Opposition Brief — Bowline Construction Co. v. Capco Pipe Co.

4

No. 88-1473

IN THE

Supreme Court of the United States

OcTOBER TERM 1988

BOWLINE CONSTRUCTION COMPANY,

RABON MARTIN, AND PAUL E. GARRISON,

Petitioners,

v.

Capco Pipe CoMPANY, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

G. MICHAEL LEwiIs

ALBERT J. GIVRAY*.

Tom Q. FERGUSON

DOERNER, STUART, SAUNDERS,

DANIEL & ANDERSON

1000 Atlas Life Building

415 South Boston

Tulsa, Oklahoma 74103

(918) 582-1211

*Counsel of Record

March 23, 1989 Attorneys for Respondent

(©) Printing Co. ¢ 16 N. College * Tulsa, OK 74110 ¢ Phone (918) 832-8886

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QUESTIONS PRESENTED

Has Oklahoma’s statutory rule of denying interest on

attorney fees taxed as costs deprived Petitioners of

procedural due process guaranteed by the Fourteenth

Amendment to the United States Constitution?

Did the Oklahoma Supreme Court’s denial of appeal-

related attorney fees deprive Petitioners of equal pro-

tection guaranteed by the Fourteenth Amendment to

the United States Constitution?

LIST OF PARTIES

All Petitioners and Respondent are named in the cap-

tion. All parties before the Oklahoma Supreme Court are

before this Court.

RULE 28.1 STATEMENT :

Respondent CAPCO Pipe Company, Inc. (““CAPCO’’)

does not have any subsidiaries or affiliates. CAPCO is a

wholly owned subsidiary of ASARCO Incorporated.

ASARCO Incorporated does not have a parent company.

Its subsidiaries and affiliates (other than wholly owned

subsidiaries) are:

Alpha Metals of Japan Inc. (Japan)

Alta Mining and Development Company (Utah)

Asarco Australia Limited (Australia)

Blackhawk Mining and Developing Company,

Limited (Idaho)

Blasbert Oberflaechentechnik GmbH (Solingen)

Brown Builders Inc. (Tennessee)

Cooper Basin Railway, Inc. (Delaware)

Corporacion Minera Nor Peru, S.A. (Peru)

Ebara-Udylite Co., Ltd. (Japan)

Electroplating Engineers of Japan Ltd. (Japan)

Electroplating Engineers of Taiwan Ltd.

Federated Genco Limited (Canada)

Friedrich Blasberg Svenska AB (Sweden)

Galvano Production Chemie GmbH (Solingen)

Geominerals, Ltd. (Bermuda)

ii

Government Gulch Mining Company, Limited

(Idaho)

Green Hill Mining Company (Nevada)

Hau-Mei Electroplating Technology Co. Ltd. (China)

L.P.W. Chemie GmbH (Neuss/BRD)

LAB Chrysotile Inc. (Canada)

Lesarco, Inc. (Philippines)

Liard River Mining Company Ltd. (N.P.L.)

(Canada)

Mexico Desarrollo Industrial Minero, S.A. (Mexico)

Neptune Mining Company (Delaware)

Nihon LPW K.K. (Japan)

OMETEC, S.A. (Switzerland)

OMI Chemical Industries Pte. Ltd. (Singapore)

Southern Peru Copper Corporation (Delaware)

Wyoming Mining and Milling Company, Limited

(Idaho)

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-.020 0008s i

is og ac ke ced casevdaecssssus ii

EB RE "ya re ii

“‘TABLEOF CONTENTS ...........0cceceeceeeeee: iv

TABLE OF AUTHORITIES ..............0000ee eee vi

‘ o. aa ae |

WTI aos wh bv isn e Fe aarti 2

STATEMENT OF THECASE ...........-00000 0005 2

Me a, eS re re 2

2. The first attorney-fee award, its appeal, and

SE ar egy eee eee 3

3. The second attorney-fee award and its

SRS ER 5 Pa OO RD ar er Th rr 4

4. The request for and denial of appellate-

ee fa a re 6

SUMMARY OF ARGUMENT .............-2-0+05: 7

REASONS FOR DENYING CERTIORARI .......... 8

I. CERTIORARI SHOULD BE DENIED

BECAUSE NO SUBSTANTIAL FEDERAL

QUESTION WAS EITHER PROPERLY

RAISED IN THE STATE COURTS OR

PROPERLY PRESERVED FOR REVIEW

i Pek t » here rrr eee rere 8

Page

A. The Standard for Granting Certiorari: A

Properly Raised Substantial Federal

Question Is a Jurisdictional Prerequi-

Ws ak yank oo xe ee aes 8

B. Petitioners Have Not Properly Raised

or Preserved Any Substantial Federal

to rrr rr errr en Fic oe keene 11

1. The equal protection challenge to

the no-interest holding was not

I ES ss ev ects oases 12

2. The procedural due process issue

was not timely raised. ............. 13

3. The constitutionality of denying

appellate-related attorney fees was

not properly preserved. ............ 14

Il. CERTIORARI SHOULD BE DENIED

BECAUSE WITHHOLDING INTEREST

ON AN AWARD OF ATTORNEY FEES

TAXED AS COSTS ACCORDS WITH

THIS COURT’S DECISIONS. ............. 15

III. CERTIORARI SHOULD BE DENIED

BECAUSE DENYING APPELLATE-RE-

LATED ATTORNEY FEES IMPLICATES

NO CONSTITUTIONAL CONCERNS. ..... 18

AA acs as hoe eek cau eee 21

vi

TABLE OF AUTHORITIES

Page

CASES

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

oo SS re rere 18 n.6

Amalgamated Food Employees Union v. Logan

Valley Plaza,

SE OUD oi cc cweiwe re casedeasaaneae’s 10

American Surety Co. v. Baldwin,

EE OEE oo cca bn vee kiuwsvedancusae 1]

