Wright v. Bd. of Cnty. Comm'rs of Carter Cnty.

• Citation: 2020 OK CIV APP 46
• Decision Date: 16 September 2020
• Docket Number: Case Number: 117602
• Parties: BECKY S. WRIGHT, Plaintiff/Appellant/Counter-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF CARTER COUNTY, Defendant/Appellee/Counter-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2020 OK CIV APP 46

BECKY S. WRIGHT, Plaintiff/Appellant/Counter-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF CARTER COUNTY, Defendant/Appellee/Counter-Appellant.

Case Number: 117602

COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Decided: April 30, 2020

Mandate Issued: September 16, 2020

APPEAL FROM THE DISTRICT COURT OF

CARTER COUNTY, OKLAHOMA

HONORABLE THOMAS K. BALDWIN, TRIAL JUDGE

DISMISSED IN PART, AFFIRMED IN PART, AND REVERSED AND

REMANDED IN PART FOR FURTHER PROCEEDINGS

Mark Hammons, HAMMONS, GOWENS, HURST & ASSOCIATES, Oklahoma City, Oklahoma, for Plaintiff/Appellant Counter-Appellee

Jordan L. Miller, Ambre C. Gooch, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee Counter-Appellant

JANE P. WISEMAN, CHIEF JUDGE:

¶1 Becky Wright appeals a trial court judgment entered after a jury verdict finding in her favor but awarding no damages in this wrongful termination action. Wright asserts the verdict must be set aside for the following reasons: it is internally inconsistent, the trial court erred in admitting evidence of criminal convictions, the trial court erred in instructing the jury, and the trial court improperly denied her First Amendment claim. The Board of County Commissioners of Carter County counter-appeals asserting trial court error in denying its motion in limine but granting Wright's motion in limine and in instructing the jury regarding scope of employment. After review of the record and relevant law, we reverse the summary judgment on Wright's First Amendment claim but find no basis to reverse for any internal inconsistency in the verdict or for error in admitting evidence or instructing the jury. Based on our affirmance of the judgment on Wright's wrongful termination claim, we dismiss the counter-appeal as Board requested. In summary, we affirm the judgment on the wrongful termination claim, reverse and remand the summary judgment in favor of Board on Wright's First Amendment claim, and dismiss Board's counter-appeal.

FACTS AND PROCEDURAL BACKGROUND

¶2 Wright brought this lawsuit against Board for retaliation and wrongful termination of her employment after she reported criminal conduct by her supervisor, Cynthia Harmon, the County Clerk for Carter County. Board filed an answer, admitting some allegations, denying others, and claiming insufficient information to admit or deny the remainder. Board also asserted multiple affirmative defenses.

¶3 Board filed a motion for summary judgment claiming Wright "was terminated solely for embezzling county property." Board alleged Wright took advantage of her position to access index books in the County Clerk's office and to then sell information she obtained for her own personal gain as a landman.

¶4 In her brief in opposition to Board's motion for summary judgment, Wright claimed that while working as a deputy clerk with Harmon as her supervisor, she "reported to the Sheriff and the FBI allegations of criminal misconduct by Ms. Harmon including a fraudulent Indian citizenship card and filing a fraudulent deed." She asserted "that she was terminated for protected whistleblowing."

¶5 Wright filed motions in limine seeking to exclude argument, questioning, or evidence related to her criminal convictions that were more than ten years-old and her more recent plea of no contest and deferred misdemeanor sentence on charges related to her conduct while employed by the County Clerk. In response, Board asserted the 1990s' convictions for "conspiracy to obtain property, forgery, unauthorized use of a credit card, and uttering a forged instrument . . . . are highly probative, as [Wright] herself admits that these convictions are the reason she started working as a 'landman,' which did not require a background check." Board further argued the nolo contendere plea is admissible because, in making the plea, Wright was "admitting her own misconduct at the County Clerk's Office, based on the very conduct for which she was terminated" and Board is seeking to introduce the evidence for "defensive purposes, namely to protect itself where [Wright] is now suing [Board] for damages."

¶6 On January 24, 2018, the trial court filed a "Notice of Decision" in which it overruled Board's motion for summary judgment finding "that there is substantial controversy as to material facts regarding the reason for terminating [Wright] and that a genuine issue exists to be decided by the trier of facts." Later in its pretrial order, the trial court granted judgment in Board's favor as a matter of law on Wright's § 1983 claim.

