Beard v. Richards, 71007

• Decision Date: 12 November 1991
• Docket Number: No. 71007,71007
• Citation: 820 P.2d 812,1991 OK 117
• Parties: George BEARD, Appellant, v. Hubert RICHARDS and Leonard Salmons, Appellee.
• Court: Oklahoma Supreme Court

Page 812

820 P.2d 812

1991 OK 117

George BEARD, Appellant, v. Hubert RICHARDS and Leonard Salmons, Appellee.

No. 71007.

Supreme Court of Oklahoma.

Nov. 12, 1991.

Certiorari to the Court of Appeals, Division 4

Plaintiff/Appellant filed suit against Hubert Richards and his employer, Leonard Salmons, to recover damages for personal injury caused by the intentional tortious acts of defendant, Hubert Richards. The jury returned a verdict in favor of plaintiff and against defendant Richards and a directed verdict in favor of defendant Salmons. Defendant Salmons, appellee, was awarded attorney fees and costs. The Court of Appeals reversed the award of attorney fees and costs.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

Patrick E. Carr, Carr & Carr Attys., Tulsa, for appellant.

Larry E. Rahmeier, Bassman, Mayberry, Scarth & Rahmeier, Claremore, for appellee.

ALMA WILSON, Justice:

This is an appeal from an order awarding attorney fees and costs pursuant to 23 O.S.Supp.1986, § 103. The first impression issue presented is: Whether a plaintiff's claim against a defendant "was not well grounded in fact" and "unwarranted by existing law", if the defendant prevails on a directed verdict? We conclude: 1) a claim or defense of a non-prevailing party is well grounded in fact where the party has presented prima facie evidence which, together with all inferences to be drawn therefrom, if unrebutted, establishes a set of facts to support a judgment in favor of the non-prevailing party on the claim or defense; and, 2) a claim or defense of a non-prevailing party is warranted by existing law where the party asserts a recognized theory of law which would support the claim or defense. We hold that plaintiff/appellant's claim against defendant/appellee was well grounded in fact and warranted by existing law.

The facts which gave rise to the claim for personal injury damages are that George Beard, plaintiff/appellant, (Beard), a slight man, sixty years of age, was traveling to his employment site as a toll booth attendant for the Turnpike Authority. Hubert Richards, defendant, (Richards), six foot in height and 31 years of age, was driving a tractor-trailer vehicle owned by Leonard Salmons, defendant/appellee, (Salmons), and in the process of hauling a load for Salmons. Beard and Richards were driving on a local turnpike, when each became frustrated with the driving of the other. As they approached the turnpike toll-booths, Beard stopped his automobile so that Richards could not proceed through the toll passage. Beard and Richards exited their vehicles, and as Beard approached Richards, he struck Beard with a two-foot iron bar, breaking Beard's arm. Then, Richards proceeded to pay the toll and move his truck through the toll gate before the police were summoned.

Beard sought damages for the personal injury caused by Richards' assault and battery. Beard named Richards and Salmons, as Richards' employer, as defendants. Richards cross-claimed for malicious prosecution. Salmons filed a motion to dismiss and a motion for summary judgment, asserting that both his truck and the driver, Richards, were leased to Roadrunner Freight Systems, Inc. Thus, Salmons argued that he had no liability under the theory of respondeat superior because Roadrunner had exclusive control of Richards at the time of the injury. The trial court denied Salmons' pretrial motions.

The case proceeded to a jury trial. In Beard's case-in-chief, Salmons testified that Roadrunner was responsible for the direction and control of Richards, including the selecting, hiring, firing, supervising, directing, training, wages, hours, pay adjustments and employee grievances; in other words, that Roadrunner was the employer of Richards. Beard introduced a copy of the "Independent Contractors Agreement" between Roadrunner and Salmons. (Plaintiff's Exhibit 9). Beard's attorney questioned Salmons extensively about Salmons' Independent Contractor Agreement with Roadrunner. Salmons admitted that the agreement specifically provided that the drivers, drivers' helpers or laborers were to remain and be employees of Salmons; that Salmons would have exclusive supervision and control of the drivers; that Salmons would be fully responsible as the employer and would select, hire, fire, direct, train, pay, and insure the employees; and, that Salmons could reject any load and direct the driver as to stops during any haul.