Bailey v. Anderson,

rr 9n.4, 10

Beaty v. Richardson,

ED cece an dseeweueeng eases 11

Beck v. Washington,

- 8 Bo 0. 3: rn er. 10

Bosworth v. Eason Oil Co.,

BE ce Pe, FSI) ww ccc cad enccneues 20

Bredouw v. Wilson,

SN MU, BDF) 5 cece ewese weaves 11

Brown v. Massachusetts,

144 U.S. 573. (1892)... 22. oe. e ewes 10

Callender v. Florida,

380 U.S. 519 (1965), 383 U.S. 270 (1966) ......... 2

Cardinale v. Louisiana,

So ors ss pb Kad eae eee Ms

vil

Page

Chenery v. Argi-Lines Corp.,

682 P.2d 640 (Idaho Ct. App. 1984) .......... 20-21

Chicago, I. & L. Ry. v. McGuire,

Pe ri EE ae oreo eWe eke twercsaiess 9n.4

Chicago Life Insurance Co. v. Cherry,

rE a 6 chew a deceueneuseuen 16, 21

City of Charlotte v. McNeeley,

ep Ew Be Fal.) P| re 17 n.5

City of Tukwila v. Todd,

563 P.2d 223 (Wash. Ct. App. 1977) ......... 17 n.5

Edelman v. California,

pe a | 10

Exxon Corp. v. Eagerton,

Co OR ee ee are 10

Faretta v. California,

ee le OEE nck needed Sede duakeuawnes 2

Fox Film Corp. v. Muller,

pe.) rr reas 19n.7

Fuller v. Oregon, |

GF eis x oe kw b etc a as ccdecvccvacs 9n.4

Greene v. Circle Insurance Co..,

Sat Woe ee WOT) oo vos cc cc cca ccewus 1]

Hal! v. Cole,

I RS ok itu havdeek ioe enwetans 18 n.6

Hanson v. Denckla,

ee es ee OD ok 5c kk oa dw bbw ee edebeaneuen 11

vill

Page

Herndon v. Georgia,

Ok ESE arr ara rer rae rir 11

Hiawassee River Power Co. v. Carolina-Tennessee

Power Co.,

po Re ree rere ree Ter 14

Hill v. California,

TEE vin crccssecavesenuaenn ns 9

Hulbert v. Chicago,

OE cs ks evs sbncaseeeeanagnn ss 10

Janes v. Busby,

93 S.W.2d 788 (Tex. Ct. App. 1936).......... 17n.5

Jones v. O’Donnell,

Ry i |) re 17n.5

Klinger v. Missouri,

ae ek ee | 2) | ier 19n.7

In re Lamkin,

i ea hadacaaneeagedere nea 10

Library of Congress v. Shaw,

2 a a eee ree eae 16

Life & Casualty Ins. Co. v. McCray,

Pe ec kha ks sada een ee Res 17

McAlester Urban Renewal Authority v. Hamilton,

421 P.2d 823 (Okla. 1974)..............--55. 15-16

McGlumphy v. Jetero Construction Co., Inc.,

ee Ms Ck bwee a dima sas eae 10

McGoldrick v. Compagnie Generale,

309 U.S. 430 (1940)

ix

Page

McKeague v. Talbert,

656 P.2Zc O96 (Ha. Ct. App. 1983)............ 17 n.5

McManus v. Burrows,

177 S.W. 671 (Mo. Ct. App. 1915) ........... 17 n.5

Missouri-Kansas-Texas R.R. v. Prince,

Ee Os ee Cs WI oo ano ois nk nen ce wnaae 10

Moen v. Norwest Bank of Minot,

647 F. Supp. 1333 (D.N.D. 1986) ............... 20

National Educators Life Insurance Co. v. Apache

Lanes, Inc.,

Pe ce ee UL, BPPIRD one a ccs docks h te ewan'ec 16

New Orleans v. Dukes,

ee a I a oo io ahd emi eek eos 18

Northwest Datsun v. Oklahoma Motor Vehicle

Commission,

Woe Fe OR. ESE) onc ce een cc nu cdoucs 10

Overmyer v. Lawyers Title Insurance Corporation,

359 A.2d 260 (Md. Ct. App. 1976) ........... 17 n.5

Pelican Production Corp. v. Mize,

jek er pf 8 OR. oe:

Pillow v. Board of Commissioners,

425 So.2d 1267 (La. Ct. App. 1982) .......... 17n.5

Radio Station WOW vy. Johnson,

ae es oe Gas bs ee eo ead caus 1]

Riter-Conley Mfg., Co. v. Wryn,

RP ee BOD a ee vc bbe cad aacvekuy’ 17

Sisney v. Smalley,

ge Be 0) ee rer 16

Stillwater Industrial Foundation, Inc. v. State ex rel.

