 8, 615 P.2d 291, 295. A counsel-fee hearing upon defendant's default is to be treated as akin to that which is required for a default judgment's entry in an action for recovery of damages (12 0.$.2001 § 688). The provisions of § 688 call for an evidentiary hearing on the quantum to be awarded against the defaulting litigant. Payne, supra, at I 12, at 1194-1195. For the adequacy of advance notice sufficient as a legal prerequisite for securing a default judgment's entry, see Horowitz v. Alliance Home Health, Inc., 2001 OK 45, ¶ 10, 32 P.3d 825, 828.

. Payne, supra note at 7, at ¶ 18, at 1096; State ex rel. Burk, supra note 7 at ¶ 22, at 663. Burk requires lawyers "to present to the trial court detailed time records showing the work performed and offer evidence as to the reasonable value for the services performed for different types of legal work." Id at 120, at 663 (emphasis added).

. Allowing the Tribe to wage a postremand contest over the legal underpinnings of the district court's fee assessment, as the court does today, would inevitably lead to undermining the arbitration award's contract-based attorney's-fee component and thus sanction an attack on the latter award without a timely counterclaim.