Triton Coal Co., Inc. v. Mobil Coal Producing, Inc.

• Decision Date: 07 November 1990
• Docket Number: No. 89-233,89-233
• Citation: 800 P.2d 505
• Parties: TRITON COAL COMPANY, INC., Appellant (Plaintiff), v. MOBIL COAL PRODUCING, INC., Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 505

800 P.2d 505

TRITON COAL COMPANY, INC., Appellant (Plaintiff), v. MOBIL COAL PRODUCING, INC., Appellee (Defendant).

No. 89-233.

Supreme Court of Wyoming.

Nov. 7, 1990.

Patrick R. Day, Holland & Hart, Cheyenne; Joseph W. Halpern, Holland & Hart, Denver, Colo., and Thomas A. Nicholas, III, Hirst & Applegate, Cheyenne, for appellant.

Stephen J. Sorensen, Richmond, Va., Joseph W. Kennedy, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., and Thomas E. Lubnau, II, Lubnau & Lubnau, Gillette, for appellee.

Before CARDINE, C.J., ^* and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

THOMAS, Justice.

The essential questions that must be resolved in this case relate to a claim of error for giving an instruction to which no formal objection was lodged at the appropriate time in the trial proceeding and to a claim of error for failure to give an instruction that was withdrawn. The issues are whether, in either instance, the appellant, Triton Coal Company, Inc. (Triton), developed a record that justifies this court in considering the claimed error or, in the alternative, whether the plain error doctrine permits this court to review the claims of error. Triton and Mobil Coal Producing, Inc. (Mobil), appellee, own and operate coal mines near Gillette, Wyoming. Triton, as the plaintiff, alleged that Mobil committed tortious interference with a contract between Triton and Western Farmers Electric Cooperative (Western Farmers), an Oklahoma utility that was a Triton coal customer. The case was tried to a jury, and the jury returned a verdict for Mobil effectively finding that Mobil had not interfered with Triton's contract with Western Farmers. Triton has endeavored to pique the interest of this court with suggestions of interesting substantive matters that could have resulted in a different determination by the jury. We conclude, however, that there is no justification presented for reversing the judgment entered on the jury verdict because Rule 51, W.R.C.P., controls the disposition of the claimed instructional errors, and there is no reason to apply the plain error doctrine pursuant to Rule 7.05, W.R.A.P. We affirm the judgment of the district court.

In its opening brief, Triton presents the issues on appeal in this way:

"1. Whether the trial court erred in submitting Instruction 7 to the jury, because that instruction erroneously endorsed Mobil's legally unsupportable theory that Triton's contract with WFEC ceased to exist when Triton filed an action for specific performance seeking to enforce that contract?

"2. Whether the trial court erred in refusing to submit Triton's Proposed Instruction 12 to the jury, which would have properly instructed the jury that * * * [Mobil's] own competitive interest in seeking prospective economic advantage did not constitute, as a matter of law, justification for interfering with Triton's preexisting contract rights?

"3. Whether these two erroneous rulings on jury instructions prejudiced Triton's substantial rights, because a properly instructed jury might have concluded both that Mobil's conduct was improper and that Mobil's conduct caused WFEC to breach its contract with Triton?

"4. Whether the trial court erred in denying Triton's motion for judgment notwithstanding the verdict, to alter or amend the judgment, or for new trial?"

Mobil sets forth the issues in this way:

"1. Whether Triton can base any claim of error on the giving of Instruction No. 7, when it drafted a substantial part of the instruction, consented to the instruction, and did not object to the instruction.

"2. Whether Triton can base any claim of error on the trial court's failure to give an instruction proposed by Triton but affirmatively withdrawn by Triton at the instruction conference.

"3. Whether Triton can legitimately satisfy any of the elements of the 'plain error' doctrine embodied in Wyoming Rules of Appellate Procedure 7.05.

"4. Whether Triton's failure to move for a directed verdict at the close of all the evidence precludes Triton's assigning as error the trial court's overruling of its motion for judgment n.o.v."

In resolving the case, we first dispose of the questions of proper preservation of the instructional issues on the record so that those issues can be reviewed. We then address the application of the plain error doctrine to this situation as an alternative premise for considering the claims of error.