Board of Regents for Oklahoma A & M Colleges,

pe bee >) re 11

Street v. New York,

PD oo nc ch cde bbe kee eee ees 9

Thomas v. Iowa, :

ee a oi Oa hw nak eek hee O8es 14

Timmons v. Royal Globe Insurance Co.,

kB ae re 8. | ear a 1]

Wheeler v. Benson-Taylor, Inc.,

Fe ee Fs FO boc iweb eadesceaiens 20

White River Lumber Co. v. Arkansas ex rel.

Appelgate,

I OD oo ok o's x wtoaik Asked bile wee 14

Whitney v. California,

poe Ay 5 5 Ge a a er Aa 14

Wolfe v. Madison National Bank,

352 A.2d 914 (Md. Ct. App. 1976) ........... 17 n.5

STATUTES

i ee a Sane pas eee a ee eee 9

es ia ve cha we eee ae een oo 2

ee ose eae a eo A A OA 2

ee ee, Ok Oe RP ons eens eee eeee as 18

xi

Page

SUPREME COURT RULES

Supreme Court Rule 21.1(h) .................. 11, 12

Supreme Court Rule 28.1........................ ii

TREATISES

R. Stern, E. Gressman, & S. Shapiro,

Supreme Court Practice (6th ed. Ss ene 12

No. 88-1473

IN THE

Supreme Court of the United States

OcTOBER TERM 1988

BOWLINE CONSTRUCTION COMPANY,

RABON MARTIN, AND PAUL E. GARRISON,

Petitioners,

V.

Capco PIPE COMPANY, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OKLAHOMA SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

Respondent CAPCO Pipe Company, Inc. (“CAPCO”),

asks this Court to deny the request of Petitioners Bowline

Construction Company, Rabon Martin, and Paul E. Gar-

rison (collectively, “Bowline” or “Petitioners”) for a writ of

certiorari to the Oklahoma Supreme Court.

OPINIONS BELOW

Oklahoma’s intermediate Court of Appeals issued an

unpublished memorandum opinion on April 19, 1988,

which affirmed both the trial court’s $346,000 award of at-

torney fees to Bowline and its attorneys (Messrs. Martin

a

and Garrison), and also the trial court’s denial of interest

on that award. App. C-1.'! The Oklahoma Supreme Court

denied certiorari on October 19, 1988. But the Oklahoma

Supreme Court did not decide this case on the merits, so

Petitioners have requested that a writ of certiorari be

directed to the wrong court. See Faretta v. California, 422

U.S. 806, 812 (1975); Callender v. Florida, 380 U.S. 519

(1965), 383 U.S. 270 (1966).

JURISDICTION

This Court does not have jurisdiction in this case

because Petitioners have not properly raised a substantial

federal question before the Oklahoma state courts. See 28

U.S.C. § 1257(a).? This fatal jurisdictional defect is

discussed below at pp. 8-15.

STATEMENT OF THE CASE

1. The underlying action. The $346,000 attorney-fee

award arises in a suit for breach of warranty on sold

goods. Petitioner Bowline sought recovery for defective

labor and materials used in a water distribution system.

Respondent CAPCO was one of several defendants.

' Petitioners’ Appendix is cited as ‘‘App. ue

2 Petitioners incorrectly posit jurisdiction under the now repealed 28

U.S.C. § 1257(3).

oe:

The case was first tried in 1974. After 27 trial days, a

mistrial was declared because Mr. Ray Bowline (Petitioner

Bowline’s chief executive officer) made improper contact

with two jurors. Bowline then settled with all defendants

except CAPCO.

Before the second trial began, Bowline sought a writ

of mandamus from the Oklahoma Supreme Court com-

pelling disqualification of the trial judge. The Oklahoma

Supreme Court denied mandamus relief.

The second jury trial covered 35 days between

November 17, 1980, and January 27, 1981. The jury

awarded Bowline $325,000 and CAPCO received a

$57,453 directed verdict on its counterclaim for unpaid

open accounts.

The trial court ordered that Bowline accept a remit-

titur of $161,090. Bowline appealed. Oklahoma’s inter-

mediate Court of Appeals reinstated the full $325,000 ver-

dict, upheld the trial judge’s refusal to recuse himself, and

affirmed the directed verdict on CAPCO’s counterclaim.

CAPCO paid this judgment.

2. The first attorney-fee award, its appeal, and its

reversal. After the appeal was decided, the trial court on

July 20, 1984 awarded Bowline $346,000 in attorney fees

taxed as costs, with $146,000 allocable to Petitioner

Rabon Martin and $200,000 allocable to Petitioner Paul

E. Garrison. App. C-2. The total $346,000 fee award ex-

ceeded the jury verdict by $21,000.

Respondent CAPCO appealed the amount of the

attorney-fee award, arguing that the fee was unreasonable

ila

and not properly substantiated. App. C-2. CAPCO posted

an appeal bond for the $346,000 awarded amount.

Bowline objected on the basis that the bond did not pro-

vide for interest on the attorney-fee amount. The trial

court held that under Oklahoma law an award of attorney

fees taxed as costs does not bear interest.

Bowline appealed, assigning as error that the no-

interest ruling ‘‘deprives a judgment creditor of equal pro-

tection of the law, as guaranteed by the Fourteenth

Amendment to the United States Constitution.’’ Petition

in Error at 3 (filed September 13, 1984, in Oklahoma Ap-

peal No. 63066) (emphasis added). This equal protection

argument was not made to the trial court, but was raised

for the first time on appeal and was briefed in Bowline’s

Brief in Chief at 25-27 (filed January 21, 1985) and

Bowline’s Reply Brief at 7-9 (filed March 19, 1985).

