Winters Ex Rel. Winters v. City of Oklahoma

Minor, WINTERS, Billy By

Through His Mother and Next Best WINTERS, Friend, Appellant, Helen CITY, CITY OF OKLAHOMA Corporation, Municipal Appellee. No. 63774. Supreme Court of Oklahoma.

July Gassaway, Hughes,

Michael Nelson & Gassaway, City, appellant. Oklahoma Smith, Counselor, Richard C. Asst. Mun. City, appellee. Oklahoma SUMMERS, Justice. petition, signed

Plaintiffs’ which was by attorney filed Gassaway, Michael al- leged liability part City injuries Oklahoma received Gity; plaintiff while a student Oklahoma City public school. stated in part: City,

“[T]he through employees/teachers has a duty to its students and its school prevent take reasonable measures to upon ... assaults batteries its stu- dents.” (Appellee) Defendant simultaneous- ly applica- filed motion to dismiss and an tion to assess fees and costs against plaintiff’s attorney, with a brief support of application. the motion and City’s predicated motion dismiss was upon 6(a) (b), 153, 155(18)1 plaintiff's for the reason that the pertinent parts 1. The of these sections are as "§ Definitions follows: As used in this act: against plaintiff’s against attorney. fees a claim to state failed City, City appeal. to dismiss the subdivision because moved This political City as power nor does not have municipality, April order issued court oper- nor operate, does authority to the motion to reconsider as the treated City cited system. The public school ate a timely equivalent functional motion for previous at least three that on in its brief appeal, that this new trial and ruled com- 1983) (twice in 1982 and once occasions day following deni- menced on the 10th asserted that attorney had the same timely. of a motion for new al responsible for the acts City was defendant presented appeal On we are with two system and public of a school employees (1) issues: Whether the trial court had the from each dismissed City had been power to attor- equitable inherent assess 51 O.S.1981 pursuant lawsuit against costs ney’s fees and 155(18). b, 152(6)(a) 153 and and; (2) did, parties if it for one of the to assess attor- application its support of in this case was whether the assessment City argued that the costs ney’s fees and proper. acting in bad faith attorney was plaintiffs continuing to as- obstinacy or obdurate Under the so called “American Rule” liability against the theory of sert the same governing the award of fees to a rulings previ- in the three despite the party, attorney’s fees are not prevailing sustained the The trial court ous lawsuits. of a ordinarily recoverable absence found the at- to dismiss and City’s motion statute or enforceable contract. assertion in the continued torney’s conduct rule does serve as an absolute bar not employ- liability for acts of an municipal awarding attorney’s fees in the to the independent ee of an of statute or contract. absence City National Bank and oppressive under gave Owens this court its sanction Hearing was set Trust v. Owens.3 against attorney’s fees an award of a reasonable January to determine faith” opponent under the “bad against the to be assessed attorney’s fee court in American Rule. The trial to the appear, he failed to attorney. that date On powers saw fit equitable of its the exercise whereupon the court took evidence cost, party, against as an item of to tax defending the expended time amount of unnecessary expenses incurred be- fee, all the on a reasonable and evidence action faith and party had acted bad cause that attorney’s fees and awarded $900.00 held that be- oppressive reasons. We attorney Gassaway and against as costs oppressive party’s actions were plaintiff. cause a party of a oppressive action because the attorney filed a January On law, recognized as was, common even at reconsider, citing without motion to exception to the American giving rise to an support. authority without a brief regarding the Rule rehearing on set for Janu- This motion was fees, “in exercise of its the trial at that time and was denied ary not exceed equitable powers, did then instituted being untimely filed. He decretion”4 in jurisdiction, powers, or appeal denial of his motion from the attorney’s fees awarding partial sought only the reversal reconsider opponent. assessing party court’s decision in of the trial employee political or an A subdivision means" ‘Political Subdivision’ employment scope shall not of his within the municipality; a. a results from: district; be liable if a loss a school b. person An act or omission Liability Scope—Exemptions § 153. employee;” than an political of this state shall Each subdivision resulting from its torts or the liable for loss 2012B(6). O.S.Supp.1984 § scope employees acting within the torts of its employment or duties to the of their (Okl.1977). P.2d 4 3. 565 specified in this act.” limitations liability Exemptions from § 155. levy sponte prosecution. sua lack litigated in bad has faith arises This emanated not from a “rule or equitable powers. traditional statute, but control necessarily [from] equity in the United States were Courts invested in manage courts to their own judicial powers possessed with endowed affairs” so as orderly to achieve'the of Chancery England High Court expeditious disposition of cases. The Court adoption of of the the time Constitution.5 at in Roadway indicated that assessment among powers pow- Included these was the of attorney’s is certainly fees a much less attorney’s to fees for levy er bad faith outright severe sanction than dismissal.13 recognized litigation.6 Owens the nonstat- The approved court in Roadway utory power levy attorney’s to fees for bad award of fees for either substan- power faith conduct as a the district courts tive stated; procedural or bad faith. The court having possess equity of Oklahoma full jurisdiction. “The bad-faith for the award In Roadway Express Piper,7 Inc. v. attorneys’ fees is not restricted to way U.S. Court cleared the cases where the filed bad personal liability attorney an op- for an found, faith. faith ‘[B]ad ponent’s attorney’s ap- fees. The Court only lawsuit, in the actions to that led proved in such principle an assessment as but litiga- also the conduct of the supervi- an exercise the court’s inherent ”14 tion.’ sory powers.8 court The defined “inherent respect With to issue an powers” necessary as those which “are to fee an of one of the exercise all others”.9 These are the parties, the court concluded: manage powers court’s inherent own its “The of a court over members orderly affairs so to achieve the great at least as as its authority timely disposition powers of cases. These litigants. over If a coun- tax implicit in judicial are the existence against party litigated sel fees who has system, necessary are incident to the faith, certainly bad assess those jurisdiction. exercise of a court’s These expenses against willfully who powers expressed prac- counsel have been such citation, judicial process.”15 abuse contempt tices as the sanctions for abusive such as dismissal fail- sanctions, The court noted that like other prosecute, ure to and the certainly fees should not as- party fees on a for bad liti- faith proper sessed without notice and gation.10 But such sanctions are within a court’s powers. The among Link court remanded the case to v. Wabash R.R.11 held that powers specific finding the court’s court for a inherent deter abu- district practices sive an dismiss counsel’s misconduct constituted bad faith. 5. Fontain Ravenel, 369, 764, (17 384, How.) United Quoting 58 U.S. Id. at 100 at 9. S.Ct. 2463. Hudson, 1789, 32, 34, (1854); Judiciary States 15 L.Ed. 80 Act of Ch. 7 Cranch 3 L.Ed. 259 20, (1845). (1812). 1 73 For Stat. an extensive treat pow development ment of the historical of this 10. Id. U.S. at S.Ct. at 2463-64. 447 100 Ry., Co. v. Guardian Trust Kansas So. er see 233, (8th Cir.1928), rev’d on 28 F.2d 241-46 11. 370 U.S. 1386, 626, 82 S.Ct. 8 L.Ed.2d 734 1, grounds, 194, 281 50 S.Ct. L.Ed. U.S. 74 (1962). (1930). Id. 630, at S.Ct. 1389. Atkinson, 527, 530, Vaughan v. 369 U.S. 999, 997, (1962). (Power S.Ct. 447 U.S. at S.Ct. at 2463. court). part equitable powers award fees Id. at quoting Hall 100 S.Ct. at 2464 7. 