*1 O.S.1991, 2025, by proper application of E. authority pro- no to Appellee’s counsel had Appellee’s counsel’s Finally, address we death, it was not Appellee’s after ceed contention, by Appeals on the Court of relied suggest Appellee’s Campbell’s burden to Campbell court28 that to affirm the trial suspend to to the trial court order death Appellee’s motion the issue of cannot raise stated proceedings. For the reasons arrearage the first time on regarding Appeals judgment of the Court of herein the objection not file such appeal since he did judgment of the trial is and the VACATED conclude that coun- with the trial court. We arrearage is court as to the REVERSED is, anything, premature. if contention sel’s with the REMANDED accordance suspended Ap- The instant action was expressed herein. views authority no pellee’s death. There is proceedings could have further SIMMS, HODGES, C.J., was made place taken until a substitution WATT, JJ., HARGRAVE, SUMMERS and Appellee’s following suggestion of death concur. halts at 2025. The action as outlined reactivated party’s and can be KAUGER, death OPALA, ALMA WILSON §of Since proper application JJ., concur result. made, application was not the action proper Appellee’s (suspended) with remains halted
death.29
CONCLUSION are not closing emphasize we that we ROUT, Appellant, David W. question we make a addressing the nor do proper party finding would be the as who Appellee instant case to substitute WORKS PUBLIC CRESCENT support child pursue the motion for or to AUTHORITY, Appellee. simply arrearage.30 conclude We No. 78903. proceed cannot in the instant case action proper
without substitution Supreme of Oklahoma. § 2025. July proper hold that this action was We death, that ly prior Appellee’s commenced suspended on her proceedings were only have been reactivated and could
death
suggestion of
there was no
Alpine
Since
Appeals
be made.
relies on Jones
28. The Court of
Investments, Inc.,
(Okla.1987), for
R. Thomas lee.
KAUGER, Justice: impression question presented is The first awarding whether the trial court erred and costs to a sum- vision brought pursu- mary judgment in an action Tort Claims Act ant to the Governmental (the Act), seq.1 Attor- with the claim was barred ney to statutes restricted statute of limitations immuni- specifically providing of attor- ty. judgment. movedfor find that 12 fees. We May On the trial court entered sum- civil actions to mary judgment for Crescent.3 *3 damages negligent or willful recover 11, 1991, On June Crescent moved for injury property. Attorney’s fees and costs attorney’s arguing pursu- that properly political were awarded to a subdivi- §, 940,4 ant to O.S.1991 it was a sion which sum- party and thus entitled to recover costs and mary judgment brought pursu- in an action defending in incurred the suit. ant to the Governmental Tort Claims Act. response Rout countered in his to the motion liability fees and costs that FACTS exclusive; under the Act is that the Act does (Cres- Authority Public Works Crescent provide or attor- cent) sewage plant Logan County, built a fees; § and that 940 is not 24, 1990, August On David Oklahoma. W. brought pursuant when an action is (Rout) Rout sued Crescent and three of its Act. they alleging negligently sub-contractors that willfully damaged property and his im- The trial court awarded Crescent costs and properly locating, designing, constructing O.S.1991" maintaining sewage plant. appealed and In his 940.5 Rout and the petition, alleged physical damage Appeals express to his held that because the lan- erosion, trees, property guage prevent attorney’s that included loss of of the Act does not crops being loss of and loss of rental value. Cres- fees and costs from awarded a case 1) allegations arguing cent denied the that: where a fee award is otherwise authorized statute, comply applicable. granted Rout failed to with the Governmental 940 is We cer- (the Act) 13,1993, September Tort Claims O.S.1991 151 tiorari to address the 2) seq.; comply impression. question because Rout failed to of first employee 1.Prior to 1985 the Act was entitled the Political cal subdivision or at common law or Subdivision Tort Claims Act. The Act was otherwise.” 