Bowline made no due process argument at any time during

this appeal.

Respondent CAPCO prevailed on the attorney-fee

aspect of the appeal. The Oklahoma Court of Appeals

reversed the trial court because that court’s order ‘‘was

void ef the factors for the appellate court to ascertain

whether the criteria used to compute the attorney’s fees

were reasonable and appropriate.’’ App. C-2. The Court

of Appeals did not address the question of interest on at-

torney fees.

3. The second attorney-fee award and its appeal. On

remand, the trial court re-awarded $346,000 in attorney

fees to Petitioners, just as before. Bowline again com-

—5—

plained that the bond did not provide for interest on the

attorney fees taxed as costs. The trial court again refused

to require a bond for interest, because Oklahoma law does

not allow interest on attorney fees taxed as costs.’ Bowline

raised neither an equal protection challenge nor a due pro-

cess challenge before the trial court.

CAPCO again appealed the merits of the fee award.

And Bowline again appealed the interest issue, asserting

verbatim the claim which Bowline had made on the first

fee appeal: that the no-interest ruling ‘‘deprives a judg-

ment creditor of equal protection of the law, as guaranteed

by the Fourteenth Amendment to the United States Con-

stitution.’” App. B-3. The equal protection argument was

raised, again, for the first time on appeal. Bowline made

no due process claim in its assignments of error. App. B-3.

Bowline filed only one brief on the merits of its ap-

peal on the interest issue. That brief raised only an equal

protection challenge to the no-interest holding. Bowline

argued that equal protection was denied because the appli-

cable statute had been construed to create two classes of

judgment creditors: (1) those who hold judgments for

costs, and (2) those who hold other money judgments.

Bowline’s Brief in Chief at 46-48 (filed March 10, 1987).

Through a May 11, 1987 letter to the Clerk of the Okla-

homa Appellate Courts, Bowline waived its right to file a

reply brief.

* The opinion of the Oklahoma Court of Appeals mistakenly states

that the trial court awarded interest. App. C-4. It did not. This

mistake is harmless, since the Oklahoma Court of Appeals ultimate-

ly held that Oklahoma law does not permit interest on attorney fees

taxed as costs.

—

On April 19, 1988, the Oklahoma Court of Appeals

issued an unpublished memorandum opinion which af-

firmed the amount of the fee award and which upheld the

denial of interest on such award. App. C-l. The Oklahoma

Court of Appeals held that controlling Oklahoma statu-

tory and case law does not permit interest on attorney fees

taxed as costs. App. C-4. The court did not decide the

equal protection question.

Bowline sought rehearing. For the first time during

two appeals spanning five years, Bowline argued that the

no-interest holding violated due process. Bowline argued

that procedural due process was denied by ‘‘establishing a

system in which one iitigant cannot lose, and the other

litigant cannot win... .’’ Bowline’s Petition for Rehear-

ing at 5 (filed May 3, 1988). Rehearing was denied with no

comment made on either the equal protection issue (raised

for the first time on appeal) or the due process issue (raised

for the first time on rehearing).

On July 1, 1988, Bowline sought certiorari in the

Oklahoma Supreme Court and raised the due-process-

unfair-system argument, App. D-S, as well as the equal

protection argument. App. D-6. Certiorari was denied,

again without comment on either the untimely equal pro-

tection issue or the belated due process issue.

4. The request for and denial of appellate-related at-

torney fees. After the Oklahoma Supreme Court denied

certiorari, Bowline filed a motion for an award of appeal-

related attorney fees. App. F-l1. On November 18, 1988,

the Oklahoma Supreme Court entered an order denying

a

Bowline’s ‘‘motion for appeal-related counsel fees... .’’

App. G-l. Bowline did not seek reconsideration and did

not argue that the refusal to award appellate-related fees

violated equal protection or due process.

SUMMARY OF ARGUMENT

This Court should deny certiorari because Petitioners

have not properly raised or preserved any substantial

federal question. Petitioners’ first question presented in-

timates that denying interest on attorney fees taxed as

costs is unconstitutional. The on/y argument made in the

body of the Petition for Certiorari is that denying interest

violates procedural due process by creating an unfair sys-

tem where one party cannot win and the other party can-

not lose. See Petition for Certiorari at 4-5. This argument

was not made to the trial court, was never assigned as

error below, was never decided by the state appellate

courts, and appears below only as a belated argument on

rehearing.

The equal protection argument made below by Peti-

tioners was not raised before the trial court. It was raised

for the first time before the Oklahoma Court of Appeals.

More importantly, Petitioners have waived such issue in

this Court. The equal protection issue is not contained in

the questions presented for this Court’s review, and is not

argued in the body of the Petition for Certiorari. See Peti-

tion for Certiorari at 4-5.

The second question presented by Petitioners suggests

that the refusal to award appellate-related attorney fees

saline

violates due process and equal protection. See Petition for

Certiorari at 5-6. Petitioners had an opportunity to pre-

sent this constitutional claim to the Oklahoma Supreme

Court, but wholly failed to do so. After denial of appeal-

related fees, Petitioners failed to exercise their opportunity

to ask for reconsideration and to lodge their constitutional

complaints.

Petitioners’ own failures have deprived this Court of

jurisdiction to consider any constitutional issue. This

Court has long held that it has no jurisdiction to consider

improperly raised or unpreserved constitutional questions.

