Bane v. Anderson, Bryant & Co.

• Decision Date: 24 October 1989
• Docket Number: No. 68048,68048
• Citation: 786 P.2d 1230,1989 OK 140
• Parties: Blue Sky L. Rep. P 73,036, 1989 OK 140 Mary E. BANE, Appellee, v. ANDERSON, BRYANT & CO. and Gary E. Bryant, Appellants.
• Court: Oklahoma Supreme Court

Page 1230

786 P.2d 1230

Blue Sky L. Rep. P 73,036, 1989 OK 140

Mary E. BANE, Appellee, v. ANDERSON, BRYANT & CO. and Gary E. Bryant, Appellants.

No. 68048.

Supreme Court of Oklahoma.

Oct. 24, 1989.

Dissenting Opinion Modified Nov. 2, 1989.

Rehearing Denied Feb. 13, 1990.

Appeal from the District Court of Oklahoma County; Jack Parr, Judge.

Defendants appeal a jury verdict returned on plaintiff's claims of state securities violations, breach of contract, fraud and negligence. Individual defendants Bryant and Phillips ask to be made parties appellant. Phillips' request to file petition in error out of time is denied. Bryant's request is in substance an amended petition in error, and correction of the style to show him as a party appellant is permitted. Finding no reversible error in the proceedings below the judgment is affirmed.

Don J. Gutteridge, Jr., James W. Rhodes, Kerr, Irvine & Rhodes, Oklahoma City, for appellants.

J. Randall Robinson, Travis A. Pickens, Musser, Bunch, Robinson & Hirsch, Oklahoma City, for appellee.

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/appellee 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...