Vickers v. Boyd

ALMA WILSON, Justice:

The plaintiffs in the cause below, the Vickers, were involved in a traffic accident involving several vehicles, each rear-ending the others. The Vickers were in the lead car. The defendant, Boyd, was in the last car, and the defendant, Jacques, was in front of Boyd. The details of the accident are not necessary to the decision of this appeal.

When the cause came to trial, Boyd, who had represented herself, did not appear and the Vickers asked and were granted a default judgment against her, the amount to be set when the trial had concluded. On the second day of trial, the Vickers called the defendant, Jacques, to the stand. After his testimony, the Vickers called Boyd to the stand. Jacques’ attorneys objected stating that they had been prejudicially surprised by Boyd’s appearance. The Vick-ers had listed all of the defendants as witnesses on the pretrial conference order, but on the first day of trial, Vickers’ attorneys represented that they did not know where she was. After the trial judge questioned the Vickers’ attorney, Mr. Denney, about Boyd’s subsequent appearance in court, Mr. Denney stated that Boyd had been located the night before, that he had called her in the middle of the night, told her that he had been granted a default judgment against her and what he expected the testimony of Jacques to be — that the accident was completely the fault of Boyd. Boyd then agreed to come back to Oklahoma from her home in Washington, D.C., to testify. After the explanation the trial court granted a mistrial. Jacques’ attorneys then moved for attorney’s fees pursuant to City National Bank & Trust Co. v. Owens, 565 P.2d 4 (Okla.1977). The court set a hearing date.

At the hearing, Jacques’ attorneys presented evidence of the reasonableness of their fees involved in preparation for the hearing that had been declared mistried, and for their court time. The Vickers put on evidence concerning how Boyd had been located the first night of the trial and flown in from Washington, D.C., to testify the next day. Mr. Denney stated to the court that when he had heard that Jacques intended to contradict findings of a hearing examiner of the Department of Public Safety regarding the financial responsibility of Boyd, who did not have insurance at the time of the accident, he decided that he must find her.

The hearing examiner’s report was attached to Boyd's pro se answer to the lawsuit. The examiner’s report stated that “there is no reasonable possibility of a judgment being rendered against Carole N. Boyd as a result of the above accident....” The examiner set aside the previous order of the Commissioner of Public Safety requiring her to post security.

After the trial judge heard the evidence regarding assessing attorney’s fees against the Vickers, he stated on the record that he believed that Mr. Denney had misrepresented his knowledge concerning Boyd’s current location and that the misrepresentation had led to an unnecessary mistrial. The trial judge read excerpts of the Owens decision into the record, and concluded that he could assess attorney’s fees because of Mr. Denney’s conduct, the court apparently concluding that the calling of Boyd was in bad faith and oppressive. The trial court ordered Mr. Denney, personally, to pay a $4,000.00 attorney’s fee to the Jacques’ attorneys. An appeal was filed. The Court of Appeals in a memorandum opinion found that the petition in error was defective in that the Vickers were listed as appellants, when they were not aggrieved by the order of the trial court. Accordingly, the Court of Appeals dismissed the appeal. We have previously granted certiorari.

We must first address the procedural matter resulting in the decision of the Court of Appeals to dismiss this appeal. “Form does not rule over substance in evaluating documents filed in this court.” Bane v. Anderson, Bryant & Co., 786 P.2d 1230, 1234 (Okla.1989). The caption in the petition in error names-the Vickers as the appellants. An examination of the order that assessed the attorney’s fees against Mr. Denney reveals that the caption of the order reads, “DORA L. VICKERS and DERWOOD N. VICKERS, Plaintiffs, vs. CAROL N. BOYD, VERNON L. JACQUES, Defendants.”

The Rules of Appellate Procedure in Civil Cases, 12 O.S.1981, ch. 15, App. 2, provide “The designation of parties in the caption of the petition in error shall correspond with the sequence in which the designation of the parties appeared in the trial court case. 20 O.S.1981 § 3002.” ¹ Rule 1.16(B). The attorneys for the Vickers were clearly faced with an ambiguity in determining what caption should appear on the petition in error. While it is incorrect to designate the Vickers as appellants where they are not aggrieved parties,² such an incorrect designation is not fatal to the timely filed petition in error. The petition in error states twice that the attorney’s fees and costs were assessed against the plaintiffs’ attorney, Richard L. Denney, individually.³ Such misdesignation of the Vickers as the appellants causes no prejudice to the appel-lees as they have been given notice of the appeal, and know the issues to be addressed. We hold that the substance of the petition in error reveals that Richard L. Denney was the aggrieved party by the order of the trial court and therefore Mr. Denney is the appellant.

