Condict v. Whitehead, Zunker, Gage, Davidson & Shotwell, P.C., 87-2

• Decision Date: 09 October 1987
• Docket Number: No. 87-2,87-2
• Citation: 743 P.2d 880
• Parties: Win CONDICT and Elsie Condict, Appellants (Defendants), v. WHITEHEAD, ZUNKER, GAGE, DAVIDSON & SHOTWELL, P.C., a Wyoming corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 880

743 P.2d 880

Win CONDICT and Elsie Condict, Appellants (Defendants), v. WHITEHEAD, ZUNKER, GAGE, DAVIDSON & SHOTWELL, P.C., a Wyoming corporation, Appellee (Plaintiff).

No. 87-2.

Supreme Court of Wyoming.

Oct. 9, 1987.

Rex E. Johnson of Sherard, Sherard & Johnson, Wheatland, for appellants.

Paul J. Hickey of Rooney, Bagley, Hickey, Evans & Statkus, Cheyenne, for appellee.

Before BROWN, C.J., THOMAS, CARDINE and MACY, JJ., and RAPER, J., Ret.

RAPER, Justice, Retired.

A jury returned a verdict of $130,938 as the amount of unpaid attorney's fees and costs owing appellee for legal services provided to appellants. In this appeal, appellants raise questions alleging error with respect to some of the jury instructions given by the trial judge and claims of error for the trial judge's failure to give some jury instructions offered by appellants. Appellants also object to the form of verdict given for the jurors' consideration. There is a further issue as to the withdrawal of an exhibit after it had been received and the failure of the trial judge to instruct the jury to disregard the exhibit. Finally, appellants complain that appellee increased previously agreed on hourly rates without informing appellants of such increase.

We affirm the judgment appealed from, even though we cannot approve the form of some instructions given to the jury. We hold that there was no prejudice to appellants as a result of the instructions.

I.

Appellants assert that Instruction No. 3 ¹ covering appellee's contentions hampered their argument, overemphasized the facts, was misleading, and misstated the evidence.

It should be noted that, in Instruction No. 3, supra note 1, there are several sentences not preceded by a statement that they are contentions of appellee. While we are convinced that the jury was not misled into believing that the court was instructing them that such statements had been proven as true, nonetheless, there should have been, somewhere in the instruction offered, a general reference stating that the entire instruction was merely a statement of appellee's contentions and that it was not to be considered as evidence by the jury--it is the duty of the jury to determine the facts from the testimony and exhibits produced in court.

In this case, other instructions clarified that the trial judge, by Instruction No. 3, was not instructing the jury as to his view of what the facts were or were not. There is no error when the matter complained of is covered in another instruction or by taking the instruction as a whole. Cates v. Eddy, Wyo., 669 P.2d 912 (1983).

In this instance, Instruction No. 1 pointed out that it was the "exclusive province of the jury * * * to determine the issues of fact in this case." By Instruction No. 2, the trial judge advised the jury that:

"If in these instructions any rule, direction, or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason you are not to single out any certain sentence or any individual point or instruction and ignore the others, but you are to consider all of the instructions together and regard each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance."

A general instruction, which would have eliminated any problem with the question of misconception by the jury, was offered by appellee but not used by the trial judge; it was to have followed the contentions instruction:

"I have not by these instructions or by any ruling made or by any act done or by anything said during the trial intended or attempted to give any intimation or opinion as to what the facts are or what are not the facts, what the proof is or what it is not, which witnesses are worthy of belief and which are not, or what your verdict should be."

This instruction strongly preserves the supremacy of the jury in their role as fact finder.

There is no question but that Instruction No. 3 was argumentative. There is really only one basic contention by appellee; it was hired by appellants to do legal work and had not been paid in full for services rendered and costs advanced. It is the contention of appellants that, while they do owe fees, those claimed by appellee were excessive and that they should not be required to pay some costs which were advanced. A single instruction in about so many words, along with the cautions before mentioned, would have been sufficient to tell the jury their job in this particular case.

