Truelock v. City of Del City

• Decision Date: 30 June 1998
• Docket Number: No. 87875,87875
• Citation: 1998 OK 64,967 P.2d 1183
• Parties: Mark TRUELOCK and Andrea Truelock, Plaintiffs-Appellees-Counter-Appellants, v. CITY OF DEL CITY, Defendant-Appellant-Counter-Appellee.
• Court: Oklahoma Supreme Court

Page 1183

967 P.2d 1183

1998 OK 64

Mark TRUELOCK and Andrea Truelock Plaintiffs-Appellees-Counter-Appellants, v. CITY OF DEL CITY, Defendant-Appellant-Counter-Appellee.

No. 87875.

Supreme Court of Oklahoma.

June 30, 1998.

Rehearing Denied Sept. 14, 1998.

Certiorari to the Court of Civil Appeals, Division 3.

¶0 Plaintiffs, the Truelocks, received judgment on a jury verdict for $25,000.00 in property damages, and $42,800.00 for inconvenience, annoyance, and discomfort in a Governmental Tort Claims Act suit arising out of a flood damage claim against defendant, City of Del City. The trial court granted the Truelocks an attorneys' fee of $23,000.00 under 12 O.S.1991 § 940 as the prevailing parties in an action to recover damages to property. The Court of Civil Appeals affirmed the $25,000.00 property damage award, but reversed the award for inconvenience, annoyance, and discomfort and the attorneys' fee award on the ground that they were a species of property damage, and the Governmental Tort Claims Act, 51 O.S.Supp.1994 § 154.A.1, limited Del City's liability for property damage to a total of $25,000.00. The Truelocks sought certiorari review by this Court, and we granted certiorari on January 25, 1998.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART, THE TRUELOCKS' APPLICATION FOR APPEAL RELATED ATTORNEYS' FEES DENIED.

Randall J. Wood, Oklahoma City, for Appellees-Counter-Appellants.

David A. Davis, Oklahoma City, for Appellant-Counter-Appellee.

WATT, Justice.

FACTS AND PROCEDURAL BACKGROUND

¶1 On April 20, 1992 plaintiff, Mark Truelock, filed a notice of tort claim with the City of Del City alleging damage to a house he owned in Del City. Mark Truelock alleged in his claim that the damage had occurred on April 16, and 17, 1992 because "rain water backs up due to improper maintenance of utility ease[ment]." Between May 5, 1992, and July 5, 1995, Mark Truelock filed 15 additional notices of tort claim with Del City claiming additional damages to the house from flooding, and from discharge of raw sewage from sanitary sewer lines caused by surface water. Mark Truelock, and his wife, Andrea Truelock, sued Del City for damages on January 13, 1993. The case was tried to a jury from May 20 through May 23, 1996.

¶2 Mark Truelock moved into the house in 1978 and he and his family moved out in the spring of 1990 because the property "flooded all the time." They moved into a rent house located two doors from their own home. Mark Truelock testified on deposition that the home had flooded "Half a dozen, dozen times a year" since the late 1980s. Water got into the house "almost 50 percent of the time it rained." At trial, Mark Truelock admitted on cross examination that when he moved out of the house in 1990 "the property was uninhabitable for [his] family." In this connection, photographs of the property taken in July 1992 reveal that much of the sheet rock in the house had been removed because of water damage. The house is located at the lowest point on the street.

¶3 The trial court instructed the jury that the statute of limitations barred any damages the Truelock's sustained prior to April 16, 1992, which was the date of the first loss for which the Truelocks sought damages from Del City. The trial court rejected the Truelocks' contention that Del City was equitably estopped from relying on the statute of limitations as a defense to their damages occurring before April 16, 1992. The Truelocks claimed Del City representatives had promised that Del City would fix the flooding problems, but the trial court rejected the Truelocks' argument on the ground that 51 O.S.Supp.1995 § 157 states that "settlement negotiations" do not extend the time limits imposed by the Governmental Tort Claims Act for making and denying claims "unless agreed to in writing by the claimant and the state or political subdivision."

¶4 The Court of Civil Appeals held that the Truelocks were not entitled to recover damages for inconvenience, annoyance, and discomfort because such damages were in the nature of property damages, not personal injury damages, and the Truelocks had already recovered the $25,000.00 maximum allowed by law for property damages. The Court of Civil Appeals also reversed the trial court's award of attorneys' fees to the Truelocks.

¶5 On certiorari to this Court the Truelocks raise three issues:

I Was the verdict and judgment for inconvenience, annoyance, and discomfort a claim "for loss of property" or one "for any other loss" under 51 O.S.Supp.1994 § 154.A?

II Are the Truelocks entitled to attorneys' fees?

III Does the fact that the Truelocks filed multiple claims under the Governmental Tort Claims Act entitle them to recover more than the $25,000.00 "for loss of property arising out of a single act" provided for in 51 O.S.Supp.1994 § 154.A.1?

