Finnell v. Seismic

• Decision Date: 01 April 2003
• Docket Number: No. 97,342.,97,342.
• Citation: 67 P.3d 339,2003 OK 35
• Parties: Bill FINNELL and Sandra Finnell, Plaintiffs/Appellees, v. Jebco SEISMIC and Jebco Seismic L.P., Defendants/Appellants, and PGS ONSHORE, INC., Third-Party Defendant/Appellant.
• Court: Oklahoma Supreme Court

67 P.3d 339

2003 OK 35

Bill FINNELL and Sandra Finnell, Plaintiffs/Appellees, v. Jebco SEISMIC and Jebco Seismic L.P., Defendants/Appellants, and PGS ONSHORE, INC., Third-Party Defendant/Appellant.

No. 97,342.

Supreme Court of Oklahoma.

April 1, 2003.

Jack W. Ivester and Thomas S. Ivester, Ivester, Ivester & Ivester, Sayre, Oklahoma, for Appellees.

Mitchell A. Hallren, Fairview, Oklahoma, for Appellants.

OPALA, V.C.J.

¶ 1 The dispositive issues tendered on certiorari are (1) do the terms of 12 O.S.2001, § 940 entitle plaintiffs/appellees to a counsel-fee award? and if so, (2) is the fee that was awarded reasonable? We answer both questions in the affirmative.

I ANATOMY OF LITIGATION

¶ 2 Jebco Seismic, Inc. (Jebco) entered into an agreement in late 1997 or early 1998 with Bill Finnell (Finnell) which granted permission to Jebco and/or its assigns to conduct a 3-D seismic survey on Finnell's property.¹ As consideration for Finnell's permission to conduct the survey and as compensation for normal and customary damage to the land, Jebco agreed to pay Finnell $5,200.00 plus damages to specified crops. The contract recites that Jebco will conduct the survey "in accordance with good standard practices and in a prudent and careful manner."

¶ 3 The survey was conducted (at least in part) by Jebco's assignee, PGS Onshore, Inc. (PGS). When Finnell discovered that the survey had caused injury to his property beyond that covered by the agreed compensation, he demanded that Jebco pay for the damages. Jebco refused. Finnell then brought suit against Jebco in the District Court, Beckham County, seeking monetary damages in the amount of $74,000.00.

¶ 4 Before Jebco filed its answer, the parties stipulated to an amendment to the petition to add Jebco Seismic L.P. as a defendant (Jebco and Jebco Seismic L.P. will together be referred to as Jebco). Jebco denied Finnell's claim and filed a third-party petition against PGS,² alleging that damages, if any, to Finnell's property were caused by the third-party defendant, and not Jebco. Finnell then amended his petition to state his claim against Jebco Seismic, Jebco Seismic, L.P., and PGS (defendants). PGS denied causing any damage to Finnell's property. The petition was again amended by stipulation to add Sandra Finnell, Finnell's wife, as a party plaintiff (plaintiffs or the Finnells).

¶ 5 Prior to trial Jebco and PGS admitted liability,³ leaving only the damages issue for resolution. That issue was tried to a jury and a verdict for plaintiffs in the amount of $26,000.00 was returned. Judgment was entered against defendants, and PGS was ordered to hold Jebco harmless from the judgment.

¶ 6 Plaintiffs timely applied for an attorney's fee award pursuant to the provisions of 12 O.S.2001, § 940 (§ 940).⁴ Defendants objected. After hearing argument and evidence, the trial court awarded plaintiffs an attorney's fee in the amount of $17,005.00.⁵ Defendants appealed. The Court of Civil Appeals, Division II, reversed, holding that the gravamen of plaintiffs' claim was breach of contract and that § 940 does not apply to a contract claim. Plaintiffs sought certiorari. We now vacate the appellate court's opinion and affirm the trial court's attorney's fee award.

II STANDARD OF REVIEW

¶ 7 Two issues are presented on certiorari. The first is whether plaintiffs' claim entitles them to an attorney's fee award under the provisions of § 940. This issue presents a question of law which we review de novo. The court has plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings.⁶

¶ 8 The second issue, which need be decided only if plaintiffs are entitled to the statutory award in the first instance, is whether the fee awarded is reasonable. The amount to be awarded as a fee for the services of a legal practitioner is a matter left to the discretion of the trial court and will not be disturbed absent an abuse of discretion.⁷ Discretion is abused when a trial judge makes a clearly erroneous conclusion and judgment, against reason and evidence.⁸

III PLAINTIFFS ARE ENTITLED TO A COUNSEL-FEE AWARD UNDER THE PROVISIONS OF 12 O.S. 2001, § 940

¶ 9 The provisions of § 940 state in pertinent part:

