Tower Oil & Gas Co., Inc. v. Paulk, 65648

• Decision Date: 11 July 1989
• Docket Number: No. 65648,65648
• Citation: 1989 OK 105,776 P.2d 1279
• Court: Oklahoma Supreme Court
• Parties: TOWER OIL & GAS COMPANY, INC., Appellee, v. Billy R. PAULK and Frances J. Paulk, Husband and Wife, Appellants.

Page 1279

776 P.2d 1279

1989 OK 105

TOWER OIL & GAS COMPANY, INC., Appellee, v. Billy R. PAULK and Frances J. Paulk, Husband and Wife, Appellants.

No. 65648.

Supreme Court of Oklahoma.

July 11, 1989.

Certiorari to the Court of Appeals, Division III, Appeal from District Court of McClain County; J. Kenneth Love, Trial Judge.

Appellee filed exceptions to appraisers' award under oil and gas surface damages act and demanded jury trial. On day before trial appellee withdrew demand for jury trial and tendered amount of appraisers' award. Appellants sought award of attorney fees and costs and interest on the amount of the appraisers' award. Trial court denied the requests of appellants and this appeal resulted. Court of Appeals affirmed trial court and appellants sought certiorari from this Court.

CERTIORARI GRANTED; OPINION OF COURT OF APPEALS VACATED; ORDER OF TRIAL COURT REVERSED AND CAUSE REMANDED.

Pence & Housley by Roger O. Housley, Norman, for appellee.

Rex D. Brooks, Oklahoma City, for appellants.

LAVENDER, Justice:

On October 22, 1984 appellee Tower Oil & Gas Company, Inc., filed a petition in district court seeking appointment of appraisers pursuant to the oil and gas surface damages act, 52 O.S.Supp.1982, §§ 318.2 through 318.9, to assess damages to the surface estate held by appellants, Billy R. and Frances J. Paulk, resulting from Tower's proposed entry onto the property to undertake oil and gas drilling operations. Appraisers were appointed and instructed by the court. On January 25, 1985 the appraisers filed a report to the trial court awarding surface damages to appellants' in the amount of 18,000 dollars. Appellee filed a demand for jury trial.

This matter was set for jury trial on May 14, 1985, but in response to objections filed by Tower the trial was reset for October 23, 1985. On October 22, 1985 Tower withdrew its demand for jury trial and tendered into court the amount of the appraisers' award. The court entered judgment for appellants in the amount of the award. Appellants then filed a motion to assess costs and expenses and attorney fees against Tower and for award of interest on the judgment from the date of the appraisers' award. The trial court denied appellants' request and this appeal ensued.

The Court of Appeals, Division III, to which this matter was originally assigned for disposition, affirmed the trial court. The Court of Appeals agreed with Tower that 52 O.S.Supp.1982 § 318.5(F) which provides, in pertinent part:

"If the party demanding jury trial does not recover a verdict more favorable to him than the assessment award of the appraisers, all court costs including reasonable attorney fees shall be assessed against him."

requires that a jury verdict be rendered before it can be given effect. The Court of Appeals also found that Tower's actions were not of such a nature as to justify a finding of bad faith upon which to base an award of costs and attorney fees. Finally, the Court of Appeals found that a prejudgment interest award at the rate of 6 percent should be given to appellants from the date of the taking to the date of judgment and that a post judgment award of interest to be set by the trial court should be entered from the date of the judgment entered in this case.

Appellants sought certiorari from this Court alleging: 1) that the Court of Appeals misinterpreted section 318.5(F); 2) that appellants had established the bad faith nature of Tower's actions; and 3) that the post judgment rate of interest should have been applied as of the date of the appraisers' report to the trial court. We now grant the requested writ of certiorari.

In its opinion in this case the Court of Appeals stated that appellants' proposed reading of section 318.5(F) flew in the face of the plain language of the statute, which that court found to require the entry of a jury verdict before an award of court costs and attorney fees could be made. However, our reading of this provision reveals nothing on which this conclusion could be logically based. The statute very clearly states that if a party demanding a jury trial fails to obtain a verdict more favorable than the appraisers' award that party shall be subject to having court costs and attorney fees assessed against him. If, as here, a party demands a jury trial and then later withdraws that request, that party has clearly failed to recover a jury verdict more favorable than the appraisers' award. We find that the proper reading of the provision is that the filing of the demand for jury trial is the activating event rather than the entry of a jury verdict.

Such a reading of the statute is clearly in...