TO THE COURT OF CIVIL APPEALS, DIVISION II APPEAL FROM THE
DISTRICT COURT OF PAYNE COUNTY Honorable Phillip Corley,
Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, Barrett
T. Bowers, Norman, Oklahoma, for Appellee.
Brandee R. Hancock, Michael S. Fern, Stillwater, Oklahoma,
Shonda Layne Brisco entered into an employment agreement with
Oklahoma State University, which provided that she would be
reappointed contingent on her job performance. She was not
reappointed and successfully brought suit for breach of
contract. After trial, the district court awarded Brisco
attorney fees under 12 O.S. 2011 §936. The State of
Oklahoma appealed the award of fees, and the Court of Civil
Appeals affirmed. We granted certiorari to address whether
fees were authorized under 12 O.S. 2011 §936, and hold
that they were not.
This case involves the interpretation of 12 O.S. 2011
§936, which provides: "In any civil action to
recover for labor or services rendered... the prevailing
party shall be allowed a reasonable attorney fee to be set by
the court."  The single issue presented is whether
§936 authorized an award of attorney fees under the
facts of this case. We hold that it does not.
In 2008, the appellee, Shonda Layne Brisco (Brisco/employee)
was hired as an assistant professor in the Curriculum
Materials Library at Oklahoma State University (OSU). The
employment agreement at issue provided that if she performed
well for a period of three years, then she would be
reappointed to the position for another four. After the
conclusion of the contractual term, OSU did not reappoint
Brisco and she consequently filed suit.
Brisco brought a claim for breach of contract against the
appellants, the State of Oklahoma and the Board of Regents of
Agricultural and Mechanical Colleges. She also brought a
claim for intentional interference with contractual relations
against four individual OSU employees: Sheila Johnson, Anne
Prestamo, Jennifer Paustenbaugh, and Rich Paustenbaugh
(collectively OSU). She prevailed on the breach of contract
claim, lost on the tortious interference claim, and was
awarded $50, 000 in damages. Following trial, she moved for
attorney fees under 12 O.S. 2011 §936, and the court
awarded $49, 065.  OSU appealed, and the Court of Civil
Appeals affirmed. We hold that §936 did not authorize an
award of attorney fees, under the facts of this case.
SECTION 936 ONLY APPLIES TO LABOR AND SERVICES RENDERED AND
DOES NOT AUTHORIZE ATTORNEY FEES UNDER THE FACTS OF THIS
This cause turns on the meaning of the word
"rendered" in §936. The provision provides in
A. 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.
B. In any civil action to recover unpaid fees, fines, costs,
expenses or any other debt owed to this state or its
agencies, as defined pursuant to Section 152 of Title 51 of
the Oklahoma Statutes, unless otherwise provided by law, the
prevailing party shall be allowed a reasonable attorney fee
to be set by the court, to be taxed and collected as costs.
OSU argue that §936 applies only to claims for services
that have previously been performed, but not yet paid. In its
view, the employee's claim was not to recover for
services rendered, but was to recover for services that she
would have rendered had her contract had been renewed. The
employee, conversely, views the statute more broadly and
argues that because of the reappointment provision in her
contract, the underlying nature of the suit involves her job
performance and is related to the services she rendered.
Clarifying the meaning of the word "rendered"
begins with Russell v. Flanagan, 1975 OK 173, 544
P.2d 510. In Russell, the plaintiff brought a claim
for breach of warranty on a labor contract. The plaintiff had
hired the defendant to service his sewer line, and the
defendant had provided a warranty against further sewer
issues within a 90-day period. When the plaintiff allegedly
experienced sewer problems within the warranty period, he
asked the defendant to fix the problems without charge and
the defendant refused. In the resulting trial, the defendant
prevailed and moved for attorney fees under §936. The
trial court denied fees, and we affirmed.
At the time it was interpreted in Russell, §936
had not been amended.  The provision had a somewhat different
structure and did not include the word "rendered."
Title 12 O.S. 1971 §936 provided:
In any civil action to recover 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, or for labor or services,
unless otherwise provided by law or the contract which is the
subject to 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. (Emphasis supplied).
denying fees, this Court held in Russell that the
phrase "for labor or services" should be considered
with the initial category of a "civil action" and
not with the latter category of a "contract."
Relevant here, this Court noted, "We believe that the
addition of the phrase 'or for labor or services' by
amendment to the statute in 1970 was intended by the
legislature to be limited to those situations where suit is
brought for labor and services rendered." (Emphasis
supplied). After Russell, case law applying
§936 focused on whether the damages directly arose from,
or were merely collateral to, the labor or services rendered.
See, Holbert v. Echeverria, 1987 OK 99, ¶ 20,
744 P.2d 960; Burrows Const. Co. v.
Indep. Sch. Dist. No. 2 of
Stephens Cty., 1985 OK 57, ¶ 8, 704 P.2d 1136.
Then in 2002, §936 was amended, and this amendment
appears to incorporate the interpretation of the provision
found in Russell. ...