Opinion
No. 65789. Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.
November 10, 1987. As Amended December 17, 1987. Order December 17, 1987.
Appeal from the District Court of Pottawatomie County; Glenn Dale Carter, Judge.
AFFIRMED.
Denver N. Davison, and Patricia A. Allford, Legal Intern, Ada, for appellant.
Charles M. Laster, and J. David Cawthon, Legal Intern, Shawnee, for appellees.
Plaintiffs, Harry and Helen Fluharty, sued Defendant, Speedy Wrecker Service, to recover for damages caused to their motor home while being towed by Defendant. Defendant made an offer to allow judgment for $500 to be taken against it. Within five days (12 O.S. 1981 § 940[ 12-940](B)) Plaintiffs accepted the offer, and Judgment was rendered for them for $500, the amount offered by Defendant. Plaintiffs then filed a motion to tax attorney's fees against Defendant. The trial court granted the motion and assessed attorney's fees against Defendant. Defendant appeals.
12 O.S. 1981 § 940[ 12-940] is the controlling statute. Defendant contends that the trial court's award of attorney fees to Plaintiffs was in violation of the following portion of § 940(B):
§ 940. Negligent or willful injury to property — Attorney's fees and costs — Offer and acceptance of judgment
12-940
If the judgment rendered is for the plaintiff, and is for the same amount as the defendant's offer, then the plaintiff and defendant shall incur their own attorney's fees, court costs and interest.
Taken out of context, this portion of the statute seems to support the contention that the award of attorney fees was error. However, in construing a statute, the meaning thereof is to be determined through a reading of the statute as a whole, not from any single part. Taylor v. State, 377 P.2d 508 (Okla. Cr. 1962).
When § 940(B) is considered in its entirety, it follows a logical progression. The first part of § 940(B) sets forth that the Defendant may offer to allow a judgment to be taken against him. The statute provides a time limit within which the Plaintiff may accept the Defendant's offer. It is then noted that upon offer and acceptance, judgment shall be rendered accordingly. Next, it provides that if the offer is not accepted within the specified time, it is deemed to be withdrawn and shall not be mentioned at the trial. The last portion of § 940(B) speaks to the consequences of the possible judgments upon adjudication after trial in terms of attorney's fees, costs and interest, (i.e., where there is a defendant's verdict or Plaintiff is granted a judgment of less, more, or the same amount as the Defendant offered.) In construing § 940, we must bear in mind that the basic provisions thereof are contained in § 940(A), and, that § 940(B) sets forth specific directions to be followed as to attorney's fees, costs and interest in cases where the offer is made and not accepted.
The portion of § 940(B) cited by Defendant is applicable only in instances where Defendant offers to confess judgment, Plaintiff does not accept the offer, and then after adjudication at trial, Plaintiff is awarded a judgment in the same amount as the Defendant had offered.
We, therefore, hold that the provisions of 12 O.S. 1981 § 940[ 12-940](B), relating to attorney fees, costs and interest, are not applicable to a situation where a defendant offers to confess judgment and Plaintiff accepts the offer. Unless Defendant's offer, as accepted by Plaintiff, contains some agreement relating to attorney's fees, one way or another, then § 940(A) will apply, since Plaintiff is prevailing party. It follows that the trial court did not commit error in allowing attorney fees.
AFFIRMED.
ROBINSON, P.J., concurs.
REYNOLDS, J., dissents.
ORDER
The Motion to Assess Attorney's Fees on Appeal filed by Appellees is granted. This case is remanded to the trial court with directions to conduct an evidentiary hearing to determine the amount of fee which is reasonable, under the guidelines of State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659 (Okla. 1979).
DONE BY ORDER OF THE COURT OF APPEALS This 14th day of December, 1987.