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Brisco v. State ex rel. Board of Regents of Agricultural and Mechanical Colleges

Supreme Court of Oklahoma

May 2, 2017

SHONDA LAYNE BRISCO, Plaintiff/Appellee,
v.
THE STATE OF OKLAHOMA, ex rel., THE BOARD OF REGENTS OF AGRICULTURAL AND MECHANICAL COLLEGES, a constitutional state agency, SHELIA G. JOHNSON, ANNA PRESTAMO, JENNIFER PAUSTENBAUGH, and RICH PAUSTENBAUGH, Defendants/Appellants.

         CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY Honorable Phillip Corley, Trial Judge

          Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, Barrett T. Bowers, Norman, Oklahoma, for Appellee.

          Brandee R. Hancock, Michael S. Fern, Stillwater, Oklahoma, for Appellants.

          KAUGER, J.

         ¶0 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.

         ¶1 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." [1] 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.

         FACTS

         ¶2 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.

         ¶3 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. [2] 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.

         I. SECTION 936 ONLY APPLIES TO LABOR AND SERVICES RENDERED AND DOES NOT AUTHORIZE ATTORNEY FEES UNDER THE FACTS OF THIS CASE.

         ¶4 This cause turns on the meaning of the word "rendered" in §936. The provision provides in full:

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. (Emphasis supplied).

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.

         ¶5 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.

         ¶6 At the time it was interpreted in Russell, §936 had not been amended. [3] 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).

         In 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." [4] 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.

         ¶7 Then in 2002, §936 was amended, and this amendment appears to incorporate the interpretation of the provision found in Russell. ...


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