447 U.S. L.Ed.2d Cole, (1980). L.Ed.2d 702 Id. 100 S.Ct. at 2463. Id. separate political are finding faith of Oklahoma of bad stated that a The court the sanctions subdivisions. precede assessing at- power of argues appeal that an against counsel.16 torney punished pursu- attorney should not be imaginative causes of action. recognized the es new Having argues American Rule that there will be no exception to the In effect he tablished attorney’s fees system private pri- an award of counsel if permits effective faith,17 litigated in bad attorneys discouraged are vate trial court hold that pursuing we now new and/or punished and/or powers equitable of its inherent agree exercise imaginative of action. We causes party’s against a can tax independence private bar is in unnecessary expenses all item of costs important consideration. we attorney’s oppres of that curred because that consideration must balance sanctions, attor Like other actions. sive having of defendants to bear the interest lightly or assessed ney’s fees should defending groundless recurring cost of for a opportunity and an fair notice without plaintiff In where the dis- suits. case, proper such sanc hearing. But in a days of trial missed its lawsuit after four powers. a court’s are within tions stated: we facts, ac “Clearly, plaintiff’s under the attorney us the In the case before dragged prose oppressive plaintiff were intentionally filed and tions plaintiff court, put them to fourth time the defendants into type of claim for the cuted in the chance expense and here the without (twice in once favor, plau having law lacks in their 1984) Oklahoma suit determined that under time, the ef upon expenditures fruitless legal or factual basis caused sible fort, the while money by have recovered all involved plaintiffs could and time, contrary oppor to Oklahoma the City. plaintiff, The claim at the same had previous law strength case law. Each tunity statute and test the and weakness to 51 pursuant short, plaintiff had dismissed In used the suit been his case. (b), 152(6)(a) and and the ex O.S.1981 rehearsal hall at courtroom as a §§ 155(18).18 adversary people. the pense of his and the trial court Petitioner contends that Casualty Insurance Conway v. Ohio remedy injustice. lacks the (Gassaway) sued a attorney the same Co.19 agree.”20 do not We court commented district. This school the after the accident free to attorney “Three months should be Certainly an a letter to the attorney proper wrote in order to child’s lawsuit he deems file advising insurer school district’s claims. his clients’ lawful assert apparent- The injury. that unfounded lawsuits do not think we that the misapprehension the ly expense repeated the proliferate at should District was subdivision taxpayers School such as the of defendants no- City, sent written City of Oklahoma legal authori- City. There is no Oklahoma clerk of Oklahoma none) the claim to the tice of (and that attorney offers ty the clerk of City rather than to do so. suggest he allowed to that required 51 O.S.1981 school district support any authority he offer Nor does 156(B)....” political municipality, § theory his that a 152(6)(a), under 51 O.S. that subdivision put § thus on notice The was em- for the acts of City responsible and the should be independent school district Supra at note 1. 18. Id. 447 U.S. at 100 S.Ct. at 2464. Alyeska supra Roadway, note 7. See also (Okl.1983). 669 P.2d Society, 421 Pipeline Wilderness Service Co. v. 1612, 1622, 240, 258-59, 44 L.Ed.2d U.S. Supra p. note 3 at Cole, (1975); 141 1943, 1951, Hall v. independent district, ployees DOOLIN, C.J., of an school SIMMS, ALMA political separate subdivision under O.S. KAUGER, JJ., WILSON and concur. 152(6)(b). This result would be con- OPALA, J., part, concurs in dissents language of 51 trary to the clear O.S.1981 155(18) part. and 70 §§ 1-115, 5-101, 5-105 and 5-117.21 HARGRAVE, V.C.J., and HODGES squarely applica- The knew JJ., LAVENDER, dissent. establishing precedent ble the court’s basis ruling. behavior in OPALA, Justice, concurring part and continuing to file lawsuits dissenting part. alleged for the acts of employees independent of an The court holds that district have courts district “bad faith” and “op- constitutes power” “inherent to make a counsel-fee Owens,22 pressive behavior” under directly against award found to case the instant the trial court instigated groundless held in bad hearing the motion to assess costs and I join pronouncement faith. only inso- Gassaway, (a) far imprimatur court’s extends to found that behavior awarding compensation to liti- “oppressive constituted behavior”. A gant lawyer’s culpable litiga- harmed present firm member (b) conduct, tion insulating the innocent participated At client from liability lawyer’s for the mis- specially time trial hearing set a deed, (c)penalizing the oppressive, abu- 2,1985 (with January notice to the mem- sive or wrong- vexatious behaviour of the firm) ber of the to determine a doing attorney by ordering compensation reasonable amount of fees. On paid to the be for value of services attribut- 2,1985 January appear the did not lawyer’s able to the I recede misconduct. for receiving the After evidence the court’s mistaken notion the court found the amount of nine hun- authority implement the new course ($900.00) dred dollars aas reasonable fee. by today’s opinion may validly charted In powers the exercise of its inherent the reposed pursu- district courts trial jurisdiction, court did not exceed its powers.” ant to their “inherent powers, or awarding in discretion fees of $900.00 as costs the attor- aggrieved I would hold that a ney Gassaway. Michael litigation by culpable the course of conduct attorney may seek an order of com- OF THE TRIAL JUDGMENT COURT pensation AFFIRMED. in the district court for the value separate legal may proceed though plead- These sections make a as the action the entity supervision under the control ing had not been served. For a willful viola- State Board of Education and the board of section, edu- tion be sub- cation of each school district. jected appropriate disciplinary action.” Supra O.S.Supp.1984 note 2011 be- State courts as "inherent in them” those came effective November than less two which, to, powers though granted neither nor petition weeks after this had been filed. If the from, by the withheld them state constitution date, had been filed on or after that law, and not found in source of other must applicable section would have been could judiciary nonetheless be conceded the provided statutory basis for government separate department of the because attorney's per- fees here. Section 2011 states in absolutely exercise is their deemed essential part: tinent performance constitutionally signature "The of an constitutes a Court, Superior mandated mission. State by plead- certificate him that he has read the Ariz. 889-890 [1954] ing; knowledge, that to the best of his infor- O'Coin's, County Inc. Treasurer ground good mation and belief is there Worcester, it; 613- 362 Mass. N.E.2d support interposed it is Connors, [1972]; delay. pleading signed signed If see Inherent Power is not or is Management Weap- purpose with intent to defeat tion, Tool Rhetorical of this sec- Courts— on?, Just.Sys.J., pg. be stricken sham false not, view, opinion my the Court’s did law- legal services attributable If, votes;5 five garner requisite after hear- number of offending demeanor. yer’s secondly, analogy judge find a drawn between the application, the should relief, possessed by judi granting powers the matter must the lower federal basis is, for de trial novo presented ciary review be- and those of Oklahoma courts then best, very Supreme judicial Court in the same flawed. the federal fore structure, initiated manner that prosecutions by unlike the Oklahoma court system, Bar Association’s Profes- each United States district court is are Responsibility Commission sub- authorized to establish and to control its sional contrast, exclu- own local of its lawyers court’s exercise mitted for this bar.6 cognizance lawyers. supervised disciplinary over this state are all licensed and sive single body organized centrally under the Supreme the Oklahoma rt.7 Cou PLACED MISTAKEN HAS THE COURT EXP., RELIANCE ON ROADWAY v. PIPER2 AS AN AUTHORITY