A party is entitled to have the jury instructed with reference to that party's theory of the case when it is supported by the evidence. Langdon v. Baldwin-Lima-Hamilton Corporation, Wyo., 494 P.2d 537 (1972). Appellee apparently believed that all the facts set out in Instruction No. 3 were an essential part of its theory. They were from evidence which the jury had heard. The court's only duty was to state the issue for the jury, not to review the evidence supporting appellee's theory.

While the instruction is not a good instruction, an argumentative instruction is not necessarily reversible error. MacManus v. Getter Trucking Company, Wyo., 384 P.2d 974 (1963).

We conclude with respect to Instruction No. 3 that, while it was deficient in form, it was not prejudicial. "A party is not prejudiced by a particular instruction when the matter complained of is covered by other instructions or by taking the instructions as a whole." Cates v. Eddy, 669 P.2d at 917. The other instructions have a curative effect.

II.

Appellants assert that Instruction No. 8 ² amounted to a directed verdict.

Appellants spend considerable time arguing about the word "legally" just preceding the word "obligated" which appeared in the instruction as originally submitted by appellee. We see no difference in this case between being "obligated" or being "legally obligated." In any event, the only issue in the trial was how much was owed, after proper credits, at the time of trial. The instruction clearly leaves it up to the jury to decide "how much."

It should be pointed out that the trial judge had, at a time prior to trial, granted a partial summary judgment holding that:

"[Appellee] is entitled to compensation for the services rendered by it and its predecessor firm on behalf of [appellants] in Condict v. Condict [Second Judicial District, State of Wyoming, No. 82C-219] together with actual costs incurred in behalf of [appellants] in the cited litigation."

The court in effect held that there was liability but that a jury must decide the dollar amount of such liability. Instruction No. 8 so advised the jury and properly determined that there was liability, but it did not direct the amount. That question was the only one left for the jury.

III.

Appellants assert there was error in Instruction No. 9. ³ They contend that the court took the factual question away from the jury and told them appellants received the letter in question.

The problem rests in the last paragraph where it is said that "[t]he denial by [appellants] of receipt of an item of mailing does not overcome the presumption of mailing." Appellee insists that this is in accordance with Employment Security Commission of Wyoming v. Young, Wyo., 713 P.2d 198 (1986). We disagree. What that case said was:

"Appellee's unsupported and uncorroborated statement of nonreceipt is some evidence toward establishing a finding contrary to the presumption, but the necessity for a factual determination of the question still exists.

" ' * * * For example, in the case of the presumption of receipt of a letter, referred to above, the defendant may destroy the presumption by denying receipt. Nevertheless, a jury question is presented, not because of the presumption, but because of the natural inference flowing from the plaintiff's showing that he had mailed a properly addressed letter that was not returned.' McCormick on Evidence § 345, p. 821 (2nd Ed.1972)." Id. at 201.

The denial does not destroy the presumption nor can it be disregarded. When that happens, there is still left a burden of proof by appellants that they did not receive the letter under the preponderance of the evidence instruction.

The law is found in Rule 301(a), W.R.E.:

"In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." ⁴

We are convinced that, while the instruction was erroneous in stating that "the denial of receipt does not overcome the presumption," the denial of receipt was at least part of appellants' evidence to carry their burden of establishing non-receipt. The third paragraph of Instruction No. 9 clearly places on appellants the burden of proving non-receipt as do the words "its receipt remains for you to determine." We would suggest that appellee's homework was deficient in preparation of this instruction. When read as a whole, however, the jury instruction is cured by the emphasis on receipt or non-receipt being a question for the jury.

While appellants objected to the instruction, we cannot find in the record a correct form offered by appellants. An objection to an instruction is not complete without a correct typewritten form being handed to the court for its use. Parties have not only the right but the duty to offer instructions. In the absence of submission of a proper written instruction, any claimed error is deemed to have been waived. Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963 (1973). It is insufficient merely to state that the instruction is not complete or an accurate statement of the law. Runnion v. Kitts, Wyo., 531 P.2d 1307 (1975). See also Logan v. Pacific Intermountain Express Company, Wyo., 400 P.2d 488 (1965), and Rule 51, W.R.C.P.

We have discussed Instruction No. 9, supra note 3, only in the hope...