1984, eff, amended in Oct. 1985 to read the pertinent 2. Title 12 Governmental Tort Claims Act. Because rele- part: portions vant of the Act have remained unaltered by amendment since references are to the any "A. In civil action to recover current statute. injury or willful incidental to such ac- other costs related provides: Title 51 O.S.1991 152.1 tion, prevailing party shall rea- be allowed hereby adopt "A. The State of Oklahoma does fees, sonable court costs and interest state, immunity. the doctrine of to be set the court and to be taxed and subdivisions, political and all of their em- its of the collected as other costs action.” acting scope ployees em- within the their Because 940 has remained unaltered ployment, liability ... immune from shall be amendment since enactment references for torts. current statute. state, only B. The to the extent and provided in immu- manner this waives its summary judgment and the The motion political nity and that of its subdivisions....” arguments support of the motion were made in provides: part and the trial court's record "A. The state or a subdivision shall granting summary judgment does not indi- order resulting be liable for loss from its torts or the granting the motion. cate the actual reason for However, Rout, employees within the torts of its brief, in his states employment subject to the limitations of their exempt liability under the Act. exceptions specified in this act and the state or if a where 4. Title 12 O.S.1991 private person entity, would be liable for money damages under the laws of On state.... 13, 1991, $10,- the trial court awarded the state December B. The plus fees and 431.25 interest vision under this act shall be exclusive and $1,885.39 state, politi- plus to Crescent. place interest in court costs of all other exempt within the ARE RE- exclusions FEE AWARDS ATTORNEY TO STATUTES STRICTED SPECIFI- 2) statute; FOR pri-
CALLY PROVIDING RECOVERY available in FEES. OF ATTORNEY’S person prevails vate FOR PROVIDES ATTORNEY’S subdivision would not be entitled to attor- IN ACTIONS TO RECOV- FEES CIVIL ney’s fees cost. Rout’s reliance on the THE ER DAMAGES FOR NEGLIGENT had he proposition case for TO OR INJURY PROPER- WILLFUL Crescent, he would not be entitled to TY. FEES AND COSTS ATTORNEY’S misplaced. costs is A AWARDED TO WERE PROPERLY not stand for such a broad McCracken does POLITICAL SUBDIVISION WHICH exposition of the law. A FOR ON MOTION PREVAILED *4 a McCracken involved class-action suit IN AN AC-
SUMMARY JUDGMENT
brought
operators
THE
business owners
TION
PURSUANT TO
BROUGHT
against
challenging the
city
GOVERNMENTAL
TORT CLAIMS
the
of Lawton
ACT.
validity
zoning
of a
ordinance. The trial
court
class and awarded the
certified the
although
Rout
his claim
asserts
plaintiffs attorney’s fees. This Court did not
against
is the kind of claim for
Crescent
McCracken,
hold in
the Governmental
recovery,
which 12
9406 allows
he
an
prohibited
Tort
Claims
pursue his
required
was
cause of action
political
award where a
subdivision is not
Tort
the confines
Governmental
monetary
immune
a claim for
relief.
any
from
allege
does not
Claims Act.7 Rout
1)
Instead,
Act specifically
we held that:
concerning
a
error
Crescent’s status as
granted immunity
political
fee
the amount of the
award,
grant
judgment.
any
resulting
its legislative
from
of
loss
2)
function;
not
in
although
He insists that because
Act does
the suit McCracken
expressly provide
declaratory judgment
for a
than
was
rather
costs,
improper.
judgment,
the award was
money
in tort for
the thrust of the
subject
silence on
of
that the Act’s
for a legislative
suit was to
relief
secure
prevent
party
3)
fees does not
either
measure;
recovery
Act barred
of
recovering
from
costs and
fees as
city
city
fees from the
where the
prevailing party.
from
immune
support
Rout
51 O.S.1991 154
finds
McCracken,
subdivi
which limits a
subdivision’s
sion was immune from a suit for
provide
but
for attor
does
recovery
challenge
the suit was to
because
He relies on
fees and costs.
McCrack
city’s
legislative
of its
function.9
exercise
en v.
of
1)
1982),
propositions
specific
support appellant’s
that:
McCracken
does
($100,-
supra.
