Andress v. Bowlby, 62363
| Decision Date | 23 May 1989 |
| Docket Number | No. 62363,62363 |
| Parties | Bill O. ANDRESS, Appellant and Cross-Appellee, v. Frank D. BOWLBY, Ms. Ann E. Carson, Ms. Linda C. Wedel, Mr. Clark Bass, The Estate of C.E. Bowlby, Jr., The Estate of Elizabeth B. McWilliams, Appellees and Cross-Appellants. |
| Court | Oklahoma Supreme Court |
Appeal from District Court of Pittsburg County; Robert A. Layden, Trial Judge.
AFFIRMED IN PART; REVERSED IN PART.
Gotcher, Brown and Bland by Warren Gotcher, McAlester, for appellant and cross-appellee.
Richard P. Cornish, McAlester, for appellees and cross-appellants.
Appellant Bill O. Andress was the holder of oil and gas leasehold interests covering property in which surface ownership was held by appellees. Appellant filed a petition in the District Court of Pittsburg County alleging that he had attempted to negotiate with appellees to establish the amount of surface damages resulting from appellant's proposed drilling operations on the property, but that the parties had been unable to reach a settlement in the matter. Appellant requested appointment of appraisers pursuant to 52 O.S.Supp.1982 § 318.5(A).
Appraisers were appointed and instructed by the trial court. The appraisers returned a report finding surface damages to appellees' property resulting from appellant's drilling activities in the amount of $7500. Both appellant and appellees filed demand for jury trial pursuant to § 318.5(F).
On the day set for commencement of the jury trial appellant withdrew his demand for jury trial. The cause was tried to a jury under appellees' request and verdict was rendered finding surface damages in the amount of $20,000, and judgment was rendered on this verdict. Appellees moved for assessment of costs, attorney fees and expert witness fees against appellant pursuant to 52 O.S.Supp.1982 § 318.5(F). The trial court granted the motion as to court costs but denied the motion as to attorney fees and expert witness fees.
Appellant appeals from the judgment rendered on the jury verdict. Appellees have cross-appealed from the trial court's ruling denying attorney and expert witness fees.
On appeal appellant presents four propositions of error. The first argument presented challenges the constitutionality of the application of the Oklahoma oil and gas surface damages act, 52 O.S.Supp.1982 §§ 318.2 through 318.9, to the present case. The arguments presented have been rejected by this Court in the case of Davis Oil Company v. Cloud, 766 P.2d 1347 (Okla.1986).
Appellant's second proposition of error challenges the instructions given to the jury by the trial court. Appellant argues that the jury should have been instructed as to the proper method of assessment of temporary damages. As we stated in Davis, supra, the damages to be assessed by the jury in a surface damages act case is the diminution of the fair market value of the surface estate resulting from the drilling operations. In the present case the jury was properly instructed as to this issue.
Appellant's third proposition challenges the trial court's evidentiary ruling excluding from evidence a letter from one of the appellees to appellant concerning negotiations for use of an existing well to dispose of salt water produced from the well drilled which is the subject of this action. As stated in the previous paragraph, the issue for determination by the jury in this case was the diminution in fair market value of the surface estate resulting from appellant's drilling operations. We do not see that the trial court abused the discretion vested in it pursuant to 12 O.S.1981 § 2403. Any relevance this letter may have had to the issue of loss of market value was clearly outweighed by the likelihood of prejudice or confusion of the issues. Further it appears from appellant's argument that this letter was presented as bearing on the issue of temporary damages, an issue not properly before the jury.
Appellant's final proposition of error presents the argument that the trial court improperly allowed testimony concerning future events. We find no merit to this argument as 52 O.S.Supp.1982 § 318.5(C) clearly indicates that future events may be considered in determining loss of market value.
Turning to the single proposition of error presented by the cross-appeal, we find merit in appellees' argument that attorney fees should have been awarded to them under 52 O.S.Supp.1982 § 318.5(F), which provides, in pertinent part:
"If the party demanding jury trial does not recover a verdict more favorable to him than the assessment award of the appraisers, all court costs including reasonable attorney fees shall be assessed against him."
Appellant argues that since he withdrew his demand for jury trial before the trial actually commenced, he cannot have attorney fees assessed against him.
In the case of Oklahoma City Urban Renewal Authority v. Lindauer, 534 P.2d 682 (Okla.1975) this Court dealt with 66 O.S.1971 § 55, which provided, in pertinent part:
"If the party demanding such trial does not recover a verdict more favorable...
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...Id. [52] Okl. Stat. Ann. tit. 52 §§318.2-318.9 (1991). [53] Davis Oil Co. v. Cloud, 766 P.2d 1347 (S.Ct. Okla 1986); Andress v. Bowlby, 773 P.2d 1265 (S.Ct. Okla.) 1989). [54] Davis, supra note 53 at 1350. [55] Okla. Stat. Ann., supra note 52, §318.5A. [56] Id. at §318.5C. [57] Id. at §318.......