Cross v. Littleton

• Decision Date: 26 May 2021
• Docket Number: Case No. 119,084
• Citation: 495 P.3d 675
• Parties: Kevin CROSS, Plaintiff/Appellee, v. Daniel N. LITTLETON, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

495 P.3d 675

Kevin CROSS, Plaintiff/Appellee,

v.Daniel N. LITTLETON, Defendant/Appellant.

Case No. 119,084

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED MAY 26, 2021

Mandate Issued: July 21, 2021

Jason Waddell, JASON WADDELL, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee

Shanda McKenney, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendant/Appellant

OPINION BY JANE P. WISEMAN, PRESIDING JUDGE:

¶1 Daniel Littleton appeals a trial court judgment in favor of Kevin Cross on his claim for diminution in the value of his vehicle. The issues on appeal are (1) whether the trial court erred in allowing expert testimony in this small claims action and (2) whether Cross's claim for diminished value to his vehicle is supported by the evidence. After review, we conclude the trial court did not err in allowing expert witness testimony and that sufficient evidence supported Cross's claim for the damages awarded, and we affirm the trial court's decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Cross filed a Small Claims Affidavit on January 8, 2020, alleging that Littleton is indebted to him for $7,181.12, plus costs and attorney fees for the diminished value of his vehicle due to a June 10, 2019 automobile accident.

¶3 On January 29, 2020, the parties' attorneys filed a "Joint Motion to Continue Small Claims Hearing" which was set for January 30, 2020. The motion states that Cross's "expert witness regarding the subject matter of this litigation, namely, the diminished value of his vehicle as a result of an auto accident, is unable to attend the hearing due to an unforeseen medical condition." It further stated,

The expert, Gregory "Bud" Bauer, of Bauer Sharper Cars, Oklahoma City, Oklahoma, was to provide testimony and authenticate evidence crucial to proving [Cross's] case. Without this expert testimony, [Cross] will not be able to introduce and present evidence crucial to the prosecution of his case to prove the diminished value of his vehicle.

The motion was signed by Littleton's attorney, Shanda McKenney.

¶4 The small claims proceeding was held on July 23, 2020. The evidence showed Cross's wife, Sylvia Cross, was driving his 2016 Toyota Tundra on June 10, 2019, when it was involved in an accident with Littleton. Cross testified that the damage to the Tundra "was pretty severe damage having the frame bent." A body shop completed $25,246.83 in work on the truck, including replacement of the entire frame. Cross testified he had no complaints about the repair work the body shop performed on the truck. Littleton's insurer, State Farm Insurance, paid for the repairs for which Cross paid no out-of-pocket expenses.

¶5 When Cross called Bud Bauer as an expert to testify at trial, Littleton's attorney addressed the court:

Your Honor, before we get too far into this, I would like to interpose an objection. Mr. Bauer is being presented as an expert witness in this matter. Small claims court is not the proper venue for expert witnesses because no discovery is allowed. Under the Oklahoma Discovery Code, the only way to get information from expert witnesses is through the discovery code.

Because there is no discovery permitted in small claims court, it is legally and practically impossible for me to obtain in any of the traditional expert witness disclosures that typically come with an expert witness, such as a history of testimony, any scholarly or intellectual publication that they may have—may have either produced or reviewed that contributed to the report in the matter, any history of who he's done consultations or work for outside of testimonial purposes. None of that information has been provided, and I am not able to go actively seek it because there is no discovery permitted in small claims court.

So Defendant would object to any expert testimony being provided at this trial on the basis that it is patently unfair and prejudicial to the defendant to allow such testimony into evidence.

¶6 In response, Cross's attorney argued that Littleton's attorney had Bauer's report before the lawsuit was filed and had not sought further information about the expert witness or his testimony.

¶7 The trial court stated that, although it would like to finish the case that day, if Littleton would like to request a continuance, the trial court would entertain that request. Littleton's attorney said she would like to proceed, but maintain a standing objection.

¶8 Bauer testified good workmanship was used to repair the Tundra and he had no complaints about the work the body shop completed on the vehicle. He said that the average repair is 40 to 60 hours, but more than 100 hours were spent to repair the Tundra which "was a limited, which is top of the line, and four-wheel drive." He stated that the Tundra's preloss value was $35,906. Major damage to a vehicle "[l]imits the marketability about 60 percent," according to Bauer, because "[p]eople are scared to buy it." He said that major frame damage, as was the case here, diminished the vehicle's value. He propounded that a vehicle without major damage is worth more than one that had sustained major damage. This vehicle, he testified, has a diminished value of $7,181.12. Bauer, however, was able to find comparable trucks in other states, but not in Oklahoma, to help ascertain fair market value.

