Quiktrip Corp. v. Abatement Sys., Inc.
| Decision Date | 09 March 2012 |
| Docket Number | No. 108,509.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,108,509. |
| Citation | 2012 OK CIV APP 54,281 P.3d 250 |
| Parties | QUIKTRIP CORPORATION, Plaintiff/Appellant, v. ABATEMENT SYSTEMS, INC., Defendant/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Tulsa County, Oklahoma; Honorable Mary Fitzgerald, Trial Judge.
AFFIRMED.
Scott F. Lehman, Mark T. Steele, Brian J. Goree, Ambar I. Malik, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant.
Michael L. Carr, Jane R. Cowdery, Aaron J. Goodman, Holden & Carr, Tulsa, Oklahoma, for Defendant/Appellee.
¶ 1 Plaintiff, QuikTrip Corporation (QT), appeals a jury verdict finding in favor of Defendant, Abatement Systems, Inc. (ASI), on Plaintiff's breach of contract claim and finding in favor of ASI on its breach of contract counterclaim. After review of the record and relevant law, we affirm the rulings of the trial court.
FACTS AND PROCEDURAL BACKGROUND
¶ 2 On May 31, 2007, ASI entered into an Asbestos Abatement Contract with the then-owner of the Camelot Hotel, Maharishi Ayur–Veda University, Inc. On June 26, 2007, Maharishi Ayur–Veda University, Inc., executed an Assignment of Asbestos Abatement Contract to QT, which had purchased the Camelot Hotel property, intending to demolish it to construct a convenience store on the site. On July 17, 2007, ASI and QT signed the “First Amendment to Asbestos Abatement Contract” which provided that ASI would also be responsible for “cleaning, abating and/or remediating all furniture, carpet, debris and moveable objects ... and then move the same to a location onsite that is agreeable to [QT].” 1 Pursuant to the Contract and the Amendment, ASI was to provide asbestos abatement services on the demolition site, including removal of debris from the hotel's interior.
¶ 3 On September 18, 2007, ASI employees were at the Camelot Hotel performing asbestos abatement and other related activities as defined by the Contract when a fire occurred on the hotel premises damaging the property. According to its petition, QT claims “[t]hat as a direct result of ASI's actions or inactions, a fire broke out that afternoon at the Camelot Hotel in an area under the exclusive control and management of ASI employees causing substantial damage to the property.” QT alleges ASI “breached the terms and provisions of the Contract when ASI failed to conduct its operations in such a manner that no undue hazard would result.” QT further asserts that because of ASI's breach, “a fire broke out at the Camelot Hotel which significantly damaged the structure and substantially increased the overall costs to [QT] on the project.” QT also stated a claim for “res ipsa loquitur-inference of negligence” against ASI, contending that the fire occurred in an area under the exclusive control of ASI employees and was the kind that would not ordinarily have taken place in the absence of negligence.
¶ 4 ASI answered, denying QT's breach of contract and negligence allegations, and filed a counterclaim alleging QT breached the Contract by failing to pay ASI the remaining sum owed in the amount of $20,500 after ASI fully performed the contract. QT denied these allegations.
¶ 5 ASI also filed a third-party petition against D–T Specialized Services, Inc. (D–T), who had contracted with QT to provide demolition services and to remove debris from the site. ASI claimed that D–T employees were working on the premises when the fire broke out and that the fire resulted from their “actions and/or inactions” in failing to remove from the site the debris which caused the fire. ASI claimed that as a direct result of D–T's employees' negligence, D–T should be liable to ASI for indemnity and/or contribution for any damages assessed against ASI associated with the Camelot Hotel fire. D–T denied its employees were negligent. Even if found to be negligent by virtue of its employees' actions or inactions, D–T further denied its negligence caused ASI's damages, if any.
¶ 6 In an order filed May 13, 2010, the trial court dismissed D–T without prejudice as a party to this lawsuit. Before trial, QT dismissed without prejudice its negligence claim against ASI but proceeded to trial with its breach of contract claim against ASI.
¶ 7 At the trial's conclusion, the jury returned two unanimous verdicts: one in favor of ASI on QT's breach of contract claim and one in favor of ASI on its breach of contract counterclaim, awarding ASI $18,500 in damages. The trial court further awarded “prejudgment interest from 1–1–08 to 5–19–10 in the amount of $2,760.53, for a total of $21,260.53, plus post-judgment interest thereon at the rate allowed by law.” The trial court also awarded ASI costs and attorney fees to be determined upon application.
