Tomahawk Resources, Inc. v. Craven

2005 OK 82, 130 P.3d 222, 2005 Okla. LEXIS 90, 2005 WL 3051912

• Court: Supreme Court of Oklahoma
• Decided: November 15, 2005
• Docket: 100,437
• Status: Published

Opinions

HARGRAVE, J.

¶ 1 Plaintiff/appellee Tomahawk Resources, Inc. (Tomahawk), sued defendants/appellants Cravens (Cravens) on a residential construction contract and for foreclosure of its mechanic’s lien. Cravens counterclaimed for breach of contract, among other claims. After jury trial, the jury rendered a verdict for Tomahawk for $47,798.20, the full amount of its mechanic’s lien. The jury also rendered a verdict for the Cravens on their breach of contract claim, awarding damages in the amount of $17,798.20. An agreed journal entry of judgment was entered that: 1) reflected the jury verdicts for both parties, 2) offset the $17,798.20 awarded to the defendants against the $47,798.20 awarded to the plaintiff, and 3) ordered that after proper offsets, plaintiff have and recover from defendants the sum of $30,000.00.

¶ 2 Both parties sought attorneys fees as prevailing parties on their claims. The trial judge awarded attorney fees only to Tomahawk, ruling that plaintiff was the prevailing party in the breach of contract action and for foreclosure of its mechanic’s lien. The Cravens appealed the award of attorney fees only to Tomahawk, arguing that under previous opinions of this Court, they were entitled to prevailing party attorney fees as well. They also appealed the award of costs and prejudgment interest to Tomahawk. The Court of Civil Appeals affirmed the trial court. The defendants/appellants filed a petition for certiorari.

¶ 3 Because the Court of Civil Appeals’ opinion is in conflict with two prior opinions of this Court, Midwest Livestock Systems v. Lashley, 1998 OK 68, 967 P.2d 1197 and Welling v. American Roofing & Sheet Metal Co., Inc., 1980 OK 131, 617 P.2d 206, we granted certiorari.

¶ 4 The circumstances in the case at bar are virtually identical to Midwest Livestock Systems, Inc. v. Lashley, 1998 OK 68, 967 P.2d 1197. That case held that there can be more than one prevailing party entitled to a statutory award of attorney fees, and that, under the circumstances of that case, the opposing parties were entitled to recover their attorney fees from each other. In Lashley, the plaintiff contractor prevailed on foreclosure of its mechanic’s lien in the amount of $110,000. The defendant owner prevailed on his breach of contract claim in the amount of $99,000. This Court held that each of the parties was entitled to an attorney fee based on prevailing party status.

¶5 In Welling v. American Roofing & Sheet Metal Co., Inc., supra, the contractor did not prevail on his lien enforcement claim, but was found to be entitled to recover under the theory of unjust enrichment. Both parties were held to be entitled to attorney fees as prevailing parties: the defendant for successfully defending against the mechanic’s lien foreclosure and the plaintiff for prevailing on the theory of unjust enrichment. We observed that two statutes supported the awards of attorney fees: 42 O.S. § 176 and 12 O.S. § 936.¹

¶ 6 In the case at bar, both plaintiff and defendants were prevailing parties on their claims: Tomahawk for foreclosure of its mechanic’s lien and the Cravens on then-breach of contract counterclaim. We reject plaintiffs argument that because the journal entry gave judgment only to Tomahawk, the Cravens are not “prevailing” parties. This Court, in Welling, supra, offset the awards after finding that both parties prevailed on their claims. In that case we held that the defendant was entitled to an in personam judgment of $2,700, less plaintiffs’ setoff of $1,188.4 for unworkmanlike construction, for a total judgment for defendant in the amount of $1,511.54.

¶ 7 Further, 12 O.S. § 936, does not require that a formal judgment be entered in favor of tbe prevailing party. , Title 12 O.S. § 936 provides for the allowance of attorney fees to the prevailing party on the actions enumerated therein:

“In any civil action to recover for labor or services, rendered, or on an open account, a statement of account, account stated, note, bill negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.”

¶ 8 The word “judgment” is not used in section 936. The only requirement is that the party prevail in an action enumerated in the statute. Here, the Cravens prevailed on their claim for breach of contract and are entitled to attorney fees under 12 O.S. § 936.

¶ 9 Tomahawk prevailed on its lien claim and was entitled to attorney fees under Oklahoma’s lien statute, 42 O.S. § 176, which provides for an award of attorney fees to the party for whom judgment is rendered:

“In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney’s fee, to be fixed by the court,which shall be taxed as costs in the action.”

¶ 10 We find that the trial court erred in awarding attorney fees solely to Tomahawk. The Cravens were also entitled to attorney fees as prevailing parties. The petition for certiorari sought review only of. the trial court’s decision to award prevailing party attorney fees only to Tomahawk. The petition for certiorari does not take issue with the amount of the attorney fee awarded to Tomahawk, the costs or prejudgment interest. Issues not presented in the petition for certiorari will not be considered. Hough v. Leonard, 1993 OK 112, 867 P.2d 438.

¶ 11 The trial court’s order is affirmed in part and reversed in part. The denial of prevailing party attorney fees to the Cravens is reversed; the award of attorney’s fee, costs and prejudgment interest to Tomahawk is affirmed. The Court of Civil Appeals’ opinion is vacated and the cause is remanded to the district court for determination at an adversarial hearing of the amount of reasonable attorney fees to be awarded to the appellants.

¶ 12 The appellants and the appellee have asked for appeal-related attorney fees, which are granted. The cause is remanded to the district court for determination of reasonable appeal-related attorney fees incurred by the appellants and the appellee for services rendered on appeal.

CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE TRIAL COURT IS AFFIRMED IN PART, REVERSED IN PART; CAUSE REMANDED WITH DIRECTIONS.

¶ 13 CONCUR: WINCHESTER, V.C.J., LAVENDER, OPALA, KAUGER, EDMONDSON, TAYLOR, COLBERT, JJ. ¶ 14 CONCUR BY REASON OF STARE DECISIS: WATT, C.J.

1 . The text of 42 O.S. 176 is set out in ¶ 9; the text of 12 O.S. § 936 is set out in ¶ 7.