¶7 At trial, Wright introduced evidence and testimony supporting her claim of wrongful termination, which she claimed arose from being a whistleblower and reporting Harmon's allegedly duplicitous activity to the sheriff and the FBI. Board introduced evidence which it claimed supported Harmon's termination of Wright for embezzlement related to Wright's use and copying of index books from the County Clerk's office for personal gain related to Wright's landman business.

¶8 The jury returned a verdict finding in favor of Wright and against Board but assessing damages in the amount of $0. The trial court entered judgment accordingly. Both Wright and Board appeal.

STANDARD OF REVIEW

¶9 "The appellate standard of review in a motion for summary judgment is de novo." Serra v. Estate of Broughton, 2015 OK 82, ¶ 16, 364 P.3d 637. We will examine the evidentiary materials "to determine if there is a substantial controversy as to the material facts." Id. We must view all inferences and conclusions to be drawn from the evidentiary materials "in the light most favorable to the nonmoving party." Id.

¶10 As to the jury's verdict, this Court is "not allowed to substitute our judgment for that of the jury merely because we would have decided or viewed disputed material fact questions differently than the jury." Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶ 3, 121 P.3d 1080. "Where competent evidence was presented at trial to support reasonable findings as to those material fact questions relating to the claim in suit and no reversible error is otherwise shown, an appellate court must affirm a judgment based on a jury verdict, not second-guess such judgment or the jury verdict upon which it is based." Id.

¶11 "A trial court has discretion in deciding whether proffered evidence is relevant and, if so, whether it should be admitted, and a judgment will not be reversed based on a trial judge's ruling to admit or exclude evidence absent a clear abuse of discretion." Myers v. Missouri Pac. R.R. Co., 2002 OK 60, ¶ 36, 52 P.3d 1014.

¶12 The standard of review for reviewing jury instructions "considers the accuracy of the statement of law, the applicability of the instructions to the issues when the instructions are considered as a whole, and above all, whether the probability arose that jurors were misled and reached a different conclusion due to an error in the instruction." Cimarron Feeders, Inc. v. Tri-Cnty. Elec. Coop., Inc., 1991 OK 104, ¶ 6, 818 P.2d 901.

ANALYSIS

I. The Jury Verdict

A. Internal Inconsistency

¶13 In her first proposition of error, Wright asserts, "The Verdict Must Be Set Aside As Internally Inconsistent" because the jury found in her favor but awarded no damages. Wright cites Sharp v. Whitworth, 2017 OK CIV APP 40, ¶ 9, 401 P.3d 763, which states in part:

However, "when liability is established, and there is compelling uncontroverted evidence of damages, a zero damage award is inconsistent." Clay v. Choctaw Nation Care Center, LLC, 2009 OK CIV APP 35, 210 P.3d 855 (emphasis in original). Similarly, "[a] failure to award any damages for pain and suffering where clearly proved, under proper instructions is in effect a finding of no liability." Hallford v. Schumacher, 1958 OK 53, 323 P.2d 989. Under these circumstances, the jury verdict would be inconsistent and invalid. Id.

Wright asserts the undisputed evidence showed she suffered approximately $19,000 in lost wages and additionally suffered emotional distress.

¶14 Board presented evidence suggesting Wright was using her position in the County Clerk's office for personal financial gain, so the evidence on the question of damages was not uncontroverted. Although Wright presented evidence of her damages, there was also evidence from which the jury could conclude she had suffered no loss in light of her financial gain from using county records in her landman business. The assessment of damages is clearly within the fact-finding province of a well-instructed jury and will not be set aside absent reversible error by the trial court. With these considerations, we will not reverse the trial court's refusal to find the verdict internally inconsistent.

¶15 Wright directs our attention to a question from the jury during deliberations. The jury asked, "If we the jury find in favor of the Plaintiff, Becky Wright do we have to give her $19,200.00 (or) do we have options?" The trial court responded: "You have heard all of the testimony, have all of the evidence, and the jury instructions from the trial to determine the amount of damages. The amount of damages that could be awarded the Plaintiff is at your sole discretion." Wright further reports that the bailiff told the trial court that the jury, upon being released, wanted to know if they had filled out the verdict form "wrong."

¶16 We conclude that the jury's question is not indicative of an internally inconsistent verdict. The jury's question could be read as asking if it had to award $19,200 or could it award less than that amount or none at all. "Broad discretion is given to the jury to determine the amount of damages." Fowler v. Lincoln Cty. Conservation Dist., 2000 OK 96, ¶ 18, 15 P.3d 502. The trial court's response to the question was correct, and we see no error in the court's acceptance of the jury's verdict.

B. Criminal Convictions and 12 O.S.2011 § 2609(B)

¶17 Wright next asserts the admission of her stale criminal convictions...