¶ 8 QT appeals.
STANDARD OF REVIEW
¶ 9 We review the denial of a motion for directed verdict de novo. Computer Publ'ns, Inc. v. Welton, 2002 OK 50, ¶ 6, 49 P.3d 732, 735. “Regarding as true all evidence favorable to the non-moving party and all reasonable inferences drawn therefrom, and disregarding all evidence favorable to the moving party, we must affirm the denial unless there is an entire absence of proof on a material issue.” Id. “Similarly, considering all the evidence tending to support the verdict together with every reasonable inference deducible therefrom, and rejecting all evidence adduced by the adverse party which does not support the verdict, we must affirm a jury verdict if there is any competent evidence reasonably tending to support it.” Id.
¶ 10 “The test of reversible error in giving jury instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered had the errors not occurred.” Taliaferro v. Shahsavari, 2006 OK 96, ¶ 25, 154 P.3d 1240, 1248.
¶ 11 “Whether a contract term is ambiguous so as to require extrinsic evidence to determine the intent of the parties is purely a question of law for the court.” Ahlschlager v. Lawton Sch. Dist., 2010 OK 41, ¶ 19, 242 P.3d 509, 515. “ ‘The construction of an unambiguous contract is a matter of law for the court.’ ” Id. (quoting Ferrell Constr. Co. v. Russell Creek Coal Co., 1982 OK 24, ¶ 9, 645 P.2d 1005, 1007).
¶ 12 “The admission and exclusion of evidence is within the sound discretion of the trial court.” King v. King, 2009 OK CIV APP 49, ¶ 21, 212 P.3d 1232, 1237. “We will not reverse evidentiary decisions of the trial court absent an abuse of discretion which results in prejudice to the proponent.” Id.
ANALYSIS
¶ 13 QT first argues the trial court erred in denying its motion for directed verdict on its breach of contract claim. In its answer brief, ASI asserts QT failed to preserve for appellate review a challenge to the sufficiency of the evidence to support the verdict because QT did not move for directed verdict for breach of contract “at the end of its own evidence or at the end of [ASI's] evidence.” Hebble v. Shell W. E & P, Inc., 2010 OK CIV APP 61, ¶ 15, 238 P.3d 939, 945 ().
¶ 14 A review of the trial transcript shows QT properly moved for a directed verdict after ASI rested by stating the following: “At this time, Your Honor, [QT] would move for a directed verdict on its claim of breach of contract for the reasons we've previously stated.” In response, the trial court found as follows: Given this record, we conclude the issue was properly preserved for appellate review and proceed to the merits of this issue.
¶ 15 In order to recover in a breach of contract action, QT must prove: “1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the breach.” Digital Design Grp., Inc. v. Information Builders, Inc., 2001 OK 21, ¶ 33, 24 P.3d 834, 843;see also Oklahoma Uniform Jury Instructions (OUJI)—Civil Instruction 23.1.
¶ 16 As to the formation of a contract, QT and ASI do not dispute they were parties to the Asbestos Abatement Contract after the contract had been assigned to QT by Maharishi Ayur–Veda University, Inc., in connection with the sale of the property to QT. It is also not disputed that QT and ASI then entered into the “First Amendment to Asbestos Abatement Contract” which, among other things, enlarged ASI's removal duties and extended the contract completion date from September 1, 2007, to September 21, 2007.
¶ 17 QT alleged ASI breached paragraph 10 of the Contract which states as follows:
The Contractor shall conduct its operations in such a manner that no undue hazard will result due to the requirements of this Section, and the language in this Section shall in no way act as a waiver of any of the terms of the liability of the Contractor or its surety.
According to QT, ASI breached this provision by failing to “conduct its operations in such a manner that no undue hazard will result” which caused QT's damages resulting from the fire. QT points to the testimony it presented at trial from Steve Fulps, vice-president and co-owner of ASI, who testified the debris stacked against the wall was a fire hazard.
¶ 18 In response, ASI also relies on the expanded version of the same testimony by Fulps in which he states that although the debris stacked against the wall created a fire hazard, he believes it was the failure of another contractor, D–T, that created the hazard. Fulps testified as follows:
Q. Okay. And it's your opinion that when this debris stacked up on that cabana roof and was against the wall of the hotel, you believed that was a fire hazard,...
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