ROBERT D. BELL, PRESIDING JUDGE:
¶1 Defendant/Third-Party Plaintiff/Appellant, Jerry Grant, appeals from the
trial court's judgment rendered on a jury verdict in favor of
Plaintiff/Appellee, June Clabaugh, in this action for conversion and fraud. For
the reasons set forth below, we affirm in part and reverse in part.
¶2 On January 27, 2005, Plaintiff entered into a rental agreement for a
safety deposit box with Third-Party Defendant/Appellee, First American Bank
& Trust (Bank). Plaintiff and her daughter, Alicia Nelson, placed in safety
deposit box #267 her deceased father's large coin collection, along with a
variety of jewelry and other family heirlooms. Included in the box was an old
prescription bottle filled with coins. The bottle's prescription label from
Turner's Pharmacy in Purcell bore the name "Ar. Jones." Plaintiff's deceased
mother's name was Artibus Jones. Plaintiff testified the five inch by five inch
safety deposit box was completely full and weighed between 30 and 40 pounds.
Plaintiff timely paid her rent on the box every year thereafter and did not seek
to reenter the box until 2010. Trial testimony from Plaintiff's expert witness
placed the value of the coin collection at between one and two million
dollars.
¶3 In April 2008, Bank accidentally expunged Plaintiff's safety deposit
records from its computer system (although a Bank officer later conceded there
were other records available to identify the owner of box #267). Purportedly
believing it was holding an abandoned safety deposit box, Bank employees opened
and physically examined the contents of box #267 in the fall of 2009 in an
effort to identify the owner. The only item in the box that contained any
distinguishing information was the prescription pill bottle with the name "Ar.
Jones."
¶4 When Bank discovered records indicating an "Arley Jones" was a former
account holder, it sought to determine whether that Arley Jones was the same
person as the "Ar. Jones" listed on the pill bottle. Bank records revealed Arley
Jones' account had been closed years earlier by Defendant, his nephew. Bank
contacted Defendant, who confirmed he was the personal representative of Arley
Jones' estate. Testimony conflicted as to whether Defendant informed Bank he had
been discharged as the personal representative of his uncle's estate in late
2006. At Bank's request, Defendant produced the Letters of Administration
appointing him as the estate's personal representative in May 2006. On October
29, 2009, Bank drafted and had Defendant execute a hold harmless agreement.
Defendant signed the document as "Personal Representative" of the estate of
Arley Austin Jones. Bank thereafter delivered the contents of Plaintiff's safety
deposit box to Defendant, who claims he sold most of the contents to a coin
dealer a few days later for $488.00. Defendant admitted he was not the heir of
his uncle's estate, he did not have approval from the sole heir to sell the
property, and he did not contact the sole heir to disclose the transaction or
remit to her the $488.00.
¶5 When Plaintiff's daughter sought access to her safety deposit box the
following year, Bank revealed it had mistakenly released the contents to an
unnamed man. Bank contacted Defendant, who disclosed he had disposed of the box
contents. Plaintiff then sued Bank and several "Doe" defendants for conversion,
gross negligence, fraud and emotional distress. She later substituted Defendant
as "Doe #1" after learning his identity. Defendant filed a counter-claim against
Plaintiff for defamation (later abandoned) and a cross-claim against Bank for
negligence and malfeasance. Plaintiff dismissed her claims against Bank after
entering into a confidential settlement agreement. The pre-trial order listed
Plaintiff's causes of action against Defendant as fraud, conversion and punitive
damages. Defendant's claim against Bank was listed as negligence. Bank's
pre-trial motion for summary judgment was overruled.
¶6 A jury trial was conducted from April 30 to May 3, 2012. At the close of
evidence, Bank moved for a directed verdict/motion to dismiss Defendant's
cross-claim. The trial court granted the motion, finding Bank owed no duty to
Defendant. Plaintiff's claims against Defendant were submitted to the jury,
which returned a verdict finding:
1. By a preponderance of the evidence, Defendant "converted some or all
of Plaintiff's property to his own use";
2. By clear and convincing evidence, Defendant "committed fraud against"
Plaintiff; and
3. By clear and convincing evidence, Defendant "acted in reckless
disregard of the rights of" Plaintiff.
