Goodman v. Norman Bank of Commerce, 50044
| Decision Date | 07 June 1977 |
| Docket Number | No. 50044,50044 |
| Citation | 565 P.2d 372 |
| Parties | 21 UCC Rep.Serv. 1407 Violet GOODMAN, Appellant, v. NORMAN BANK OF COMMERCE, Appellee. |
| Court | Oklahoma Supreme Court |
Monnet, Hayes, Bullis, Thompson & Edwards by John T. Edwards, Oklahoma City, for appellant.
H. L. Heiple, Norman, for appellee.
In November, 1974, appellant, Violet Goodman, filed an action against appellee, Norman Bank of Commerce, Ms. Goodman, who had been assigned all payee rights in a check written on the Norman Bank, sought to recover the face value of the check because of the Bank's failure to accept or dishonor the check before its midnight deadline thus being liable for the full face amount of the check under the provisions of 12A O.S.1971 § 4-302.
The trial court sustained appellee Bank's demurrer to Ms. Goodman's amended petition. The trial court's action was affirmed by the Court of Appeals, Division 1, in Goodman v. Norman Bank of Commerce, Okl.App., 551 P.2d 661 (1976) (). Thereafter, the Bank asked for and the trial court awarded an attorney fee against appellant.
The sole question presented in this appeal is whether the trial court erred in awarding the appellee Bank attorney fees. As a general rule, a trial court is without authority to award attorney fees unless a right to such fees exists by virtue of contract or statute. See, e. g., Keel v. Convey, 206 Okl. 128, 241 P.2d 954 (1952); Wilson v. Hecht, Okl., 370 P.2d 28 (1962); and Oklahoma City Urban Renewal Authority v. Lindauer, Okl., 534 P.2d 682 (1975). Although there are exceptions to this rule, no basis for an exception is present, thus, the trial court's authority to award an attorney fee must be based upon a contractual or statutory right. There being no contractual right to a fee under the facts before us, the court's power to award attorney fees must be based upon statute.
Appellee Bank argues that the action brought by Ms. Goodman was an action to recover on a negotiable instrument, thus the prevailing party in the action is entitled to an attorney fee by virtue of the provisions of 12 O.S.1971 § 936. 1
Conversely, appellant argues that the suit is not one to recover on a negotiable instrument, but is one brought for the mishandling of a negotiable instrument by the payor Bank the Bank, under the provisions of 12A O.S.1971 § 4-302, being liable for the full face amount of the check mishandled, regardless of whether the check was properly payable or not.
Title 12A O.S.1971 § 4-302 provides:
"In the absence of a valid defense such as breach of a presentment warranty (subsection (1) of Section 4-207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
(a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline ; or
(b) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents. " (Emphasis added)
In support of her argument that the action was not an action to recover on a negotiable instrument, appellant cites Security Bank & Trust Co. v. Fed. Nat'l Bank, Okl.App., 554 P.2d 119, 125 (1976) (). In that case, the Court of Appeals, Division 2, stated:
The action brought by Ms. Goodman, as demonstrated by the amended petition filed in that action was based upon the Bank's mishandling of the check. The amended petition provided in part:
"The failure of defendant, Norman Bank of Commerce, to pay said check when presented November 14, 1973, or to dishonor it before midnight of...
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