Even if the issues were properly preserved, this Court

should still deny certiorari review. Not only do the state-

court decisions accord with this Court’s decisions, but

adequate and independent state grounds of decision exist

which dispense with the need to consider any constitu-

tional questions.

REASONS FOR DENYING CERTIORARI

I. CERTIORARI SHOULD BE DENIED BECAUSE

NO SUBSTANTIAL FEDERAL QUESTION WAS

EITHER PROPERLY RAISED IN THE STATE

COURTS OR PROPERLY PRESERVED FOR RE-

VIEW BY THIS COURT.

A. The Standard for Granting Certiorari: A Proper-

ly Raised Substantial Federal Question Is a

Jurisdictional Prerequisite.

Under 28 U.S.C. § 1257, it is an absolute jurisdic-

a

tional requirement that the asserted federal claim either be

decided by the state court, or be explicitly and timely

raised by the party if not decided by the state court. Hill v.

California, 401 U.S. 797, 805 (1971); McGoldrick v. Com-

pagnie Generale, 309 U.S. 430, 434 (1940). Exceptionally

strong policy considerations underlie this jurisdictional re-

quirement. First, the record is very likely to be inadequate

on federal questions not raised in the state court. Second,

in a federal system, it is important that state courts be

given the first opportunity to consider the constitutionality

of state statutes since the statutes may then be construed in

a way which saves their constitutionality. Third, if the

federal question is raised below, it might be decided by the

state court on adequate and independent state grounds,

thus rendering review by this Court unnecessary. Car-

dinale v. Louisiana, 394 U.S. 437, 439 (1969).

The rule in this Court is weli settled. When ‘‘the

highest state court has failed to pass upon a federal ques-

tion, it will be assumed that the omission was due to a

want of proper presentation in the state courts, unless the

aggrieved party in this Court can affirmatively show the

contrary.’ Street v. New York, 394 U.S. 576, 582 (1969).‘

This rule applies with equal force even where the parties

address the constitutional issue in their state-court briefs

after having failed to raise the constitutional issue as re-

* See also Fuller v. Oregon, 417 U.S. 40, 50 n.ll (1974); Bailey v.

Anderson, 326 U.S. 203, 206-07 (1945); Chicago, I. & L. Ry. v.

McGuire, 196 U.S. 128, 131-33 (1908).

‘ns Hien

quired by state procedure. See Exxon Corp. v. Eagerton,

462 U.S. 176, 181 n.3 (1983).

Thus, when required by state practice, the federal

question must be raised before the trial court as a

predicate to this Court’s jurisdiction. Otherwise, certiorari

must be denied. See Edelman v. California, 344 U.S. 357,

358 (1953) (failure to raise issue at trial); Hulbert v.

Chicago, 202 U.S. 275, 279 (1906) (complete failure to

raise question at trial court level); Brown v. Massachu-

setts, 144 U.S. 573, 580 (1892) (failure to raise question

before verdict); Jn re Lamkin, 355 U.S. 59 (1957).

Oklahoma law is clear that absent exceptional circum-

stances, the Oklahoma Supreme Court will not consider

constitutional questions not presented to the trial court.

See, e.g., Northwest Datsun v. Oklahoma Motor Vehicle

Commission, 736 P.2d 516, 520 (Okla. 1987); McGlum-

phy v. Jetero Construction Co., Inc., 593 P.2d 76, 83

(Okla. 1978); Pelican Production Corp. v. Mize, 573 P.2d

703, 704 (Okla. 1977); Missouri-Kansas-Texas R.R. v.

Prince, 271 P. 253, 254 (Okla. 1928). Therefore, when the

federal question is first raised in the state-court petition in

error, the jurisdiction of this Court cannot attach. Bailey

vy. Anderson, 326 U.S. 203, 206-07 (1945).

The constitutional issue must not only be raised

before the trial court, but must be properly raised accord-

ing to state appellate procedures. Otherwise, the party will

be deemed to have waived the federal issue and there is no

basis for the assertion of this Court’s jurisdiction. Beck v.

Washington, 369 U.S. 541, 553 (1962); Amalgamated

Food Employees Union v. Logan Valley Plaza, 391 U.S.

a Anis

308, 313 n.6 (1968); Herndon v. Georgia, 295 U.S. 441,

443 (1935); Beaty v. Richardson, 276 U.S. 599 (1928).

The Oklahoma Supreme Court will not review any

allegation of error not contained in a party’s petition in er-

ror. See, e.g., Timmons v. Royal Globe Insurance Co.,

653 P.2d 907, 912 (Okla. 1982); Greene v. Circle Insurance

Co., 557 P.2d 422, 423 (Okla. 1976); Stillwater Industrial

Foundation, Inc. v. State ex rel. Board of Regents for

Oklahoma A & M Colleges, 541 P.2d 173, 178 (Okla.

1975); Bredouw v. Wilson, 256 P.2d 421, 424 (Okla. 1953)

(constitutional issue not presented in petition in error will

not be decided even if raised in both parties’ briefs).

Finally, this Court’s jurisdiction may not be invoked

- by raising the federal question for the first time in a state-

court rehearing petition, unless the state court actually

entertains the petition and expressly decides the federal

question. See, e.g., Hanson v. Denckla, 357 U.S. 235,

243-44 (1958); Radio Station WOW y. Johnson, 326 U.S.

120, 128 (1945); Herndon v. Georgia, 295 U.S. 441, 443

(1935); American Surety Co. v. Baldwin, 287 U.S. 156

(1932).