The jury awarded Plaintiff $1,250,000.00 in actual damages and, after a
separate proceeding, $125,000.00 in punitive damages. The trial judge entered
judgment to that effect. Defendant's motions for judgment notwithstanding the
verdict, new trial and for an offset of the Bank settlement proceeds were
denied. From said judgment, Defendant appeals.1
¶7 We first address Defendant's claim that the trial court erroneously
dismissed his negligence cross-claim against Bank. The elements of negligence
are "(1) the existence of a duty on part of defendant to protect plaintiff from
injury; (2) a violation of that duty; and (3) injury proximately resulting
therefrom." Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, ¶7, 725 P.2d 300. Under this standard,
we must initially decide the threshold question of whether Bank owed a duty to
protect Defendant from injury, because there can be no actionable negligence in
the absence of a duty. Iglehart v. Board of County Comm'rs of Rogers
County, 2002 OK 76, ¶10, 60 P.3d 497; Nicholson v.
Tacker, 1973 OK 75, ¶11, 512 P.2d 156. "Just because the
defendant has created a risk which harmed the plaintiff that does not mean that,
in the absence of some duty to the plaintiff, the defendant will be held
liable." Id. "The question of whether a duty is owed by a defendant is
one of law; . . ." Iglehart at ¶11.
¶8 Bank argued at trial it owed no duty to Defendant because he was not a
customer. However, as Defendant correctly notes, "liability in negligence is not
necessarily dependent upon a pre-existing privity in legal relationship between
the person injured and the person causing the injury." Independent-Eastern
Torpedo Co. v. Price, 1953 OK
74, ¶42, 258 P.2d 189. As the
Iglehart Court detailed:
We recognize the traditional common-law rule that whenever one person is
by circumstances placed in such a position with regard to another, that, if
he (she) did not use ordinary care and skill in his (her) own conduct, he
would cause danger of injury to the person or property of the other, a duty
arises to use ordinary care and skill to avoid such danger. Among a number
of factors used to determine the existence of a duty of care, the most
important consideration is foreseeability. Generally a "defendant owes a
duty of care to all persons who are foreseeably endangered by his conduct
with respect to all risks which make the conduct unreasonably dangerous."
Foreseeability establishes a "zone of risk," which is to say that it forms a
basis for assessing whether the conduct "creates a generalized and
foreseeable risk of harming others."
Iglehart, 2002 OK 76
at ¶10 (emphasis and footnotes omitted). See also Union Bank of Tucson, Ariz.
v. Griffin, 1989 OK 47, ¶13,
771 P.2d 219, which held, "The
law imposes upon a person engaged in the prosecution of any work an obligation
to use ordinary care to perform it in such a manner as not to endanger the
property of others."
¶9 In the present case, Defendant argues Bank had a duty to exercise ordinary
care in dealing with him and Bank breached that duty. Specifically, Defendant
asserts it was reasonably foreseeable Plaintiff would some day return to Bank to
claim her property after Defendant had disposed of it, Plaintiff would then sue
Defendant, and Defendant would incur damages as a result. Defendant also
contends his injury was caused predominantly by Bank's negligent acts - losing
records, extrapolating from a name on a pill bottle that Arley Jones owned the
property at issue, and misdelivering Plaintiff's property - and not by his later
disposition of the property. In any event, Defendant urges the issue of whether
his act of selling the coins constituted a foreseeable supervening event is a
fact question for a jury.
¶10 As the Iglehart Court specifically noted, duty "is not sacrosanct
in itself, but only an expression of the sum total of those considerations of
policy which lead the law to say that the particular plaintiff is entitled to
protection." Id., 2002 OK
76 at ¶10, n.17, quoting Prosser, Law on Torts, pp. 332-3 (3d ed.
1964) and Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342 (Cal.
1976). The instant record reveals Defendant obtained the safety deposit box
contents, not in his individual capacity, but as the personal representative
of his uncle's estate. In fact, Defendant had been discharged as personal
representative on December 29, 2006, and thereafter had no lawful right to act
on behalf of his uncle's estate. The court order discharging Defendant as
personal representative also specifically stated that all after-discovered
property belonging to his uncle is exclusively vested in the uncle's sole heir.
Regardless of Defendant's claims that he later attempted to locate the sole heir
so he could give her the sale proceeds, Defendant had no authority to
obtain the subject property nor sell the same.
¶11 In White v. Shawnee Mill Co., 1923 OK 1057, 221 P. 1029, 1031, the Court
held:
The rule is well settled that, if a party suffers injury while violating
a public law, the other party being also a transgressor, he cannot recover
for the injury if the unlawful act was the cause of the
injury.
White, 1923 OK 1057 at
¶3 (citations omitted). Accord Panther v. McKnight, 1926 OK 937, ¶8, 256 P. 916. This rule is akin to the
in pari delicto doctrine, "[t]he principle that a plaintiff who has
participated in wrongdoing may not recover damages resulting from the
wrongdoing." Black's Law Dictionary 806 (8th ed. 2004). See also Bowlan v.