2. One
000.00)
Thousand
6. Title
Hundred
Dollars
any
any
claimant for his claim
act, accident,
single
arising
other
out of a
loss
51 O.S.1991
152.1
or occurrence....
supra.
($1,000,000.00)
3. One
Dollars
Million
any
arising
single
out
of claims
of a
number
pertinent
8. Title
occurrence or accident.
part:
damages
any
No
B.
award
action or
polit-
any
against
the state
"A. The total
of
and its
claim
the state or
punitive
exemplary
ical
on claims within the
of
subdivisions
vision
include
shall
title,
seq.
arising
damages...."
this
et
of this
Section 151
act.
happening
out
an accident or occurrence
of
act,
Sys.
after
date of this
Section 151
9. In Allen v. Retirement
Just. & J. 769
the effective
(Okla.1988),
title,
we held
seq.
shall not
that where
of this
exceed:
($25,000.00)
government
1.Twenty-five
immune from
in
Thousand Dollars
adjudicative
any
capaci
its
any
claimant
more
curred
the exercise of
claim or to
who has
recovery
arising
ty, immunity
of
of
out
barred
than
claim for loss
one
act, accident, occurrence;
appeal.
single
of a
Supreme
he
proposition that had Rout
would
Oklahoma insofar as
to collect
not have been able
and to the extent that such rules
agree
and costs
Crescent.10 We
provisions
are not inconsistent with the
concerning
general
rules that
apply
govern
shall
to and
all ac-
remedy
injured
Act is the exclusive
for an
provisions
tions
under the
of this
plaintiff
to recover
act.”
entity
negligence11
for its
and that
limita-
expenses
Costs are
tions within the Act control over
fees incurred
However,
action.15
statutory law.12
the Act is silent
costs,13
right permitting
There is no common-law
regarding attorney’s fees and
and it
expenses
litigation.
any
If
speak
does not
to an award of fees to either
does,
exists,
however,
party.14
right
statutory.16
it must be
Subsec-
Costs
provide:
generally
tion 164
do not
include
fees.17
fees,
Attorney’s
rule,
under the
laws and
American
“The
statutes of the State of
not recoverable unless
the Rules
Civil Proce-
allowed
dure,
promulgated
adopted
provided by
as
statute or
contract.18 Title
Presumably,
prevailed against
wholly
had Rout
13. The Act is not
devoid of
discussion
summary judgment,
motion for
he would have
of fees or costs. Title 51 O.S.1991 160 allows
proceed
been able to
Cres
subdivision to recover
his action
em-
*5
any payments
ployee
previously
cent.
it for costs or fees
This Court has not
addressed
employee's
brings
made on behalf of an
defense if
private party
the
the issue of whether a
who
a
scope
employee
employ-
acted outside the
of his
tort action
to the Act and succeeds
employee
cooperate
ment or if the
fails to
attorney's
against politi
recover
a
good faith with the defense of a claim. Title 51
cal subdivision. Nor have we
the
addressed
is
provides
162
that the
O.S.1991
private party
brings
sue of whether a
a tort
pay
vision will
costs or fees for a viola-
against
action
a
subdivision and loses
property rights by
employee
tion of
an
be liable for
fees and costs.
employ-
occur
within the
while
of
1178,
City
City,
Womackv.
726 P.2d
of
ment,
unless such costs or fees are covered
an
(Okla. 1986),
city
we
1180-81
held that where a
applicable policy
contract
or
of insurance.
protected by immunity provisions
was not
attorney's
it could be liable for
Act
costs
fees
provides
Title 12
941
when
replevin
O.S.1991
under a
statute
authorized such
originates
against
in a
state
a suit
civil action
award.
that did not
Other cases
involve the
defendant,
private
the trial court
assess wit-
indicate that a
could be lia
subdivision
attorney's
against
ness fees and reasonable
fees
they
ble
are
for fees where
not immunized from
if the
is
without reasonable
state
suit
Affairs,
v.