¶9 At the end of Cross's case, Littleton presented no witnesses or exhibits but demurred, asserting that Cross failed to present any evidence to support his claim. The trial court did not grant his motion, but proceeded to find Cross had sustained a loss of value for the Tundra which the court calculated by finding the Tundra was worth $32,280.35 before the accident and had lost 20% of its value due to the accident, as Bauer had testified. The court entered judgment of $6,456.07 in diminished value, attorney fees of $4,427.50, and costs of $284.14. Littleton appeals.¹

STANDARD OF REVIEW

¶10 "A trial court has discretion in deciding whether proffered evidence is relevant and, if so, whether it should be admitted, and a judgment will not be reversed based on a trial judge's ruling to admit or exclude evidence absent a clear abuse of discretion." Myers v. Missouri Pac. R.R. Co. , 2002 OK 60, ¶ 36, 52 P.3d 1014. "The determination of the competency of a witness to testify is a matter for the trial court's discretion." Morgan v. Morgan , 2019 OK CIV APP 5, ¶ 35, 438 P.3d 837.

¶11 "[W]hether Oklahoma law permits recovery for post-repair depreciation of chattel property, presents a question of law." Brennen v. Aston , 2003 OK 91, ¶ 7, 84 P.3d 99. "Questions of law stand before the appellate court for de novo review." Id .

¶12 Littleton asserts there was a total deficiency of evidence to support Cross's claim of diminished value, which relates back to Littleton's demurrer to the evidence. "A demurrer to the evidence or motion for directed verdict should be granted only if the party opposing the motion has failed to demonstrate a prima facie case for recovery." Gillham v. Lake Country Raceway , 2001 OK 41, ¶ 7, 24 P.3d 858. We apply a de novo standard of review to the trial court's denial of Littleton's request for judgment as a matter of law. See, e.g., Computer Publ'ns, Inc. v. Welton , 2002 OK 50, ¶ 6, 49 P.3d 732.

ANALYSIS

I. Expert Witness

¶13 Littleton asserts the trial court erred by allowing an expert witness to testify in a small claims action. We disagree. The Small Claims Act was intended "to establish an informal court, void of rigid restrictions with little or no regard to the technicalities pertaining to the rules of evidence, and the assumption by the judge of direct affirmative authority to control all aspects of a hearing with the sole object of dispensing speedy justice between the parties." Black v. Littleton , 1975 OK CIV APP 1, ¶ 5, 532 P.2d 486. To this end, the Act provides: "No depositions shall be taken or interrogatories or other discovery proceeding shall be used under the small claims procedure except in aid of execution." 12 O.S.2011 § 1760. In Black , the Court noted, "A method is provided for a defendant to invoke formal civil procedure. Therefore, this court must conclude that the judge in a small claims action has enormous discretionary power to render fair, impartial and speedy justice." Black , 1975 OK CIV APP 1, ¶ 7, 532 P.2d 486.

¶14 The method to invoke a formal procedure is transfer to another docket. Title 12 O.S. Supp. 2017 § 1757(A) provides that where a claim is for less than $7,500:

1. On motion of the defendant, a small claims action may, in the discretion of the court, be transferred from the small claims docket to another docket of the court; provided, that the motion is filed and notice is given by the defendant to the opposing party or parties by mailing a copy of the motion at least forty-eight (48) hours prior to the time fixed in the order for defendant to appear or answer; and provided, further, that the defendant deposit the sum of Fifty Dollars ($50.00) as the court cost; and

2. The motion to transfer shall be heard at the time fixed in the order and consideration shall be given to any hardship on the plaintiff, complexity of the case, reason for transfer, and other relevant matters. If the motion is denied, the action shall remain on the small claims docket.

¶15 If Littleton wanted "to invoke formal civil procedure" and undertake discovery regarding the expert witness and his opinion, he could have asked the court to transfer the case to another docket. Littleton's attorney knew that Cross planned to call Bauer as an expert witness because his attorney signed a joint motion for a continuance on the ground that the expert witness was unable to attend the scheduled hearing. The motion further set out that Bauer "was to provide testimony and authenticate evidence crucial to proving [Cross's] case." Having notice that Cross would call an expert witness to testify about the Tundra's diminished value, Littleton took no steps either to transfer the case to...