State Insurance Fund v. ACE Transportation Inc., (10th Cir. 1999)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE INSURANCE FUND, a

Department of the State of Oklahoma,

Plaintiff-Appellee,

v.

ACE TRANSPORTATION, INC., a

corporation; DYNASTY

TRANSPORTATION, INC., a

corporation; JAMES H. GLASGOW and

BILL A. BUSBICE, JR., individuals,

Defendants-Appellants.

No. 99-6020

(D. C. No. 96-CV-1755-A)

(W.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before TACHA, McKAY, and

MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendants in this diversity case appeal the district court's grant of

attorney fees to Plaintiff in the amount of $35,750.00.

Plaintiff filed the underlying action to recover premiums due under certain

workers' compensation insurance policies issued to Defendants. The district

court awarded judgment to Plaintiff on August 31, 1998, and on that basis,

Plaintiff subsequently filed an application for attorney fees. Defendants did not

file a response or otherwise object to the fee application. In an Order dated

November 30, 1998, the district court awarded attorney fees to Plaintiff pursuant

to Okla. Stat. tit. 12, § 936. In this appeal, Defendants contest only the basis for

the award, not the amount.

Having thoroughly reviewed the record and the briefs submitted on appeal,

we can see no reason for departing from the longstanding rule that this court will

not consider issues raised for the first time on appeal. See Walker v. Mather (In

re Walker), 959 F.3d 894, 896 (10th Cir. 1992). Defendants did not present the

district court with any basis on which to deny attorney fees, and they have not

shown any unusual circumstances which would warrant departing from our rule.

See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1386 (10th Cir. 1997).

The appeal is DISMISSED.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

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*. This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

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