In 1977, Triton and Western Farmers entered into a sales contract pursuant to which Triton was to supply coal from its Buckskin Mine near Gillette to Western Farmers' power plant located at Hugo, Oklahoma. ¹ The contract provided that Triton would begin delivering coal to Western Farmers on October 1, 1981, and it would continue until Triton had delivered 18 million tons of coal or until the termination date of December 31, 1996. It was expected that Triton would deliver to Western Farmers approximately 1.2 million tons of coal each year. By amendment in 1982, price concessions were granted to Western Farmers in exchange for its agreement that Triton would provide all of Western Farmers' coal needs.

In July of 1984, Western Farmers notified Triton of its intention to quit purchasing Triton coal because of its inability to obtain transportation at a reasonable cost. On July 27, 1984, Triton instituted an action in the United States District Court for the District of Wyoming in which it alleged that Western Farmers was in "total breach" of the contract, and it sought specific performance. That suit was settled by the parties in January of 1986. In the meantime, Western Farmers purchased coal from Mobil for almost a year. The settlement agreement between Western Farmers and Triton required Western Farmers to resume purchasing Triton coal and to pay Triton approximately $8.36 million which represented the difference between what Western Farmers had paid Mobil, for coal purchased from Mobil between February, 1985 and the date of settlement, and the amount that Western Farmers would have paid Triton for the same quantity of coal. Triton then resumed shipping coal to Western Farmers under modified terms of the 1977 contract, and Mobil and Western Farmers agreed to terminate their contractual relationship by the end of 1986.

Triton then brought this action against Mobil claiming tortious interference with the contract between Triton and Western Farmers. ² Triton alleged that Mobil, knowing of the existence of its contract with Western Farmers, caused Western Farmers to breach that contract with resulting damages to Triton in excess of $8 million. The element of interference was founded on the contention that Western Farmers had stopped buying coal under its contract with Triton because it had been enticed by Mobil with considerably lower coal prices than those called for in Western Farmers' contract with Triton. Mobil's quoted price for coal was approximately $6.50 per ton while the contract price for Triton coal was between $11 and $12 per ton. The case was tried to a jury in 1989.

Prior to the time that the jury retired to deliberate, it received, among the court's instructions, Jury Instruction No. 7. The instruction read:

"A party repudiates a contract when it clearly and unequivocally announces its intention not to perform its obligations under the contract. This repudiation becomes a breach when it is so treated by the injured party. Any actions taken by Mobil after Triton treated its contract with Western Farmers as breached cannot be considered interference with that contract.

"Breach of contract is a failure, without legal excuse, to perform any part of a contract."

This instruction was developed after both parties submitted proposed instructions dealing with the subject matter. ³

The next to the last day of trial, the trial judge and counsel for the parties worked almost six hours discussing and reworking the instructions to the jury. By agreement, the conference was not recorded. Objections to the final instructions were to be made the following day at a formal, recorded conference prior to submission of the instructions to the jury and before the closing arguments. On that occasion, Triton did raise objections to other instructions, but it did not object on the record to Jury Instruction No. 7. In fact, the record discloses that counsel for Triton discussed Jury Instruction No. 7 in his closing argument to the jury.

Triton also had submitted a proposed instruction to the effect that a competitive interest was not a defense to Mobil's tortious interference with an existing contract. At the formal instruction conference, Triton did object to the trial court's refusal to submit its proposed Jury Instruction No. 12 dealing with competitive interest. Immediately following that objection, however, Triton withdrew that proposed instruction without explanation. In presenting this appeal, Triton advises " * * * this withdrawal was inadvertent, and was occasioned by miscommunication between Triton's trial counsel, one of whom was preparing for oral argument and could not attend this instruction conference."

After deliberating, the jury returned a verdict finding that Mobil did not intentionally and improperly interfere with the contract between Triton and Western Farmers. Judgment was entered on that verdict in favor of Mobil, and Triton has taken this appeal.

The record and the briefs demonstrate that Triton's theory of this case was that, beginning sometime in 1984, Mobil commenced an aggressive campaign with the purpose of inducing Western Farmers to breach its contract with Triton and buy coal from Mobil. Triton's burden at trial was to demonstrate that Mobil's actions satisfied the four elements necessary to prove tortious interference with Triton's contract with Western Farmers. In order to meet that burden, Triton was required to prove: (1) the existence of the Triton-Western Farmers contract; (2) Mobil's knowledge of the contract; (3) intentional and improper interference...