Pine Island RV Resort, Inc. v. Resort Management, Inc.

• Decision Date: 16 July 1996
• Docket Number: No. 83741,83741
• Citation: 1996 OK 83,922 P.2d 609
• Parties: PINE ISLAND RV RESORT, INC., a not for profit corporation, Appellee/Cross-Appellant, v. RESORT MANAGEMENT, INC. d/b/a Pine Island Resort Sales Company, and Richard M. Toohey, Appellees/Cross-Appellants, v. Federal Consumer Services, Inc., Appellant.
• Court: Oklahoma Supreme Court

Page 609

922 P.2d 609

1996 OK 83

PINE ISLAND RV RESORT, INC., a not for profit corporation, Appellee/Cross-Appellant, v. RESORT MANAGEMENT, INC. d/b/a Pine Island Resort Sales

Company, and Richard M. Toohey, Appellees/Cross-Appellants, v. Federal Consumer Services, Inc., Appellant.

No. 83741.

Supreme Court of Oklahoma.

July 16, 1996.

As Corrected July 24, 1996.

Kathy Lungren Baker, Grove, for Appellant Federal Consumer Services, Inc.

Erin Lanway, Grove, for Appellees/Cross-Appellants Resort Management, Inc.

Vivian C. Hale, Stuart D. Campbell, Tammy D. Barrett, Tulsa, for Appellee/Cross-Appellant Pine Island RV Resort, Inc.

HODGES, Justice.

I. ISSUES

The issues before this Court are (1) whether the trial court committed reversible error by failing to orally instruct the jury, and (2) whether the verdict is supported by the evidence. We find the trial court did not commit reversible error by failing to read the instructions to the jury and the verdict is supported by the evidence.

II. FACTS

In 1984, Quaker Life Insurance Company (Quaker Life) organized a real estate project known as Pine Island RV Resort, Inc. (Pine Island), a campground for campers and RV owners. Quaker Life had the right to sell memberships to Pine Island. Some of the memberships Quaker Life sold were financed under a contract. Quaker Life assigned its interest in these contracts to the Oxford Finance Companies, Inc. (Oxford). At the same time, Oxford acquired the right to sell a membership underlying a contract if the contract was cancelled.

Quaker Life went into receivership. In the summer of 1987, Resort Management, Inc. (RMI), a corporation owned by Richard Toohey (Toohey), purchased one-half of Pine Island's realty at a receivership sale. At the sale, he also purchased the exclusive right to sell approximately 2,207 unsold memberships.

In August, 1987, Pine Island and RMI entered into an agreement (1987 Contract) whereby RMI conveyed the real estate back to Pine Island in return for the "exclusive, continuous, and non-revocable right to sell all unsold and repossessed Pine Island memberships (approximately 2200 unsold)." RMI agreed to "provide all monies needed for the improvement or construction of the remaining unfinished sites" with Pine Island having approval of the improvements. Both parties agreed to cooperate in the sale of memberships and in the completion of the resort. The 1987 Contract was not assignable except with written consent of the parties.

RMI also agreed to abide by the by-laws, guidelines and rules of Pine Island Resort. Under the restrictive covenants, the sales company's right to sell memberships ceased on July 1, 1995, or when 99% of the authorized 4,066 memberships were sold. The restrictive covenants also provided that members could transfer their memberships for a $25.00 transfer fee. Members could not use the sales company's resources or efforts to sell their membership so long as the sales company had memberships for sale.

On February 11, 1991, Pine Island, RMI, and Oxford, who is not involved in this action, entered into an agreement to settle a law suit between RMI and Oxford. RMI agreed to sell one membership held by Oxford for every four memberships sold on RMI's behalf. Oxford agreed to pay Pine Island one year's back dues of $175.00 for each of its membership RMI sold.

On March 27, 1991, RMI assigned its rights and interest to Federal Consumer Service, Inc. (FCS). FCS assumed the responsibility for providing monies for the remaining unfinished sites.

Pine Island filed suit against RMI and Richard Toohey for damages of $20,000 for breach of contract for failing to pay for unfinished sites and $21,875 back dues owed Pine Island under the settlement agreement. Pine Island also sought to enjoin RMI and its assigns from selling memberships and alleged RMI and its assigns had used poor sales tactics resulting in damage to Pine Island's reputation and a loss of memberships.

RMI filed a counterclaim alleging damages for breach of contract by interfering with sales and for tortious interference with a contract. FCS intervened and filed a petition seeking damages against Pine Island for tortious interference with a contract and an injunction preventing Pine Island from obstructing sales.