INC. II APPROPRIATE FOR THAT IS OKLAHOMA IN ADOPTION THE OF DISTRICT COURTS OKLA- INHERENT NO HOMA HAVE POW- pronouncement on the Today’s confers ER THE BAR OVER PRACTISING power” over “inherent law district courts Although the award of counsel fees to authority..on relies for yers. litigant lawyer’s harmed vexatious III of Part the United States compensatory, Exp., Inc. v. opinion conduct be treated as Court’s the sanction Court, clearly itself must be classi- Writing in Part III Piper.3 disciplinary fied rubric. It is Powell declared that Justice “[t]he bar imposable like restitution court over members is [trial] —much great authority proceedings over conduct least as as its liti —for culpably vexatious to be The trouble which found gants.” [Emphasis added.]4 practition- A Piper unprofessional.8 III Firstly, Part and hence with twofold. 6. 28 3. See 5. Justices Stewart supra, 447 Heebe, ty Justice under the rubric of clined to reach the vexatious See entire faith ing recovery opted for U.S.-, U.S. at sented sidered in Part III of Justice Powell’s [1980]. Roadway 2463; to tax an award footnote 2 U.S.C. footnote 2 opinion; Chief Eastern 766, Blackmun stated that he Chief Justice recognition 100 opposing counsel.” See footnote 2 U.S. at Exp., Inc. v. Exp., Judge, 100 S.Ct. S.Ct. supra, 1654 and of District Justice Stevens supra. "inherent-power holding" Inc. inherent-power question against wrongdoing lawyer 2455, United "a of the trial court’s authori- Burger 447 U.S. at American v. Rehnquist expressly Piper, supra component 2463, 2071; see, Louisiana, Piper, States L.Ed.2d S.Ct. dissented directly 65 Rule authoriz- 447 U.S. expressly District Court 765, at 2465. would L.Ed.2d of the bad- note et Frazier from the opinion. at., from a 2, S.Ct. con- 752, dis- 447 488 de- 8. The conduct sanctioned 7. In shall not: function explicitly (2), cial [1981]. O'Coin’s, The use 185 Okl. Worcester, supra note defense, delay it can be an that is unwarranted under (2) Knowingly behalf of that he (1) to harass or is obvious that "A. In his the Code of Professional service Re extension, File a law." for Integration of 505, within Ch. condemned Inc. supported Bar his system-wide has suit, [Emphasis added.] representation 1, 95 advance client when he knows when maliciously Ass'n, modification, or reversal App. a v. such long advance assert centrally of powers by Treasurer of by good 3, Okl., 113 been by 1, State such or take regulation. 287 ^[1939] DR-7-102(A)(l) a claim injure 624 P.2d position, here as managed recognized existing would serve faith Bar N.E.2d at 615. Responsibility, 5 provides: trial courts client, and of another. argument or culpable is County law, or Oklahoma, 1049, or conduct state Tweedy action defense if See, e.g., a as defense merely lawyer except exist- judi- a 1052 fit of v. a integrated by er licensed a state’s Ill only disciplined supreme be court of qua supreme

