Rout v. Crescent Public Works Authority

• Decision Date: 12 July 1994
• Docket Number: No. 78903,78903
• Parties: David W. ROUT, Appellant, v. CRESCENT PUBLIC WORKS AUTHORITY, Appellee.
• Court: Oklahoma Supreme Court

Page 1045

878 P.2d 1045

1994 OK 85

David W. ROUT, Appellant, v. CRESCENT PUBLIC WORKS AUTHORITY, Appellee.

No. 78903.

Supreme Court of Oklahoma.

July 12, 1994.

Certiorari to the Court of Appeals, Division No. 1; Penny L. Howard, Trial Judge.

The appellee, Crescent Public Works Authority (Crescent) built a sewage plant in Logan County, Oklahoma. Subsequently, the appellant, David W. Rout (Rout) sued Crescent for negligently and willfully damaging his real property. Crescent denied the allegations arguing that Rout failed to comply with the Governmental Tort Claims Act (the Act), 51 O.S.1991 § 151 et seq. and moved for summary judgment. The trial judge Honorable Penny L. Howard, granted summary judgment to Crescent. Crescent moved for costs and attorney's fees pursuant to 12 O.S.1991 § 940. The trial judge awarded costs and attorney's fees to Crescent and the Court of Appeals affirmed. Attorney fee awards are restricted to statutes specifically providing for recovery of attorney's fees. We find that 12 O.S.1991 § 940 provides for attorney's fees in civil actions to recover damages for the negligent or willful injury to property. Attorney's fees and costs were properly awarded to a political subdivision which prevailed on a motion for summary judgment in an action brought pursuant to the Governmental Tort Claims Act.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Bruce MacDougall, Oklahoma City, for appellant.

R. Thomas Lay, Oklahoma City, for appellee.

KAUGER, Justice:

The first impression question presented is whether the trial court erred in awarding attorney's fees and costs to a political subdivision which prevailed on a motion for summary judgment in an action brought pursuant to the Governmental Tort Claims Act

                (the Act), 51 O.S.1991 § 151 et seq. 1  Attorney fee awards are restricted to statutes specifically providing for recovery of attorney's fees.  We find that 12 O.S.1991 § 940 2 provides for attorney's fees in civil actions to recover damages for the negligent or willful injury to property.  Attorney's fees and costs were properly awarded to a political subdivision which prevailed on a motion for summary judgment in an action brought pursuant to the Governmental Tort Claims Act
                

FACTS

Crescent Public Works Authority (Crescent) built a sewage plant in Logan County, Oklahoma. On August 24, 1990, David W. Rout (Rout) sued Crescent and three of its sub-contractors alleging that they negligently and willfully damaged his property by improperly locating, designing, constructing and maintaining the sewage plant. In his petition, Rout alleged physical damage to his property that included erosion, loss of trees, loss of crops and loss of rental value. Crescent denied the allegations arguing that: 1) Rout failed to comply with the Governmental Tort Claims Act, (the Act) 51 O.S.1991 § 151 et seq.; and 2) because Rout failed to comply with the Act, the claim was barred by the statute of limitations and sovereign immunity. Crescent moved for summary judgment. On May 9, 1991, the trial court entered summary judgment for Crescent. ³

On June 11, 1991, Crescent moved for attorney's fees and costs arguing that pursuant to 12 O.S.1991 § 940, ⁴ it was a prevailing party and thus entitled to recover costs and attorney's fees incurred in defending the suit. Rout countered in his response to the motion for attorney's fees and costs that liability under the Act is exclusive; that the Act does not provide for recovery of costs or attorney's fees; and that § 940 is not applicable when an action is brought pursuant to the Act.

The trial court awarded Crescent costs and attorney's fees pursuant to 12 O.S.1991 § 940. ⁵ Rout appealed and the Court of Appeals held that because the express language of the Act does not prevent attorney's fees and costs from being awarded in a case where a fee award is otherwise authorized by statute, § 940 is applicable. We granted certiorari on September 13, 1993, to address the question of first impression.

ATTORNEY FEE AWARDS ARE RESTRICTED TO STATUTES SPECIFICALLY PROVIDING FOR RECOVERY OF ATTORNEY'S FEES. 12 O.S.1991 § 940 PROVIDES FOR ATTORNEY'S FEES IN CIVIL ACTIONS TO RECOVER DAMAGES FOR THE NEGLIGENT OR WILLFUL INJURY TO PROPERTY. ATTORNEY'S FEES AND COSTS WERE PROPERLY AWARDED TO A POLITICAL SUBDIVISION WHICH PREVAILED ON A MOTION FOR SUMMARY JUDGMENT IN AN ACTION BROUGHT PURSUANT TO THE GOVERNMENTAL TORT CLAIMS ACT.

