Austin v. Cockings

• Decision Date: 08 March 1994
• Docket Number: No. 74745,74745
• Citation: 871 P.2d 33,1994 OK 29
• Parties: William R. AUSTIN, Appellee, v. Ronald W. COCKINGS, and Bonnie H. Cockings, Appellants.
• Court: Oklahoma Supreme Court

Page 33

871 P.2d 33

1994 OK 29

William R. AUSTIN, Appellee, v. Ronald W. COCKINGS, and Bonnie H. Cockings, Appellants.

No. 74745.

Supreme Court of Oklahoma.

March 8, 1994.

Certiorari to the Court of Appeals, Division No. 2.

Appeal from the District Court of Pottawatomie County; David Welch, Trial Judge.

Certiorari to review opinion of Court of Appeals which reversed the order of the trial court granting appellee's motion for new trial and reinstated the jury's verdict for appellants. The trial court had determined that appellee did not get a fair trial because of erroneous instructions, but the Court of Appeals held that such erroneous instructions were the result of invited error.

CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS OPINION VACATED. ORDER OF THE DISTRICT COURT AFFIRMED.

Rodney K. Freed, Shawnee, for appellants.

William R. Burkett, Steven L. Tolson, Hall, Estill, Hardwick, Gable, Golden & Nelson, Frank M. Hagedorn, James J. Proszek, Oklahoma City, for appellee.

SIMMS, Justice:

Defendants Ronald W. Cockings and Bonnie H. Cockings appeal the trial court's order granting the motion for new trial urged by William R. Austin, plaintiff, after the jury returned a verdict for the defendant Cockings in Austin's action for contribution. The new trial motion was granted on the grounds that Austin did not receive a fair trial because of erroneous instructions given to the jury.

The Court of Appeals concluded the error was invited by Austin when he submitted requested jury instructions substantially similar to those given by the trial court. However, the issue of invited error was raised sua sponte by the Court of Appeals, and the parties neither briefed nor argued the issue. Nevertheless, the Court of Appeals reversed the order of the trial court and directed the jury verdict to be reinstated. Certiorari was granted to determine whether the trial court erred in granting a new trial. Because we find no error in the trial court's order granting a new trial, we vacate the opinion of the Court of Appeals and affirm the order of the trial court. The pertinent facts were as follows.

The Cockings and Austin entered into a business venture consisting of two corporations. In order to get started, the corporations borrowed funds from three banks, executing promissory notes and security agreements. In addition, Austin and the Cockings executed guaranty agreements to the banks, personally guaranteeing the notes.

Subsequently the businesses encountered low sales, and Austin relieved Mr. Cockings of his duties as manager of the businesses. When the creditor banks brought foreclosure actions, Austin personally paid the resulting judgments, obtained an assignment from the banks, took possession of all corporate assets, and sold all assets that he could. He then brought this action against the Cockings seeking contribution from them on the basis of the guaranty agreements and the assignments.

The Cockings denied that they were liable to Austin and pleaded affirmative defenses of waiver and fraud. At trial, Austin attempted to remove the affirmative defenses from the jury's consideration arguing insufficient evidence to submit these defenses to the jury.

The trial court denied such request and proceeded to hear argument on the proposed jury instructions. Having failed to remove the issue of fraud from the jury, Austin then submitted a requested jury instruction on fraud. He argued that the instruction proposed by the trial court was erroneous and that his requested instruction stated the law more accurately. The trial court denied Austin's requested instruction.

The jury returned a verdict in favor of the Cockings, and Austin filed motions for judgment notwithstanding the verdict and for new trial. After argument, the trial court denied the motion for judgment notwithstanding the verdict but granted a new trial, entering an order which reads, in pertinent part, as follows:

"The Motion for Judgment Notwithstanding the Verdict is denied, as there was sufficient evidence presented from which the jury could have found wrongful conduct on the part of the Plaintiff to the extent that he should be barred from recovering contribution.

"The Court finds that it gave an erroneous instruction on the defense of fraud, and should not have instructed on the defense of waiver, and that the cumulative effect of these instructions was such as to deny the defendant ¹ a fair trial. The motion for new trial is sustained."

The Cockings appealed the trial court's grant of Austin's new trial motion, and the Court of Appeals reversed the order on the grounds of invited error. We need not determine whether the doctrine of invited error applies to this case. Our inquiry goes solely to whether the trial court erred in granting a new trial.

It is well-settled that a trial court has wide discretion in the granting of a new trial. Fitts v. Standard Life & Accident Insurance Co., 522 P.2d 1040 (Okla.1974); Elmore v. McQuestion, 423 P.2d 1016 (Okla.1967); Horn v. Sturm, 408 P.2d 541 (Okla.1965). The standard of review to be used in such appeals is equally well-settled.

"A motion for new trial is addressed to the sound legal discretion of the trial court, and this Court will indulge every presumption in favor of the correctness of the ruling of the trial judge sustaining such motion, and such an order will not be disturbed on appeal unless the record shows clearly that the court erred on a pure and unmixed question of law, or acted arbitrarily or capriciously." Y & Y Cab Co. v. Ford, 207 Okla. 663, 252 P.2d 430, 431 (1953). See also Elmore...