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Walker v. Ferguson11/2/2004
The trial judge in Winters held a hearing on the motion to assess costs and attorney's fees against the attorney, and specifically found that the behavior of the attorney constituted "oppressive behavior." In Winters, we quoted with approval Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), which held that such sanctions are within a court's powers, but require a specific finding that counsel's misconduct constituted bad faith. The court stated that a finding of bad faith would have to precede the sanctions under the court's inherent power of assessing attorney fees against counsel. 447 U.S. at 767.
In the case at bar there is no finding by the trial judge that counsel's conduct constituted bad faith or oppressive conduct. The trial judge allowed a record to be made following the granting of the mistrial on September 25, 2002. At that September 25 hearing, defendant K & A orally moved for sanctions. The trial judge did not rule on the motion, but advised Mr. Berry that:
"Everybody's going to file their motion asking for sanctions. This Court is not going to say whether it's going to grant them or not. I don't believe you did what you did intentionally. May be mistakenly on a belief of what your belief was about the law, but there's no evidence that I would have let that - - there's no way I would have let that evidence in the record."*fn2
Thus, we have the trial judge's statement that he did not believe plaintiffs' counsel's conduct was intentional. The trial judge's order filed December 2, 2002 merely sustains the motion for sanctions without giving the reasons therefor and without making any finding of bad faith or oppressive behavior on the part of plaintiffs' attorney. Likewise, the order of January 10, 2003 which ordered Mr. Berry to pay attorney fees in the sum of $5,062.50 pursuant to order for sanctions does not make any finding of bad faith or oppressive conduct.
Accordingly, we do not have any finding by the trial judge in this case, on the record presented, of bad faith or oppressive conduct on the part of counsel. We said in Gibbs v. Easa, 1998 OK 55 , 998 P.2d 583, 587:
"The record in this case simply does not support an equitable assessment of bad faith attorney's fees pursuant to a court's equitable powers such as were affirmed in Owens and Winters. In examining the partial record in the case at bar, Gibbs alleges frivolous motions, failure to provide documents and information and numerous hearings concerning the contempt citations and the asset hearing. . . . With no transcript and no specific findings of the trial court, we are unable to ascertain from the Statements of Account attached to Gibb's applications for sanction, which items the trial court found to be directly related to some sort of oppressive conduct by Easa." (emphasis added)
The same rationale applies in the case at bar. The record before us does not contain the required finding of bad faith or oppressive conduct necessary for an Owens-based attorney fee awarded as sanctions.
REVERSED.
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