author: OPALA, V.C.J. BOUDREATU, J.,

text:
    2003 OK 69
    Alfred William SISK, Plaintiff/Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant/Appellant.
    No. 94,288.
    Supreme Court of Oklahoma.
    July 8, 2003.
    Rehearing Denied Nov. 24, 2003.

      James C. Daniel, Daniel, Baker & Howard, Tulsa, OK, for Appellant, J.B. Hunt Transport, Inc.
    Tim Maxcey, Stipe Law Firm, McAlester, OK, attorney for Appellee, Alfred William Sisk.

    Rex K. Travis, Oklahoma City, for amicus curiae, Oklahoma Trial Lawyers Association.
    Karen M. Grundy and Jon Starr, Tulsa, for amicus curiae, Oklahoma Association of Defense Counsel.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   ORDER

Rehearing is granted. The opinion of the Court issued on February 5, 2002 is withdrawn and the opinion filed today is substituted therefor. The vote below is on the grant of rehearing only. The vote on the substituted opinion is shown thereon.

WATT, C.J., OPALA, V.C.J., LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ., concur.

HODGES, HARGRAVE, WINCHESTER, JJ., dissent.

OPALA, V.C.J.

T1 Today's controversy presses for our decision but a single question: Whether a plaintiff's second dismissal of a time-barred claim against a co-defendant's servant operates, in fact and in law, to release the defendant/master by operation of the common-law rule that a servant's dismissal by the act of a plaintiff also operates to release the master's liability and to extinguish the tort claim where the claim is advanced on servant's negligence alone? We answer in the affirmative and give today's pronouncement purely prospective application-one that will apply solely to claims arising after the effective date of today's opinion.

L.

THE ANATOMY OF THE LITIGATION

12 William Alfred Sisk (plaintiff or Sisk) was injured in a vehicle/pedestrian collision on 10 November 1994 when he was struck by a tractor-trailer vehicle owned by J.B. Hunt Transport (defendant, master or Hunt) and operated by the latter's employee, Aristille Courville, Jr. (defendant, servant or Cour-ville). Sisk brought a negligence action against Courville and Hunt for damages from bodily injuries allegedly occasioned by Cour-ville's negligence. Sisk averred no independent negligence by Hunt. Suit against the latter rests solely on the theory of respon-deat superior. On 26 August 1997 Sisk dismissed his action without prejudice and then refiled it by invoking the provisions of 12 ©.S.1991 § 100, the savings statute.

T3 Immediately before trial the plaintiff once again dismissed Courville "without prejudice." Because this was a second § 100 dismissal of Courville, Hunt asserted that the action had failed because under the doe-trine of respondeat superior the master no longer bore liability. Hunt moved that the action be dismissed and judgment entered in its favor. Sisk maintained that, regardless of Courville's absence from the suit, Hunt continued to bear vicarious liability. The trial court overruled Hunt's argument and concluded Sisk's dismissal was "with prejudice" as a matter of law. The jury returned a verdict for Sisk and awarded him $800,000.00 in damages (to be reduced proportionately by its finding of 30% contributory negligence by Sisk). Hunt moved for a directed verdict, for judgment notwithstanding the verdict and for a new trial All these motions were overruled. Hunt appealed.

{4 The Court of Civil Appeals (COCA), Division II, affirmed the nisi prius denial of Hunt's motions. It noted that extant jurisprudence teaches that where master and servant are proceeded against jointly, and the master's lability rests solely on respon-deat superior, a servant's disnuissal without prejudice does not bar the action against the master although no decisional law could be found holding that master's release would be effected upon a servant's dismissal with prejudice. Because, as COCA noted, extant jurisprudence on principles of respondeat superior permits an action against the principal alone where no suit is brought against the agent, it reasoned that Sisk's decision (not to pursue his claim against Courville) would not bar the action against Hunt. Although COCA noted that other jurisdictions were divided about the issue of the release rule's application upon a dismissal with prejudice, it concluded Sisk's dismissal of the servant with prejudice did not release Hunt Transport from its respondeat superior liability.

H.

THE PARTIES'S RESPECTIVE POSITIONS ON CERTIORARI

15 Hunt contends that, although COCA was correct in characterizing Sisk's second dismissal as one "with prejudice," it is the legal effect of the instrument, not that of the pleader-chosen title, that controls here. The legal effect of the second dismissal-after the savings statute has earlier been invoked-prevents reinstitution of the action against Courville. This completely releases Cour-ville and bars further legal action upon Sisk's claim against Courville Hunt relies on Mid-Continent Pipeline v. Crauthers, and Burke v. Webb Boats, Inc. to establish that a servant's release releases the master who is proceeded against for vicarious liability's imposition. Hunt concludes Sisk's claim against it stands extinguished by operation of law.

T6 Sisk asserts that COCA's characterization of his dismissal as "with prejudice" is erroneous. This is so because Sisk's dismissal expressly states it is "without prejudice," and his motion rests upon the provisions of 12 0.8.1991 § 683, whose text provides no limitation whatever on the number of times a plaintiff may dismiss an action without prejudice. Sisk continues that the true bar to any further action against Courville is the expiration of the statute of limitations coupled with his inability to bring, more than once, a refiled claim under § 100. It is this procedural bar, based on policies of repose, that prohibits a third action against Courville, not the dismissal. These policies should have no bearing on his claim against Hunt, which was brought within the applicable time limits. Because his second dismissal should be denominated as one "without prejudice," Sisk contends his case is controlled by Employers Cas. Co., and we should let COCA's decision stand. Sisk urges alternatively he may continue to proceed against Hunt upon the re-spondeat superior principles espoused in Hooper. This is so because it is only Cour-ville's liability that is extinguished by Sisk's second dismissal. Although Courville no longer stands liable to Sisk, his negligence may still be imputed to Hunt and the action against Hunt may hence continue.

IIL.

THE COMMON-LAW RULE-THAT RELEASE OF THE SERVANT RELEASES THE VICARIOUSLY LIABLE MASTER-OPERATES HERE. PLAINTIFF'S AFFIRMATIVE ACT TRIGGERED THE PROVISIONS OF § 100 AND EXTINGUISHED HIS CLAIM AGAINST THE SERVANT.

17 The answer to the question posed by today's certiorari must rest on the common-law doctrine of respondeat superior. When a claim alleges, and presses for imposition, a master's vicarious liability (based solely on a servant's negligence)-ie., one from which master's negligence is absent-the claim is one predicated on master's vicarious liability known to the Anglo-American legal system as respondeat superior. This common-law doctrine teaches that an effective release of the servant operates to release the master.

T8 The release requirement manifests itself here in somewhat unusual civeum-stances. The master's release results from the plaintiff's second dismissal of the claim against the servant after limitations have run. Simply put, the dispositive question in today's controversy is whether the ex lege bar from the plaintiff's second dismissal operates by force of law as an effective release of the claim against the servant. We hold that it does.

T 9 The early common-law release concept included the notion that a "release" flows from the abandonment or extinguishment of a claim, and that following the release of one tortfeasor, there is no residual claim to be sued upon against another. Whether Sisk's second dismissal was labeled "with" or "without prejudice" is immaterial here. The legal consequence of plaintiff's second dismissal must be considered against the backdrop of the effect it has on the plaintiff's capacity to refile the claim. Neither the plaintiff-worded motion for the servant's dismissal nor its effect under § 100 is to be tested in a pure vacuum.

1 10 Plaintiff's affirmative act of dismissing (for the second time) the servant from suit at once triggered the restrictive refiling opportunity afforded by the § 100 provisions. That opportunity is undeniably gone, and recommencement of this action against Cour-ville cannot be accomplished. It is the recommencement bar, raised by plaintiff's own act of his second dismissal, that, in fact and in law, extinguishes his claim against the servant. When viewed in the light of a two-prong analysis, the release rule's operation at once becomes crystal-clear. A plaintiff's of-firmative act must occur first; its required effect-one that must follow next-must be that of reprosecution's absolute bar. To destroy a servant's liability, both elements must coincide. Today's scenario is readily distinguishable from all those in which a plaintiff takes no affirmative step or no plaintiff's act extinguishes a servant's liability. Sisk's own act triggered the bar to reprosecution that extinguished his claim against Courville. A bar that arises by foree of law from a plaintiff's voluntary act of dismissal is as effective as any other form of express release that would extinguish the claim against the servant.

T11 That the servant is now beyond the reach of any suit upon Sisk's claim is the undeniable consequence of plaintiff's dismissal. The release rule must hence govern this controversy. Uninterrupted viability of the claim against a servant is the sine gua non of the master's continued liability in respondeat superior. Once, by an act of the plaintiff, the servant becomes impervious to legal responsibility, the master stands released.

{12 Plaintiffs reliance on Hooper's language-that it is the servant's negligence that is imputed to the master and not the servant's liability-to support his contention that he may now proceed solely against the master is misplaced. Hooper neither deals with nor impacts the release rule. It employs the accepted fiction (underlying the doctrine of respondeat superior) when an action is brought solely against a master. Oklahoma's extant jurisprudence, expounding the common-law release rule, stands unabro-gated and controls today's controversy. In short, plaintiff's dismissal operates by force of § 100 as an effective bar to the claim's reprosecution against the servant. This bar stands erected by the plaintiff's own act. The act makes the common-law rule operative.

{13 Today's controversy is resolved by application of the time-honored rule of stare decisis. Only those precedents that are patently bad should be altered by judicial correction. Plaintiff urges the result of today's holding is unduly harsh. It will require that future litigants name every potential servant as a litigant in cases based upon the doctrine of respondeat superior. He also asserts that today's reasoning will lead to disastrous consequences where a master only is sued and the statute of limitations expires prior to trial. Plaintiffs concern for suits where the master alone stands as defendant in the case is misplaced. Today's holding neither modifies Oklahoma's extant jurisprudence nor applies to situations where no affirmative act of the plaintiff bars an action against the servant.

$14 The common-law is, of course, always subject to abrogation by legislation. Generally, when a statute or rule of law appears obscure in its impact on the case at bar we will give the pronouncement prospective effect to protect those who would otherwise suffer from the law's abstruse contours. For the sake of affording evenhanded fairness, implicit in this state's judicial process, we give today's opinion purely prospective effect. It will govern only those claims which will arise after the effective date of this pronouncement.

1 15 We express no opinion upon the mid-trial errors re-urged by Hunt's certiorari petition. Our certiorari grant stands confined to the single issue-whether the common-law release rule governs this case. Neither is there any need to address Hunt's final challenge-that COCA credits as evidence statements made by Sisk's lawyer during oral argument to the appellate tribunal. Record evidence is sufficient to support COCA's decision.

IV.

SUMMARY

116 We hold today the ex lege bar from the plaintiff's voluntary act (of a second dismissal of Courville) operates at common law as an effective release of Sisk's claim against the servant. It is the § 100 recommencement bar, raised by the plaintiff's own act of dismissing the servant that, in fact and in law, also extinguishes his claim against the vicariously liable master. When a servant is effectively released, his master, whose liability is solely derivative, stands released as well. Today's pronouncement is given purely prospective effect. It shall govern only those claims which will arise after mandate has been issued herein.

{17 On certiorari previously granted, the Court of Civil Appeals' opinion is vacated and judgment of the trial court affirmed.

1 18 HODGES, LAVENDER, HARGRAVE AND WINCHESTER, JJ., concur.

119 KAUGER and BOUDREATU, JJ., concur in part and dissent in part.

120 SUMMERS, J., concurs in affirmance of the judgment; dissents from the court's opinion on rehearing and joins BOUDREAU, J., and WATT, C.J., in large part.

1 21 WATT, C.J., dissents.

BOUDREATU, J.,

with whom SUMMERS, J., joins: concurring in part; dissenting in part.

1 1 I agree with the portion of the majority opinion that allows the judgment below to stand. I dissent to the portion of the opinion which concludes that by dismissing Courville from the suit for the second time, plaintiff lost the capacity to refile his claim against Courville. The majority opinion is flawed in that it fails to treat 12 0.8. § 100 as a true statute of limitations.

T2 A statute of limitations prescribes a time period within which an action must be brought upon a claim. It is remedial rather than substantive, in that it bars only the remedy-not the right or obligation. Anderson v. Merriott, 1976 OK 74, 550 P.2d 1320. A statute of limitations is not a limitation of authority or jurisdiction, but is instead a legal defense. Kimberly v. DeWitt, 1980 OK CIV APP. 2, ¶ 15, 606 P.2d 612, 617. We have previously recognized that the savings statute, 12 0.8. § 100, is remedial, not substantive. Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, 910 P.2d 998, 1001. Hence, § 100 is a true statute of limitations.

1 3 Section 100 cannot be considered either a jurisdictional limitation period or a statute of repose. A jurisdictional limitation period is defined as a prescribed time period that is so specifically attached to the subject of the claim that it must be construed as an element of the claim. Cruse, supra., 910 P.2d at 1004 n. 32. A jurisdictional limitation period is an absolute requirement. When a statute prescribes a time period that meets this definition, the failure to file within the prescribed period deprives the court of jurisdiction. Shanbour v. Hollingsworth, 1996 OK 67, 918 P.2d 73, 75. A jurisdictional time period is not an affirmative defense. It is not subject to waiver or estoppel (tolling).

T4 A statute of repose sets an outer chronological time boundary beyond which no cause of action may arise for conduct that would otherwise have been actionable. Neer v. State ex rel. Oklahoma Tax Commission, 1999 OK 41, ¶ 19, 982 P.2d 1071, 1078. A statute of repose marks the outer boundary of a substantive right. It is different than a statute of limitations in that a statute of limitations only procedurally bars the remedy after the substantive right has vested. Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 820.

T5 As a statute of limitations, § 100 does not deprive the court of jurisdiction if the claim is not timely filed. Section 100 is an affirmative defense. 12 O.S. § 2008(C)(18). Failure to plead it as an affirmative defense operates as a waiver. Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268. Similarly, as a statute of limitations, § 100 is also subject to tolling. Kordis v. Kordis, 2001 OK 99, 37 P.3d 866. As an affirmative defense, unless the § 100 defense is pled and proved and a judgment is rendered on the defense, the plaintiff's remedy is not extinguished.

T6 In sum, § 100 is a statute of limitations, not a jurisdictional limitation period and not a statute of repose. Accordingly, even after plaintiff dismissed Courville the second time, plaintiff retained the capacity to refile his claim against Courville. If plaintiff had chosen to refile his claim against Cour-ville, then it would have been incumbent upon Courville to plead and prove the affirmative defense of § 100 (4.e., to plead and prove that § 100 bars plaintiff's remedy against Courville). Until such time, neither plaintiff's right nor his remedy was extinguished. Therefore, plaintiff's second dismissal of Courville did not have the legal effect of a release of plaintiff's claim against Courville.

WATT, C.J. with whom SUMMERS, J. joins in large part.

T1 The majority today holds Sisk's claim against Hunt was released because Sisk's second dismissal of Courville without prejudice operated to release Courville. The majority explains this "release" occurred because of the impact of 12 0.8.2001 § 100 which created an absolute bar to future refil-ings. In other words, the majority holds Sisk's dismissal of Courville without prejudice, under 12 O.S. § 683, extinguished his claim. I respectfully dissent.

1 2 The majority contends the common-law release rule of Mid-Continent Pipeline Co. v. Crauthers, 1954 OK 61, 267 P.2d 568, cited in Burke v. Webb Boats, Inc., 2001 OK 83, 37 P.3d 811, is still good law in Oklahoma. That rule provides the release of the servant/tort-feasor in a respondeat superior case releases the master, whose liability is purely vicarious. While I agree that rule is good law in Oklahoma, I take issue with the majority's conclusion that it is applicable here, or that Sisk's affirmative act of dismissing Courville had the effect of releasing Hunt.

13 The majority's holding would allow a voluntary dismissal without prejudice, which accords no finality to a claim, to end the litigation, as if the claim had been determined on the merits In so holding, the majority mischaracterizes the impact of § 100. Clearly, plaintiffs second dismissal places the protection from § 100 just beyond Sisk's grasp as to cases filed in the future. That is because the dismissal occurred outside the statute of limitations. However, the problems associated with recommencing the claim against the servant arises, not because of $ 100, but because any refiling would occur outside the statute of limitations affecting this particular claim. Moreover, the claim against the servant is not "extinguished", as it would be in a "release" of the servant; it is merely subject to dismissal upon limitations grounds raised as an affirmative defense. I agree these actions do not occur in a vacuum. I do not agree, however, that the impact of § 100 on Sisk's dismissal of Courville without prejudice changed the nature of Hunt's lHability from that of an employer with vicarious liability for its employee's negligence, to no more liability than that of a pre-UCATA joint tortfeasor whose co-defendant was released, i.e., none whatsoever. The majority has gone to great lengths to place the present case in the same category as the claim in Burke v. Webb Boats, supra, in which the plaintiff released the employee/agent, thus releasing the employer/owner. However, the facts are different, and Burke does not apply here. There simply has been no release of Courville by Sisk in the present case.

T 4 Sisk should be able to proceed against Hunt alone. Oklahoma law provides that master and servant can be pursued separately in a respondeat superior case. See Hooper v. Clements Food Company, 1985 OK 6, 694 P.2d 943; Employers Casualty Co. v. Barnett, 1951 OK 186, 235 P.2d 685, 205 Okla. 73. I disagree with the majority's characterization of the language in Hooper as dicta (that the employee's negligence, not the employee's liability), is imputed to the master. The majority explains the release rule was not at issue in Hooper. In my opinion, the release rule is not at issue in the present case because Sisk did not release Courville. Moreover, the Hooper case contains basic tenets of respondeat superior law recognizing the nature of vicarious liability which applies in this case. Even as far back as 1939, this Court recognized that the pertinent issue in a respondeat superior case is that the employee's negligence determines an employer's liability. See Southern Kansas Stage Limes Co. v. Crain, 1939 OK 216, 89 P.2d 968, 185 OK. 1, in which the negligence of a defendant/employee was litigated, despite his dismissal from the case by the plaintiff,. The second defendant/employee, who remained in the case, was exonerated by the jury. However, a verdict was rendered against the employer. On appeal, this Court explained the verdict and judgment entered against the employer represented its liability for the negligence of the previously dismissed defendant, and the judgment was upheld. It made no difference that the negligent employee was absent from the proceedings. It would make no difference if no employees were present; the case could proceed against the employer/master alone from the beginning.

15 Under the majority's decision, the dismissal of a party without prejudice now creates the potential for barring a suit, despite a plaintiff's compliance with 12 0.8.2001 § 100 and 12 0.S8.2001 § 688. Clearly, under § 100, the second dismissal without prejudice places Sisk in a difficult position as to refiling the case against Courville The claim is clearly subject to dismissal if the affirmative defense of the statute of limitations is raised at that time. It does not, however, prevent the case from proceeding against Hunt to determine Courville's negligence, if any, and Hunt's Hiability to Sisk. See gen., Hooper v. Clements Food Company; Employers Cas. Co. v. Barnett, supra.

T6 Until today, under the Oklahoma statutes and our extant jurisprudence, plaintiffs have had the right to choose their defendants. That right has been extinguished by the majority opinion and its disregard of the plain reading and meaning of the statute, 12 0.9$.2001 $ 688. Clearly, the dismissal of the employee was without prejudice, regardless of what the trial court concluded. The majority contends it is irrelevant whether we term Sisk's dismissal of Courville a "dismissal with prejudice" or a "dismissal without prejudice". However, these terms have specific legal connotations. The dismissal in this case was not the equivalent of a release or an adjudication on the merits. Although the statute of limitations makes Sisk's claims against Courville subject to dismissal if refiled, it had no effect upon the plaintiff's right to continue its litigation against the employer under Oklahoma law, which was clear until the majority made a radical departure from our statutory and case law. I respectfully dissent.

      . The text of 12 0.$.1991 § 100 provides:
      "If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, ... may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed." (textual alteration supplied)

      . The terms of 12 0.$.1991 § 100, the "savings statute," which allow an additional one year to bring a new action after an earlier suit fails otherwise than upon its merits, affords only one refiling opportunity after the statute of limitations has run. Hull v. Rich, 1993 OK 81, ¶ 6, 854 P.2d 903, 904; Ashby v. Harris, 1996 OK 70, ¶ 6, 918 P.2d 744, 747; United States Fire Ins. Co. v. Swyden, 1935 OK 1191, ¶ 21, 53 P.2d 284, 288, 175 Okl. 475, 478.

      . Transcript Vol. 1, p. 3. For the terms of § 100, the savings clause, see supra note 2.

      . Employers Cas. Co. v. Barnett, 1951 OK 186, ¶¶ 11-13, 235 P.2d 685, 689-90. COCA opinion p. 6-7.

      . For this proposition COCA relies on Hooper By and Through Hooper v. Clements Food Co., 1985 OK 6, ¶ 5, 694 P.2d 943, 944 (citing Employers Cas. Co., supra note 5, at ¶ 5, at 689-90).

      . Defendant's materials (citing Brack's Law Dictro. NaRY (5th ed.)) provide that the terms "with prejudice" and "without prejudice" denote whether the action may be reinstituted.

      . Mid-Continent Pipeline Co. v. Crauthers, 1954 OK 61, ¶ 24, 267 P.2d 568, 571, teaches that where the master is liable to a third party for the negligence of his servant solely because of the respondeat superior doctrine, and no independent negligence by the master is alleged, a valid release of the servant from tort liability operates to release the master.

      . Burke v. Webb Boats, 2001 OK 83, ¶ 12, 37 P.3d 811, 814, stands for the proposition that one vicariously liable in tort is not a "tortfeasor" within the meaning of the Uniform Contribution Among Tortfeasors Act (UCATA), 12 § 832, and, hence, the UCATA provision, stating the release does not discharge other tortfeasors from liability, will not apply to the vicariously liable party.

      . The text of 12 0.$.1991 § 683 provides:
      "An action may be dismissed, without prejudice to a future action: First, By the plaintiff, before the final submission on the case to the jury, or to the court, ' where the trial is by the court. * * * Sixth, In all other cases, upon the trial of the action, the decision must be upon the merits." (textual alteration supplied)

      . For the text of the savings statute, see supra note 2.

      . See Section I of this opinion, The Anatomy of the Litigation, for the teachings of Employers Cas. Co.

      . For plaintiff's arguments based on Hooper's language, see infra note 14.

      . Plaintiff's theory-that Courville's negligence, and not his liability, is imputed to Hunt-is bottomed upon language found in Hooper, supra note 6, at ¶ 9, at 945.
      Under respondeat superior, the negligence or wrongful act, as opposed to the civil liability of the servant, is imputed to the master. Thus, a finding of no negligence on the part of the servant, conclusively negates the liability of the master. (Citations omitted.) However, a finding of no civil liability on the part of the servant does not necessarily negate the liability of the master. It is the servant's negligence or wrongful act which establishes the master's liability, not the servant's own civil LHability. Therefore, the servant's status in relation to the injured person is not determinative." (textual alteration supplied)

      . Legal historians do not agree on the origins of the modern doctrine of vicarious accountability in Anglo-American law. This liability is described by a fictitious identification of servant with master-respondeat superior (let the superi- or answer) or of agent with principal-gui facit per alium facit per se (he who acts through another acts for himself). For a brief but profound discussion of the doctrine's historical antecedents see Fowler V. Harper and James Fleming, Jr., Law or Torts, § 26.2, at 1364-66 (1956) and Stuart M. Speise, Charles F. Krause, and Alfred W. Gans, THs American Law or Torts § 4.2, at 533-37 (1983).
      The term "vicarious" means "[plerformed or suffered by one person as substitute for another; indirect; surrogate." Brack's Law Dictionary 1560 (7th ed.1999).

      . This common-law rule stands unaltered and in full force. Mid-Continent Pipeline, supra note 8, at ¶ 24, at 571, and Burke, supra note 9, at ¶ 12, at 814.
      Although we do not deal here with joint tort-feasors, the original common-law release rule-that a release of one joint tortfeasor, if meeting certain formal requirements, releases all, appears to have been based upon the unity-of-injury concept and that the injured party is entitled to only one compensation. Both make it impossi-bie for the injured person to release one tortfea-sor without also discharging the other. Vitauts M. Gulbis, Release of, or Covenant Not to Sue, One Primarily Liable for Tort, but Expressly Reserving Rights Against One Secondarily Liable, as Bar to Recovery Against the Latter, 24 A.L.R.4th 547, 1983 WL 190954 (1983) and V. Woerner, Annotation, Release of (or Covenant not to Sue) Master or Principal as Affecting Liability of Servant or Agent for Tort, or Vice Versa, 92 A.L.R.2d 533, 1963 WL 13683 (1963). The author of the latter article, the American Law Reports Annotation, states that most cases decided in the absence of a specific statute support the view that a valid release of one of the parties to the master-servant relationship releases the other. Woerner, supra, at 537.
      A master who stands liable only vicariously for the tort of the servant is not to be included within the definition of "tortfeasor" under the Uniform Contribution Among Tortfeasors Act (UCATA), 12 0.$.2001 § 832. The common-law release rule is applicable to a master whose liability is purely derivative and hence does not stand from the master's independent act of negligence. See Burke, supra note 9, at ¶ 12, at 814.

      . See Gulbis, supra note 16, at 551, at § 2(a). Brack's Law Dictronary 1292 (7th ed.1999) defines "release" as the "relinquishment or concession of a right, title or claim."
      In an effort to ameliorate the harshness of the common-law release rule's application, some fju-risdictions have rejected it or distinguished a "release" from a "covenant not to sue" in order to lessen its rigidity. Other states have instituted legislative changes and adopted statutes based on the National Conference of Commissioners on Uniform State Law's version of the Uniform Contribution Among Tortfeasors Act (which provides a release or covenant not to sue one of several persons liable in tort for the same injury does not discharge any other tortfeasor unless its terms so provide). Gulbis, supra note 16, at 551-54, at § 2(a). While we note a broad and diverse disagreement among jurisdictions that have adopted such statutes as to whether their terms apply to those whose tort liability is purely derivative in nature, Oklahoma has settled this question. Burke, supra note 9, at % 8, at 814. For a compilation of the divergent holdings among the states regarding the common-law release rule see Gulbis, supra note 16, at 551, at § 2(a); Woodrum v. Johnson, 210 W.Va. 762, 559 S.E.2d 908, 913-14 (2001) (holding a release of the servant who is primarily liable for a plaintiff's injury does not operate to release the secondarily liable master); and Burke, supra note 9, at 18, at 814.

      . While neither party to today's controversy agrees with the other that plaintiff's second dismissal is either "with" or "without prejudice," both concede that plaintiff is barred from instituting an action upon the dismissed claim against the servant.
      Resolution of today's issue does not require that we settle the question whether plaintiff's dismissal is to be characterized as one "with" or "without prejudice." We note that there is a split among the authorities which have considered this issue and the axiomatic application of the common-law release rule to this circumstance. DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342 (1945) (where plaintiff dismissed with prejudice a claim against a driver, plaintiff could not recover from the owner, since he was not a joint tortfeasor and his liability was solely derivative); O'Dell v. Universal Credit Co., 118 W.Va. 678, 191 S.E. 568 (1937) (in a joint action against master and servant, where the master's liability lies solely in respondeat superior, the plaintiff may dismiss the servant for reasons not going to the merits without impairing his right to proceed against the master) Brosamle v. Mapco Gas Products, Inc., 427 N.W.2d 473 (Iowa 1988) (a dismissal with prejudice filed without settlement or adjudication of employee's fault was intended merely to terminate the possibility of future litigation against the employee and could not serve to bar future adjudication on the merits of the claim against employer); Cantrell v. Henderson, 221 Mont. 201, 718 P.2d 318 (1986) (in a joint action against employee and employer, a dismissal of the employee which did not specify whether it was with or without prejudice did not exonerate employer); Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991) (a plaintiff's decision to dismiss with prejudice the employee/servant is fatal to the claim against the vicariously liable employer/master).

      . The former situation, in Hooper, supra note 6, addressed whether a harm-dealing servant's law-conferred (parental) immunity operates to discharge the master's respondeat-superior liability to a third party. In Hooper we answered in the negative by holding that servant's law-conferred immunity does not constitute an ex Zege release of the master. The question in Hooper deals neither with a plaintiff's affirmative act of releasing a servant gua actor nor with the master's post-release liability.
      The latter situation was addressed in Employers Cas. Co., supra note 5, at ¶ ¶ 11-12, at 689-90. Employers Cas. Co. "stands for the rule that an employer and his employee may be proceeded against jointly or severally where employer's liability is based on doctrine of respondeat superi- or, and where proceeded against jointly, dismissal without prejudice as to employee does not preclude prosecution of action against employer." Massoth v. Staples, 1971 OK 12, ¶ 16, 481 P.2d 141, 144.

      . One dissenter, who disagrees in part with today's opinion, articulates the view that § 100 is a statute of limitation and hence must be pled. If pled, the bar must then be sustained before plaintiff's remedy is extinguished. Until that time, he asserts, neither plaintiff's right nor his remedy stands extinguished. This approach makes as little sense as it would if, in this case, there was a written release of the servant and the court took the position that the release is not effective until it is interposed in a court case and is sustained by the trial judge. The release is effected when a dismissal that operates to bar reprosecution is filed. Moreover, extant jurisprudence that addresses an earlier codification of our savings statute pronounces that "[s)tatutes permitting filing of new actions after the original period of limitation are not ordinarily considered statutes of limitation with the same meaning and dignity of original statutes of limitation." Swyden, supra note 3, at ¶ 14, at 286.
      In short, § 100 extinguishes plaintiff's remedy but does not destroy his right. In order to satisfy the common-law release rule it is enough that the remedy against the servant is extinguished. Survival of an unextinguished right does not bring the case outside the release rule. Litigants waging forensic combat in the common-law system, must be armed with both an effective remedy and a viable right. United States Through Farmers Home Administration v. Hobbs, 1996 OK. 77, ¶ ¶ 1-8, 921 P.2d 338, 345 (Opala, J., concurring in judgment but not in the court's opinion).

      . In Land v. United States, 231 F.Supp. 883, 886 (U.S.D.C.N.D.Okla., 1964), Oklahoma's common-law release rule was viewed to have been triggered by a covenant not to sue (referred to in the opinion as synonymous with a covenant not to execute). The court quoted from Max v. Spaeth, 349 S.W.2d 1 (Mo.1961), where it stated, "It matters little how the servant was released from liability; as long as he is free from [legal] harm, it appears to us that his master should also be held blameless." (emphasis supplied) Holding the common-law release rule applicable to one whose liability is solely derivative, the court in Arundel Medical Center, Inc., v. Condon, 102 Md.App. 408, 649 A.2d 1189, 1196 (1994), stated, "(the release of the agent removes the only basis for imputing liability to the principal." (citing Theophelis v. Lansing General Hosp., 430 Mich. 473, 424 N.W.2d 478, 486 (1988)).
      Cases holding that where a servant is released or is otherwise free from legal harm, the master, whose liability is derivative, should be blameless as well are generally rested on one of two principles. The first is that such a result avoids cireuity of action; the second, that exoneration of the servant removes the foundation upon which negligence may be imputed to the master. Holcomb v. Flavin, 34 Ill.2d 558, 216 N.E.2d 811, 815 (Ill.1966).

      . The court's broad language in Hooper, supra note 14, which permits an action to proceed against the master (under the doctrine of respon-deat superior) based on the servant's imputed negligence rather than upon the servant's liability, is obiter dictum. Isolated passages do not transmogrify the common-law rule. We note further that Hooper's plaintiff was not fully barred from all recovery against the parent/servant. His liability was not completely extinguished. Hooper, supra note 6, at ¶ 5, at 944.

      . For an explanation of this fiction's origin see supra note 15.

      . Stare decisis serves to remove any capricious element from the law and give it stability. Rodgers v. Higgins, 1993 OK 45, ¶ 28, 871 P.2d 398, 412 (citing William O. Douglas, Stare Decisis, 49 Colum. L.Rev. 735, 736 (1949).
      For a discussion of considerations the justices of the United States Supreme Court must weigh when called upon to reassess their commitment to a prior holding see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808-09, 120 L.Ed.2d 674 (1992).

      . Rodgers, supra note 24, at ¶ 28, at 412 (citing Edge v. Smith, 1955 OK 123, ¶ 27, 284 P.2d 711, 715 (1955); Jackson v. Twin State Oil Co., 1923 OK 542, ¶ 22, 218 P. 324, 328, 95 OKl. 96 (1923); Webb v. Semans, 1925 OK 147, 235 P. 1074, 1077, 110 Okl. 72 (1925)).

      . Extant law is not changed by today's decision, but, until this opinion, it did not clearly appear from Oklahoma's jurisprudence that the effect of a plaintiff's voluntary act that triggers a bar to reprosecution of the servant releases the servant and the master as well.

      . When called upon to settle the meaning of not-so-readily intelligible or not-so-clearly settled legal norms that are a veritable trap for the unwary, the court will give its pronouncement purely prospective effect in order to save the parties from the unforeseen impact of an obscurely worded regime of rules. Isbell v. State, Etc., 1979 OK 156, ¶ 1, 603 P.2d 758, 760-61 (Opala, J., concurring specially). In giving purely prospective effect to today's pronouncement we follow the precedent set by Poafpybitty v. Skelly Oil Company, 1964 OK 162, ¶ 19, 394 P.2d 515, 520 (the court applied prospectively its pronouncement on whether errors of law may be saved for review by their inclusion in a motion for new trial). McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 12, 979 P.2d 252, 257; and Hale v. Bd. Of Cty. Com'rs of Seminole County, 1979 OK 158, ¶ 4, 603 P.2d 761, 764. Prospective application of a decision is not reserved solely for situations that deal with conflicting statutes nor with interpretation of a legislative ambiguity. It is equally commended to those situations where issues of first impression are not clearly foreshadowed by decisional law and where it serves to protect the public's reasonable expectation of reliance on prior judicial decisions. Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶¶ 19-22, 732 P.2d 438, 446-49.

      . Hunt's certiorari petition contends COCA failed to address his assertion that Sisk's inaction in failing to supplement his interrogatory response constitutes extrinsic or intrinsic fraud (citing Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 25, 987 P.2d 1185, 1196). COCA's opinion answers this question when it deals with the same facts albeit through a different argument. It states that 1) the record does not reveal knowing concealment by Sisk and 2) the disadvantage experienced by Hunt in this case was brought about by more than Sisk's failure to supplement his interrogatory answer. It had the same opportunity to determine the facts on its own. We agree with COCA's analysis and conclude that it settles Hunt's assertion about this issue.

      . An example of a jurisdictional limitation period is the Oklahoma Governmental Tort Claims Act, 51 0.8. § 151 et seq. Judicial power is invoked by the timely filing of the governmental tort claims action pursuant to § 157 and expiration of the 180 day time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the Legislature waived sovereign immunity. Shanbour v. Hollingsworth, 1996 OK 67, 918 P.2d 73, 75.

      . An example of a statute of repose is 12 O.S. § 109, which bars, after 10 years, actions in tort dealing with deficiencies in design, planning, supervision, or observation of construction to real improvement.

      . Although the language of § 100 says "may commence a new action within one (1) year'", the word "commence" is used liberally throughout the chapter on limitations of actions. See Title 12, Oklahoma Statutes, §§ 91 et seg. For example, 12 O.S. § 92 reads: "civil actions can only be commenced within the periods prescribed in this article." The use of the word "commence" does not raise limitations to a matter of jurisdictional dimensions. It is still an affirmative defense.

      . The UCATA eliminated the harshness of this common law rule regarding joint and several lability, which this case does not involve. Moreover, this Court held in Burke that respondeat superior cases are not included in the UCATA's coverage.

      . The term "dismissal with prejudice" is equivalent to an adjudication on the merits and operates as a bar to further action. See Perfect Investments, Inc. v. Underwriters at Lloyd's, London, 1989 OK 148, 782 P.2d 932, citing Shell Petroleum Corp. v. Hess, 1942 OK 55, 126 P.2d 534, 536, 190 Okla. 669. "A judgment is rendered on the merits 'when it amounts to a declaration of the law as to the respective rights and duties of the parties, based on the ultimate facts or state of facts disclosed by the pleadings, and evidence upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.' " Pettyjohn v. Plaster, 1998 OK CIV APP 38, 956 P.2d 948, 950, citing Crow v. Abraham, 86 Or. 99, 167 P. 590, 591. " '[MJerits' means the real or substantial grounds of action or defense as distinguished from matters of practice, procedure, or form". Pettyjohn v. Plaster, 956 P.2d at 950, citing Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261; Providential Devel. Co. v. U.S. Steel Co., 236 F.2d 277, 280 (10th Cir.1956).


source: Caselaw Access Project

author: KENNETH L. BUETUNER, Presiding Judge.

license: Public Domain

text:
    2003 OK CIV APP 89
    Andy GIPSON, Plaintiff/Appellee, v. SPRINT COMMUNICATIONS COMPANY, L.P., Defendant/Appellant, and John Does I through X, Defendants.
    No. 97,074.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 15, 2003.
    Rehearing Denied June 25, 2003.
    Certiorari Denied Oct. 13, 2003.

      Harry Scoufos, Law Offices of Harry Scou-fos, P.C., Sallisaw, OK, and Andrew P. Campbell, Campbell, Waller & Loper, LLC, Birmingham, AL, and Janet Varnell, Brian W. Warwick, Varnell & Warwick, PA, The Villages, FL, for Plaintiff/ Appellee.
    Charles D. Neal, Steidley & Neal, McAles-ter, OK, and Betty Outhier Williams, Gage & Williams Law Firm, Muskogee, OK, and J. Emmett Logan, Steven J. Boyd, Morrison & Hecker, L.L.P., Kansas City, MO, for Defendant/Appellant Sprint Communications Company, L.P.
   Opinion by

KENNETH L. BUETUNER, Presiding Judge.

1 Defendant/Appellant Sprint Communications Company, L.P. (Sprint) has filed an interlocutory appeal from the trial court's order certifying a class in this action which charges that Sprint exceeded the use allowed in certain railroad easements when Sprint installed fiber optic cable along railroad corridors. Plaintiff/Appellee Andy Gipson asserted that Sprint had trespassed and been unjustly enriched thereby. We hold that the trial court erred in concluding that Gipson's claim is typical of other putative class members, and that the class certified in this case is unmanageable because individual issues predominate over the common issues. We therefore find that the trial court abused its discretion in certifying this case as a class action proceeding. We remand for further proceedings in accordance with this opinion.

T2 In his petition, Gipson alleged that Sprint had paid various railroads for permission to install and maintain fiber optic cable in underground conduits along railroad easements throughout the United States. Gipson alleged that the railroad easements did not allow any use beyond operation of a railroad, so that Sprint's installation of fiber optic cable without obtaining permission from or compensating landowners amounted to trespass. Gipson sought damages for trespass and unjust enrichment, as well as efectment and removal of the fiber optic cable and related hardware.

T8 Gipson filed his suit on behalf of himself and a class defined as

all persons owning an interest in land in the United States across which (Sprint) ha(s) installed fiber optics cable or other telecommunications cable without permission, without the use of legal process and without paying compensation, including land across which any railroad has a right of way easement and excluding right of ways owned by the railroad in fee.

Gipson asserted the class members were so numerous that joinder was impracticable and that each class member's damages were too small to justify the expense of separate lawsuits. Gipson also asserted that his claims were typical of those of the other class members. Gipson alleged three common questions of law and fact shared by the class members: 1) whether Sprint's actions constituted a trespass; 2) whether Sprint was unjustly enriched by its use of class members' property; and 3) whether class members were entitled to exclusive possession of their property, free of Sprint's fiber optic cables and hardware. Gipson next alleged that he had hired counsel who were familiar with class actions and that he would fairly and adequately represent the interests of the class. Gipson then alleged all of the grounds of 12 0.8.2001 § 2023(B) were present in the case. Gipson expanded on these allegations in his motion for class certification and in his memorandum of law in support of class certification.

T 4 Sprint responded with a memorandum in opposition to class certification in which it asserted that federal courts had unanimously held that fiber-optic cable right-of-way cases were not certifiable as class actions. Sprint argued that each potential class member would have to litigate the merits of his claim to class membership by proving his level of property interest, if any, in the right-of-way. Sprint raised the fact that the railroads were given the rights-of-way in land grants, but that the various adjacent landowners could have obtained their properties through countless types of deeds and conveyances in the century since the land grants were made to the railroads. Sprint also argued there was no showing that the conveyance which established Gipson's right of way was typical of those of the remaining class members, and that therefore identifying class members presented an unmanageable task. Sprint contended that a class whose membership may only be determined by merits litigation may not be certified.

T5 Sprint also argued that the trespass claim is governed by a two year limitations period and that Gipson knew of the cable as it was being laid in the 1980s, so that a defense available against Gipson's claim made it atypical as well. Sprint urged that Gipson would not adequately represent the interests of other class members whose cases would turn on different factual and legal determinations. Sprint asserted that common issues in the case do not predominate over individual issues. Sprint also asserted mini-trials would be required to determine each class members' damages. Sprint lastly contended that choice of law issues precluded a nationwide class in this case.

T6 Hearing on the motion to certify the class was held September 25, 2001. An emergency hearing was held October 22, 2001, after Gipson notified the trial court that Sprint had attempted to settle the claims advanced in the case with landowners in Louisiana. Gipson asserted that Sprint argued in favor of the class for settlement purposes and that, accordingly, Sprint had deceived the trial court in arguing against certification in Oklahoma.

T7 The trial court issued its order certify, ing the class November 15, 2001. The trial court defined the class certified as:

(a)ll persons owning a fee simple interest in land in the State of Oklahoma across which any railroad has a right-of-way, and excluding land owned by the railroad in fee simple where Sprint installed fiber optic cable or other telecommunications cable without permission, without the use of legal process and without paying compensation. Excluded from the Class are all parents, subsidiaries, and affiliates of the Defendant as well as all officers and directors of the Defendant. Property currently owned by State or Federal governments are also excluded from the Class.

Title 12 0.8.2001 § 2028(A) requires that 1) the proposed class be so numerous that join-der of all members is impracticable (numer-osity); 2) there are questions of law or fact common to all the class (commonality); 3) the claims or defenses of the representative party are typical of the class (typicality); and 4) the representative will fairly and adequately protect the interests of the class (representation). The trial court determined that numerosity existed because the class included hundreds or thousands of Oklaho-mans. The trial court found eight questions of law and fact common to the class, and concluded that the commonality requirement was met. The trial court noted that Sprint did not challenge commonality, but instead argued against typicality and predominance.

11 8 In analyzing the typicality requirement, the trial court explained that all the class members' claims are based on the legal theories of trespass and unjust enrichment. The trial court concluded that a determination of Gipson's claims will effect a common adjudication for all who own land along the same railroad corridor. The trial court also noted that the railroad easement traversing Gip-son's property was created in an 1886 federal act which conveyed a railroad right-of-way over 100 miles in length and that the landowners along that corridor will all be affected by a determination of the effect of that one conveyance. The court also determined that there were only a few different types of conveyance documents involved and that the court believed it unlikely that they differed greatly or that the railroads would have purchased any fee interests when it could more cheaply acquire easements, so that all the conveyance documents will likely result in the same conclusion for class members.

T9 The trial court acknowledged the evidence that of Gipson's three parcels, the deed conveying one of the parcels excludes the right-of-way from the conveyance. The court stated its conclusion that this did not defeat typicality because the right-of-way was included in the conveyances of Gipson's other two parcels. The trial court explained that any adjudication in the case simply would not apply to CGipson's first parcel. The trial court next found the statute of limitations was not an issue in this case because the cable constituted a continuing trespass.

110 In addressing the adequacy of representation criteria, the trial court found that Gipson had retained counsel who had appeared before the trial court in several other class action cases and successfully served as class counsel in numerous states. The trial court also found no evidence that Gipson's interests in the case might be antagonistic to the interests of other class members.

¶11 The trial court also explained that it had found that the class proposed here was appropriate under 12 0.8.2001 §§ 2023(B)(1) and (B)(3). The court noted that a case involving a declaration of common rights, which has the potential for inconsistent or varying individual adjudications, is "the quintessential case for certification" under § 2023(B)(1). The court found it apparent that Sprint would continue to maintain fiber optic cable in the railroad rights-of-way unless there is a common adjudication of the claims. The court also found that individual adjudications could result in inconsistent or varying results. The court stated its view that if Sprint's actions were found to be improper as to one landowner, that person's neighbor should be able to expect the same result, which could only be ensured by class treatment. The court also found that if the ejectment claim was successful, individual adjudications would be impractical in that Sprint would be unable to operate its communications lines due to breaks in the fiber optic network.

12 The trial court also found that certification of the class was appropriate under § 2023(B)(8). The trial court discounted Sprint's assertion that individual issues of ownership of the various rights-of-way predominate over the common issues. The court found that Sprint's argument "confuses the issues of class membership with interpretations regarding liability." The court restated its view that the railroad corridors all stem from "a relatively few" conveyance doe-uments which created several corridors, each several hundred miles long. The court explained that the railroad conveyance documents are at issue here, rather than the individual deeds held by each class member.

' 13 The trial court also dismissed Sprint's contention that certification was improper because the damages determination would require a mini-trial for each class member. The court noted that class certification is proper where damages are capable of mathematical formula calculation. The trial court explained its view that the damages could be calculated in this case on a per mile basis-the same method used by Sprint to pay the railroads for its use of the easements. The court also found that the unjust enrichment claim would require Sprint to pay landowners the same amount it had paid the railroads, also on a per mile basis. The court rejected Sprint's argument that trespass damages must be based on decrease in the value of the land. Finally, the trial court rejected Sprint's contention that choice of law issues precluded predominance. The court found that only Oklahoma law will apply because it had limited the class to Oklahoma landowners only.

14 The trial court provided similar reasons for its conclusion that a class action would be a superior method of resolving this dispute. The trial court also noted its concern that Sprint chose not to disclose to the court that it was involved in settlement negotiations for similar cases in Illinois and Louisiana state courts. The court found it problematic that in those cases, Sprint was arguing that this type of case is appropriate for class treatment for purposes of settlement, while at the same time it was arguing against class certification in this case. The court found that the elements of class certification, except manageability, must be present in a settlement proceeding as well as a trial proceeding. The trial court held that Sprint had made inconsistent arguments and that Sprint could not argue in this case that the § 20238 requirements were not met where it had already argued that those elements were met in the other identical cases. The trial court therefore certified the class and appointed Gipson as class representative.

115 We review the trial court's decision on class certification for an abuse of discretion. Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, 41 P.3d 366, 367. An abuse of discretion occurs where the trial court has exercised its discretion "to an end or purpose not justified by, and clearly against, reason and evidence." Patel v. OMH Med. Ctr. Inc., 1999 OK 33, 987 P.2d 1185, 1194. Specifically, if the record fails to show that the statutory requirements for class certification have been met, then we must conclude the trial court has abused its discretion. Greghol Ltd. Partnership v. Oryx Energy Co., 1998 OK CIV APP 111, 959 P.2d 596, 598.

116 The party seeking class certification must show that the proposed class meets all the prerequisites of 12 0.8.2001 § 2023(A), as well as one of the requirements of 12 § 2023(B). As will be discussed below, class certification is improper in this case because individual issues predominate to the extent that the typicality requirement has not been met and a class action is not the superior method of adjudicating this controversy.

17 Although Sprint challenges several aspects of the trial court's order, we first address whether the class certified in this case meets the statutory requirements. The potential number of class members easily meets the numerosity requirement. Sprint has not presented any serious challenge to the finding on adequacy of representation. We address the commonality requirement of § 2023(A)(2) along with the analysis of § 2023(B)(8).

118 Under § 2023(B)(8), we look to whether there are questions of law or fact common to the members of the class which predominate over any questions affecting only individual members, and whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Sprint asserts that federal courts have unanimously held that litigation of cases involving fiber optic cable in railroad rights-of-way are not suitable for class action treatment. These courts have concluded that individual issues affecting class members in this case predominate over common issues. It has been explained that the predominance prong of § 2028(B)(8) is similar to the commonality prong of § 2023(A)(2), but that "(m)ore demanding than the commonality requirement under 28(a), 'the predominance test asks whether a class suit is economical and efficient in the context of all issues in the suit"" Nicodemus v. Union Pacific Corp., 204 F.R.D. 479, 492 (D.Wyo.2001), citing Newburg and Conte, Newburg on Class Actions, § 4.25 (Bd ed.1982). In other words, most cases seeking certification of a class will have some common issues, but in order to meet the stricter requirement of § 2023(B), the common issues must predominate over the individual issues, to the degree that a class action proceeding is superior to individual adjudications. And, necessarily, a plaintiff who meets the predominance requirement of § 2023(B)(8) will have met the commonality requirement of § 2023(A)(2). See 7A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1763, p. 227 (24. ed.1986).

119 For example, the trial court in this case found that whether Sprint had trespassed was a common issue. However, one federal district court has explained that in fiber optic cable cases, the common issues of whether the cable was laid and whether it constituted a trespass are not really issues at all: there is no dispute that the cable has been laid, and that, if the right-of-way involved does not allow for such cable, then the cable is a trespass. Hebert v. Doyle Land Services, Inc., et al., (W.D.La.2002). That court clarified how individual issues predominate in such cases:

the real issues in contest,.. will require individualized consideration. The issue of ownership will involve questions relative to both the interests of the railroads and the interests of each of the putative class members.... The parties agree that the cable lies wholly within the rights of way of the various railroads. Plaintiffs contend that to the extent that the railroads' right of way consisted only of a servitude, that it did not have to (sic) right to authorize installation of the fiber optic cable. However, plaintiffs concede that as much as 30% of the rights of way were owned by the railroads in full ownership, and that in these areas no putative class member has a valid claim. Additionally, some of the rights of way were obtained conventionally and these agreements contained varying terms. Whether these agreements conveyed sufficient rights to the railroads to allow the railroads to grant a valid servitude to defendants will be subject to contention. Resolution of this issue will likely require consideration of the intent of the parties originally, and, where the language is ambiguous, the consideration of parole evidence with regard to individual agreements. There will also be contests over whether individual putative class members owned the property subject to the railroad right of way. This ... will likely involve a determination of whether a particular plaintiff owned land subject to the railroad right of way or merely owned land adjacent to the right of way.... It is also likely that there will be a number of varied title questions with regard to many tracts.

The Hebert court also found that the damages decision would require an individualized inquiry for each landowner.

1 20 Similarly, in Isaacs v. Sprint Corporation, et al., 261 F.3d 679 (7th Cir.2001) the Seventh Cireuit Court of Appeals found that individual issues predominated over any common issues in a fiber optic cable case. In Isaacs, the court addressed the problems posed by a nationwide class for claims arising under many states' laws. But the decision has implications even for classes limited to one state, particularly in a nearly identical case like this one. The problems of property laws changing over time, of grants of property rights under a host of different explicit conveyances, deeds and prescriptions, all governed by different statutes and common law principles, with "intricate" issues of application to a particular property, are all posed by a statewide class asserting these claims under just one state's law.

{21 In Isaacs, the court noted that the trial court would be faced with determining whether the railroad had obtained a particular right of way in fee simple, or if the railroad held only an easement, then the trial court would have to determine whether state law would allow the railroad to grant a sub-easement for laying the cable. Next, if the state's law allowed sub-easements, then the trial court would have to determine whether the particular easement involved included the right to grant such a sub-easement. The court noted that after those individual determinations, class members would be notified of their right to remain in the class and claim part of the judgment. The court explained that merits-based decisions would be required to determine the class, so that if the trial court ruled in favor of Sprint, all putative class members would choose to opt out, while if the merits decisions required to determine the class went in favor of the plaintiffs, "few if any class members will opt out and Sprint will be exposed to enormous potential Habilities." The court declared this to be a forbidden "one way intervention" which would result in unfair pressure on Sprint to settle the case. The Isaacs court concluded "(this is a nightmare of a class action."

22 Sprint also argues that the class proposed in this case is a prohibited "fail safe" class which would allow one-way intervention. This cireumstance has been explained as one where the definition of the class bases class membership on the ability to bring a successful claim on the merits. See Ostler v. Level 3 Communications, Inc., 2002 WL 31040337, (S.D.Ind.2002). That opinion further explained that where a decision on the merits of a putative class member's claim is needed to determine whether that person is a member of the class, the proposed class action is unmanageable "virtually by definition." Id.

T23 The class certified in this case will require the following merits-based decisions before class membership is shown: 1) fee simple ownership of land in Oklahoma, 2) across which any railroad has a right-of-way, 3) but excluding land owned by the railroad in fee simple (where Sprint installed fiber optic cable or other telecommunications cable), 4) without permission, 5) without the use of legal process and 6) without paying compensation. The fact that so many individualized decisions will have to be made for each putative class members lends support to our conclusion that common issues are not predominant in this case.

124 The federal district court for the Western District of Wisconsin also addressed whether class status was proper in a fiber optic case involving a statewide case. In Chambers v. MCI Worldcom, No. 00-C-348-C, slip op. (W.D.Wise.2001), the plaintiffs sought certification of a class of all landowners along the Union Pacific railroad right-of-way in Wisconsin who did not consent to the installation of fiber optic cable in the right-of-way by MCI. The court's explanation of the faults with the class definition iflustrate the predominance of individual issues:

the definition fails to communicate to landowners the objective information they need to determine whether they are within the proposed class. It is not sufficient that a person own land adjacent to the cable side of the right-of-way; that person must establish also that he or she owns the underlying (or superior) interest in the right-of-way where the railroad owns less than fee simple absolute. Moreover, identifying the class members through maps and tax records would demand extensive factual inquiry. Defendants have demonstrated that the process of matching the parcels to the current landowners is multi-stepped and fraught with difficulties.... Furthermore, no matter which party bears the burden of proof, the issue of consent to the installation must be determined in order to identify the proper members of the class. The definition requires extensive factual inquiry and therefore, is inadequate.

Id. at 12-13. In concluding that the class should not be certified, despite being limited to landowners in only one state, the court in Chambers stated it had the same concerns as courts addressing certification of nationwide cases in railroad right-of-way cases: "the determination of property interests is an inherently factual inquiry that requires a careful review of each deed." Id. at 26-27.

125 In addition to predominance of common issues, § 2023(B)(8) also requires a finding that a class action is the superior method available for a fair and efficient adjudication of the controversy. But, it has been held that a predominance of individual issues detracts from superiority. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 419 (5th Cir.1998). Because trial of this matter as a class action would require a merits trial of each individual's claim to class membership, we are hard-pressed to agree that class adjudication is superior to other available methods.

126 Having outlined the individual issues which predominate in this case, we note that those same issues preclude a finding that Gipson's claim is typical of those of the other putative class members. The individual conveyances involved necessitate that potential class members will have myriad types of easements or full ownership in the railroad rights-of-way. For example, the land grant allegedly at issue here provides that the railroad right-of-way may be used for the purpose of installing telephone lines. So, it is entirely possible that certain landowners will have no claim for trespass at all, while other landowners may have acquired their lands subject to the right-of-way through a different conveyance which may not include telephone lines as a permitted use of the easement. Accordingly, there will not be a typical claim against Sprint in this case. See Nudell v. Burlington, Northern and Santa Fe Railway Co., No. A3-01-41, 2002 WL 1543725 (D.N.D.2002) (holding that fiber optic cable cases turn on so many individual issues that the claims of the named plaintiffs are not typical); Hallaba v. WorldCom Network Services, Inc., 196 F.R.D. 630 (N.D.Okla.2000); Chambers, supra, slip op. at 19; Swisher v. United States, 189 F.R.D. 638, 641 (D.Kan.1999).

127 The trial court relied particularly on two state court decisions which approved certification of similar cases. We find obvious features distinguish those cases from this one. The Tennessee Supreme Court addressed an action for inverse condemnation of railroad rights-of-way in which fiber optic cable had been laid in the case of Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632 (Tenn.1996). In Meighan, the plaintiff sought to certify a statewide class of landowners on whose land Sprint installed fiber optic cable within railroad rights-of-way. The plaintiff alleged that the cable constituted a taking and a trespass. The trial court certified the class, but limited it to one county. The trial court also dismissed the trespass claim. The Tennessee Court of Appeals reversed the certification, but the Tennessee Supreme Court reinstated the class. The court explained that the case was governed by its previous holding that the installation of telephone cable constituted a taking under Tennessee law. Id. at 635. The court explained that class certification was justified because the takings involved could potentially result in hundreds of lawsuits and inconsistent decisions regarding the trespass and punitive damages claims would be likely. Id. at 638. The court dispensed with Sprint's contention that the only remaining issue was the individual damages assessments by holding that the case was appropriate for an aggregate damages award which would be split among class members. Id. at 639. The court also reversed the decision limiting the class to one county and remanded for rede-termination of the class limits. Id. The court also noted that under Tennessee law, an aggrieved landowner has two options: to file an inverse condemnation proceeding or to bring a trespass claim. The court therefore reversed the dismissal of the trespass claim.

128 First we note there has been no inverse condemnation claim in this case. Nor has any Oklahoma decision declared that any installation of fiber optic cable constitutes a taking. In fact, the Federal District Court for the Western District of Oklahoma has held that the 1887 land grant which established the railroad rights-of-way in Oklahoma included installation of telephone cable as a permitted purpose, and that the land grant gave the railroads authority to sell or lease the rights-of-way for permitted purposes. Demming v. State of Oklahoma, ex rel. Dept. of Transportation and U.S. Sprint Communications Co., No. Civ. 90-1317-R (W.D.Okla.1991). More importantly, however, we find the Tennessee Supreme Court chose to ignore the extensive federal holdings outlined above which make clear the intricate individualized inquiry required for each potential class member, which make a class action unmanageable under these facts. As a specific example, the Tennessee court held that the issues of damages did not preclude class certification because the case was appropriate for an aggregate damages award to be divided among class members. However, Sprint correctly points out that the measure of damages for trespass is the difference in the value of the land before the trespass and the value after the trespass. It is undisputed that if Sprint is ultimately held liable here, hundreds of landowners owning different size tracts in both urban and rural areas will be affected. We agree with Sprint that individual trials on the issue of damages will be required, which would negate any efficien-ey gained in a class proceeding.

[ 29 The Indiana Superior Court approved the certification of a nationwide class in the case of Hinshaw v. AT & T Corp., 1998 WL 1799019 (Ind.Super. Aug 24, 1998). Hin-shaw involved facts similar to the instant case, except that the fiber optic cable was laid by AT & T Corp. rather than Sprint. The Hinshaw opinion similarly ignores the difficulties in managing such a class that the federal courts have observed. In Hinshaw, the court focused heavily on evidence that Sprint may have pushed ahead its installation of fiber optic cable in rights-of-way while it was aware it may be using the rights-of-way without regard for whether the easements allowed non-railroad uses, and without obtaining permission from adjacent landowners. Id. at ¶¶ 12-22. This appears to be a case of the court punishing Sprint (in advance of any decision on lability) by certifying a class, in spite of the overwhelming individualized issues enumerated in many other cases.

130 Additionally, the Hinshaw court offered the following quote from the Tennessee Supreme Court: "®t is almost everywhere held that the erection of a line of telegraph over the right of way of a railroad company, not to be used in the operation of the railroad, but for purely commercial purposes, imposes an additional burden on the fee, and the landowner is entitled to additional compensation from the telegraph company." That statement is contrary to the holding in Demming, supra, that installation of telephone lines is a permitted use of railroad rights-of-way in at least one railroad land grant affecting Oklahoma property owners. And, the reliance on this statement attempts to resolve the issue of liability rather than address the elements required for class certification. The Hinshaw court concluded that all the requirements for class action were met-not only all of the requirements of Rule 28(A), but also each of the requirements of Rule 23(B). Id. at 1153-92. The court made no mention of the federal cases outlining the extensive individual inquiries involved, the potential for a prohibited one-way intervention cireumstance, or the unmanage-ability of such a class action under these facts. Id. Instead, the Hinshaw court chose to rely only on the Tennessee holdings and prior Indiana cases on the same issues. We are unpersuaded by these other state cases that the individual issues do not predominate over the common issues in this case.

131 We finally address the relevance of Sprint having argued in support of approval of a settlement class in an identical case in Louisiana. The trial court concluded that because Sprint had argued in support of a settlement class in a similar case in Louisiana, then Sprint had acknowledged that class certification was appropriate. In its motion for approval of a settlement class in Louisiana, Sprint asserted that the class elements were met only for settlement purposes, but not for litigation purposes. Sprint's contention was that its agreement to settle had eliminated the individual issues of standing, statute of limitations, and damages, all of which precluded class certification for litigation purposes.

132 The U.S. Supreme Court has explained that settlement is relevant to whether certification is proper, but settlement is not de facto support for certification of a class for trial. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In Amchem, the Supreme Court noted the different issues involved in class certification for settlement purposes as compared to certification of a class for litigation:

Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, ... for the proposal is that there be no trial. But other specifications of the Rule-those designed to protect absentees by blocking unwarranted or over-broad class definitions-demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 28(c), (d).
Federal courts, in any case, lack authority to substitute for Rule 28's certification eri-teria a standard never adopted-that if a settlement is "fair," then certification is proper. Applying to this case criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why-with or without a settlement on the table-the sprawling class the District Court certified does not satisfy Rule 23's requirements.

521 U.S. at 620-622, 117 S.Ct. 2231. This passage makes clear that although the settlement class motion was a relevant consideration, the predominating individual issues do not negate the conclusion that this case is "a nightmare of a class action" for litigation purposes.

"[ 33 Based on our finding that the typicality requirement of § 2028(A)(3) has not been met and that the overwhelming individual issues predominate over the common issues in this case, we find that the trial court abused its discretion in certifying the class in this case. We therefore need not address the trial court's decision that certification was appropriate under § 2023(B)(1). This matter is REVERSED for proceedings consistent with this opinion.

JOPLIN, C.J., and MITCHELL, J., sitting by designation, concur.

      . After this case was filed, Sprint removed it to federal court, but the federal court determined that Gipson's claims did not reach the amount in controversy requirement for diversity jurisdiction and that the federal laws raised in defense by Sprint were not a core claim. The case was therefore remanded to the state court.

      . These common issues were: 1) whether Sprint installed the cable in the rights-of-way without class members' consent; 2) whether the installation of the cable was consistent with the use originally granted to the easement holder; 3) whether Sprint asserted any ownership or occupancy rights in the right-of-way corridors; 4) whether Sprint knew that such ownership assertions were false or whether such assertions were made recklessly; 5) whether Sprint profited from its use of the rights-of-way; 6) whether a right-of-way for a particular purpose gives the right-of-way holder the right to license, sell, lease or dispose of subterranean cable rights; 7) whether the cable constitutes a trespass on class members' properties; and 8) whether Sprint has been unjustly enriched by its use of property belonging to class members.

      . The court held that this resulted in "an uncon-tradicted central common issue in this case concerning whether Sprint's conduct in laying its cable on property owned by the Class constitutes an impermissible trespass." The court also stated that "(p)roperty rights are particularly appropriate for judicial treatment in the state court system. Forcing thousands of individuals to file identical individual actions would burden the courts of this state unnecessarily."

      . Section 2023(B) provides:
      An action may be maintained as a class action if the prerequisites of subsection A of this section (§ 2023(A)) and in addition:
      1. The prosecution of separate actions by or against individual members of the class would create a risk of:
      a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      b. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or ok
      3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
      a. the interest of members of the class in individually controlling the prosecution or defense of separate actions,
      b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
      c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
      d. the difficulties likely to be encountered in the management of a class action.

      . See also Bogart v. Caprock Comm. Corp., 2003 OK 38, 69 P.3d 266, which held that installation of fiber optic cable within a public road easement does not impose an increased servitude on the land which would entitle the landowner to additional compensation.

      . Citing Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904, 912 (Tenn.1992).

      . These rules mirror our § 2023(A) and § 2023(B), as well as Rule 23(A) and Rule 23(B) of the Federal Rules of Civil Procedure.