After the parties presented their evidence, the attorneys met in chambers and discussed the jury instructions. Pine Island alleges that the parties, while in chambers and without the court reporter, waived the reading of the instructions. The record shows Associate District Judge Larry Oakes returned to the courtroom and announced to the jury in open court as follows:

All right, ladies and gentlemen, in chambers counsel and parties agreed, given the length of this trial and the fact that we have about sixty some pages of instructions here, rather than have me spend about 45 minutes or an hour reading all of those to you, you are going to get a copy of them sent up with you anyway, so I will just send up a copy of instructions and we will proceed and hearing closing argument from counsel, proceeding with Mr. Campbell.

None of the parties objected to the instructions or took exception to the judge's statement that the parties had waived the reading of the instructions.

Based on the jury's verdicts, judgment was entered. The journal entry stated that the jury returned the following verdicts: (1) RMI should no longer be allowed access to Pine Island to sell memberships; (2) for RMI's failure to pay Pine Island monies under the 1987 Contract, Pine Island is awarded $10,000 in damages against RMI; (3) for RMI's failure to pay Pine Island monies under the settlement agreement, Pine Island is awarded zero damages; (4) for Pine Island's breach of contract, RMI and Richard Toohey are awarded $5,000 in damages against Pine Island; (5) for Pine Island's interference with contractual rights, RMI and Richard Toohey are awarded $20,000 in actual damages and $20,000 in punitive damages; (6) for Pine Island's tortious interference with FCS's business relations, FCS is awarded zero damages; and (7) for RMI's breach of contract, FCS is awarded zero damages.

FCS appealed and RMI filed a cross-appeal. On appeal, FCS presents three propositions of error: (1) The jury verdict is internally inconsistent in that the jury found for FCS on the tortious interference with a contract but awarded zero damages; (2) The verdict in favor of Pine Island and against RMI is not supported by the evidence; and (3) The verdict denying RMI and its assigns (FCS) access to Pine Island to sell memberships is contrary to the evidence. RMI presents an additional two errors: (1) The damages set out in the verdicts granting RMI judgment against Pine Island for $5,000 for breach of contract and $40,000 for tortious interference with a contract are inadequate; and (2) the Court committed reversible error by not reading the jury instructions in open court. The Court of Appeals reversed the trial court's judgment finding that the trial court committed fundamental error by failing to read the jury instructions in open court. We granted certiorari.

III. READING OF THE JURY INSTRUCTIONS

RMI argues the court committed fundamental error by not reading the jury instructions to the jury in open court. It further argues the record does not reflect that it expressly waived the reading of the instructions as the judge stated. Initially, we note our disapproval of a judge delivering the jury instructions without reading them in open court. However, we disagree that the judge committed reversible error.

The judge stated that because of the length of the instructions, the parties had agreed to their not being read. There was no objection to this statement. Thus, the record is clear that the parties not only failed to object to the procedures but expressly waived the reading of the instructions to the jury.

Where a party fails to object to actions of the trial court, this Court will review the actions only for fundamental error. Sellars v. McCullough, 784 P.2d 1060, 1063 (Okla.1989). "Fundamental error is narrowly defined as a substantial misstatement of a fundamental legal principle which appears on the face of the instructions." Wetsel v. Independent School District I-1, 670 P.2d 986, 995 (Okla.1983). Unlike the statutory provisions of the order of trial proceedings in criminal cases, Okla. Stat. tit. 22, § 831 (1991), peremptory statutory requirements in civil cases do not mandate that the judge orally instruct the jury. Okla. Stat. tit. 12, § 577 (1991). Thus, the trial judge did not commit fundamental error by failing to read the instructions to the jury.

In addition, we find this Court's reasoning in Ferrell v. State ex rel. Dep't of Highways, 387 P.2d 129 (Okla.1963), appropriate here. "A party on appeal in the Supreme Court will not be permitted to secure a reversal of a judgment upon an error which he has invited and acquiesced in, or assume a position inconsistent with that taken in the trial court." Id. at 132 (quoting Dills v. Calloway, 175 Okla. 395, 52 P.2d 707, 709 (1935)). "The parties may make such stipulations as to the trial as are not in contravention of peremptory requirements of law or rules of court." Id. (quoting 83 C.J.S. Stipulations § 10(10)). "Parties may bind themselves by stipulation as to the instructions and verdict if the stipulation is not in contravention of peremptory statutory requirements." Id. at 133 (quoting 83 C.J.S. Stipulations § 10(11)).

RMI's argument that the jury's award in its favor and against Pine Island for breach of contract and tortious interference with a contract is inadequate "is essentially an argument that the jury award was the result of fundamental error" because the jury was not...