State ex rel. Harris v. $325,080.00

485 P.3d 242

STATE of Oklahoma, EX REL, Tim HARRIS, D.A., Plaintiff/Appellee,

v.THREE HUNDRED AND TWENTY FIVE THOUSAND AND EIGHTY DOLLARS ($325,080.00), Defendant,Austin Hingey, Claimant/Appellant.

No. 117,737

Comp. w/ 116,875

Supreme Court of Oklahoma.

FILED APRIL 6, 2021

Mark D. Lyons, Tulsa, Oklahoma, for Claimant/Appellant.

James D. Dunn, Assistant District Attorney, Tulsa County District Attorney's Office, Tulsa, Oklahoma, for Plaintiff/Appellee.

KAUGER, J.:

¶1 On October 12, 2020, the Court granted certiorari in the above styled and numbered cause, which is a companion case to No. 116,875 [neglect of police to file original search warrant with the clerk in civil forfeiture]. On February 8, 2021, the Court voted to withdraw certiorari as improvidently granted in No. 116,875.

¶2 This cause, No. 117,737, concerns the recovery of attorney fees in a forfeiture when a claimant has successfully recovered a portion of the forfeiture property. The issues presented on certiorari are whether: 1) 63 O.S. Supp. 2016 § 2-506¹ can be applied retroactively to allow recovery of attorney fees before it became effective November 1, 2016; 2) the trial court abused its discretion in awarding attorney fees based on a percentage of the amount of funds recovered compared to the amount sought to be recovered; 3) appellant is entitled to appeal related attorney fees as well. We hold that: 1) 63 O.S. Supp. 2016 § 2-506 applies retroactively; 2) the trial court abused its discretion in awarding attorney fees based on the percentage of the amount of money recovered compared to the amount sought to be recovered; and 3) the claimant is also entitled to appeal related attorney fees.

FACTS AND PROCEDURAL HISTORY

¶3 In April of 2014, Tulsa Police Officers (Officers) executed search warrants for residences located at 314 S. Trenton Avenue (Trenton residence), and 230 S. Richmond Avenue (Richmond residence) in Tulsa, Oklahoma. An informant allegedly purchased marijuana from the claimant/appellant, Austin Hingey (Hingey), while inside the Trenton residence. Hingey was remodeling the Trenton residence which was owned by his sister.

¶4 While at the Trenton residence, the officers observed marijuana, scales, and packaging materials in plain sight, and discovered $2,121.00 in Hingey's wallet. An open safe located in the house also contained marijuana and mushrooms. Marijuana brownies, marijuana butter, and marijuana candy were also found in the refrigerator. The officers arrested Hingey.

¶5 Hingey lived at the Richmond residence, where officers found a small bag containing $5,050.00 and $480.00 in a bedroom. During the search, officers also located a rent adjustment notice for unit #26 from A-AAA Key Mini Storage in the name of Nicholas Hingey with the Richmond residence listed as the billing/mailing address. The rent adjustment was postmarked April 30, 2014. Nicholas Hingey is the claimant's brother, and the claimant is the only other person authorized to access the storage unit.

¶6 Later that same day, the officers presented the owner/operator of A-AAA Key Mini Storage of Tulsa, Oklahoma, with a signed Tulsa County Search Warrant for storage unit #26. Officers searched unit #26 and discovered two large cardboard boxes with multiple envelopes of cash totaling $325,080.00. They also discovered a large bag of marijuana weighing over twenty pounds as well as mushrooms, seeds, packing materials, mailing labels, and seven unknown orange pills.

¶7 As a result of the seizures, the State filed three forfeiture cases in May of 2014, against Hingey in the Tulsa County District Court: Case Number CV-2014-555; CV-2014-557; and CV-2014-558. The first case, CV-2014-555, concerned the $2,121.00 the State seized from Hingey's wallet during the first search. The second case, CV-2014-557, involved the $5,530.00 the State seized at Hingey's sister's house. The last case, CV-2014-558, was about the $325,080.00 found in the storage unit. Hingey answered and objected to the forfeitures and sought return of the money.

¶8 The trial court consolidated the cases on August 4, 2015. The State resolved the criminal proceedings against Hingey through a plea agreement which is not at issue in this cause. The forfeiture cause proceeded to a jury trial on February 5-8th, 2018. Hingey testified and presented some evidence at trial that the money was not from drug sales, but rather, was his savings from teaching dance lessons and various contract/remodel and/or other odd jobs. At the conclusion of its case in chief, the State dismissed the forfeiture of the $5,530.00 it had seized at the Richmond residence so that it could be returned to Hingey. The jury returned verdicts for the return of the $2,121.00 seized from Hingey's wallet at the Trenton residence, and for $25,080.00 of the $325,080.00 seized from storage unit #26.

