Hayes v. Northeast Oklahoma Electric Cooperative, Inc

Decision Date23 July 2021
Docket NumberCase No. 118,868
Citation512 P.3d 1261
Parties Mack Coy HAYES, OkeOzark Wine, LLC, an Oklahoma Limited Liability Company, Roy Dale Kelly, and Dan J. Cagle and Virginia Karen Faudi, Co-Trustees of the John William Cagle and Maxine Cagle Revocable Trust Dated April 19, 2005, Plaintiffs/Appellants, v. NORTHEAST OKLAHOMA ELECTRIC COOPERATIVE, INC., and Northeast Rural Services, Inc., Defendants/Appellees.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Johnny G. Beech, Courtney D. Powell, Oklahoma City, Oklahoma, Charles B. Cowherd, Derek A. Ankrom, SPENCER FANE LLP, Springfield, Missouri, For Plaintiffs/Appellants,

Richard E. Hornbeck, Lane M. Claussen, HORNBECK VITALI & BRAUN, P.L.L.C., Oklahoma City, Oklahoma, For Defendants/Appellees.

OPINION BY THOMAS E. PRINCE, JUDGE:

¶1 This case concerns alleged damages to trees, vines, hay and crops. Plaintiffs/Appellants, Mack Coy Hayes, OkeOzark Wine, LLC, Roy Dale Kelly, and Co-Trustees of the Cagle Revocable Trust ("Plaintiffs"), appeal judgments rendered in favor of Defendants/Appellees, Northeast Oklahoma Electric Cooperative, Inc. and Northeast Rural Services, Inc. ("Defendants" or "NEOEC" and "NRS"). Plaintiffs alleged that their property was damaged and profits were lost as a result of Defendants' trespassing and negligence. NEOEC is a not-for-profit cooperative and NRS is a subsidiary of NEOEC. In order to protect their equipment, Defendants must cut, trim, or use pesticides to kill trees and brush that could damage their power lines. During September of 2014, Defendants sprayed herbicide on or near Plaintiffs' land in order to maintain their power line rights of way. Plaintiffs averred that when Defendants sprayed the herbicide, they did so negligently and allowed the herbicide to drift onto Plaintiffs' property. Plaintiffs further alleged that their property was damaged or destroyed as a proximate cause of Defendants' actions.

¶2 Prior to trial, the trial court granted summary judgment in favor of NRS. During trial, the trial court granted a directed verdict dismissing OkeOzark's claim for damages. After approximately twelve days of trial, a jury rendered a verdict in favor of NEOEC. Plaintiffs filed a motion for new trial which was denied. Defendants were awarded attorney's fees and costs in the amount of $375,192.25. We find that the trial court committed error by admitting into evidence the ODA Reports that constituted inadmissible hearsay. As a result, we reverse the decision granting summary judgment to NRS. We affirm the directed verdict against OkeOzark. We vacate the jury verdict in favor of NEOEC, and we vacate the award of attorney fees and costs in the amount of $375,192.25. Regarding the jury instructions, we find that it was error for the trial court to refuse to provide a separate verdict form on the theory of ultrahazardous or abnormal activity, but not error to refuse a verdict form with respect to wrongful injury to timber or to instruct on the theory of res ipsa loquitur . The matter is remanded to the trial court for a new trial.

BACKGROUND

¶3 On September 3, 5, 9, and 10, 2014, Tyson Hessee, an employee of NEOEC, sprayed chemicals in an area adjacent to Plaintiffs' property in order to maintain Defendants' power line rights of way. The chemicals applied by Mr. Hessee were a mixture of Tordon K, Garlon 3 A, and Milestone. The active ingredients that could have damaged Plaintiffs' property were picloram and triclopyr. Plaintiffs own a total of approximately 230 acres of land. Mack Coy Hayes owns approximately 160 acres and leased another 50 acres from the Cagle Trust. On that land Mr. Hayes had an orchard and a vineyard that covered approximately 15 acres. Other land in his possession was utilized for hay and pasture land. During September of 2014, Mr. Hayes noticed a change in his vineyard. After discovering that the electric cooperative applied chemicals nearby, Mr. Hayes called NEOEC on September 10, 2014, to complain. On September 12, 2014, Mr. Hayes made a complaint to the Oklahoma Department of Agriculture ("ODA"). The Department of Agriculture investigated the complaint and collected samples from Mr. Hayes's property on September 16, 2014.

¶4 Mr. Hayes initially filed a lawsuit in federal court during October of 2014, but he dismissed that lawsuit approximately two weeks later. The Cagle Trust and Roy Dale Kelly subsequently made complaints to the ODA and the ODA collected samples from their land during November or December of 2014.

