Osterhout v. Bd. of Cnty. Comm'rs of Leflore Cnty.

• Decision Date: 24 August 2021
• Docket Number: Nos. 20-7024 & 20-7025,s. 20-7024 & 20-7025
• Citation: 10 F.4th 978
• Parties: Chad E. OSTERHOUT, Plaintiff - Appellee, v. BOARD OF COUNTY COMMISSIONERS OF LEFLORE COUNTY, OKLAHOMA, Defendant - Appellant, and Kendall Morgan, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

10 F.4th 978

Chad E. OSTERHOUT, Plaintiff - Appellee,

v. BOARD OF COUNTY COMMISSIONERS OF LEFLORE COUNTY, OKLAHOMA, Defendant - Appellant,andKendall Morgan, Defendant - Appellant.

Nos. 20-7024 & 20-7025

United States Court of Appeals, Tenth Circuit.

FILED August 24, 2021

Michael Lee Carr (Wellon B. Poe with him on the briefs), Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, on behalf of the Defendant-Appellant Board of County Commissioners of LeFlore County, Oklahoma.

James L. Gibbs (Seth D. Coldiron with him on the briefs), Goolsby, Proctor, Heefner & Gibbs, P.C., Oklahoma City, Oklahoma, on behalf of the Defendant-Appellant Kendall Morgan.

Robert Blakemore (Daniel E. Smolen and Bryon D. Helm with him on the brief), Smolen & Roytman, Tulsa, Oklahoma, on behalf of the Plaintiff-Appellee.

Before HOLMES, BACHARACH, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Kendall Morgan, a former deputy sheriff for LeFlore County, conducted a traffic stop of Mr. Chad E. Osterhout. During the traffic stop, Mr. Morgan struck Mr. Osterhout in the face¹ and kicked him twice in the ribs. According to Mr. Morgan, Mr. Osterhout was trying to flee; Mr. Osterhout says that he remained still with his hands raised.

Mr. Osterhout sued Mr. Morgan and the Board of County Commissioners of LeFlore County, Oklahoma. Against Mr. Morgan, Mr. Osterhout invoked 42 U.S.C. § 1983 for a claim of excessive force.

Against the Board, Mr. Osterhout invoked the Oklahoma Governmental Tort Claims Act, claiming negligent use of excessive force.²

The jury attributed liability to Mr. Morgan and the Board, awarding Mr. Osterhout

• $3 million in compensatory damages against both defendants and

• $1 million in punitive damages against Mr. Morgan.

Mr. Morgan moved for a new trial or remittitur of damages. The district court remitted the compensatory damages to $2 million, but denied the motion for a new trial. Both defendants appealed.

The Board and Mr. Morgan argue that the district court abused its discretion by using a verdict form with a single total for compensatory damages. And the Board argues that

• the district court erred in denying summary judgment because the notice had been defective and Mr. Morgan's alleged force would have fallen outside the scope of his employment,

• the jury acted inconsistently by assessing punitive damages and finding that Mr. Morgan had acted within the scope of his employment,

• the verdict against the Board conflicted with the clear weight of the evidence, and

• the award of compensatory damages was grossly excessive.

Mr. Morgan argues that

• the district court should have granted a new trial based on opposing counsel's misconduct,

• the compensatory damages were grossly excessive and unsupported by the evidence, and

• the punitive damages were grossly excessive.

We affirm.

I. Mr. Osterhout provided adequate notice of his claim against the Board under the Oklahoma Governmental Tort Claims Act.

On the state-law claim, the Board unsuccessfully sought summary judgment based on the inadequacy of Mr. Osterhout's notice.

A. In his notice, Mr. Osterhout used his attorney's contact information.

Mr. Osterhout sued the Board under the Oklahoma Governmental Tort Claims Act. Under the Act, Mr. Osterhout needed to file a written notice of claim with the Board. Okla. Stat. tit. 51, § 156(B), (D) ; see Okla. Stat. tit. 51, § 157(A) (stating that a claimant cannot sue until the claim is denied). The notice had to state

... the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name , address , and telephone number of the claimant , the name, address, and telephone number of any agent authorized to settle the claim, and any and all other information required to meet the reporting requirements of [a specified federal statute].

Okla. Stat. tit. 51, § 156(E) (emphasis added).

Mr. Osterhout submitted a notice, omitting his own contact information but including his attorney's. The Board seized on the omission of Mr. Osterhout's own address and telephone number, urging summary judgment despite the inclusion of the attorney's contact information. The district court declined to grant summary judgment, reasoning that

• the Act does not require strict compliance and

• Mr. Osterhout had substantially complied with the notice requirements.