Cook Oklahoma Bd. Public
of
prox-
basis or is frivolous. Rout
that the
140,
(Okla.1987) (Attorney's
P.2d
154
736
fees
imity
suggests
that had the
of 940 and
partially
pursu
where
awarded
State
Legislature
political subdivision to
intended for a
ant to an award for labor and services rendered
Act,
attorney’s fees
it would
obtain
Tulsa,
individual.);
by private
City
Garner v.
of
language
This ar-
have included that
1325,
(Okla.1982) (Where
651 P.2d
1329-30
Legislature
gument
unpersuasive
is
because the
city,
were not assessed
but
be
just
easily
language
could
have
included
in 940
cause there was no
statute or contract
subdivision,
specifically excluding political
but
city
presented
and no evidence was
it did not.
itself,
vexatiously.).
acted in bad faith or
providing
disallowing
although
expressly
costs,
15. McAlester Urban Renewal Authoritv v. Hamil
implies
fees and
that in some
ton,
823,
(Okla.1974);
521 P.2d
825
v.
they may
paid
circumstances
Hof
fman
67,
567,
(1952).
discussion,
13,
Morgan, 206 Okla.
245 P.2d
70
infra.
City
(Okla.
Odom,
449,
16. Oklahoma
Urban Renewal Authoritv v.
P.2d
11. Fuller v.
741
451-53
keys
Lindauer,
682,
(Okla.1975);
534 P.2d
685
1987).
Sar
(Okla.
Haas,
894,
1965);
v.
402 P.2d
900
Kerr v.
Sendee,
611,
267
612
United Collection
P.2d
Odom,
451, supra;
see note 11 at
12. Fuller v.
(Okla. 1954).
(Okla.
Vaden,
v.
721 P.2d
419
Hamilton
Co.,
1986); Conway
Casualty
v.
Ins.
669
Ohio
Lloyd's
Agency,763
17. Hicks v.
General Ins.
P.2d
(Okla.
1983);
Wynnewood
768
Johns v.
(Okla. 1988).
85, 86
(Okla.
Educ.,
248, 258-50
School Bd.
656 P.2d
Rose,
1982);
663 P.2d
735
Graves
(Okla. 1990);
1983);
Hughes,
torney’s fees costs damage an willful authorizes fees and in an action for Here, this, property.20 costs such as does not create to real in actions summary judgment to an inconsistency on a motion for the two statutes. between real damage property.21 willful Legislature action for Had intended to exclude an Act, nothing suggests Act which There is it award fees under and Crescent were punitive that had so as could have done it did liability, Attorney Rout would not exemplary damages.26 not immune provid- able to collect have been to statutes restricted from Crescent. ing costs fees. O.S. provides legislative in The determination of negli- civil to recover actions interpretation.22 The tent controls gent damage property. or willful Accord- is ascertained from the whole act intent ingly, properly awarded attor- the trial court general objective.23 light purpose of its prevailing par- fees to Crescent as the However, apply unnecessary it rules is ty- legislative clearly if will of construction clear, Legislature ex expressed.24 CONCLUSION plicit, mandatory language incorporates Attorney’s fees are not recoverable unless and statutes of the State of Okla the laws provided by statute enforceable contract.27 homa into Governmental Tort Claims they provi expressly Title 12 unless are inconsistent with to a Act. The fact that there are no sions of the Wells, Co. circumstances due B. & P. Const. some (Okla. 1988). exclusivity exceptions liability; and that there There are is no *6 rule, liability example opponent private where an has acted limit individual’s whereas a to faith, vexatiously, wantonly oppres liability or limited in bad subdivision's reasons, City present which are not here. Act. result is not inconsistent with the Act sive This Owens, 4, & Trust v. 565 P.2d 7-8 Nat'l Bank Co. the Act itself creates such a situation. because (Okla.1977). adopts the doctrine of immuni- ty, liability certain allows under circum- 2, supra. note 19. Title 12 O.S.1991 940 see stances, limits amount and then the total of lia- 152.1, 153, 154, bility. negligent willful 20. The action must be for or 8, supra. see notes 1 injury property. physical Woods v. Petroleum 1011, Pipeline Corp., 700 P.2d Delhi Gas 1013 362, (Okla. Spitz, 22. v. 366 Smicklas 846 P.2d 1984). (Okla. prevailing party A 940 is 693, 1992); Clifton, v. P.2d 801 696 Clifton party judgment is for whom the rendered. Un 11, Odom, (Okla.1990); v. note Fuller see 741 Lines, Lloyd's at v. N. Am. Van 829 derwriters 452, supra. P.2d at 978, (Okla.1992). 