B & P Const. Co. v. Wells

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B & P Const. Co. v. Wells
1988 OK 17
759 P.2d 208
59 OBJ 534
Case Number: 62508
Decided: 02/23/1988
Supreme Court of Oklahoma

B & P CONSTRUCTION COMPANY, A PARTNERSHIP, APPELLEE,
v.
PAUL WELLS, D/B/A PAUL WELLS CONSTRUCTION COMPANY, APPELLANT.

Appeal from the District Court, LeFlore County, Robert, E. Price, Associate J.

Certiorari to the Court of Appeals, Division No. 2.

¶0 Appellant appealed a decision of the District Court of LeFlore County, Oklahoma, the Honorable Robert E. Price, Associate District Judge, presiding, which enforced an oral contract to provide goods and services. Appeal was on the grounds that the decision was not supported by the evidence and was so oppressive, punitive, and unjust as to constitute an abuse of discretion. On assignment to the Court of Appeals, Division No. 2, that Court affirmed the decision of the trial court and ordered each party to pay its own attorney fees on appeal. Costs were divided equally between the parties. Appellee petitions for certiorari on the issue of recovery of attorney fees incurred on appeal.

CERTIORARI PREVIOUSLY GRANTED.

OPINION OF THE COURT OF APPEALS, DIVISION NO. 2, AFFIRMED IN PART AND VACATED IN PART.

JUDGMENT OF THE TRIAL COURT AFFIRMED AND REMANDED FOR DETERMINATION OF THE REASONABLE VALUE OF APPELLEE'S ATTORNEY FEES INCURRED AT TRIAL AND ON APPEAL.

Douglas W. Sanders, Poteau, for appellant.

Harry Scoufos, Sallisaw, for appellee.

MEMORANDUM OPINION

DOOLIN, Chief Justice.

¶1 The single issue presented on appeal is whether a party who prevails at trial and is statutorily entitled to an award of attorney fees is also entitled to recover attorney fees for prevailing on appeal. We answer affirmatively.

¶2 B & P Construction Company [B & P] brought an action in District Court to recover for goods and services provided under an oral contract to Paul Wells, d/b/a [759 P.2d 209] Paul Wells Construction Company [Wells], and JOB Construction Company, Inc. [JOB]. JOB was the prime contractor for two State highway construction projects and Wells was the subcontractor who employed B & P by oral contract to do cement finishing work. B & P prevailed in a trial to the court and was awarded $1,967.88, plus interest and costs of the action.

¶3 Wells appealed on the grounds that the judgment was contrary to the evidence and was so oppressive, punitive, and unjust as to constitute an abuse of discretion. The case was assigned to the Court of Appeals, Division No. 2. In an unpublished Memorandum Opinion, the Court of Appeals affirmed the trial court's decision. The Court of Appeals, however, sua sponte required each party to pay its own attorney's fee, and costs were divided equally between the parties. B & P unsuccessfully sought a rehearing on the issue of attorney fees and costs on appeal and petitioned this Court for a Writ of Certiorari, which we granted.

¶4 We begin by observing that Oklahoma follows the "American rule" that each party should bear the costs of his or her own legal representation in the absence of statute or specific contractual authority.

¶5 Title 12 O.S. 1981 § 936 , provides that the prevailing party in a civil action to recover under a contract for the sale of goods or for labor and services "shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs." (Emphasis added.) Section 936 applies equally to oral and written contracts.

¶6 The question, then, is whether B & P is equally entitled to its attorney's fee and costs for prevailing on appeal. In Hamilton v. Telex Corp., 625 P.2d 106, 108-09 (Okl. 1981), we found that the party who prevails at trial and is entitled under Section 936 to an award of attorney fees is also entitled to recover attorney fees incurred in successfully defending on appeal.

¶7 We remand the question to the trial court for a determination of the amount of attorney fees due to B & P for prevailing at trial and on appeal. The district court is instructed to apply the guidelines established in State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659, 662 (Okl. 1979), in determining the reasonable value of the legal services. The trial court should specify the facts and computations used to support the award. Id. at 663.

[759 P.2d 210]

¶8 That portion of the Memorandum Opinion of the Court of Appeals, Division No. 2, concerning award of attorney fees on appeal is VACATED. The question of the amount of reasonable attorney fees incurred at trial and on appeal by B & P is remanded to the trial court for determination. B & P is statutorily entitled to all its attorney fees in the amount to be determined by the trial court.

¶9 AFFIRMED.

¶10 HARGRAVE, V.C.J., and LAVENDER, SIMMS, OPALA, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.

Footnotes:

1 City National Bank & Trust Co. v. Owens, 565 P.2d 4, 7 (Okl. 1977). See also Wieland v. Danner Auto Supply, Inc., 695 P.2d 1332, 1333 (Okl. 1984); Oklahoma Publishing Co. v. Miskovsky, 654 P.2d 596, 599 (Okl. 1982).

2 City National Bank & Trust Co., supra note 1 at 7 and Oklahoma Publishing Co. at 599-600.

3 Matter of Estate of Katschor, 637 P.2d 855, 857 (Okl. 1982).

4 Wieland, supra note 1 at 1333.

5 See also Osburn v. Bendix Home Systems, Inc., 613 P.2d 445, 452 (Okl. 1980); Associates Financial Services, Inc. v. Millsap, 570 P.2d 323, 326 (Okl. 1977); E.V. Cox Construction Co. v. Brookline Associates, 604 P.2d 867, 873 (Okl.Ct.App. 1979).