Rout asserts that although his claim against Crescent is the kind of claim for which 12 O.S.1991 § 940 ⁶ allows recovery, he was required to pursue his cause of action under the confines of the Governmental Tort Claims Act. ⁷ Rout does not allege any error concerning Crescent's status as a political subdivision, the amount of the fee award, or the grant of summary judgment. He insists that because the Act does not expressly provide for attorney's fees and costs, the award was improper. Crescent argues that the Act's silence on the subject of attorney's fees does not prevent either party from recovering costs and attorney's fees as a prevailing party.

Rout finds support in 51 O.S.1991 § 154 ⁸ which limits a political subdivision's liability but does not specifically provide for attorney's fees and costs. He relies on McCracken v. City of Lawton, 648 P.2d 18, 20 (Okla.1982), for the propositions that: 1) specific statutory exclusions within the Act exempt a political subdivision from attorney's fees available in a general statute; and 2) a private person who prevails against a political subdivision would not be entitled to attorney's fees and cost. Rout's reliance on the case for the proposition that had he prevailed against Crescent, he would not be entitled to attorney's fees and costs is misplaced. McCracken does not stand for such a broad exposition of the law.

McCracken involved a class-action suit brought by business owners and operators against the city of Lawton challenging the validity of a zoning ordinance. The trial court certified the class and awarded the plaintiffs attorney's fees. This Court did not hold in McCracken, that the Governmental Tort Claims Act prohibited an attorney's fees award where a political subdivision is not immune from a claim for monetary relief. Instead, we held that: 1) the Act specifically granted immunity to the political subdivision for any loss resulting from its legislative function; 2) although the suit in McCracken was for a declaratory judgment rather than in tort for money judgment, the thrust of the suit was to secure relief for a legislative measure; and 3) the Act barred recovery of attorney's fees from the city where the city was immune from liability.

In McCracken, the political subdivision was immune from a suit for monetary recovery because the suit was to challenge the city's exercise of its legislative function. ⁹ McCracken does not support appellant's "The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act."

                proposition that had Rout prevailed he would not have been able to collect attorney's fees and costs from Crescent. 10  We agree with Rout concerning the general rules that the Act is the exclusive remedy for an injured plaintiff to recover against a governmental entity for its negligence 11 and that limitations within the Act control over general statutory law. 12  However, the Act is silent regarding attorney's fees and costs, 13 and it does not speak to an award of fees to either party. 14  The Act does, however, in Subsection 164 provide
                

Costs are statutory expenses or fees incurred by a party to an action. ¹⁵ There is no common-law right permitting recovery of expenses of litigation. If any right exists, it must be statutory. ¹⁶ Costs generally do not include attorney's fees. ¹⁷ Attorney's fees, under the American rule, are not recoverable unless specifically allowed by statute or provided by contract. ¹⁸ Title 12 The determination of legislative intent controls statutory interpretation. ²² The intent is ascertained from the whole act in light of its general purpose and objective. ²³ However, it is unnecessary to apply the rules of construction if the legislative will is clearly expressed. ²⁴ The Legislature in clear, explicit, and mandatory language incorporates the laws and statutes of the State of Oklahoma into the Governmental Tort Claims Act, unless they are inconsistent with provisions of the Act. The fact that there are no specific provisions within the Act for attorney's fees and costs and 12 O.S.1991 § 940 ²⁵ specifically authorizes attorney's fees and costs in actions such as this, does not create an inconsistency between the two statutes. Had the Legislature intended to exclude an award of attorney's fees under the Act, it could have done so as it did for punitive or exemplary damages. ²⁶ Attorney fee awards are restricted to statutes specifically providing for recovery of attorney's fees. 12 O.S.1991 § 940 provides for attorney's fees in civil actions to recover damages for the negligent or willful damage to property. Accordingly, the trial court properly awarded attorney's fees to Crescent as the prevailing party.

                O.S.1991 § 940 19 expressly provides for attorney's fees and costs to a prevailing party in an action for negligent an willful damage to real property. 20  Here, Crescent prevailed on a motion for summary judgment to an action for willful damage to real property. 21  There is nothing in the Act which suggests that had Rout prevailed and Crescent were not immune from liability, Rout would not have been able to collect attorney's fees and costs from Crescent
                

CONCLUSION

Attorney's fees are not recoverable unless provided by statute or enforceable...