TRW/Reda Pump v. Brewington

Decision Date03 March 1992
Docket Number74972,75686 and 75712,74918,Nos. 74839,74973,s. 74839
Citation1992 OK 31,829 P.2d 15
PartiesTRW/REDA PUMP, own risk, Petitioner, v. Steven DEAN and the Workers' Compensation Court, Respondents. TRW/REDA PUMP, own risk, Petitioner, v. Charles EDEN and the Workers' Compensation Court, Respondents. TRW/REDA PUMP, own risk, Petitioner, v. James THOMAS and the Workers' Compensation Court, Respondents. TRW/REDA PUMP, own risk, Petitioner, v. Doyle CONNER and the Workers' Compensation Court, Respondents. TRW/REDA PUMP, own risk, Petitioner, v. Jim D. SWALLEY and the Workers' Compensation Court, Respondents.
CourtOklahoma Supreme Court

Certiorari to the Court of Appeals, Division No. II, Appeals from Oklahoma Workers' Compensation Court, Three-Judge Panels.

After orders of three-judge panels of the Workers' Compensation Court were entered awarding compensation in six separate cases petitioner, employer appealed. The Court of Appeals affirmed the awards in all six cases. Respondents, employees, then sought attorney fees for appellate work under 20 O.S.Supp. 1982, § 15.1. By 2-1 decision the Court of Appeals determined the appeals were "without merit", respondents were entitled to recover attorney fees for appellate work and remanded to the trial court for a determination of a reasonable attorney fee in each case. Held: Section 15.1 is applicable to appeals in workers' compensation cases. It is a statute of general application which allows attorney fees to be awarded against a party bringing a patently frivolous appeal, one having no legitimate legal or factual basis. The appeals in Case Nos. 74,918, 74,973, and 75,712 are patently frivolous and respondents are entitled to recover attorney fees for appellate work in those cases. The appeals in Case Nos. 74,839, 74,972 and 75,686 cannot likewise be said to be patently frivolous.

CERTIORARI PREVIOUSLY GRANTED; APPEALS CONSOLIDATED UNDER CASE NO. 74,839; COURT OF APPEALS ORDERS IN CASE NOS. 74,918, 74,973 AND 75,712 VACATED AND REMANDED TO WORKERS' COMPENSATION COURT WITH DIRECTIONS; COURT OF APPEALS SUPPLEMENTAL OPINIONS ON REHEARING IN CASE NOS. 74,839, 74,972 AND 75,686 VACATED IN PART.

Thomas E. Steichen, Jo Anne Deaton, Rhodes, Hieronymus, Jones, Tucker and Gable, Tulsa, for petitioner.

Richard A. Bell, Norman, for respondents.

LAVENDER, Justice.

We decide 1) whether 20 O.S.Supp.1982, § 15.1, provides a statutory basis for an Respondents, former employees of Petitioner, TRW/Reda Pump, filed separate claims for workers' compensation benefits. One case alleged cumulative trauma to the back, another to an elbow, a third to both knees and the other three injury to the lungs and/or respiratory system from exposure to dust, fumes and other airborne substances. Each matter proceeded to trial for permanent partial disability. An award was entered finding some percentage of permanent partial disability in each case. TRW filed for review with three-judge panels of the Workers' Compensation Court. The awards were either affirmed or modified in part, but in the latter cases an award for permanent partial disability was still entered, albeit in a lesser percentage than awarded by the trial judge. TRW filed appeals. In each case the orders of the three-judge panels were affirmed by the Court of Appeals, Division 2.

                appellate court to allow an award of attorney fees against a party taking a patently frivolous appeal from an order of the Oklahoma Workers' Compensation Court and 2) if so, are one or more of the appeals before us patently frivolous?   We hold § 15.1 is a statute of general application affording a statutory basis for this Court or a Court of Appeals to allow an award of attorney fees against an appealing party bringing a patently frivolous appeal from an order of the Workers' Compensation Court.  We also hold three of the appeals have no legitimate legal or factual basis and are, thus, patently frivolous.  We hold the other three appeals are not frivolous, even though unsuccessful, for the reason one argument made therein had a legitimate legal basis in light of the facts in the record(s) and concerned an area of the law in flux at the time the argument was made. 1
                

Respondents, relying on § 15.1, then filed applications for appellate attorney fees arguing the appeals were frivolous, without merit and filed for the purpose of delay. TRW argued § 15.1 did not apply in workers' compensation appeals and, in any event, the appeals were not frivolous. In each case by 2-1 decision the Court of Appeals held respondents were entitled to fees and remanded to the trial court for determination of a reasonable fee. Certiorari was granted on the attorney fee issue. 2

PART I: SECTION 15.1

APPLIES TO APPEALS IN WORKERS' COMPENSATION CASES

Section 15.1 provides:

On any appeal to the Supreme Court, the prevailing party may petition the court for an additional attorney fee for the cost of the appeal. In the event the Supreme Court or its designee finds that the appeal is without merit, any additional fee may be taxed as costs.

