* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Group Management Services Inc. (GMS) appeals the di strict court’s award of attorney’s fees to Cher A. Bumps & Associates (C ABA) pursuant to Okla. Stat. tit. 12, § 936. We have diversity jurisdiction pur suant to 28 U.S.C. § 1332, and we affirm. I. Background. GMS, a third-party administrator of group health in surance products, initiated the underlying breach of contract and neg ligence action against CABA. GMS had entered into an administrative agreement wi th CABA to market and administer group insurance plans, including plans i ssued by Franklin Life Insurance Company (Franklin). GMS alleged that CAB A 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 m ight have suffered any loss as a result of CABA’s alleged errors was Franklin. Di scovery also revealed that GMS’s former president had assigned all of GMS’s ri ghts under the administrative agreement with CABA to Franklin, eff ective 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,-3-

GMS filed a motion seeking to substitute Franklin a s the real party in interest pursuant to Fed. R. Civ. P. 17(a). CABA objected to the substitution. CABA noted thatGMS had maintained throughout the discovery process that it suffered l oss, and only changed its position to claim it was not the real party in inte rest when, at the end of discovery, it was clear it had not suffered any dam ages. 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 t o 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 respo nse continued to argue Franklin was the real party in interest, but also a sserted 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 CA BA had violated GMS’s underwriting requirements. After GMS filed its response, the district court di smissed GMS’s action with prejudice. On CABA’s motion, the court later awarded CABA $ 15,156.50 in attorney’s fees under § 936.-4- II. Analysis. GMS appeals only CABA’s entitlement to attorney’s f ees 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 s ervices. “A prevailing party under section 936 must have prevailed upon the meri ts.” 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 a fter 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 ‘pr evailing party’ under Oklahoma law de novo,” and the district court’s det ermination 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 d ismissal is not a decision on the merits. This contention is without merit because i t is clear from the district court’s July 21, 1997 and August 15, 1997 orders th at the dismissal was not, as characterized by GMS, an involuntary real party in interest dismissal. The district-5-

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 g uidelines required by the administrative agreement, GMS had conceded it had s uffered no damage. Thus, the district court found that, even if CABA in factviolated the underwriting requirements, on the facts presented, GMS had faile d to state a claim. Appellant’s Appendix at A148-49. The district court also rejected GMS’s assertion that it had brought the underlying actionas Franklin’s agent, finding that GMS failed to present any evidence, in its adm inistrative agreement with CABA or otherwise, that it was required to bring th e 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 Franklinas 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 actio n. GMS also argues CABA is not entitled to attorney’s fees because the underlying action was not one “for labor or service s” 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-6-

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 fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge