Jeffcoat v. Highway Contractors, Inc.

• Decision Date: 01 August 1972
• Docket Number: No. 1,No. 44649,44649,1
• Citation: 508 P.2d 1083
• Parties: L.E. JEFFCOAT, Appellee, v. HIGHWAY CONTRACTORS, INC., and United States Fidelity and Guaranty Company, Appellants
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1083

508 P.2d 1083

L.E. JEFFCOAT, Appellee, v. HIGHWAY CONTRACTORS, INC., and United States Fidelity and Guaranty Company, Appellants.

No. 44649.

Court of Appeals of Oklahoma, Division No. 1.

Aug. 1, 1972.

Richard James, Stroud, for appellee.

Sidney R. Clarke, III, Shawnee, Dan A. Erwin, Chandler, for appellants.

BOX, Judge:

This is an appeal by defendants from a jury verdict for plaintiff and a court awarded attorney's fee.

A statement of facts, as set out by defendants, is as follows.

On November 26, 1968, Highway Contractors, Inc., defendant, entered into an agreement with L. E. Jeffcoat whereby plaintiff agreed to cut and fell timber on the Salt Camp Creek Watershed at Stroud, Oklahoma. The contract involved the clearing of 406.5 acres at $30.00 per acre.

On March 11, 1969, defendant entered into another agreement with plaintiff whereby he agreed to cut and fell timber on the Quapaw Creek Watershed at Meeker, Oklahoma. The contract involved the clearing of 57.5 acres at 35.00 per acre.

United States Fidelity and Guaranty Company executed a payment bond in connection with each of these contracts. Under the terms of said bond, the United States Fidelity and Guaranty Company guaranteed payment of sums under said contract and agreed that it would be liable jointly and severally along with defendant Highway Contractors, Inc., for the sums owing.

Plaintiff filed a Petition in the District Court of Lincoln County, Oklahoma, against defendants alleging breach of said contract and payment bond and asking for recovery of the full contract price, less sums paid for its benefit by defendant, for a total of $3,630.36.

Defendants filed an Answer and Counterclaim denying the allegations contained in such petition. Defendants alleged that they paid sums for the benefit of plaintiff under each contract, and that the plaintiff failed to perform under each contract and other persons had to be employed to complete the contracts. As a result, defendants alleged the plaintiff was overpaid and counterclaimed for $430.37.

Plaintiff filed a Reply and Answer denying the allegations in the Answer and Counterclaim. The plaintiff modified his prayer for judgment and asked for the sum of $2,067.65.

Trial was set for October 13, 1970, in the District Court of Lincoln County, Oklahoma, and was concluded on October 14, 1970. The jury returned a verdict for plaintiff in the amount of $1,818.50 on the first cause of action and $216.85 on the second cause of action. The court entered judgment against defendants for these amounts plus $675.00 in attorneys' fees.

Defendant appeals and contends:

I

' The verdict is not sustained by sufficient evidence.'

No citation of authority is contained or presented to the court regarding this proposition by defendants or plaintiff. The Supreme Court stated in Casualty Reciprocal Exc. v. Waggoner Drilling Co., 340 P.2d 490 (Okl.1959), in the syllabus:

'4. Assignments of error, presented by counsel in their brief, if unsupported by authority, will not be considered by the Supreme Court on appeal, unless it is apparent without further research that they are well taken.'

Nevertheless, from a review of the evidence by this court, we find same sufficient to sustain the jury verdict on behalf of plaintiff in the total amount of $2,035.35.

Defendant next contends:

II

'The court erred in awarding the plaintiff attorney fees upon motion as costs.'

The record reflects that after the jury verdict, plaintiff filed a motion for fixing of attorney's fees. The judgment of the court reflected the following:

'The Court finds that a stipulation has been entered into between the parties hereto stipulating and agreeing that if the Court finds that an attorney fee should be fixed that the same could be fixed by the Court without the offering of evidence by either of the parties as to what a reasonable attorney fee would be, such stipulation being made without prejudice, with the contention being made by the Defendants that no attorney fee should be allowed Plaintiff's attorney.

'The Court having heard argument of counsel and being fully advised in the premises, finds that Plaintiff's motion for the Court to fix an attorney fee should be sustained and the Court further finds from the stipulation of the parties hereto that this Court should proceed to fix the attorney fee without hearing evidence as to the amount or reasonableness of the same, and the Court finds an attorney fee should be allowed Plaintiff's attorney in the sum of $675.00.'

The record further reflects that at the time of entering into the contract to fell and cut all timber on November 26, 1968, and March 11, 1969, the statute providing for attorney fees, 12 O.S.Supp.1967, § 936, reads as follows:

'In any civil action to recover on open accounts, statements of accounts, accounts stated, bills, and written contracts relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.'

Whereas, when the case was tried, the Legislature had amended said section, 12 O.S.Supp.1970, § 936, to read as follows:

'In any civil action to recover on an open account, a statement of account, account stated, Note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, Or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.' (emphasis supplied)

The question is, whether the amended statute can be applied in this case since it appears that the contract was made, and probably the cause of action had arisen, before the effective date of the statute, but the action was commenced afterward.

Generally, statutes affecting substantive rights are not to be given retroactive effect unless the wording shows that to have been the legislative intent. Phillips v. H. A. Marr Grocery Co., 295 P.2d 765 (Okl.1956). However, statutes which relate only to remedies or to modes of procedure are held to operate retroactively unless the contrary intention is clearly expressed or implied from the language used. Shelby-Downard Asphalt Co. v. Enyart, 67 Okl. 237, 170 P. 708 (1918). Other jurisdictions commonly have treated statutes awarding attorney's fees, to be taxed as costs, as relating only to the remedy or mode of procedure. 20 A.Jur.2d Costs § 7 (1965).

In the case of Igoe Brothers v. National Surety Company, 112 N.J.L. 243, 169 A. 841 (1934) the Court of Errors and Appeals held:

'5. Right to costs is statutory, and depends upon statute in force at termination of action, and not upon statute in force at commencement of action.'

At page 844 the Court states as follows:

'Chapter 142 of the laws of 1932 (P.L. p. 254), became effective on May 2, 1932 (Comp.St.Supp. §§ 107--149C(1) to 107--149C(4). This act amended the act of 1918 aforesaid. Among its several provisions section 3 is amended (Comp.St.Supp. § 107--149C(3), in part, to read as...