Lunsford, 1936 OK 158, ¶13,
54 P.2d 666 (party to illegal act
may not take advantage of party in pari delicto for damages sustained
thereby).
¶12 Bank was arguably negligent vis-a-vis Defendant in transferring
Plaintiff's property to him without conducting more thorough due diligence.
However, Defendant took possession of the property and disposed of it without
any legal authority to do so. Under these circumstances and in light of the
above stated principles of law, we cannot say Defendant is entitled to
protection from Bank's acts. Thus, we hold the trial court did not err in
holding Bank owed no legally protected duty to Defendant. The dismissal of
Defendant's cross-claim is therefore affirmed.
¶13 We next find merit in Defendant's proposition that he is entitled to
judgment notwithstanding the verdict on Plaintiff's fraud claim.
The standard for determining a motion for judgment notwithstanding the
verdict (JNOV) is identical to the standard for determining a motion for
directed verdict. We review a trial court's ruling on a motion for JNOV by
the same standard used by the trial court. We consider as true all evidence
favorable to the non-moving party together with all inferences that may be
reasonably drawn therefrom, and we disregard all conflicting evidence
favorable to the moving party. A motion for JNOV should not be granted
unless there is an entire absence of proof on a material
issue.
First Nat. Bank in Durant v. Honey Creek Entm't Corp., 2002 OK 11, ¶8, 54 P.3d 100 (citations
omitted).
¶14 The elements of actionable fraud are:
1) a false material misrepresentation, 2) made as a positive assertion
which is either known to be false or is made recklessly without knowledge of
the truth, 3) with the intention that it be acted upon, and 4) which is
relied on by the other party to his (or her) own
detriment.
Bowman v. Presley, 2009 OK
48, ¶13, 212 P.3d 1210. For
purposes of the instant JNOV, we must consider as true Plaintiff's allegations
that Defendant intentionally or recklessly led Bank to believe he was still the
personal representative of his uncle's estate when he obtained Plaintiff's
property and he did so with the intention that Bank act upon such belief.
However, the record is devoid of any allegation or evidence Plaintiff
relied upon Defendant's alleged deceit to her own detriment.2 Defendant made no
representations whatsoever to Plaintiff and Plaintiff knew nothing of
Defendant's representations to Bank at the time her property was
misappropriated. Plaintiff did not and cannot prove Defendant committed any act
of fraud against her. The trial court's decision overruling Defendant's
fraud JNOV is reversed.
¶15 Defendant also contends the trial court erred in overruling his JNOV
motion regarding Plaintiff's conversion claim. Conversion is defined as "any act
of dominion wrongfully exerted over another's personal property in denial of or
inconsistent with his rights therein." Welty v. Martinaire of Okla.,
Inc., 1994 OK 10, ¶6, 867 P.2d 1273. As stated above, in
reviewing a JNOV motion this Court must consider as true all evidence favorable
to Plaintiff and disregard all Defendant's conflicting evidence. Honey
Creek, 2002 OK 11 at ¶8.
Applying these rules to the instant case, this Court must take as true the coin
collection in Plaintiff's safety deposit box had a value of between one and two
million dollars. We must also consider as true all of Plaintiff's evidence that
indicated Defendant wrongfully exerted control over Plaintiff's property.
Conversely, we are required to disregard, among other things, Defendant's claims
that he received only $488.00 for the sale of Plaintiff's property. Under these
circumstances, we hold the trial court properly denied Defendant's conversion
JNOV motion.
¶16 In reaching the above conclusion, we specifically reject Defendant's
arguments that (1) Plaintiff was required to prove which particular items
Defendant received from Bank and (2) Defendant was merely an innocent bailee or
discoverer of lost property. With respect to the items of property received by
Defendant, Bank's officer testified it delivered all of the contents of
safety deposit box #267 to Defendant. Plaintiff, her daughter and her cousin all
testified as to the extensive coin collection inherited by Plaintiff, and
Plaintiff and her daughter testified regarding the coins, jewelry and other
valuables they placed in the safety deposit box. Plaintiff's expert testified
regarding the value of the coin collection. The issues of what items Defendant
received and the value of those items were properly submitted to the jury for
their determination.
¶17 We reject Defendant's second argument outright. Defendant was not an
innocent bailee or discoverer of lost property. Plaintiff's property was never
lost. Defendant took possession of Plaintiff's property from Bank in his
purported capacity as personal representative of his uncle's estate at a time
when he had no lawful authority to do so. Viewing the evidence in the light most
favorable to Plaintiff, the jury could properly conclude Defendant then
converted such property to his own use and in denial of Plaintiff's rights
therein.