¶9 The trial court entered and filed journal entries on the verdicts on February 22, 2018. On February 28, 2018, Hingey filed an application for attorney fees and costs, seeking $43,855.00 in attorney fees plus $1,002.98 in costs for a total of $44,857.98, as well as interest on the seized funds. The trial court, on January 3, 2019, issued a final order and judgment. It determined that 63 O.S. Supp. 2016 § 2-506,² which became effective November 1, 2016, allowed a claimant to recover attorney fees only after that date. It held that, in addition to successfully recovering $25,080.00 of the $325,080.00 seized:

1) Hingey was the prevailing party in the dismissed $5,530.00 cause and entitled to attorney fees;

2) the jury found for Hingey in the $2,120.00 cause, also entitling him to attorney fees; and

3) no attorney fees were available related to Hingey's unsuccessful summary judgment motion which was denied.

¶10 The trial court's "math" was as follows. Attorney fees claims of $5,718.75, which were incurred prior to November, 1, 2016, were excluded, as was $4,543.75 which were related to Hingey's denied summary judgment motion. [$10,262.50 total]. This left $36,505.00 from the total of $46,767.50 which was requested. Because Hingey ultimately prevailed on recovering a total of $32,731.00 of the $332,731.00 total taken by the State, the trial court concluded that he was successful in recovering approximately 10% of what was seized. Accordingly, the trial court awarded Hingey 10% of $36,505.00 which was $3,650.00.

¶11 The trial court also calculated pre-judgment interest for 2016, 2017, and 2018, as well as litigation costs for a total award of $4,164.36. Hingey filed an appeal on February 4, 2019, primarily objecting to the way the trial court awarded only 10% of what he requested because he recovered 10% of what he sought. The cause was assigned to the Court of Civil Appeals.

¶12 On June 26, 2020, the Court of Civil Appeals, in an unpublished opinion affirmed the trial court in part, reversed the trial court in part, and reversed and remanded with instructions. It recognized that it has affirmed the companion case No. 116,875 on appeal. It held that: 1) the trial court's "novel" approach to awarding 10% was not clearly erroneous, given the amount of forfeiture and the amount Hingey recovered; but 2) the trial court should have applied the attorney fee statute retroactively, thus Hingey is entitled to an additional 10% prior to November 1, 2016.

¶13 On July 20, 2020, Hingey filed a petition for certiorari in this Court, and on July 27, 2020, he filed a separate motion for appeal related attorney fees. We granted certiorari in this cause on October 12, 2020, to determine the first impression question of whether 63 O.S. Supp. 2016 § 2-506 applies retroactively, and whether the calculation of attorney fees based on a percentage of the recover is in accordance with Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659.

I. TITLE 63 O.S. SUPP. 2016 § 2-506 APPLIES RETROACTIVELY.

¶14 Hingey argues that even though the applicable attorney fee statute, 63 O.S. Supp. § 2-506 became effective November 1, 2016,³ the trial court should have applied it retroactively. The State does not dispute Hingey's argument. It states that "the State does not object to this Court remanding this matter to the trial court to" include fees incurred prior to the effective date of the statute's enactment.

¶15 We agree that the statute should be applied retroactively. Ordinarily, statutes and amendments are to be construed to operate only prospectively, unless the Legislature clearly expresses a contrary intent.⁴ If doubt exists, it is resolved against retroactive effect.⁵ Nevertheless, we explained in Forest Oil Corp. v. Corp. Comm'n of Oklahoma, 1990 OK 58, ¶ 11, 807 P.2d 774, a case involving the application of a statute which delineated proper parties and specified who was entitled to notice of proceedings, that the general rule notwithstanding:

... [R]emedial or procedural statutes which do not create, enlarge, diminish, or destroy vested rights may operate retrospectively, and apply to pending actions or proceedings. A purely procedural change is one that affects the remedy only, and not the right....

¶16 In Qualls v. Farmers, 1981 OK 61, ¶4, 629 P.2d 1258, we held that portion of an insurance offer of settlement statute relating to the awarding attorney fees to the prevailing party is to be construed as operating retrospectively. We reached this conclusion because the taxing of attorney fees relates to a mode of procedure. Consequently, because the taxing of attorney fees pursuant to 63 O.S. Supp. § 2-506,⁶ is nothing more than a mode of procedure in this cause, the statute applies retroactively.

II.THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY FEES BASED ON THE PERCENTAGE OF THE AMOUNT OF MONEY RECOVERED COMPARED TO THE AMOUNT SOUGHT TO BE RECOVERED.

¶17 The standard of review for the award of attorney fees by the trial court is for an abuse of discretion.⁷ The State argues that the trial court's method of awarding 10% of the amount recovered as the award of attorney fees was not clearly erroneous....