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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1022

## Text

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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II.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1019%3A2. Public record. Not legal advice.