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Durocher v. Nelson Stone Co.11/20/1998
This cause comes up on appeal with but a single issue of law to be decided. That point is: Are attorney's fees taxable as costs to the prevailing party in an action brought to recover deficit insurance premium assessments from a former member of an Oklahoma workers' compensation group formed under the authority of 85 O.S. 1991 §149.1? After the issue was briefed and argued the Trial Court held that this cause did not come within the bounds of 12 O.S. 1991 §936, and this determination is here affirmed.
The Employers Workers' Compensation Association, hereafter Appellant, TEWCA, or Receiver, advances both a §936 (services) basis for attorney's fee award and an open account theory. The open account theory argued here in one paragraph was not presented to the Trial Court in argument, and was not mentioned in the brief to the Trial Court. That being the case, this Court will not consider that proposition in this appeal. The parties are limited to presenting on appeal issues presented to the Trial Court. Issues and arguments which are not presented to, and passed upon by, the Trial Court will not be reviewed on appeal. This appellate court must confine its review to issues which were presented to the Trial Court. Appellate courts will not make first instance determinations of disputed questions of law, or fact, whether the appeal is in law, equity, or review of an administrative decision. Reddell v. Johnson, 1997 OK 86, 942 P.2d 200; Bivins v. State ex rel. Oklahoma Memorial Hospital, 1996 OK 5, 917 P.2d 456; McKinny v. Harrington 1993 OK 88, 855 P.2d 602; Jones v. Alpine Investments, Inc., 1987 OK 113, 764 P.2d 513. The rational for the rule is the fact that this appellate court is an error correcting court, and without presentation of the question to the nisi prius tribunal, and a subsequent erroneous determination of that question, there is no error to correct on appeal. Jurisdictional questions are an exception to this rule. Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, 911 P.2d 1205.
The remaining contention is that the action carries with it attorney's fees to the successful party because it comes under the nomenclature of an action to recover for the nonpayment of insurance services and is therefore within 12 O.S. 1991 §936. It is, the Appellant says, the only logical Conclusion that can be drawn from a reading of the statute and the Plaintiff's petition. Appellant then aids the court by affording several citations to case law, in the event the Court is unable to reach this common sense Conclusion by merely reading the statute and applying it to the facts. As there is ample authority from the Oklahoma Supreme Court on this question, and analysis of Appellant's citation to Court of Civil Appeals cases is bypassed.
Cases cited by Appellant prior to 1975 are not in point in interpreting the "labor or services" provision of §936. The now current interpretation of the "contract for services" portion of §936 begins with the case of Russel v. Flanagan, 1975 OK 173, at -10, 544 P.2d 510, at p. 512, when the court stated:
" We are of the opinion that the phrase 'or for labor or services' properly comes within the initial category of 'a civil action' not, as appellant contends, the antecedent classification of a 'contract relating to . . ..'"
" We believe that the addition of the phrase 'or for labor or services' by amendment to the statute in 1970 was intended by the legislature to be limited to those situations where suit is brought for labor and services rendered. We believe that an improper and unintended meaning would result if, as appellant contends, this clause were construed to allow attorney fees in the all encompassing field of 'con
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