the state bar’s SUMMARY and exclusive authority.9 The district court’s order coun- aggrieved sel fees to litigant legal Supreme Ever since Court’s 1939 or- services attributable to vexatious conduct legal organized practitioners der that all culpable lawyer must be treated on bar,10 unitary state into court’s inher- review not more than a finding referee’s supervise lawyers has come ent penalized recommendation.13 The law- recognized to be nondelegable.11 yer is entitled to de novo review in the responsibility for the of discipli- exercise same manner14 as that established for the solely cognizance reposed nary disciplinary prosecutions by the Oklahoma Court Oklahoma.12 Because Bar Association.15 shared, discipli- the function cannot no sanction, nary origin, whatever form all For these reasons I accord the would efficaciously lawyer visited on a very this case the quality same imposed by unless it is governs review as proceed- order that which ings imposition discipline; court. of bar I accordingly would treat award under Today’s opinion upon path launches us consideration here as a referee’s recom- private prosecutions to secure restitu- mendation for of a disciplinary lawyers tion from culpably inflict sanction; and, after a de novo review of litigation-related harm in a breach of disci- proceedings, I adopt pro- pline. The new doubtless will posed sanction as this court’s order for spawn numerous claims asserted multi- professional administration of discipline. ple proceedings private to redress pub- rights lic arise from a single episode unwilling misconduct. am to coun- departure

