Sloan v. Owen, 49759
| Decision Date | 06 December 1977 |
| Docket Number | No. 49759,49759 |
| Citation | 1977 OK 239,579 P.2d 812 |
| Parties | Kenneth M. SLOAN and Mary A. Sloan, husband and wife, Appellants, v. Ben OWEN, d/b/a Ben Owen Building Company, Appellee. |
| Court | Oklahoma Supreme Court |
Certiorari to Court of Appeals, Division No. II appeal from the District Court of Oklahoma County; Raymond Naifeh, Trial Judge.
Plaintiffs, homeowners, filed an action for damages for negligence against the defendant, a contractor who had remodeled a portion of their home. The contractor filed a cross-petition for the foreclosure of his mechanic's and materialman's lien. Judgment was entered in accordance with a jury verdict and became final without appeal. That verdict was for plaintiffs for $0 on their petition and against the defendant on defendant's cross-petition. Thereafter, plaintiffs filed a motion for the assessment of costs and attorney fees. From the order denying that motion, plaintiffs appealed. The Court of Appeals, Division No. II, promulgated an opinion which reversed and remanded with directions, based on a finding that plaintiffs were the successful parties, both on their petition and on defendant's cross-petition. This Court granted certiorari, on application of homeowners, on November 7, 1977.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED TO TRIAL COURT WITH DIRECTIONS.
Morgan & Morgan, Inc., Oklahoma City, for appellants.
Yon, Yon & Brooks, Oklahoma City, for appellees.
In the trial court, plaintiff homeowners sued the defendant contractor for damages resulting from certain construction work done by contractor on their home. For convenience we will refer to the parties hereinafter as homeowners and contractor.
In the petition, homeowners affirmatively waived any action on contract and elected to sue in tort, alleging that their damages resulted from the contractor's gross negligence. The contractor filed a general denial and a cross-petition seeking the foreclosure of his mechanic's and materialman's lien on the property, in the amount that allegedly remained unpaid on the contract.
After a jury trial, the jury returned a verdict in rather equivocal language, to be hereinafter noted, and judgment was entered thereon. After the judgment became final without appeal, plaintiff homeowners filed a Motion to Assess Witness Fees, Attorney Fees and Deposition Costs as Court Costs. The appeal now before us is from the judgment denying this motion.
The verdict of the jury, signed by ten members thereof, was as follows:
"We, the jury, empaneled and sworn in the above entitled cause, do, upon our oaths, find for the plaintiffs, and fix amount of plaintiffs recovery at $0 and find against the defendant on defendant's cross-petition."
We will consider the court costs and attorney fees separately, since different considerations are involved.
In the briefs on appeal, homeowners take the position that because the jury found "for the plaintiffs", they were the "successful party" on their petition, even though they recovered no money judgment, and that they are therefore entitled to recover their costs as a matter of course under 12 O.S.1971, Section 928. That section provides, in pertinent part, that ". . . costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only . . .".
We do not agree that plaintiffs were the "successful" parties on their petition. They sued for damages for negligence. Actionable negligence consists of three elements: (1) the existence of a duty on the part of the defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom. Hembree v. Southard, Okl., 339 P.2d 777; Rush v. Mullins, Okl., 370 P.2d 557; Nicholson v. Tacker, Okl., 512 P.2d 156. Since no damages were awarded to plaintiffs on their petition, it necessarily follows that they did not establish actionable negligence, and for that reason they cannot be said to be the successful parties. Not being the successful parties, they are not entitled to costs as a matter of course under 12 O.S.1971, Sec. 928.
Homeowners were admittedly the successful parties in their defense against contractor's cross-petition for the foreclosure of his mechanic's and materialman's lien. However, Sections 928 and 929 are limited to ". . . actions for the recovery of money only, or for the recovery of specific real or personal property", which does not include actions for the foreclosure of such liens. Therefore, they are not entitled to recover costs...
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