GARY M. JOHNSON, Plaintiff/Appellee,
STATE OF OKLAHOMA, ex. rel., OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
Mandate Issued: 01/03/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE GEARY L. WALKE, JUDGE AFFIRMED
Stephen G. Fabian, Jr., Oklahoma City, Oklahoma, for
Horne, OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Oklahoma City,
Oklahoma, for Defendant/Appellant.
Mitchell, Presiding Judge
Defendant/Appellant State of Oklahoma, ex. rel.,
Oklahoma Department of Public Safety (DPS) appeals from an
order awarding Plaintiff/Appellee Gary M. Johnson (Driver)
$8, 299.66 in attorney and expert witness fees. We find the
trial court properly awarded fees pursuant to 12 O.S. 2011
§941 (B) because DPS had no reasonable basis for
revoking Driver's license; further, we find the amount
awarded was not an abuse of discretion. We affirm.
Driver was arrested on November 16, 2014 for driving under
the influence. On March 24, 2016, DPS issued an order
revoking Driver's license. Pursuant to newly decided case
law directly controlling Driver's case, DPS issued a new
order setting aside the revocation on April 26, 2016. Despite
the fact that Driver's license revocation had been set
aside, DPS issued a notice to Driver on June 4, 2016,
apparently due to a clerical error, titled "Confirmation
Notice and Reinstatement Requirements" (the Notice). The
Notice informed Driver that his license had been revoked for
a period of 180 days beginning May 23, 2016 and that it was
unlawful for him to drive during that period. The Notice also
included a list of conditions to be completed and fees to be
paid by Driver in order to reinstate his license after the
180-day period expired. Driver notified his attorney, who
purchased a Motor Vehicle Report (MVR). The MVR indicated
that Driver was indeed under revocation.
Driver filed an appeal in district court. When DPS learned of
the proceeding, it sent Driver's attorney a letter
stating, "This will acknowledge receipt of your appeal
in the above captioned case. Our records have been updated to
reflect the proper Implied Consent Order that sets side [sic]
the revocation stemming from your client's 11/16/2014
stop." The letter was unsigned, and no set aside order
was attached to the letter or sent separately to Driver or
his attorney. Driver's attorney purchased another MVR,
which confirmed that the revocation had been removed from
Driver's record. The court held a hearing on Driver's
appeal on July 11, 2016. After the hearing, the court
sustained Driver's petition and, in an order dated July
20, 2016, the court set aside "the revocation of
[Driver's] license dated June 4, 2016[.]" This order
was not appealed by DPS.
Driver then filed an application for attorney fees and costs.
Driver cited 12 O.S. 2011 §941 (B) as authority for the
award, which provides, in pertinent part, as follows:
The respondent in any proceeding brought before any state
administrative tribunal by any state agency, board,
commission, department, authority or bureau authorized to
make rules or formulate orders shall be entitled to recover
against such state entity court costs, witness fees and
reasonable attorney fees if the tribunal or a court of proper
jurisdiction determines that the proceeding was brought
without reasonable basis or is frivolous[.]
hearing, the court found that DPS revoked Driver's
license without a reasonable basis and, accordingly, Driver
was entitled to an award of attorney fees and costs under
§941(B). The court awarded $6, 799.66 in attorney fees
and $1, 500.00 in expert witness fees, for a total of $8,
299.66. DPS appeals.
Statutory construction presents a question of law that we
review de novo. Humphries v. Lewis, 2003 OK
12, ¶3, 67 P.3d 333, 335. Likewise, the question of
whether a party is entitled to attorney fees is a legal
question reviewed de novo. State ex. rel. Dep't of
Transp. v. Cedars Grp., L.L.C., 2017 OK 12, ¶10,
393 P.3d 1095, 1100. Under that standard, we claim plenary,
independent and non-deferential authority to reexamine the
trial court's legal rulings. Kluver v. Weatherford
Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084.
However, we review the question of whether an attorney fee
award is reasonable only to determine if the court abused its
discretion. Finnell v. Seismic, 2003 OK 35, ¶8,
67 P.3d 339, 342.
DPS argues the court erred as a matter of law by expanding
the "without reasonable basis" language in
§941(B) to include clerical errors. We find Miller
v. State ex. rel. Dep't of Pub. Safety, 1996 OK CIV
APP 71, 926 P.2d 797, instructive. There, another division of
this Court found that the trial court had evidence from which
it could conclude that revocation proceedings were brought
without a reasonable basis where DPS admitted it lacked
authority to revoke an out-of-state motorist's license or
have him disqualified in his home state. Id.,
¶8, 926 P.2d at 800. Here, DPS revoked Driver's
license, even after case law directly controlling
Driver's case directed the revocation to be set aside.
DPS did not dispute that its actions were unjustified. The
determination of whether a particular action is
"reasonable" is within the trial court's
discretion. Here, the trial court found that DPS'
clerical error was not a reasonable basis to revoke
Driver's license; that finding will not be disturbed on
DPS also argues the case was mooted when it corrected
Driver's record and there should have been no hearing on
Driver's appeal. We disagree. "[V]oluntary cessation
of challenged conduct does not deprive a tribunal of its
power to conduct appellate review." State ex. rel.
Oklahoma Firefighters Pension and Retirement System v. City
of Spencer, 2009 OK 73, ¶5, 237 P.3d 125, 129.
"A claim may be mooted where subsequent events make it
absolutely clear that the allegedly ...