¶6 Del City did not seek certiorari with respect to any of the issues the Court of Civil Appeals resolved against it, and the Truelocks did not seek certiorari with respect to certain rulings the Court of Civil Appeals made that were adverse to them. We decline to revisit those issues here. We generally will not consider any issue that the Court of Civil Appeals decided adversely to any party, even the prevailing party in the Court of Civil Appeals, if that issue is not addressed on certiorari. Rules 3.14 and 3.15, 12 O.S.1991, Ch. 15, App. 3, Nichols v. Mid-Continent Pipe Line Company, 1996 OK 118 p 23, 933 P.2d 272.

¶7 There is a fourth issue that the Court of Civil Appeals did not decide because it was not necessary to do so under its view of the case. We must do so now, however, because of our holding that the Truelocks' inconvenience, annoyance, and discomfort damages are in the nature of personal injury:

IV Could the fact that the Truelocks were not living in the house defeat their claim for inconvenience, annoyance, and discomfort under the facts of this appeal?

DISCUSSION

I.

THE TRUELOCKS VERDICT AND JUDGMENT FOR INCONVENIENCE,

ANNOYANCE, AND DISCOMFORT WAS A CLAIM "FOR ANY

OTHER LOSS" AND SUBJECT TO THE

$100,000.00 LIMITATION UNDER 51 O.S.SUPP.1994 § 154.A.2

¶8 This is an issue of first impression. We have, on several occasions, allowed recovery for inconvenience, annoyance, and discomfort in suits for nuisance but have not previously addressed whether such damages were property damage or were damages for other losses under § 154 of the Governmental Tort Claims Act. ¹ ¶9 For the reasons discussed here we hold that damages for inconvenience, annoyance, and discomfort arising out of a nuisance claim are not damages for "any loss of property," but are damages "for any other loss" under 51 O.S.Supp.1994 § 154.A. such damages are, therefore, subject to § 154's $100,000.00 limitation, not its $25,000.00 limitation. Del City urged, and the Court of Civil Appeals held, that damages for inconvenience, annoyance, and discomfort are in the nature of damages to property and, therefore subject to the $25,000.00 limitation in § 154.A.1 of the Governmental Tort Claims Act. We disagree, and expressly disapprove the contrary conclusion expressed by the Court of Civil Appeals in Cunningham v. City of Ardmore, 1996 OK CIV APP 102 p 7, 930 P.2d 828.

¶10 This Court made clear that damages for inconvenience, annoyance, and discomfort are injuries to the person and not to property in Oklahoma City v. Tytenicz, 1935 OK ----, 171 Okla. 519, 43 P.2d 747, 748-49. There we held that "the cause of action for personal inconvenience, annoyance, and discomfort is for injury to the person...."

¶11 In Oklahoma City v. Eylar, 1936 OK ----, 177 Okla. 616, 61 P.2d 649, 651, we held, "the weight of authority ... supports the view that damages for inconvenience, annoyance, and discomfort are separate, distinct, and independent [from damages for depreciation of rental value of property] elements of damage."

¶12 We followed Eylar in City of Holdenville v. Kiser, 1937 OK ----, 179 Okla. 216, 64 P.2d 1223, 1225. There we held that parties asserting a claim for injury for inconvenience, annoyance, and discomfort stated a cause of action "for injury to their persons," separate from one for damage to property.

¶13 In Phillips Petroleum Co. v. Ruble, 1942 OK ----, 191 Okla. 37, 126 P.2d 526, 527, we rejected the defendant's contention that injuries for inconvenience, annoyance, and discomfort were property damages rather than damages for personal injuries. There we said that we could not "change an injury to the person into one to property by so denominating it." We reached the same conclusion in Town of Braggs v. Slape, 1952 OK ----, 207 Okla. 420, 250 P.2d 214, and City of Cordell v. Lowe, 1963 OK ----, 389 P.2d 103, 107.

¶14 Tytenicz, Eylar, Kiser, Slape, and Lowe, make inescapable the conclusion that the cause of action for inconvenience, annoyance, and discomfort is one for personal injury and is separate and distinct than the cause of action for damages to property, although the right to both may arise in a suit for nuisance. We hold, therefore, that a claim for inconvenience, annoyance, and discomfort under § 154 of the Governmental Tort Claims Act is governed by the $100,000.00 limitation for "other loss" rather than by the $25,000.00 limitation for "loss of property."

II. THE TRUELOCKS WERE NOT ENTITLED TO AN ATTORNEYS' FEE

¶15 The trial court awarded the Truelocks an attorneys' fee for $23,000.00 under 12 O.S.1991 § 940. SUBSECTION A² of § 940 allows attorneys' fees only in actions to recover "damages for willful or negligent injury to property. " [Emphasis added.] Section 154 of the Governmental Tort Claims Act allows claimants a maximum recovery of $25,000.00 for "loss of property," note 1. The Truelocks received judgment for $25,000.00 for loss of property before attorneys' fees. The question is whether the fact that the Truelocks recovered the $25,000.00 maximum allowed by the Governmental...