The Board challenges this reasoning.³

For these challenges, we conduct de novo review. See Gutteridge v. Oklahoma , 878 F.3d 1233, 1243 (10th Cir. 2018). Summary judgment is appropriate if there are no disputes involving a material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

B. Mr. Osterhout complied with the notice requirements.

The Board argues that the notice was incomplete because it omitted Mr. Osterhout's home address and telephone number. We disagree.

The Oklahoma Supreme Court has taken a practical approach to the statutory notice requirements. See McWilliams v. Bd. of Cnty. Comm'rs , 268 P.3d 79, 85 (Okla. 2011) (rejecting a "hyper-technical application" of the Act's notice requirements in favor of a "more reasoned approach sounding in equity"). For example, in interpreting the statute, the Oklahoma Supreme Court addressed the requirement that "[a] claim against a political subdivision shall be ... filed with the office of the clerk of the governing body." I.T.K. v. Mounds Pub. Schs. , 451 P.3d 125, 134 (Okla. 2019) (quoting Okla. Stat. tit. 51, § 156(D) ). There the plaintiff was suing a school district, so the statute required him to file with a clerk for the school district. Id. at 129. But the plaintiff filed with the school superintendent rather than a clerk. Id.

In I.T.K. v. Mounds Public Schools , the Oklahoma Supreme Court recognized the duty to file, but acknowledged the statute's flexibility as to the manner of filing: "[B]ecause the manner of filing with the clerk's office is not statutorily specified as mandatory ," "a superintendent is a proper recipient for notice when the superintendent's managerial duties require both representing the board and transmitting to a clerk for filing any financial claims against the school district." Id. at 136–37, 142 (emphasis in original).

The Oklahoma Supreme Court's reasoning guides us here. The statute requires inclusion of the claimant's address and telephone number, but doesn't spell out which address or telephone number. Do claimants need to use their own residences, or can they use the office of a representative (like an attorney)?

Like a school superintendent in I.T.K. , an attorney must communicate information to another person (the claimant), ensuring an opportunity for communication between the claimant and the governing body. See Okla. Stat. tit. 5, ch. 1, app. 3-1, R. 1.4(a)(1). Indeed, a claimant represented by counsel should generally be contacted only through counsel. Id. at R. 4.2. So counsel's contact information sufficed for disclosure of the claimant's address and telephone number.

The Board cites Griffey v. Kibois Area Transit System , 328 P.3d 687 (Okla. Civ. App. 2013), where the Oklahoma Court of Civil Appeals stated that a letter with only the attorney's contact information "may not have complied with § 156(E)." Id. at 689. But the Griffey court's statement provides little guidance for two reasons.

First, after Griffey , the Oklahoma Supreme Court has twice addressed § 156. I.T.K. v. Mounds Pub. Schs., 451 P.3d 125 (Okla. 2019) ; Grisham v. City of Oklahoma City , 404 P.3d 843, 849 (Okla. 2017). Both times, the Oklahoma Supreme Court rejected Griffey ’s reasoning, "declin[ing] to make attributes of notice to be mandatory when the Legislature has not done so." I.T.K. , 451 P.3d at 136–37 ; Grisham , 404 P.3d at 848–49.

Second, the Griffey statement constitutes only ambiguous dicta because the court ultimately concluded that the claimant's letter had "clearly contained" all of the statutory information. Griffey , 328 P.3d at 689–90. So Griffey does not require us to reject a notice just because the claimant used the contact information for his attorney's office.

The Board also argues that Mr. Osterhout could not use his counsel's information as his own because § 156(E) separately requires the name, address, and telephone number of "any agent authorized to settle." Okla. Stat. tit. 51, § 156(E). The Board apparently assumes that this requirement would cover the claimant's attorney. But under Oklahoma law, an attorney can ordinarily settle a claim only if authorized by the client. See Badillo v. Mid Century Ins. Co. , 121 P.3d 1080, 1096 (Okla. 2005) (stating that an attorney generally lacks "power or authority to ... settle a case without appropriate authority from the client"). So the notice doesn't require information about the attorney in the absence of a delegation of settlement authority.

* * *

Given the flexibility in the statute, claimants can satisfy the duty to provide an address and telephone number by using their attorneys’ contact information.

C. Even if Mr. Osterhout had not strictly complied with the notice provisions, he had substantially complied.

Even in the absence of strict compliance, Mr. Osterhout's substantial compliance would have sufficed.

1. Oklahoma law recognizes substantial compliance.

Oklahoma has "consistently recognized that substantial compliance with the notice provisions of the Act is sufficient when the political subdivision is not prejudiced and the provided information satisfies the purposes of the statutory notice requirement." Mansell v. City of Lawton , 901 P.2d 826, 830 (Okla. 1995).

The Board argues that substantial compliance no longer applies to the statutory notice requirements, pointing to Shanbour v. Hollingsworth, 918 P.2d 73 (Okla. 1996). There the court stated that "compliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 are prerequisites to the state's consent to be sued and to the exercise of judicial power...