Bane v. Anderson, Bryant & Co.

786 P.2d 1230, 1989 WL 125356

• Court: Supreme Court of Oklahoma
• Decided: November 2, 1989
• Docket: 68048
• Status: Published

Opinions

SUMMERS, Justice.

Here we have an appeal from a judgment based on a jury verdict in favor of a plaintiff/investor against her securities broker and firm. The case initially requires us to determine which of the losing defendants below properly invoked the jurisdiction of this court on appeal, and secondly asks us to review the record to determine whether the jury verdict in favor of the plaintiff should stand. We find that defendants Anderson, Bryant & Co. and Gary E. Bryant properly acquired the status of parties appellant, but that defendant Phillips did not timely file a petition in error and is not a party to these appellate proceedings. Upon thorough review of the record we find that the judgment of the trial court should be affirmed.

Mary Bane brought this action alleging fraudulent misrepresentation, breach of contract, and violations of Oklahoma securities laws after learning that her investment with defendant Anderson, Bryant & Co. could not qualify as a Keogh account. She further alleged that the sixty day period during which she could have transferred from her existing Keogh account to another had lapsed, resulting in loss of the tax benefits on that account. The named defendants included the firm, Anderson, Bryant & Co., its President/Broker/Dealer, Gary E. Bryant, and individual employee/securities dealers Michael Oden and Larry John Phillips.

The jury rendered a general verdict for the plaintiff and against the firm, Bryant, and Phillips, jointly and severally, in the amount of $60,000 actual and $50,000 punitive damages. The defendants timely filed motions for new trial and judgment notwithstanding the verdict, which motions were denied on December 12, 1987. On March 13, 1987 the trial court heard and decided the plaintiff’s motion for fees and costs, and awarded the plaintiff $40,254.58 in attorney’s fees, and $160.00 in costs. This court received a timely filed petition in error on January 12, 1987. An amended petition in error was filed in this court on June 18, 1987 complaining of the award of an attorney’s fee.

This appeal requires us to determine four issues: 1) Which appealing defendants properly invoked this court’s appellate jurisdiction? 2) Did the trial court err in permitting the jury to assess damages against individual agents of the firm? 3) Were the awards of damages legally permissible and based upon competent evidence? and 4) Did the court err in its award of attorney’s fees?

i.

PARTIES TO THE APPEAL

The issue here is whether individual defendants Gary Bryant and Larry Phillips should be permitted to appear as parties appellant. Each has filed a request to be so. designated. Bryant filed a document styled “Request to Include Party as Appellant” on February 17, 1988. Phillips filed his “Application to Enter Appearance and Request to be Included as Party Appellant” on February 19, 1988. The plaintiff/appel-lee Bane responded by showing no objection to Bryant’s being included as a party appellant, but objects to any appearance by Phillips as being untimely.

Throughout the entirety of these proceedings the same attorney represented both the firm known as Anderson, Bryant & Co. and its President, Bryant. Phillips was represented by other counsel. According to an uncontested affidavit filed in this court by the attorney for the firm and Bryant, all pleadings in the appeal were filed on behalf of those two, but not Phillips. Bryant’s “request that he be included as an appellant in his action” is misstated. Under the thirty day requirement of 12 O.S.1981 § 990 it is too late for him now to become an appellant. However, if he acquired that status upon his attorney’s filing the initial petition in error, this court should treat his request as one to amend the petition in error to reflect his correct status.

Counsel for the firm and Bryant timely filed a petition in error in the statutory form. We must determine which parties were contemplated for inclusion in that document. The style of the petition in error includes only “Anderson, Bryant & Co.”; Gary Bryant’s name is not there. However, one of the assignments of error in the petition complains of the trial court’s failure to dismiss the “defendants Gary Bryant and Larry John Phillips as party Defendant”. Another complains of the jury’s action in assessing punitive damages against Gary E. Bryant and Larry John Phillips. Further, in eleven other places in the petition in error, the language complains of errors affecting the “defendants”, or that the “defendants’ ” motions were overruled, etc. In short, it does not read like an appeal lodged by a single employer defendant.

A party may assert his own legal rights, but not those of third parties. Wilson v. Gipson, 753 P.2d 1349, 1356 (Okla.1988). Thus, it would appear these assignments of error are either made erroneously because Gary Bryant and/or Larry John Phillips are not parties appellant, or that they are properly included because Bryant and Phillips are parties appellant and only their names were inadvertently omitted from the style. The latter proposition is partially correct.

The petition in error was filed on January 12, 1987. On March 13, 1987, the trial court heard a motion for attorney’s fees and costs, and the court’s order is attached to the amended petition in error. The court made the following finding;

“5. That there is an appeal pending in the captioned case brought by the defendants Anderson, Bryant & Co., and Gary E. Bryant, and that this order is without prejudice to the right of Plaintiff to make application for her attorneys’ fees and costs incurred subsequent to November 19, 1987, and throughout the appeal, (emphasis supplied)

The trial court thus made a finding that two parties had appealed, Anderson, Bryant & Co. and Gary E. Bryant. The order was “approved” by attorneys for plaintiff/Bane as well as the two named defendant/appellants. No party has expressly attacked this finding by the timely filing of a petition in error. See, 12 O.S. Supp.1986, Ch. 15, App. 2, Rule 1.11(d).

Bane does not object to Bryant’s name being added to the petition in error, but that is not controlling; parties may not confer this court’s subject matter jurisdiction by consent. Merchants Delivery v. Joe Esco Tire Co., 497 P.2d 766 (Okla.1972). However, a petition in error was timely filed which invoked this court’s appellate jurisdiction, requiring us to determine from the record whether the material contained in that petition is legally sufficient to indicate that Bryant is and always has been a party appellant. Form does not rule over substance in evaluating documents filed in this court. Matter of B.C., 749 P.2d 542, 544 (Okla.1988). We hold that the substance of the assignments of error, when viewed in light of counsel’s affidavit and the trial court’s finding, indicates that Gary E. Bryant was at all pertinent times a party appellant, but that his name was inadvertantly omitted from the style of the timely filed petition in error. A petition in error may be amended pursuant to Rule 1.17. We deem Bryant’s “Request” to be an amendment to his original petition, and allow the style to be corrected to reflect Bryant’s status as a proper party appellant.

Counsel for Phillips, however, never filed a petition in error. Instead he filed his “Request”, not in the statutory form of a petition in error, and well beyond the time limit allowed during which an aggrieved party may appeal. Our constitution provides that one may only invoke this court’s jurisdiction “in the manner provided by law.” Okla. Const. Art. 7, § 4. The applicable statute prescribes the manner for lodging an appeal and provides:

“An appeal to the Supreme Court may be commenced from an appealable disposition of a court or tribunal by filing with the Clerk of the Supreme Court a petition in error, within thirty (30) days from the date of the final order or judgment sought to be reviewed.” 12 O.S.1981 § 990.

In response to Phillips’ application to be included as an appellant, the plaintiff submitted an affidavit signed by opposing counsel which explained that the only appellants were the firm and Bryant individually. Further, the Phillips’ “Request” does not contain the substantive material required for a petition in error. We find that Phillips has failed to invoke our jurisdiction, and is not a party to these proceedings.

II.

BRYANT’S INDIVIDUAL LIABILITY

Throughout this case, Bryant has maintained that he acted only as the agent of Anderson, Bryant, and that consequently, no individual liability can attach. The trial court overruled his motion to dismiss and submitted the issue of his individual liability to the jury. Bryant here urges error based solely on an agency argument.

The general rule is that a contract made with a known agent for a disclosed principal is a contract with the principal alone. Moran v. Loeffler-Greene Supply Co., 316 P.2d 132, 134 (Okla.1957). However, equally true is the exception to the general rule:

“If the agent, acting within the scope of his authority, in the pursuit of a lawful purpose, steps aside to engage in a tor-tious act to the injury of property or personal rights of another, the agent becomes liable for the injury done.” Rogers v. Brummett, 92 Okl. 216, 220 P. 362, 365 (1923).

The exception applies to actions for fraud, negligence, and conversion by the agent. Fidelity Funding Co. v. Vaughn, 90 P. 34 (Okla.1907); Sutherland v. St. Francis Hospital, 595 P.2d 780, 783 (Okla.1979); J.C. Penney Co. v. Barrientez, 411 P.2d 841 (Okla.1965); Ping v. Kershaw, 89 Okl. 43, 213 P. 840 (1923). Further, the Oklahoma tort statutes specifically provide that one “who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” 76 O.S.1981 § 2.

An additional basis for individual liability appears in the Oklahoma securities statutes which form the gravamen of the first two of Bane’s claims for relief. Title seventy-one provides that:

“Every person who materially participates or aids in a sale or purchase made by any person liable under subsection (a) of § 408, or who directly or indirectly controls any person so liable, shall also be liable jointly and severally with and to the same extent as the person so liable ...” 71 O.S.1981 § 408(b).

The plaintiffs petition alleges seven different claims for relief: violation of 71 O.S.1981 § 408, violation of 71 O.S.1981 § 101, common law fraud, breach of contract, tortious breach of contract, common law negligence, and conversion. Clearly, the trial court correctly maintained Bryant as a defendant. However, because Bryant alleges error both in the trial court’s refusal to grant his motion to dismiss and alternately in the jury’s finding of individual liability, we now inquire whether the jury heard sufficient evidence to return a verdict against him individually.

The record reflects that in 1982 Bane established a personal Keogh account, and that in 1984 she invested its contents with Anderson, Bryant & Co. in a limited partnership securities project called Water World. She testified she did so after being advised that this security was approved for Keogh status, and that Anderson, Bryant & Co. was authorized to make Keogh investments. Bryant supervised the Water World project, and was directly in charge of the project for the firm. Tr. pp. 174-176. The documents resulting in transfer of Bane’s $4,381.87 indicated that these funds were to be transferred into an Anderson, Bryant & Co. Keogh account within the 60 day period allowed for such transfers without penalty. Tr. pp. 186-206, 218. Bryant decided how to divide the commission for this sale between the defendants Phillips and Oden. Tr. pp. 206-210.

Later, defendant Oden told Bryant that Bane’s cashier’s check was ready, but that the plaintiff’s bank could not transfer the account to an outside security such as Water World. Oden further attempted to locate another bank to handle this transaction, and informed Bryant of his unsuccessful efforts. Oden also informed Bryant that the transaction needed to be completed within 60 days, or Bane’s money must be returned to her in order to preserve the Keogh tax benefits, and further advised Bryant to return Bane’s money. Tr. pp. 418-428, 433, 440-41. Only after the 60 day grace period elapsed was Bane apprised that Anderson, Bryant & Co. was not qualified to maintain Keogh accounts. We find the evidence sufficient to submit the issue of Bryant’s individual liability to the jury.

After receiving all of the evidence, the jury rendered a general verdict against Anderson, Bryant & Co., Bryant, and Phillips. “A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant.” 12 O.S.1981 § 587. Additionally, a general verdict of a jury constitutes a finding of every material fact necessary to support it, and is conclusive as to all disputed facts and conflicting statements. Garrison v. Bonham, 207 Okl. 599, 251 P.2d 790, 793 (1952); Walker v. St Louis-San Francisco Ry. Co., 646 P.2d 593, 597 (Okla.1982). None of the defendants requested specific findings of fact, and consequently none were made. See, 12 O.S.1981 § 588.

The trial court properly submitted the issue of individual liability to the jury. No special findings of fact exist to controvert the general verdict against Bryant, and we therefore affirm the verdict against that defendant individually.

III.

DAMAGES

In its general verdict, the jury awarded the plaintiff $60,000 actual and $50,000 punitive damages. The defendants argue that the award of actual damages was speculative, that it exceeded the amount allowable by law, and that the court erred in failing to require future damages to be reduced to present value. They further argue that the award of punitive damages violates their constitutional rights.

A review of the record confirms, as urged by the plaintiff, that defendants have waived much of their argument regarding damages. Parties will not be permitted to raise issues before this court which were not raised in the trial court. Sharp v. Henry, 298 P.2d 1058 (Okla.1956); Helfinstine v. Martin, 561 P.2d 951 (Okla.1977). Further, a party who fails to preserve an issue for appeal by objecting in a timely manner to testimony or issues before the trial court, or to instructions given, or by neglecting to offer a proper instruction has waived review of that issue in this court. Hames v. Anderson, 571 P.2d 831, 833 (Okla.1977); Wat Henry Pontiac v. Pitcock, 301 P.2d 203, 207 (Okla.1956).

At trial, both the plaintiff and defendants offered testimony of economic experts in order to establish the amount of damage suffered. Neither party challenged the competency of either witness, and the jury heard all of the testimony. Each expert offered a means of computing the actual loss occasioned by the failure of the investment transaction. Neither expert testified regarding the present value of future damages. The defendants’ attorneys did not cross-examine the plaintiff’s expert in this area. Further, defendants did not object to the damages instruction given as not addressing present value, nor did they offer an instruction regarding reduction of future damages to present value.

Instructing the jury on the law is within the province of the court. However, “once the court has instructed generally, it is incumbent on the parties to request a more specific instruction.” Middlebrook v. Imler, Penny & Kugler, M.D.S., 713 P.2d 572, 580 (Okla.1985). Further, under Oklahoma law,

“defendants who fail to request the instructions they desire on ‘allowable damages’ are not in a position on appeal to complain of the trial court’s failure to give them. We have specifically applied this rule to the subject of instructions on present value.” Chicago, Rock Island & Pacific Ry. Co. v. Hawes, 424 P.2d 6, 14 (Okla.1967).

In Middlebrook supra, we observed that a present value damage instruction is not a fundamental issue which can be first raised at the appellate level, citing Walker v. St. Louis-San Francisco Ry. Co., supra.