TRW relies on the case of Safeway Stores, Inc. v. Arnold, 778 P.2d 941 (Okla.Ct.App.1989), to argue § 15.1 is applicable only to appeals where an attorney fee is allowed by law to the prevailing party in the trial court and it does not apply to a workers' compensation appeal because a lower court award of attorney fees in such a case is not in addition to an award of benefits, but is paid out of the benefit award itself. Although Arnold supports this view (Id. at 942), Arnold interprets § 15.1 incorrectly. Such an interpretation is inconsistent with the purpose of § 15.1 and the legislative enactment of which it is a part, it would lead to absurd consequences, to the ultimate result the Legislature The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. Ledbetter v. Alcoholic Beverage Laws Enforcement Commission, 764 P.2d 172, 179 (Okla.1988). If a statute is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction a statute will be accorded the meaning expressed by the language used. Berry v. Public Employees Retirement System, 768 P.2d 898, 899-900 (Okla.1989), quoting Caves Springs Public School District, 613 P.2d 1046, 1048 (Okla.1980). However, where a statute is ambiguous or its meaning uncertain it is to be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating legislative intent. See Berry, supra at 900-901; Grand River Dam Authority v. State, 645 P.2d 1011, 1019 (Okla.1982). Further, the Legislature will not be presumed to have done a vain and useless act in the promulgation of a statute [Cunningham v. Rupp Drilling, Inc., 783 P.2d 985, 986 (Okla.Ct.App.1989) ], nor will an inept or incorrect choice of words be applied or construed in a manner to defeat the real or obvious purpose of a legislative enactment. Wooten v. Hall, 442 P.2d 334, 336 (Okla.1968).

passed a meaningless statute and it is inconsistent with previous interpretations by us and numerous other decisions from the Court of Appeals rendered since § 15.1 was enacted in 1982.

Section 15.1 does not expressly indicate it applies only in appeals where an attorney fee is allowed by law in the trial court. The ambiguity or uncertainty exists because the word additional immediately precedes the words attorney fee in the first sentence of the provision and the word fee in the second. Viewed in isolation the placement of the word additional might lead one to conclude an attorney fee had been awarded at some prior stage of the case. However, when one views § 15.1 as a whole it is clear the word additional is not a limitation on the types of appeals which fall within its scope. The appeals covered are set forth in the first seven words of the statute, i.e. "[o]n any appeal to the Supreme Court". (emphasis added) It is, thus, obvious to us the provision was intended to apply to all appeals brought before this Court.

The legislative intent behind a statute is to be ascertained from the whole act in light of the general purpose and object. Midwest City v. Harris, 561 P.2d 1357, 1358 (Okla.1977). Section 15.1 was passed as part of an Act (H.B. 1611 found at 1982 Okla.Sess.Laws, Ch. 336, pp. 1005-1007) primarily concerning the makeup of the Court of Appeals. The number of judges sitting on the Court of Appeals was increased from six to twelve (20 O.S.Supp.1982, §§ 30.2 and 30.9a). Continuation of authority to this Court to make temporary assignments of active or retired judicial officers or lawyers to the Court of Appeals to assist in deciding cases (20 O.S.Supp.1982, § 30.14) was also contained in the Act. Obviously, the general purpose and intent of the Act was to provide resources to dispose of appellate cases and to assist the appellate judiciary in handling an ever increasing caseload. 3 Human resources were provided in the form of additional permanent members of the Court of Appeals and continued authorization for temporary members to dispose of pending cases. On the other hand, § 15.1 was a legislative recognition part of the increasing caseload consisted of appeals having absolutely no merit and was to act as a deterrent to the filing of these totally meritless appeals.

Although placement of the word "additional" appears to exhibit poor draftsmanship we will not allow such fact to defeat the real and obvious purpose of the provision. Instead of exhibiting an intent to limit the types of appeals falling under the Furthermore, prior to passage of § 15.1 we recognized where a statute allowed the prevailing party in the trial court to recover a reasonable attorney fee an additional award is allowable for appellate counsel services incurred in successfully defending an appeal. Hamilton v. Telex Corporation, 625 P.2d 106, 108-109 (Okla.1981); Associates Financial Services, Inc. v. Millsap, ...

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