ALLIANCE STEEL v. MARTIN YACK CONST.
| Decision Date | 30 March 2001 |
| Docket Number | No. 93,218.,93,218. |
| Citation | 2001 OK CIV APP 121,34 P.3d 656 |
| Parties | ALLIANCE STEEL, INC., Plaintiff/Appellant, v. MARTIN YACK CONSTRUCTION CO., INC., Defendant/Third-Party Plaintiff/Appellee, and L.D. Howell Steel Building Co., Inc., Defendant/Third-Party Plaintiff, v. Frontier Insurance Company, Third-Party Defendant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
John N. Hermes, Ross A. Plourde, McAfee & Taft, Oklahoma City, OK, for Plaintiff/Appellant.
Raymond E. Tompkins, S. Paul Hammons, Mitchell D. Blackburn, Conner & Winters, Oklahoma City, OK, for Defendant/Third-Party Plaintiff/Appellee.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
Accorded Precedential Value and Released for Publication by Order of the Supreme Court.
¶ 1 Alliance Steel, Inc. (Alliance) appeals a trial court judgment based upon a jury verdict in favor of Martin Yack Construction Co., Inc. (Yack Construction) on Alliance's breach of contract claim and on Yack Construction's counterclaim against Alliance.1 We conclude that alleged errors identified in Propositions I and II, all of which relate to the sufficiency of the evidence to support the verdict, were not preserved for review, and that the trial court committed no error as alleged in Proposition III, Alliance's only other proposition of error. Therefore, we affirm the trial court's judgment.
¶ 2 Alliance's first two propositions of error — "Yack Construction failed to prove Alliance had waived its right to payment" and "The Undisputed Evidence established that Yack Construction breached the contract by failing to provide Alliance adequate assurance"-call for an appellate examination of the evidence to determine whether it was legally sufficient to support the jury's verdict. In its answer brief, Yack Construction argues that Alliance failed to preserve for appellate review any question regarding the sufficiency of the evidence to support the verdict because Alliance did not move for a directed verdict at the close of all the evidence and before the issues were submitted to the jury.
¶ 3 The transcript of the three-day jury trial and the record do not demonstrate that Alliance demurred, moved for directed verdict or in any other manner attacked the sufficiency of Yack Construction's evidence, formally or informally, after all of the evidence had been admitted. However, Alliance did question the sufficiency of the evidence in its Motion for New Trial, and Yack Construction did not assert at that time that Alliance had not challenged the sufficiency of the evidence properly at trial.
¶ 4 The Oklahoma Supreme Court has long held that where a plaintiff submits his case to the jury, after the close of all the evidence, without demurring to the evidence or asking for an instructed verdict, or otherwise legally attacking its sufficiency, the question whether there is any evidence reasonably tending to support the defense is not preserved for review, even where the sufficiency of the evidence is challenged by post-verdict motion. Reedy v. Weathers, 1970 OK 130, 472 P.2d 914; Birmingham Steel & Supply, Inc. v. Smithco Mfg. Co., 1965 OK 37, 399 P.2d 471; Sheppard v. Gaddy, 1950 OK 60, 215 P.2d 827; Ruby v. Barrett, 1928 OK 235, 265 P. 1048; Norman v. Lambert, 1917 OK 227, 167 P. 213.
¶ 5 Alliance acknowledges this rule but contends it may not be applied here for two reasons. First, Alliance argues Yack Construction's failure to raise this issue in response to Alliance's new trial motion prevents us from applying the rule here. To support this argument, Alliance cites several cases applying federal litigation rules which so conclude, reasoning that the trial court should first be given the opportunity to determine whether the sufficiency of the evidence was formally or informally challenged prior to submitting the case to the jury or whether some legitimate reason existed for not doing so. See Thompson and Wallace of Memphis v. Falconwood Corporation, 100 F.3d 429 (5th Cir.1996).
¶ 6 Alliance has cited no Oklahoma authority limiting this Court's power to determine whether an alleged trial court error has been properly preserved for review, and it appears that the theoretical basis underlying the federal cases cited is inapplicable under Oklahoma procedure. Alliance has cited no authority, and we have discovered none, which would allow us, based on some excuse, to overlook Alliance's failure to move for a directed verdict. Yack Construction's failure to contend before the trial court that Alliance had waived any post-verdict right to challenge the sufficiency of the evidence is no impediment to our considering whether Alliance has properly preserved for appellate review the question of whether the evidence reasonably supports the verdict of the jury.
¶ 7 Second, Alliance contends it substantially complied with this requirement because prior to trial it moved for partial summary judgment on liability, making the arguments it makes on appeal with regard to the facts which it anticipated would be shown at trial. According to Alliance, we should follow the lead of the federal courts and take an "indulgent view" of whether the sufficiency of the evidence had been properly challenged at trial. See Singer v. Dungan, 45 F.3d 823 (4th Cir.1995).
¶ 8 We note that Alliance does not contend that it challenged the sufficiency of the evidence after the close of all the evidence via some informal means either on or off the record as was argued in Trujillo v. Goodman, 825 F.2d 1453 (10th Cir.1987), one of the cases cited by Alliance to support this argument. Moreover, this record differs substantially from that recited in W. William Graham, Inc. v. City of Cave City, 289 Ark. 105, 709 S.W.2d 94 (1986), also cited by Alliance. In that case, the court confronted an appellee's argument that the appellant had waived any right to a review of the sufficiency of the evidence on appeal because the appellant had failed "to have the trial court rule on its motion for a directed verdict at the conclusion of all the evidence." Noting that the issue had been raised "by a motion for summary judgment, [was] ruled upon again by entry of an order in response to a motion in limine, and [was] raised again at the end of all the proof," the court held that the appellant had not waived its right to appellate review on that issue. (Emphasis added). 289 Ark. at 107, 709 S.W.2d at 95. This record contains no indication that Alliance reiterated its previous arguments, even by reference, at the close of all the evidence.
¶ 9 We cannot treat Alliance's pre-trial motion as the functional equivalent of a motion for directed verdict for two fundamental reasons. First, because of the differences in timing, the motions call upon the trial court to review two different sets of "evidence." The summary judgment motion requires the trial court to base its decision on the uncontroverted facts shown by the evidentiary material submitted by the parties. In essence, it tests what the...
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