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No Notice of Appeal? No Problem

By Robyn Hagan Cain on October 18, 2012 | Last updated on March 21, 2019

A notice of appeal isn't the only way to challenge an issue in the Tenth Circuit Court of Appeals.

This week, the Denver-based court concluded that appellants who contested an attorney's fees award in their opening brief on a related issue satisfied the requirements of Federal Rule of Appellate Procedure (FRAP) 3(c)(1).

The plaintiffs in this case own surface estates in Oklahoma. They sued Flamingo Seismic Solutions, (a company engaged in geophysical data services for the oil and gas industry), in a trespass action for damages to their land caused by Flamingo's seismic exploration activities. The flaw in their claim was that the owners of undivided interests in the oil and gas leasehold and/or mineral estate underlying the plaintiffs' lands granted Flamingo permission to enter the properties and conduct seismic exploration.

The plaintiffs argued that the owners of the oil and gas leaseholds, as lessees, had no right to grant permission to enter the properties, and that such permission was further invalid because the seismic exploration did not benefit the mineral estate. They were wrong. Both the district court and the Tenth Circuit Court of Appeals agreed that Oklahoma allows for such entry and exploration. Flamingo won summary judgment, and the plaintiffs were ordered to pay over $70,000 in attorney's fees.

The case gets interesting with the plaintiff's attorneys fees appeal, because the plaintiffs never quite filed a notice of appeal after the district court awarded attorney's fees. Instead, they filed their opening brief in their previously-noticed summary judgment appeal, and specifically challenged the fee award in the brief.

Flamingo argued that the Tenth Circuit lacked jurisdiction to review the attorney's fees award because the plaintiffs failed to file a second notice of appeal after the fee award. The appellate court disagreed.

Under Rule 3(c)(1), a notice of appeal must specify the party or parties taking the appeal, name the court to which the appeal is taken, and designate the judgment, order, or part thereof being appealed. The plaintiffs' appellate brief met all of those requirements, so the court concluded that it had jurisdiction.

Unfortunately for the plaintiffs, the favorable jurisdiction ruling was the only good news out of the opinion. The Tenth Circuit upheld the fee award, noting that Oklahoma jurisprudence provides that a party who successfully defends a property damage claim is entitled to attorney's fees under Okla. Stat. tit. 12, § 940(A).

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