981 P.2d Co., 834, Liberty Oglesby 23. v. 832 P.2d Mut. Ins. private politi individual over a 21. If a (Okla.1992); Spitz, 839 v. see note 22 Smicklas recovery any monetary dam cal 846 P.2d at ages Title 51 155 be affected carefully provides thirty enumer list of exemptions excluding Stone, 754, the state or a ated Copeland 756 v. 842 P.2d earlier, Freeman, from As noted 1992); 147, Macy rel. v. 814 State ex. 18, (Okla.1991). 648 P.2d 20-21 McCracken v. 153 (Okla. 1982) Sys. and Allen v. Retirement Just. J., 1302, private individuals were & 769 2, 940, supra. 25. Title 12 O.S.1991 see note attorney's recovery fees from the barred capacity ain enumerated under the cities 8, supra. 26. Title 51 O.S.1991 that under facts Act’s exclusions. We note judg presented, the actual reason Hughes, 799 see note 18 P.2d at Walden record, but was ment is not included Edge, supra; Hall v. note 18 P.2d at see granted exempt apparently because Wells, 129, supra; P. B. & Const. Co. liability under the see discussion note P.2d at supra. Rout 940 should not be Act because individual supra. obtain not party negligent in an action for an wilful would include attor- damage property. ney proven to real fees Governmental and costs as well as dam- ages. statutory incorporates Tort Claims Act Because of the limits on recovery, plaintiffs statutes of Oklahoma not who have suffered serious inconsistent person personal loss to specific Act.29 The fact that there are no rights provisions caused tortious acts within the Act for fully compensated and costs and authorizes is, damages. seriously injured That actions such as this, plaintiffs inconsistency proven can not recover their dam- does create be- ages Attorney which exceed the limit tween the two statutes. and, though prevailing specifically provid- parties, they even are restricted to statutes will attorney never be ing entitled to an award of fees. O.S. fees. civil actions to recover for the injury property. Attorney’s
willful properly politi-
and costs were awarded to a
cal subdivision which summary judgment in an action to the Governmental Tort Claims
Act.30 CERTIORARI PREVIOUSLY GRANT- BARRETT, now, Patricia K. Patricia
ED; COURT OF APPEALS OPINION Sulcer, Appellant, K. VACATED; TRIAL COURT AFFIRMED. BARRETT, Jr., Appellee. John A. LAVENDER, V.C.J., SIMMS, HARGRAVE, OPALA, SUMMERS, JJ., No. 75014. concur. Supreme Court of Oklahoma.
HODGES, C.J., and ALMA WILSON and July JJ., WATT, dissent. WILSON, Justice, dissenting:
ALMA *7 attorney
The district court awarded an fee $12,316.64,
and court costs in the amount of
plus interest. This fee is for defense of the Authority through
Crescent Public Works
summary judgment, appears greater impor-
excessive amount. But of
tance, today’s prevailing party affirmance of
attorney tort claim disparate
action is certain to create treat- litigants. Accordingly,
ment of I must re-
spectfully dissent. majority opinion,
As noted the Gov- Act, O.S.1991,
ernmental Tort Claims seq., provides maximum amounts
of total the state and its ordinary meaning of total
subdivisions. supra, page constitutes a re- see discussion covery subject limits of the Gov- ernmental Tort Claims 30. We need not decide in this case whether an award of costs under 12 O.S.