With regards to the merits of the case, the issue is whether the trial court erred in assessing attorney’s fees under the facts stated above. The transcript of the trial reveals that the trial court believed that Mr. Denney had not been completely honest with the court. After the plaintiff’s attorney called the defendant, Boyd, as a witness, the appellee, Jacques, asked for a mistrial and that motion was granted. The court declared a mistrial even though Boyd did not testify. The record is not clear concerning the reason that the trial court considered a mistrial necessary. The proposed pretrial order of the Vickers, filed in the record, reveals that “All parties” are listed under plaintiffs’ witnesses, as well as “All witnesses listed by Defendants.” On Jacques’ proposed pretrial order Boyd is listed as a witness for the defense. No pretrial order, signed by the trial judge is in the record. Nevertheless, the record shows that Jacques had notice that the plaintiffs intended to call the defendant, Boyd, as a witness.

In assessing attorney’s fees against Mr. Denney,⁴ the trial court cited Owens. But a review of the facts of that case reveals that Owens is distinguishable. In that case, a jury was impaneled, and the case was tried for three full days. On the fourth day, after all evidence and testimony had been introduced, after all parties had rested, and after the court had prepared instructions, the plaintiff in that case dismissed. Owens, 565 P.2d at 6. After stating that under the “American Rule” governing the award of attorney fees, such fees are not ordinarily recoverable in the absence of a statute or an enforceable contract, this Court went on to hold that the Rule is not an absolute bar to the awarding of attorney fees in the absence of statute or contract. Owens, 565 P.2d at 7. As an exception to that rule, this Court stated that “attorney fees may be awarded when an opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reason.” In allowing attorney’s fees in the Owens case, the oppressive behavior was that the plaintiff brought the controversy in litigation to trial, took the opportunity to test the strength and weakness of his case, then after the close of all the evidence, after the instructions had been decided upon, he dismissed, causing necessary expenses to be wasted by the defendants and causing the parties, attorneys, citizens and court employees to waste a considerable amount of time, money and effort. Owens, 565 P.2d at 8.

Is the behavior of the Vickers’ attorney likewise oppressive? We think not. The Vickers did not ask that this case be dismissed. Jacques asked for a mistrial. If he had been surprised by the calling of Boyd as a witness, he had other options available to him. He could have asked that the witness be excluded. He could have asked for a continuance. Under either of those alternatives, the trial expenses would not have been wasted. Under the American Rule each litigant bears the cost of representation in the absence of a specific statute or a specific contract between the parties. This case does not present a “bad faith, vexatious or oppressive” exception to the American Rule. Beard v. Richards, 820 P.2d 812 (Okla.1991); and, Kay v. Venezuelan Sun Oil Co., 806 P.2d 648 (Okla.1991).

HODGES, V.C.J., and LAVENDER, DOOLIN, HARGRAVE and SUMMERS, JJ., concur. KAUGER, J., concurs by reason of stare decisis. OPALA, C.J., and SIMMS, J., dissent.

1 . Because our law requires that the style of all cases be parallel with the style in the trial court in accordance with 20 O.S.1981, § 3002, and also requires that the appealing parties be designated in the style, we now include Richard L. Denney as an appellant. MBA Commercial Const. v. Roy J. Hannaford, 818 P.2d 469, 471-472 (Okla.1991).

2 . ‘“A party aggrieved’ is one whose pecuniary interest in the subject matter is directly and injuriously affected or whose right of property is either established or divested by the decision complained of." Whitman v. Whitman, 397 P.2d 664, 667 (Okla.1964).

3 . In a footnote, the dissent states that the use of the word "individually” means no more than that Mr. Denney appears as plaintiffs’ attorney individually. A clear reading of the context of the petition in error, quoted by the dissent, reveals that the use of the term "individually” is used emphatically to demonstrate that the trial court had assessed attorney’s fees and costs against Richard L. Denney, not against the plaintiffs. With respect to the dissent, Mr. Denney's judgment creditors understood that the $4,000.00 judgment granted to them had been appealed. The June 27, 1988, order upon which this appeal was based, states: "The Court orders that Plaintiffs [sic] attorney, Richard L. Den-ney, shall personally pay the Defendant, Vernon L. Jacques’ attorney the sum of $4,000.00 as attorney fees to be taxed as costs against Mr. Denney individually in this matter.” (Emphasis added.) The combination of the Petition in Error and the trial court judgment reveal who is the aggrieved party even though the Petition in Error never uses the word "appellant” in reference to Mr. Denney.

4 . The appellant cites no statute to support assessing attorney’s fees against the attorney for a party to a lawsuit. Neither 12 O.S.Supp.1987, § 2011 (which provides for sanctions against an attorney for signing a pleading in violation of the rule stated within that statute) nor 12 O.S.Supp.1989, § 3237(A)(4) (which provides for sanctions against an attorney for failure to cooperate in discovery) are applicable in the case at bar.