B. -Petitioners Have Not Properly Raised or

Preserved Any Substantial Federal Question.

Petitioners bear the heavy burden of demonstrating

this Court’s jurisdiction. Supreme Court Rule 21.1(h) re-

quires the statement of the case to specify ‘‘the stage in the

proceedings, both in the court of the first instance and in

the appellate court, at which the federal questions sought

~ -

to be reviewed were raised... .’’ Thus, ‘‘when the highest

state court fails or refuses to pass expressly upon a federal

question [then] the party invoking the Supreme Court’s ju-

risdiction has the high burden of showing that the federal

question was in fact properly raised, so that the state

court’s failure to deal with it was not for want of proper

presentation.’’ R. Stern, E. Gressman, & S. Shapiro,

Supreme Court Practice at 150 (6th ed. 1986).

In this case, the Oklahoma state courts never decided

the constitutional issues. Thus, that ‘‘high burden’’ falls

upon Petitioners to demonstrate that the issues were prop-

erly raised. Petitioners attempt to meet that burden in one

short paragraph in their Petition for Certiorari. See Peti-

tion for Certiorari at 3. That short paragraph refers only

to the assignment of error raised in the state-court Petition

in Error. See App. B-3. As discussed above, that assign-

ment of error raises only a now abandoned equal protec-

tion claim concerning failure to allow interest on the

award of attorney fees. This meager effort to raise a

federal question is too little and too late.

1. The equal protection challenge to the no-

interest holding was not timely raised.

Petitioners have failed to show that the equal protec-

tion challenge was made before the trial court. Under Ok-

lahoma procedure, an Oklahoma appellate court will not

consider any constitutional question not presented to the

trial court. See supra p. 10. Petitioners’ failure to

raise this issue ‘‘in the court of first instance’’ deprives this

Court of jurisdiction. S. Ct. Rule 21.1(h).

= =

Also, Petitioners have waived this argument in their

Petition for Certiorari. The first question presented for

review is ambiguous; it states only that the no-interest

holding is ‘‘unconstitutional.’’ Petition for Certiorari at i.

Reference to Petitioners’ argument on the first question

presented demonstrates that ‘‘unconstitutional’’ refers

only to a denial of procedural due process. Petition for

Certiorari at 4-5.

2. The procedural due process issue was not

timely raised.

Petitioners’ first question presented deals with

whether procedural due process is denied ‘‘by establishing

an appellate format in which one litigant cannot lose, and

the other cannot win.’’ Petition for Certiorari at 4. Peti-

tioners argue that this is the result of denying interest on

attorney fees taxed as costs. This argument receives more

treatment in the Petition for Certiorari than in all of Peti-

tioners’ briefs before the Oklahoma courts.

This argument was never raised before the trial court.

The state-court Petition in Error contains nothing about a

due process claim. Nor do Bowline’s briefs on the merits

ever address the due process issue. In fact, the due process

issue was never raised until after the Oklahoma Court of

Appeals had decided this case. Not until rehearing did

Petitioners attempt to raise the due process argument.

Even that argument was relegated to one typed paragraph

on rehearing, compared to over one and one-half printed

pages in the Petition for Certiorari here.

Under Oklahoma procedure, a constitutional issue

=

not raised before the trial court, and not assigned as error

in the petition in error, will not be considered by an

Oklahoma appellate court. Therefore, Petitioners have

deprived this Court of jurisdiction over the asserted due

process error.

3. The constitutionality of denying appellate-

related attorney fees was not properly

preserved.

Petitioners assert that the Oklahoma Supreme

Court’s failure to award appellate-related attorney fees

violated due process and equal protection. See Petition for -

Certiorari at 5-6. It is too late to raise a federal question

for the first time in papers before this Court. See, e.g.,

White River Lumber Co. v. Arkansas ex rel. Appelgate,

279 U.S. 692, 700 (1929); Whitney v. California, 274 U.S.

357, 362-63 (1927); Hiawassee River Power Co. v. Caro-

lina-Tennessee Power Co., 252 U.S. 341, 344 (1920);

Thomas v. Iowa, 209 U.S. 258, 263 (1908).

After the Oklahoma Supreme Court denied certiorari

in this case, Petitioners filed a motion for an award of

appellate-related attorney fees. App. F-l. The Oklahoma

Supreme Court denied that motion. App. G-l. Petitioners’

motion did not raise the constitutional issue. App. F-l.

After the motion was denied, Petitioners failed to request :

reconsideration based on the constitutional issues. In-

stead, Petitioners ignored settled procedures and attemp-

ted to raise the issue for the first time in this Court. Thus,

the constitutional issue was not presented to the state court

and was not decided by the state court. Nor was the consti-

tutional issue ‘‘evaded’’ by the state court. The Oklahoma

— a

court was simply never given the opportunity (mandated

by this Court) to consider that issue. Therefore, Peti-

tioners have failed to preserve a constitutional issue for

this Court’s jurisdiction.

This case is wholly inappropriate for certiorari review

by this Court. Petitioners’ constitutional claims—on the

merits weak at best as shown in Arguments II and III

infra—were not properly preserved for this Court’s

review. Because they were not presented below, this Court

has no adequate record to review the questions. Because

they were not presented below, the state courts were not

given an opportunity to construe the state law in a manner

which saves its constitutionality. Because they were not

presented below, the state courts were not given an oppor-

tunity to discuss how adequate and independent state

grounds render decision on those constitutional questions

unnecessary. Properly raising the asserted federal ques-

tions is a jurisdictional mandate. Petitioners have failed to

raise the constitutional questions properly. This Court

therefore lacks jurisdiction to issue any writ of certiorari.