"A. In any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney's fees, court costs and interest to be set by the court and to be taxed and collected as other costs of the action." (emphasis added)

¶ 10 As the prevailing party in this action, plaintiffs applied for an attorney's fee award in reliance on this section, characterizing their claim to be for a money judgment for the physical injury to property.⁹ Defendants challenged the application, arguing that § 940 was inapplicable to plaintiffs' claim because their petition's allegations pressed only a demand for breach of contract, and not one "to recover damages for the negligent or willful injury to property" as required by § 940.¹⁰ The trial court overruled defendants' objection and granted plaintiffs a fee for their attorney's services. We find no error in this ruling.

¶ 11 This court remains committed to the American Rule in assessing litigation expenses against a vanquished opponent.¹¹ Except where a statute or contract provides otherwise, or where litigation misconduct calls for the exercise of a tribunal's equitable power to assess expenses incurred in litigation-related misconduct,¹² every litigant is responsible for his (or her) own litigation costs, including the obligation to pay for an attorney's services.¹³ The parties in this case did not contract for one or the other to pay the costs of a lawsuit nor was there any allegation of litigation misconduct. Hence, plaintiffs may secure an attorney's fee only if that award is authorized by statute. Accordingly, the question for our review is whether plaintiffs' action is one "to recover damages for the negligent or willful injury to property" as required by § 940. We hold that it is.

¶ 12 With the adoption of the Oklahoma Pleading Code in 1984, Oklahoma became a notice pleading state.¹⁴ Notice pleading requires of the petition only that it give "fair notice of the plaintiff's claim and the grounds upon which it rests."¹⁵ This requirement is contained in the provisions of 12 O.S.2001, § 2008(A), which direct a party to set forth a short and plain statement of the claim consisting of simple, concise, and direct averments showing that the pleader is entitled to relief.¹⁶ For most claims, the use of terms of art or legal phraseology is no longer necessary.¹⁷ This state's notice pleading regime abolishes any requirement that a litigant correctly identify a theory of recovery or describe the remedy affordable for an asserted right's vindication.¹⁸ The doctrine of mandatory election of remedies is now an anachronism.¹⁹ At the submission stage, the court must charge the jury on all theories of recovery the evidence may support.²⁰ The court will craft the available relief which the facts justify.²¹

¶ 13 Oklahoma law has long recognized that an action for breach of contract and an action in tort may arise from the same set of facts.²² The court has held that where a contract is the mere inducement creating the state of things that furnishes the occasion for a tort, the tort, not the contract, is the basis of the action.²³ This is so because there is inherent in every contract a common-law duty to perform its obligations with care, skill, reasonable experience and faithfulness.²⁴ A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach-of-contract or tort theory, or both, but even if the evidence supports both, the claimant can achieve but a single recovery.²⁵ In the instant case, the contract contains an express undertaking to perform in a prudent and careful manner. Its terms hence provide a basis for recovery for a breach of contract. At the same time, the contract provides the factual background for a claim ex delicto, the basis of which is defendants' tortious conduct in the performance of a duty derived from the contractual relationship.²⁶ The petition's allegations give adequate notice of the dual nature of plaintiffs' claim.

¶ 14 Defendants also point to the jury instructions in support of their argument that the case was tried as a breach of contract action only, but we see nothing in the trial court's instructions to the jury that calls for this conclusion. The jury instructions indicate that the defendants at some point prior to trial admitted liability for the damage to plaintiffs' property.²⁷ The damage issue alone was tried.²⁸ The same quantum of monetary recovery is plaintiffs' due whether their claim be deemed actionable in contract or in tort.²⁹ The trial court instructed the jury on the measure of damages for injury to land in terms consistent with a tort theory of recovery.³⁰ The jury returned a general verdict. Nothing in the instructions or in the verdict precludes tort as the basis of plaintiffs' action or of the jury's award.

¶ 15 Statutes in derogation of the common law are to be liberally construed so as to effect legislative intent.³¹ The words negligent and willful are legal terms of art that refer to tortious conduct. The legislature's use of these terms in § 940 indicates its intent that § 940 apply to claims arising from tortious conduct, and not from breach of contract, rather than to distinguish between types of tortious conduct. As long as an action sounds in tort, the provisions of § 940 apply even if the words negligent or willful are not specifically pled.³² We have held that, as used in § 940, willfully denotes an action proceeding from a conscious motion of the will, an action that is intentional, knowing or voluntary as distinguished from accidental.³³ The words willful and negligent in § 940 simply represent the...