¶18 Defendant next maintains he is entitled to a new trial because the jury
was improperly instructed regarding Plaintiff's conversion claim. We disagree.
First, we note Defendant did not object to the instructions given by the trial
court. "As a general rule, a party who makes no objection to the instructions of
the court to the jury waives any error therein." In re A.A.C.P., 2006 OK CIV APP 32, ¶22, 132 P.3d 644, citing Hawkins v.
McElhanon, 1957 OK 187, ¶2,
315 P.2d 667. Under such
circumstances, this Court will review only for fundamental error appearing on
the face of the instructions. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶9, 961 P.2d 801.
¶19 "[A]n affirmative duty is placed upon the trial court to give
instructions which accurately reflect the law regarding the issues presented."
Id. at ¶12 (quotation omitted).
In reviewing the propriety of given instructions, the instructions are to
be viewed in whole rather than separately. And, where it appears that
instructions taken as a whole do not establish that the jury was misled or
that complaining parties' rights were prejudiced, the verdict will not be
set aside. Instructions are sufficient when, considered as a whole, they
present the law that is applicable to the issues.
CNA Ins. Co. v. Krueger, Inc., of Tulsa, 1997 OK 142, ¶15, 949 P.2d 676, 679 (citation
omitted).
¶20 We have examined the face of the jury instructions in the present case
and find no erroneous statement of fundamental law. The jury was adequately
instructed regarding Plaintiff's conversion claim.3 Accordingly, this proposition of error
is rejected.
¶21 Next, Defendant claims the jury's award is excessive, not supported by
the evidence and warrants a remittitur. Initially, we note it is impossible to
attribute the jury's compensatory damage award to either Plaintiff's fraud
claim, which is herein reversed, or her conversion claim. However, it is clear
both causes of action sought a singular damage award for Defendant's
misappropriation of Plaintiff's property. The jury's punitive damages award was
based upon Defendant's reckless disregard for Plaintiff's rights, see 23 O.S. 2011 §9.1; OUJI No. 5.6, via
his unauthorized taking and disposal of Plaintiff's property. Thus, under the
facts of this case, we hold the damage award is unaffected by the reversal of
Plaintiff's fraud verdict.
¶22 In Currens v. Hampton, 1997 OK 58, 939 P.2d 1138, the Court
reiterated:
We have traditionally held that an appellate court has no right to place
a limitation on the amount of a jury verdict unless it is convinced that the
amount bears no relation whatsoever to the evidence. The established rule is
that before a verdict of a jury may be set aside as excessive, it must
appear that the verdict is so excessive as to strike mankind, at first
blush, as being beyond all measure unreasonable and outrageous, showing the
jury to have been actuated by passion, partiality, prejudice or corruption.
. . . An appellate court may not substitute its judgment for that of the
jury in its exercise as a fact-finding body; it must consider the evidence
most favorable to the plaintiffs as establishing the facts concerning the
excessiveness of the verdict.
Currens, 1997 OK 58 at
¶10 (citations omitted).
¶23 Upon review of the instant record, we cannot say the jury's award is
excessive. Considering the evidence in the light most favorable to Plaintiff,
Defendant unlawfully absconded with between a one and two million dollar coin
collection, jewelry and other heirlooms. Plaintiff's evidence established the
coin collection contained approximately 55 vintage, solid gold Double Eagle
($20.00) gold pieces, a number of extremely rare three-legged Buffalo nickels,
hundreds of Morgan silver dollars (approximately 30 to 40 pounds of solid
silver) and various other collectible coins. She testified the family heirlooms
included two gold wedding rings and a pair of diamond earrings. Plaintiff's
expert testified $488.00 would only buy ten ounces of junk silver. Because the
evidence tends to support the jury's award, its verdict must be upheld.
¶24 Finally, we address Defendant's assertion that the jury's award should be
reduced by the amount of Plaintiff's settlement with Bank. Defendant's argument
is based upon the common law "one satisfaction" rule designed to prevent a
plaintiff from gaining double recovery. See Kirkpatrick v. Chrysler
Corp., 1996 OK 136, ¶¶12-13,
920 P.2d 122. However, 12 O.S. 2011 §832(C) states "[t]here
is no right of contribution in favor of any tort-feasor who has intentionally
caused or contributed to [the plaintiff's] injury . . . ." In the present case,
Defendant intentionally converted Plaintiff's property to his own use. He is not
entitled to any set-off based upon Bank's settlement with Plaintiff. The
judgment of the trial court is affirmed in part and reversed in part.
¶25 AFFIRMED IN PART; REVERSED IN PART.
MITCHELL, J., and GOREE, J., concur.