II. CERTIORARI SHOULD BE DENIED BECAUSE

WITHHOLDING INTEREST ON AN AWARD OF

ATTORNEY FEES TAXED AS COSTS ACCORDS

WITH THIS COURT’S DECISIONS.

Petitioners’ base complaint is a feeling that the Okla-

homa Supreme Court has misinterpreted Oklahoma stat-

utes regarding allowance of interest. See Petition for Cer-

tiorari at 4. Oklahoma law is well settled that interest is

not allowed on attorney fees taxed as costs. See McAlester

~~

Urban Renewal Authority v. Hamilton, 421 P.2d 823,

825-26 (Okla. 1974); National Educators Life Insurance

Co. v. Apache Lanes, Inc., 555 P.2d 600, 602 (Okla. 1976)

(declining to overrule McAlester). Questions of state law

interpretation fall exclusively within the province of state

courts. Even if this Court disagrees with the resolution of

a state law issue, it has no jurisdiction to change that

resolution.

It has been stated that when a wrong judgment is

entered against a defendant, his property is taken

when it should not have been; but whatever the

ground may be, if the mistake is not so gross as

to be impossible in a rational administration of

justice, it is no more than the imperfection of

man, not a denial of constitutional rights.

Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 30

(1916).

Thus, Petitioners’ claim must wholly fail unless they

can demonstrate that the decision below was ‘‘impossible

in a rational administration of justice . . . .”’ Id. This

Court’s own holdings demonstrate that interest may be

disallowed on an award of attorney fees. For example, in

Library of Congress v. Shaw, 478 U.S. 310 (1986), this

Court reaffirmed its ‘‘repeated holdings that interest [on

awards of attorney fees] may not be awarded against the

government in the absence of express statutory or contrac-

tual consent.’ /d. at 314. This rule is deeply rooted in the

common law which denied interest unless an agreement to

the contrary existed. See id. at 314-15; Sisney v. Smalley,

690 P.2d 1048, 1050 (Okla. 1984). It is almost frivolous to

fats Ph

— .

Suggest that a rule so deeply rooted in the common law is

‘impossible in a rational administration of justice.’’

This Court’s decisions amply show that it is permissi-

ble to deny interest on an award of attorney fees. This

Court has long held that taxing attorney fees as costs on

some obligations but not on others triggers no equal pro-

tection violation, despite the creation of ‘‘have’’ and

‘“‘have not’’ classifications of judgment debts. See, e.g.,

Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 569-70

(1934). See also Riter-Conley Mfg., Co. v. Wryn, 174 P.

280, 283, 284-85 (Okla. 1918). If the disparate treatment

of judgment debts (costs) themselves does not violate

equal protection, then neither can there be any constitu-

tional infirmity in the disparate treatment of interest on

judgment debts.

Nor is there any due process violation here. Legisla-

tive enactments enjoy a presumption of validity and ra-

tionality. See Life & Casualty Ins. Co., 291 U.S. at 572.

The burden is upon Petitioners to show a lack of even min-

imum rationality for disallowing interest on the ‘‘costs’’

*In fact, the seemingly unanimous and well-settled rule in the United

States has been that interest is not allowed on awards of costs or at-

torney fees unless explicitly allowed by statute. See, e.g., McKeague

v. Talbert, 658 P.2d 898, 908 (Ha. Ct. App. 1983); Pillow v. Board

of Commissioners, 425 So.2d 1267, 1284 (La. Ct. App. 1982); Over-

myer v. Lawyers Title Insurance Corporation, 359 A.2d 260, 268

(Md. Ct. App. 1976); Wolfe v. Madison National Bank, 352 A.2d

914, 918 (Md. Ct. App. 1976); City of Tukwila v. Todd, 563 P.2d

223, 227 (Wash. Ct. App. 1977); City of Charlotte v. McNeeley, 190

S.E.2d 179, 188 (N.C. 1972); Janes v. Busby, 93 S.W.2d 788, 918

(Tex. Ct. App. 1936); Jones v. O’Donnell, 290 N.W. 375 (Mich.

1940); McManus v. Burrows, 177 S.W. 671 (Mo. Ct. App. 1915).

—«

—

portion of a judgment. See generally New Orleans v.

Dukes, 472 U.S. 297, 303 (1976).

A reasonable state legislature could rationally adopt a

policy goal of requiring all citizens to finance their own

litigation. The by-product of such a policy would be the

denial of interest altogether while the debt was being

challenged during appeal. Since a reasonable legislature

could have denied all interest on the entire judgment, as at

common law, a legislature is being no less rational by

denying interest to a portion less than the whole of the

judgment (e.g., costs).°

The Oklahoma Legislature has apparently adopted

precisely such a rational policy. It follows that nothing

about Okla. Stat. tit. 12, § 727(A) (Supp. 1988) or any

other pertinent Oklahoma statute suffers from any con-

stitutional infirmity, whether equal protection, due pro-

cess, or otherwise.

III. CERTIORARI SHOULD BE DENIED BECAUSE

DENYING APPELLATE-RELATED ATTORNEY

FEES IMPLICATES NO CONSTITUTIONAL

CONCERNS.