The defendants also argue that the formula applied by the plaintiff’s expert could not result in an award based upon a reasonable certainty, and that the verdict was the result of speculation. Each side, however, presented its own economic version of damages. As is proper, the jury weighed the credibility of the witnesses. Where the amount of the verdict is within the limits of the evidence, we will not invade the jury’s province and substitute our judgment as a fact finding tribunal. Oklahoma Turnpike Authority v. Chandler, 316 P.2d 828, 833 (Okla.1957); First National Bank of Amarillo v. LaJoie, 537 P.2d 1207 (Okla.1975). No objections challenged the competency of the experts. Upon the finding of any competent evidence to support it, the jury verdict will be sustained. Walker, supra; Missouri-Kansas-Texas Ry. Co. v. Chief Equipment Company, 421 P.2d 841 (Okla.1966).

In determining the future effect of an injury, the law requires a showing of reasonable certainty. The evidence is sufficient if it demonstrates that the damages could be computed by just and reasonable inference. Larrance Tank Corp. v. Burrough, 476 P.2d 346, 350 (Okla.1970). Further, where the issue of uncertainty of damages arises, the rule limiting recovery of uncertain damages applies to the fact of such damages, not their measure. Hardesty v. Andro Corp., 555 P.2d 1030 (Okla.1976); Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla.1976).

The plaintiff’s expert testified that upon the failure of the investment transaction, Bane lost all of the benefits of her 1982 Keogh plan, and that while she could invest in this type of retirement plan in the future, she could not revive the 1982 plan. Consequently, the plaintiff’s expert computed the value of the loss assuming that Bane retained the money originally in the account to age 70¥2, and received an average interest rate of 10%. Using these assumptions, the plaintiffs expert reached a figure of total loss of $94,990.00. The witness then adjusted this amount by deducting taxes and penalties, and subtracting the amount plaintiff could make now by investing in non-Keogh programs, and adding the amount of money not returned by Anderson, Bryant. This resulted in a net loss figure of $59,233.07.

As one might expect, the defendants’ expert presented a different scenario. He testified that the amount necessary to restore Bane would be roughly $5,800. He arrived at this figure by. simply adding to the initial figure of approximately $4,300 the early withdrawal penalty and the tax penalty for withdrawing the money before age 59V2.

The jury received two methods by which it could compute damages. Each method had defined variables. Nothing indicates that the jury did anything other than apply the law as given by the court to the facts in evidence. Consequently, we affirm the award of actual damages.

The defendants argue that the law will not support an award of punitive damages in this action, and specifically, that such an award violates their constitutional rights. Since the defendants failed to raise the issue of constitutionality of punitive damages at trial and failed to present that issue in their motion for new trial, they may not raise that issue for the first time on appeal. 12 O.S.1981 § 991.

Defendants contend that the court’s instructions were vague and nebulous. The trial court explicitly instructed that punitive damages could be assessed upon finding of gross negligence, fraud, and/or malice. The instructions define with required particularly the terms negligence, gross negligence, fraud and malice, and set forth the conditions which the jury must find for such an award. The defendants did not object to these instructions, other than to comment that in their opinion the definitions “did not go far enough.” They did not offer their own instructions, and did not preserve for the record any argument that the existing standards for such instructions and awards are unconstitutionally vague. They may not raise those arguments for the first time on appeal. Consequently, the award of punitive damages is affirmed.

IV.

ATTORNEY’S FEES

After the petition in error was filed, the trial court heard and decided the plaintiff’s motion for attorney’s fees and costs. The court considered and decided this motion in plaintiff's favor on March 13, 1987. The face of the order reflects that the court made its ruling in open court “at the conclusion of the arguments of counsel.” The order was apparently memorialized on May 18, 1987. The amended petition in error seeking review of this award was not filed until June 18, 1987.

Rule 1.11(d) of the Rules of Civil Appellate Procedure requires the timely filing of a petition in error to review an order awarding attorney’s fees. The time period for filing a petition in error begins to run when the court pronounces its decision, and not when such decision is subsequently memorialized. Miller v. Miller, 664 P.2d 1032, 1034 (Okla.1983). Consequently, the amended petition in error seeking this court’s review of the order granting attorney’s fees was not timely filed, and will not be considered.

CONCLUSION

Finding no reversible error in the proceedings on review before us we affirm the judgment of the trial court.

HARGRAVE, C.J., and LAVENDER and ALMA WILSON, JJ., concur. OPALA, V.C.J., concurs in Judgment Part II, concurs in Part III, concurs in Part IV; dissents from Part I, HODGES, J., concurs in Part I and Part II; dissents from remainder. KAUGER, J., concurs in Parts II, III and IV; dissents from Part I. SIMMS and DOOLIN, JJ., dissent.