tenance such radical from the present procedural regime and would hence

prefer to leave disciplinary Oklahoma’s

cognizance, together ancillary jur- with the restitution, isdiction over exclusively within control Bar of this court. 1973]; Taylor Hayes, see also Taylor Hayes, 494 S.W.2d [Ky. Application Okl. 646 P.2d 162 P.2d 604 [1945]. State ex rel. ^[1982] and Ex Dept. Transp., Parte Brink, Okl., 13. Judicial State ex 11. In Re 10. In Re Bar Association be utilized as referees of the Oklahoma Bar P.2d supra note supra note 7. Okl., said: 1230 [1983]. tioners ask " This [Emphasis added.] ‘The Integration Integration P.2d personnel rel. Okl. Bar Ass'n v. ^[1982] 95 P.2d at us Association to invoke has Braswell, Okl., and State ex of the district courts State Bar State Bar [1986]; wherein Raskin, Okl., court which delegation_ always rel. Oklahoma McNaughton, State ex Oklahoma, Oklahoma, existed. Court. peti- rel. I would not dismiss this case sional recommended sanction See, ny, overlook the cause Ogle Ogle, supra note 12. sion constitutes tion nor the commencement petition-in-error State Inc., Tisdale v. discipline. as the ex Okl. original proceeding rel. Okl.Bar Ass'n v. Okl., body patent Wheeler P.2d appellant utterly fatal P.2d infirmity appeal. Brothers petition designates jurisdictional inefficacious herein. The omis- Neither and treat Grain McNaughton, although approve ^[1979] Compa- for the profes- defect. cap-

Case Details

Case Name: Winters Ex Rel. Winters v. City of Oklahoma

Court Name: Supreme Court of Oklahoma

Date Published: Jul 14, 1987

Citation: 740 P.2d 724

Docket Number: 63774

Court Abbreviation: Okla.