¶5 Plaintiffs filed the instant action on August 24, 2016. In their Petition, Plaintiffs claimed that Defendants did not apply the chemicals properly and, as a result, the chemicals drifted onto Plaintiffs' land and destroyed their property. Plaintiffs alleged that they lost trees, vines, hay and crops as a direct result of Defendants' negligent behavior and trespass. Hayes asserted that his entire vineyard had to be replaced as a result of Defendants' actions.

¶6 On September 20, 2017, NRS filed a Motion for Summary Judgment and claimed that it owed no duty to Plaintiffs and, therefore, that NRS arguably should be awarded summary judgment. NRS claimed that it was not involved with the application of chemicals to the rights of way near Plaintiffs' property during September of 2014. NRS alleged that Tyson Hessee was an employee of NEOEC. According to NRS, NEOEC performed its own herbicide applications during 2014. As a result, NRS argued that it should be granted summary judgment as a matter of law.

¶7 Plaintiffs responded and alleged that NRS is a subsidiary of NEOEC. NRS had a contract with NEOEC, which provided that NRS agreed to "furnish all labor, tools, transportation, and equipment necessary" to conduct foliar applications during 2014. In addition, all of the herbicide application equipment used in the spraying incident was owned, maintained, and stored by NRS. Mr. Hessee completed his "Job Briefing Check List" on NRS forms and letterhead. Mr. Hessee was under direction to report to NRS in the event of a problem or emergency. Mr. Hessee's safety director was an employee of both NEOEC and NRS. Plaintiffs alleged that there was substantial evidence of a joint venture between NEOEC and NRS and that, at a minimum, there was a genuine issue of fact as to whether NRS was involved in a joint venture. The trial court granted summary judgment in favor of NRS.

¶8 Prior to trial, Plaintiffs filed a motion in limine seeking to exclude from evidence the results of laboratory tests conducted by the ODA (i.e., labeled as "Pesticide Analysis Report[s]" by the "Oklahoma Department of Agriculture, Food & Forestry." R. at 1746-1758. ("ODA Reports"). The samples collected by the Department of Agriculture from Plaintiffs' property during 2014, were tested and the test results indicated that there were no chemicals present on Plaintiffs' property. Defendants' Ex.'s D7-39, D7-41, D7-43, D7-45, D48-21 & D49-24. The ODA Reports specifically concluded that "no residue [had been] detected". Consequently the ODA reports refuted the claims of the Appellants that herbicides applied by the Defendants damaged their properties.

¶9 Defendants claimed that the ODA Reports were self-authenticating under 12 O.S. § 2901(B)(7). Defendants further claimed that three witnesses would be available at trial to testify regarding the ODA Reports. Steven Moser was the individual that performed the testing on the samples collected during September of 2014. Another individual, Emily Curry, tested the samples that were subsequently obtained as a result of complaints made by Mr. Kelly and the Cagle Trust. Michael Vandeventer was the Program Administrator who could interpret the ODA Reports and testify regarding the testing process. However, Mr. Vandeventer was not involved with the testing. Kenneth Newton was the individual who collected the samples but he also was not involved with the testing process.

¶10 Mr. Moser passed away before trial commenced. The trial court ruled that the ODA Reports could be admitted into evidence as long as Tanna Hartington, Mr. Moser's replacement, would testify that the ODA Reports were a "business record of the Department of Agriculture." September 16, 2019 Tr. at 358-360 & 417-420. Appellants argue on appeal that it was error for the trial court to admit the ODA Reports into evidence because they constitute hearsay.

¶11 After presentation of all of the evidence, Defendants sought a directed verdict against OkeOzark Winery. OkeOzark was a winery owned by Mack Coy Hayes's girlfriend, Ausline Palmer. The winery did not have any ownership interest in the vineyard located on Mr. Hayes's land. However, Ms. Palmer testified that OkeOzark lost profits in the amount of $50,000.00 as a result of the damage to the vineyard. The trial court stated:

There is a matter of housekeeping that I've addressed in chambers in regard to the demurrer to the evidence in regard to OkeOzark Winery. The Court has determined that that should be granted. My grounds for that were I determined that it would be a double recovery in regard to my understanding that OkeOzark is the winery and that the grapes that would be provided that might be damages would be those that Mack Hayes already has a claim in this case for.

¶12 The jury entered a verdict in favor of NEOEC. Plaintiffs filed a motion for new trial, which was denied by the trial court. The trial court awarded Defendants attorney fees and costs in the amount of $375,192.25. This appeal followed.

STANDARD OF REVIEW

¶13 This appeal involves issues stemming from the grant of summary judgment, a directed verdict, the admission of evidence purportedly as being excepted from the hearsay rule, both the issuance of and the refusal of certain jury instructions, a motion for new trial, and an award of attorney fees and costs. A trial court's grant of summary judgment is reviewed de novo . In Re Estate of MacFarline , 2000 OK 87, ¶3, 14 P.3d 551,...

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