Beard presented testimony of Richards that Salmons had the right to hire and fire him, but that Roadrunner decided when and where to originate a haul, the destination and the destination time. Richards also testified that on the date of the altercation with Beard, he (Richards) was pinched for time and that any delay at the toll booth would cause a late delivery and a reduction in pay for his employer. Both Richards and Salmons testified that Salmons was paid by Roadrunner in accordance with the terms of the agreement, at a set amount per mile reduced for late arrival at the assigned destination; and, that Salmons paid Richards. At the close of Beard's case-in-chief, Salmons' demurrer to the evidence was overruled.

In Richards' case-in-chief, Beard's attorney solicited testimony on cross-examination that, prior to the injurious incident, Richards had been fired from prior employment for throwing wet insulation; Richards had been incarcerated for fighting in a tavern; Salmons had never seen Richards start a fight, but in hiring Richards, Salmons made inquiry about Richards only from his last employer; Salmons did not obtain Roadrunner's approval of Richards as a driver; and Richards had been in Salmons' employ for four months when the injurious incident occurred.

Salmons' testimony was offered in rebuttal to Beard's evidence. Salmons testified that the agreement was prepared by the Roadrunner attorneys to protect Roadrunner and that the agreement did not really "work that way." Other than his testimony, Salmons did not present any other rebuttal evidence. Roadrunner is not a party to this action and no representative of Roadrunner was called by any party as a witness.

At the close of the evidence, the trial court granted Salmons' request for a directed verdict. The jury returned a verdict in favor of Beard and against Richards in the amount of $6,232.17; a verdict in favor of Beard and against Richards on Richards' cross-claim; and, a verdict as directed by the court in favor of Salmons and against Beard. Judgment was entered in favor of Beard in the total amount of $8,527.67. Salmons' post-judgment motion for reimbursement of attorney fees and costs against Beard was granted in the total amount of $8,331.15. The correctness of the directed verdict was not appealed. This appeal is from the award of attorney fees and costs to Salmons as a prevailing party pursuant to 23 O.S.Supp.1986, § 103.

The Court of Appeals reversed the trial court award of attorney fees. Relying on Norton v. Harmon, 192 Okl. 36, 133 P.2d 206 (1943), the Court of Appeals held that when a party presents prima facie evidence to support a claim or defense, such claim or defense is well grounded in fact regardless of the ultimate disposition. We agree. We previously granted certiorari to review this first impression issue.

Title 23 O.S.Supp.1986, § 103 states:

In any action for damages for personal injury except injury resulting in death, or in any action for damages to personal rights the court shall, subsequent to adjudication on the merits and upon motion of the prevailing party, determine whether a claim or defense asserted in the action by the nonprevailing party was asserted in bad faith, was not well grounded in fact, or was unwarranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Upon so finding, the court shall enter a judgment ordering such nonprevailing party to reimburse the prevailing party an amount not to exceed Ten Thousand Dollars ($10,000.00) for reasonable costs, including attorney fees, incurred with respect to such claim.

Section 103 is unambiguous. It authorizes prevailing party attorney fees and costs in certain circumstances. The express prerequisites to an award of prevailing party attorney fees are: 1) the claim is for damages for injury to person or personal rights; 2) the claim is adjudicated on the merits; 3) the prevailing party moves for reimbursement of attorney fees and other costs; and, 4) the court makes a determination that the claim or defense presented by the nonprevailing party was in bad faith, not well grounded in facts, unwarranted under existing law, or not a good faith argument for modification of existing law. Upon making the requisite finding, the trial court is mandated to enter a judgment directing the nonprevailing party to reimburse the prevailing party for reasonable costs, including attorney fees, incurred in defense of the unsuccessful claim. That is, Section 103 directs the trial court to penalize a party who abuses the courts by pursuing a frivolous claim or defense.

The Oklahoma Constitution, art. 2, § 6, guarantees that our courts will be open to every person and justice shall be administered without sale, denial, delay or prejudice. Liberal application of statutes authorizing prevailing party attorney fees has a chilling affect on our open access to the courts guarantee. See, Moses v. Hoebel, 646 P.2d 601 (Okla.1982), (litigation costs are subject to limitation in Okla. Const., art. 2, § 6). Accordingly, statutes authorizing prevailing party attorney fees are strictly applied by this Court. Kay v. Venezuelan Sun Oil Company, 806 P.2d 648 (Okla.1991). Exceptions to the American Rule are carved out with great caution. Estate of Katschor, 637 P.2d 855 (Okla.1982).

An award of attorney fees pursuant to 23 O.S.Supp.1986, § 103 must be within the strict confines of the statute. If any part of the statute requires...