Whittington v. Durant, H.M.A., 2022 OK 97

Opinion:Whittington v. Durant, H.M.A., 2022 OK 97
Subject Matter:Sanctions
Date Decided:December 6, 2022
Trial Court:Bryan County; Judge Mark R. Campbell
Route to this Court:Certiorari from a decision of the COCA
Facts:The underlying facts involve a dispute over access to business records. Whittington sought records, Durant initially denied him access, and then ultimately provided the records after this case was filed. After the trial court granted Whittington’s Motion for Summary Judgment, Whittington filed several applications for fees and costs relying on the inherent equitable authority of the trial court to grant fees and costs for litigation misconduct. The application for fees and costs was supported by an affidavit from Whittington’s attorney claiming that Durant’s attorney had disclosed to him a bad faith reason for Durant’s litigation strategy. Durant disputed the allegations and contended that its actions were taken in good faith. 

The trial court concluded that Durant’s litigation conduct was “done in bad faith, was oppressive, vexatious and willful,” and sanctioned Durant to pay Plaintiff’s attorney fees and costs in the amounts of $51,582.50 in fees and $2,865.41 in costs. The COCA reversed the trial court in its entirety, finding that Whittington’s counsel’s self-interested affidavit, without supplemental testimony, is not enough to support a finding of bad faith or vexatious, wanton, or oppressive litigation misconduct. 
Standard of Review:Evaluation of the correctness of the trial court’s imposition of attorney fees and costs as a sanction requires an abuse-of-discretion review.
Analysis:The issue on appeal is whether the trial court abused its discretion by relying on an attorney’s controverted affidavit to prove bad faith litigation conduct and whether the trial court had before it sufficient evidence to support the trial court’s award of attorney fees based on maintaining or defending an action in bad faith.

An affidavit is a statutorily approved mode of taking testimony. The trial court was not wrong to admit and consider the affidavit even without supplemental testimony by oral examination. However, in Oklahoma, the right of a litigant to recover attorney fees is governed by the American Rule and exceptions to the American Rule are narrowly defined.

When determining whether a defense or conduct rises to the level of bad faith, it is important to note that novel or unpopular theories do not inevitably equate to bad faith if they have a reasonable basis in law and fact, even if they are unlikely to succeed. The facts in this case do not rise to the level necessary to support the trial court’s sanction of attorney fees and costs for bad faith.
Outcome:COCA opinion is vacated; Trial court judgment on attorney fees is reversed. 
Vote:6-3. Darby, C.J., Kauger, Winchester, Edmonson, Gurich (author), and Rowe, JJ. Concurring in result: Kuehn, J. (by separate writing). Dissent: Kane, V.C.J. and Combs, J.
Other:Dissenting Justices did not write.