* This order and judgment is not binding precedent, except under the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. 

F I L E D

United States Court of Appeals

Tenth Circuit

APR 15 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GROUP MANAGEMENT SERVICES,

INC., a North Carolina Corporation,

Plaintiff-Appellant,

v.

CHER A. BUMPS & ASSOCIATES,

INC., an Oklahoma Corporation,

Defendant-Appellee.

No. 97-6358

(D.C. No. 97-CV-24)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, BARRETT, and HENRY, 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. 34.1.9. The case is

therefore ordered submitted without oral argument.
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Group Management Services Inc. (GMS) appeals the district court’s award

of attorney’s fees to Cher A. Bumps & Associates (CABA) pursuant to Okla. Stat.

tit. 12, § 936. We have diversity jurisdiction pursuant to 28 U.S.C. § 1332, and

we affirm.

I. Background.

GMS, a third-party administrator of group health insurance products, 

initiated the underlying breach of contract and negligence action against CABA. 

GMS had entered into an administrative agreement with CABA to market and

administer group insurance plans, including plans issued by Franklin Life

Insurance Company (Franklin). GMS alleged that CABA failed to follow GMS’s

underwriting guidelines as required by the administrative agreement. GMS

alleged in its complaint that it incurred in excess of $200,000 in damages as a

result of the alleged CABA errors.

Near the end of the discovery period, GMS conceded that it had not

suffered any damages and that the only party that might have suffered any loss as

a result of CABA’s alleged errors was Franklin. Discovery also revealed that

GMS’s former president had assigned all of GMS’s rights under the

administrative agreement with CABA to Franklin, effective as of one week prior

to the date GMS filed the underlying action. Based on this discovery, CABA

demanded that GMS dismiss the complaint. Instead, after the close of discovery,
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GMS filed a motion seeking to substitute Franklin as the real party in interest

pursuant to Fed. R. Civ. P. 17(a). 

CABA objected to the substitution. CABA noted that GMS had maintained

throughout the discovery process that it suffered loss, and only changed its

position to claim it was not the real party in interest when, at the end of

discovery, it was clear it had not suffered any damages. CABA argued that

Franklin should not be substituted as the plaintiff and that GMS’s complaint

should be dismissed.

The district court denied GMS’s Rule 17(a) motion to substitute Franklin as

the real party in interest, finding that the motion was untimely, prejudicial to

CABA, and asserted no basis justifying its delayed filing. The district court

treated CABA’s objection as a motion to dismiss GMS’s complaint and gave

GMS an opportunity to respond thereto. GMS’s response continued to argue

Franklin was the real party in interest, but also asserted that GMS had brought the

action as Franklin’s agent. GMS further asserted that it had the right to bring the

breach of contract claim in its own name because CABA had violated GMS’s

underwriting requirements.

After GMS filed its response, the district court dismissed GMS’s action

with prejudice. On CABA’s motion, the court later awarded CABA $ 15,156.50

in attorney’s fees under § 936. 
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II. Analysis.

GMS appeals only CABA’s entitlement to attorney’s fees under § 936, not

the amount of attorney’s fees awarded. Section 936 entitles a prevailing party to

attorney’s fees in any civil action for labor and services. “A prevailing party

under section 936 must have prevailed upon the merits.” Arkla Energy Resources

v. Roye Realty & Developing, Inc., 9 F.3d 855, 866 (10th Cir. 1993) (construing

§ 936). “The authority to award an attorney’s fee to the prevailing party is not

limited to situations where a party prevails only after a trial on the merits[; the]

operative factor is success, not at which stage or how that success is achieved[].” 

Wieland v. Danner Auto Supply, Inc., 695 P.2d 1332, 1334 (Okla. 1984)

(quotation omitted). “We review the meaning of ‘prevailing party’ under

Oklahoma law de novo,” and the district court’s determination of who satisfied

that meaning for abuse of discretion. Arkla, 9 F.3d at 865-866 (citing Oklahoma

law). 

GMS contends that CABA is not entitled to attorney’s fees pursuant to

§ 936 because a Rule 17(a) real party in interest dismissal is not a decision on the

merits. This contention is without merit because it is clear from the district

court’s July 21, 1997 and August 15, 1997 orders that the dismissal was not, as

characterized by GMS, an involuntary real party in interest dismissal. The district
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court denied GMS’s real party in interest motion. It later dismissed GMS’s

complaint on the merits. 

The district court’s order of dismissal found that, with respect to GMS’s

claim that CABA failed to follow its underwriting guidelines required by the

administrative agreement, GMS had conceded it had suffered no damage. Thus,

the district court found that, even if CABA in fact violated the underwriting

requirements, on the facts presented, GMS had failed to state a claim. 

Appellant’s Appendix at A148-49. The district court also rejected GMS’s

assertion that it had brought the underlying action as Franklin’s agent, finding

that GMS failed to present any evidence, in its administrative agreement with

CABA or otherwise, that it was required to bring the action as Franklin’s agent or

was otherwise acting as Franklin’s agent. GMS does not appeal the district

court’s denial of its motion to substitute Franklin as the real party in interest, nor

the court’s dismissal of the complaint. We find no error in the district court’s

conclusion that, for purposes of the award of attorney’s fees under § 936, CABA

was the prevailing party on the merits of the action.

GMS also argues CABA is not entitled to attorney’s fees because the

underlying action was not one “for labor or services” as that term is used in

§ 936. GMS did not raise this argument before the district court, and therefore

we will not consider it on appeal. See Walker v. Mather (In re Walker), 959 F.2d
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894, 896 (10th Cir. 1992) (it is a general rule that this court will not consider an

issue on appeal that was not raised below). 

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett

Senior Circuit Judge