      FN16. Portions of the opinion dissenting in part appear to assume that settlement counts only one way-in favor of certification.... To the extent that is the dissent's meaning, we disagree. Settlement, though a relevant factor, does not inevitably signal that class-action certification should be granted more readily than it would be were the case to be litigated... ...

      . Sprint has advised this court in its "Fifth Notice of Supplemental Authority" that the Third Judicial Circuit Court for the State of Illinois has certified a nationwide class in the case of Poor v. Sprint, No. 99-L-421, filed February 20, 2003. Our decision does not end the attempts to litigate, via class action, Sprint's liability for the installation of fiber optic cable in railroad corridors.


author: CAROL M. HANSEN, Judge.

text:
    2003 OK CIV APP 101
    STATE of Oklahoma ex rel., OKLAHOMA ACCOUNTANCY BOARD, Plaintiff/Appellee, v. John Wesley TOWNSHEND, Sr., Defendant/Appellant.
    No. 98,385.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    July 25, 2003.
    Rehearing Denied Aug. 22, 2003.

      Rick Duane Chamberlain, Behrens, Taylor, Wheeler, & Chamberlain, Oklahoma City, OK, for Plaintiff/Appellee.
    William Ladd Hickman, Hickman & Hickman, Tulsa, OK, for Defendant/Appellant.
   Opinion by

CAROL M. HANSEN, Judge.

T1 On October 1, 1990, the Oklahoma Ac-countancey Board, (Board) filed suit to enjoin Appellant, John Wesley Townshend, from holding himself out as a Certified Public Accountant (CPA) in the State of Oklahoma. The district court granted summary judgment in favor of Board, finding Townshend did hold himself out as a CPA in violation of state statute and granted the injunction. On appeal, the Court of Civil appeals affirmed the trial court's order permanently enjoining Townshend from holding himself out as a CPA.

{2 Board filed the present action in the same proceeding seeking to hold Townshend in civil contempt of court for failing to abide by the injunction. It asserted three separate violations of the injunction. After a jury found Townshend guilty of contempt, the court sentenced him to serve 45 days in the custody of the Tulsa County sheriff and deferred execution of the sentence until there was an additional violation of the injunction. The court also entered an order for Town-shend to pay Board restitution in the amount of $62,476.00 in attorney's fees and $2,158.77 in costs. Townshend appeals the order compelling restitution in the nature of attorney fees. He does not appeal the finding of contempt nor his sentence.

1 3 Title 12 0.98.2001 § 1390 provides:

An injunction granted by a judge may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt of court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, who may be required to make immediate restitution to the party injured, and give further security to obey the injunction; or in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged, or be punished by fine not exceeding Two Hundred Dollars ($200.00) for each day of contempt, to be paid into the court fund, or by confinement in the county jail for not longer than six (6) months or both such fine and imprisonment. This act shall in no way alter the right to trial by Jury.

14 Townshend contends the attorney fee award was inappropriately labeled restitution and the court was not authorized under the law to enter such an order. He points out the American rule only allows attorney fees when provided for by statute. Morgan v. Galilean Health Enterprises Inc., 1998 OK 130, 977 P.2d 357. However, there are exceptions to the American rule. One well-recognized exception is where the wrongful acts of the defendant have involved the plaintiff in litigation with others, or have placed him in such relation with others as to make it necessary for him to incur attorney's fees to protect his interests, attorney's fees being recoverable in such cases as one of the elements of damages flowing from the original wrongful act of the defendant. (Griffin v. Bredouw, 1966 OK 226, 420 P.2d 546. Such is the case here. Section 1890 provides for the exception by permitting restitution when a party has accumulated attorney fees while attempting to enforce an injunction by contempt proceedings.

15 Both parties cite City of Lawton v. Barbee, 1989 OK 147, 782 P.2d 927. Therein City brought a contempt action against Barbee for indirect civil contempt of court due to failure of Barbee to obey an order of the court enjoining his maintenance of a nuisance. The trial court sentenced him to six months in jail with a fine. The Supreme Court reversed for the trial court's failure to allow Barbee the opportunity to purge himself pursuant to the two options provided by § 18390. The Court held, relying on Ex parte Hibler, 139 Okla. 157, 1929 OK 401, 281 P. 144, § 1390 grants the trial court the authority to do two things. First, it may require immediate restitution to the injured party; and second, it may require further security to obey the injunction. Here, the trial court did both. For restitution, the court ordered Townshend to pay Board an amount that would reimburse it for the out-of-pocket costs it incurred as the result of Townshend's violation of the injunction. For further security to obey the injunction, the court sentenced Townshend to 45 days in jail, with execution of the sentence suspended so long as Townshend obeyed the injunction.

T6 Both Kansas and Ohio have statutes authorizing restitution in contempt proceedings almost identical to § 1890. Both Kansas and Ohio also adhere to the American Rule. Farm Bureau Mutual Insurance Com. v. Kurtenbach, 265 Kan. 465, 961 P.2d 53 (1998); Warren ex. rel Bluedorn v. Hicks, 124 Ohio App.3d 621, 707 N.E.2d 15 (1997). In Holloway v. People's Water Co. 100 Kan. 414, 167 P. 265, 2 A.L.R. 161, (1917), the Kansas Supreme Court held that restitution, as used in its statute providing that for violation of an injunction the guilty party may be required to make immediate restitution to the injured party, means to restore, reimburse, or make good. It held it was proper, on the defendants' violation of the injunction to fine them and also to require them to compensate the plaintiff for the expenses incurred in the prosecution of the action.

T7 Similarly in a more recent case from Ohio, Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287, 588 N.E.2d 233 (1990), the Court also dealt with a statute almost identical to § 1390 providing for restitution to the injured party. In that decision, the plaintiff filed contempt proceedings against a former employee of the accounting firm alleging violations of a preliminary injunction. The Court affirmed the award to plaintiff for costs of prosecuting the order, including attorney fees. The court rejected a narrow reading of the word restitution and instead held that it included damages for losses sustained during and as a consequence of the breach. It held "the authority of the trial court to award the type of monetary damages it did cannot be questioned." Citing ConTex Inc. v. Consolidated Technologies, Inc., 40 Ohio App.3d 94, 531 N.E.2d 1353 (1988), the Court expressly stated, "Even the award of attorney fees has been sanctioned by Ohio law."

T8 In the context of sanctions for contempt in federal courts, U.S. v. Dinwiddie, 885 F.Supp. 1299 (W.D.Mo.1995), the court ordered defendant to pay damages equal to the costs, expenses, and attorney fees incurred by the plaintiffs in any activity related to the civil contempt phase of the case. It stated "one genre of exceptions to the American rule is that a court may assess attorney's fees for the willful disobedience of a court order." It explained that a court's discretion to determine the degree of punishment for contempt permits the court to impose as part of the fine, attorney's fees representing the entire cost of litigation.

19 We are persuaded by the rationale in Dinwiddie and in the Kansas and Ohio decisions. Here, as in Dinwiddie, we hold there is more than ample justification in the case law for the trial court to order Defendant to pay restitution equal to the costs, expenses, and attorney fees incurred by Plaintiff in the contempt phase of this case as restitution in accordance with § 1890. Contempt proceedings are means through which the courts enforce their lawful orders. It is doubtful that the power of a court to punish for contempt may be arbitrarily limited. Thus great reliance is placed upon a trial court's discretion to punish for contempt. The trial court did not err in awarding attorney fees as restitution under § 1390.

110 As an additional proposition of error Townshend argues the amount awarded was excessive and unreasonable given the nature of the claim. The trial court found the hourly rates Board paid its counsel to be reasonable for the services rendered. Over Board's objection, the trial court conducted a Burk hearing and based its restitutionary award of attorney fees on the standards set out therein. The amount awarded covered only the costs incurred in prosecuting the contempt citation, none before. Board's attorney testified, stating, in order to make it whole, Board had to file the contempt proceedings. The attorney charged $150.00 an hour and his associate $90.00 an hour. He provided extensive documentation of his time spent as well as the time spent by Board's previous attorney and what he charged Board to act as its counsel.

11 As emphasized by Board, the award is entirely different from an attorney fee award as a prevailing party. These charges would be paid to Board as restitution for the money it had expended in enforcing the order of the court, not as a prevailing party. The attorney fees actually paid by Board are probably not subject to modification by the court.

112 In a different context, the Supreme Court has upheld the power of the government to seek restitution and the lower court's power to grant restitution as an ancillary remedy in the exercise of its general equity powers to afford complete relief. State ex rel. Day v. Southwest Mineral Energy, Inc., 1980 OK 118, 617 P.2d 1334 (citations omitted). Under the facts presented here, the trial court had the inherent equitable power to award attorney fees to compensate Board for necessary expenditures expended because of the noncompliance of Townshend with the court's order. See, City National Bank & Trust Co. of Oklahoma City v. Owens., 1977 OK 86, 565 P.2d 4, 5. Accordingly, we hold the court did not exceed its jurisdiction, powers, or discretion in awarding the amount of attorney fees it gave to Board. See, Falkner v. Thompson, 1978 OK CIV APP 49, 585 P.2d 403.

113 AFFIRMED.

JONES, J., and MITCHELL, P.J., concur.

      . But see; Gibbs v. Easa, 1998 OK 55, 998 P.2d 583 where in an action for direct criminal contempt, the Supreme Court held attorney fees were not authorized as sanctions for criminal contempt. This decision did not address § 1390.

      . State, ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659.