Petitioners’ second question presented concerns the

® In fact, a reasonable legislature could go so far as to entirely deny a

recovery of attorney fees. The ‘‘American rule’’ is to deny attorney

fees to a prevailing party absent a statute or contract explicitly allow-

ing fees. The American rule is firmly embedded in this Court’s

jurisprudence. See generally Hall v. Cole, 412 U.S. 1 (1973); Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975). Peti-

tioners’ meritless argument necessarily suggests that this Court has

acted irrationally in repeatedly affirming the American rule.

=

state court’s denial of appellate-related attorney fees. Peti-

tioners argue that since they ‘‘prevailed’’ on appeal, they

are entitled to attorney fees on appeal under state law. The

Oklahoma Supreme Court decided this question of state

law against Petitioners, so Petitioners now attempt to

make a constitutional question out of that state-law

decision.

Petitioners’ allegations present no substantial federal

question. First, this issue may be resolved wholly on the

basis of state law.’ Petitioners claim to be prevailing par-

ties on appeal, but they neglect to tell this Court the whole

story. Since the 1981 jury verdict, this case has seen three

state-court appeals: one appeal concerning the jury verdict

itself and two appeals on the dual questions of attorney-

fee amount and interest. Following the jury verdict, both

Petitioner Bowline and Respondent CAPCO filed appeals.

Bowline successfully defended its jury verdict; CAPCO

successfully defended its directed verdict; and CAPCO

also successfully defended the trial judge’s refusal to

recuse himself. See supra p. 3. Thus, in appeal round one,

Respondent CAPCO prevailed on two-thirds of the issues

presented to the state court.

In appeal round two, Bowline appealed the trial

court’s denial of interest on the attorney-fee award, and

’ This Court has long held that if the decision below rests upon ade-

quate and independent state grounds, the Court will not assume

jurisdiction because federal jurisdiction fails. See, e.g., Klinger v.

Missouri, 80 U.S.(13 Wall) 257, 263 (1871); Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935).

iia

Respondent CAPCO appealed the $346,000 amount of the

fee award. The Oklahoma Court of Appeals did not ad-

dress the interest issue, but reversed the amount of the fee

award and agreed with CAPCO that the trial court had

failed to require adequate substantiation of the fee

amount. See supra p. 4. Thus, on the second round of ap-

peal, Respondent CAPCO won completely.

During appeal round three, Respondent CAPCO

again appealed the amount of the attorney-fee award, and

Petitioner Bowline again appealed the trial court’s denial

of interest on the fee amount. Neither party prevailed in

their own appeal. The Court of Appeals upheld the

amount of the fee award and denied interest on the award-

ed amount. Thus, in the third round of appeal, each party

prevailed in the other party’s appeal.

The state court’s refusal to award appellate-related

fees to Petitioners is manifestly justified on state-law

grounds. Petitioners simply cannot be deemed prevailing

parties throughout the entire course of the appeal process.

Instead, each party prevailed on some issues, lost on other

issues, and on balance were equally successful.

When taxing costs, a court must always be guided by

equity. See, e.g., Wheeler v. Benson-Taylor, Inc., 394 P.2d

523, 528 (Okla. 1964); Bosworth v. Eason Oil Co., 213

P.2d 548, 556 (Okla. 1950). Thus, as a matter of equity

and judicial discretion, there is no single prevailing party

whenever each party prevails on different issues. See, e.g.,

Moen v. Norwest Bank of Minot, 647 F. Supp. 1333, 1344

(D.N.D. 1986); Chenery v. Argi-Lines Corp., 682 P.2d

—21—

640, 645 (Idaho Ct. App. 1984).

The simple presence of a prevailing-party issue shows

that the action of the state court was not ‘‘arbitrary and

capricious’’ as claimed by Petitioners. This very presence

also shows a rational distinction between allowing appeal-

related attorney fees in some cases, while disallowing such

fees in others. In short, the case here involves merely a

question of state law and a question of appellate fact: Was

the ‘‘winning’’ party qualitatively successful enough to be

labeled as a ‘‘prevailing’’ party? This question and the

Oklahoma Supreme Court’s ‘‘no’’ answer show a rational

basis for denying appeal-related attorney fees here. This

inquiry also demonstrates that the result below was ‘‘not

sO gross as to be impossible in a rational administration of

justice,’’ but instead was firmly grounded in rationality.

See Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 30

(1916).

CONCLUSION

Petitioners have not shown a single reason for grant

of certiorari here. This case does not present a question of

first impression; this case does not involve a lower court

decision that conflicts with decisions of this Court; and

this case does not involve a decision conflicting with the

decisions of other lower courts. No substantial federal

question whatsoever has been presented for review. And

even the issues which Petitioners seek to dress in constitu-

tional clothing were not properly preserved for this

Court’s review. Those issues were never raised in the court

of first instance, the trial court. The only issue assigned as

—

error on appeal has now been waived. All other constitu-

tional issues appearing in the Petition for Certiorari were

raised for the first time on appeal, either on rehearing

after the Oklahoma Court of Appeals had decided this

case, or in the Petition for Certiorari to this Court.

This Court should not further burden its docket with

Petitioners’ meritless plea.

Respectfully submitted,

G. Michael Lewis

Albert J. Givray*

Tom Q. Ferguson

DOERNER, STUART, SAUNDERS,

DANIEL & ANDERSON

1000 Atlas Life Building

Tulsa, Oklahoma 74103

(918) 582-1211

*Counsel of Record

Attorneys for Respondent