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VANCE v. ENOGEX GAS GATHERING L.L.C.2017 OK CIV APP 14393 P.3d 718Case Number: 112783; Cons. w/113027Decided: 08/26/2016Mandate Issued: 03/21/2017DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III
Cite as: 2017 OK CIV APP 14, 393 P.3d 718


RUFUS VANCE and GLENDA ROBERTSON, Plaintiffs/Appellees,
v.
ENOGEX GAS GATHERING, L.L.C., an Oklahoma Corporation, Defendant/Appellant.


APPEAL FROM THE DISTRICT COURT OF
CADDO COUNTY, OKLAHOMA
HONORABLE RICHARD VAN DYCK, TRIAL JUDGE


AFFIRMED


Kenneth R. Johnston, Wes Johnston, Jonathan Allen, Johnston & Associates, Chickasha, Oklahoma, for Plaintiffs/Appellees,
Robin F. Fields, Bryan J. Wells, Heidi M. Nichols, Conner & Winters, LLP, Oklahoma City, Oklahoma, for Defendant/Appellant.



Wm. C. Hetherington, Jr., Judge:

¶1 These consolidated cases1 are appealed first in case number 112,783 from trial by jury verdict in favor of Rufus Vance and his sister Glenda Robertson (collectively Vance) and against Enogex Gas Gathering, LLC. (Enogex) resulting from alleged oil field pipeline leakage and pollution of Vance's property. Case number 113,027 is an appeal by Vance of the resulting attorney fee action order in favor of Vance and against Enogex. Finding no abuse of discretion or misapplication of law as to the trial court's instructions to the jury or on its award of attorney fees to Vance, we affirm both journal entry orders.
FACTS
Case No. 112,783 (Pollution Case)
¶2 In 2010, Vance discovered what they believed to be "bubbling, gurgling, foamy liquid discharging out of a hole in the ground" on their land. Investigation revealed this to be a natural gas gathering pipeline leak from a natural gas well and line owned by Enogex. The record shows there was no denial of a leak by Enogex. Enogex alleged, however, that there was a three week intentional delay between the time of the Vance discovery of the leak and when Vance reported the leak to Enogex so Vance could "prepare a lawsuit instead of working fairly and honestly with Enogex." What Enogex alleged and presented at trial was that during that three week period, Vance retained an expert and materially altered the scene of the leak and the surrounding area. Enogex then said Vance concealed that information and results of a lab test from Enogex in an effort, they contend, intended to show the jury "conditions starkly different than those seen by Enogex's pipeline operators" at trial. Enogex presented evidence the leak was a "pinhole" in size, that no fluid had escaped during the period of the leak and they saw no indication of resulting ground water or soil contamination.
¶3 Vance produced the pictures and videos they had taken showing the "oily, gurgling, foamy fluid coming from the hole, eyewitness testimony of the liquid in the hole, the test results from the fluid in the hole and actual samples of the fluid from the hole". They pointed out the pictures taken by Enogex showed "gurgling fluid had splashed out and melted spots in the surrounding snow" and argued Enogex intentionally buried hydrocarbons and buried and impacted soil to hide the pollution in violation of Oklahoma Corporation Commission regulatory rules thus causing pollution and damage to their entire 160 acre property.
¶4 Enogex countered they did not hide any hydrocarbons, repaired the pinhole leak with an approved "clamp" and did not hear any complaints from Vance until two years later when they received notice of a claim and were served with process. Enogex then had its expert investigate and introduced his testimony and report indicating again, no groundwater pollution and a "tiny amount of soil contamination."
¶5 Vance requested an award for diminution in value of their property of $400,000 and punitive damages. The jury returned a verdict signed by ten jurors in favor of Vance for $25,000 damage to property but awarded no damages on Vance claims for personal inconvenience, annoyance and discomfort. The jury also found by checking the appropriate box, clear and convincing evidence Enogex had acted in reckless disregard of the rights of Vance. The trial court polled each juror who signed the verdict and they each agreed it was their verdict.
¶6 During second stage deliberations after brief testimony and instructions in the punitive damage stage, the jury sent out an unsigned note that indicated the ten jurors who signed the first verdict form checking the box that Enogex's actions were in reckless disregard of the rights of Vance, had done so in error. Following discussion with counsel, the trial court then advised the jury it had been clearly instructed on the verdict form and it could not undo its first stage verdict. The jury then returned a verdict for Vance for $25,000 in punitive damages signed by eleven jurors who were also polled by the trial judge and each confirmed this was their verdict.
¶7 Enogex appeals from the judgment only as to the award of punitive damages and does not challenge the compensatory damage award.2
 
Case No. 113,027 (Attorney Fee Case)
 
¶8 Vance requested attorney fees under 12 O.S. § 940 as prevailing party. Vance argued for a "lodestar" attorney fee of $425,327.50. Their fee evidence showed 1,937.70 hours of attorney time in a heavily litigated case with extensive pre-trial issues and an eleven day jury trial. Enogex contested the fee request as to time expended, the amount requested being excessive and not supported by the "lodestar" standards, and excessive relative to the obtained result. Vance countered Enogex conducted a "scorched-earth" defense, not motivated by economic interests, but defended in a manner described by Enogex's expert as a "precedential" case. Vance argued this means not a precedential case in the legal sense, but a strategy "aimed at dissuading others from bringing similar claims against Enogex." The trial court conducted a full hearing and awarded Vance an attorney fee award of $50,000 from which Vance appeals.
Pollution Case Analysis
Standard of Review
¶9 This is a challenge by Enogex to the jury verdict on punitive damages and resulting award. It does so on two appeal propositions: 1. Its Motion For Judgment Notwithstanding The Verdict should have been granted as a result of the jury note indicating jury confusion and apparent intent not to find reckless disregard for the rights of Vance and, 2. Arguing the issue of punitive damages should not have been submitted to the jury. The trial court denied Enogex's Motion For Judgment On Punitive Damages Notwithstanding The Verdict and entered the final journal entry on jury verdict on October 2, 2013.
¶10 Enogex argued below in its motion three propositions, all three argued as a part of two propositions contained in its appellate briefs. The three motion propositions were:


(1). The Court should have returned the Verdict Form - First Stage ("First Stage Verdict") to the jury for correction as soon as those jurors sent a written note telling the Court that they had checked the punitive damages box in error; (2) the Court should have entered a judgment that properly reflected the intent of the 10 jurors not to award punitive damages; and (3) the Court should never have submitted the question of punitive damages to the jury in the first place based on insufficient evidence to satisfy the required standard of clear and convincing evidence. (Emphasis in original)


¶11 On appeal, the standard for determining a motion for judgment notwithstanding the verdict is identical to the standard for determining a motion for directed verdict found in 12 O.S. 1997, § 698. We review a trial court's ruling on a motion for judgment notwithstanding the verdict by the same standard used by the trial court. We consider as true all evidence favorable to the non-moving party together with all inferences that may be reasonably drawn therefrom, and we disregard all conflicting evidence favorable to the moving party. First National Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11 ¶ 8, 54 P.3d 100. (citing, Franklin v. Toal, 2000 OK 79 ¶ 13, 19 P.3d 834, 837). The motion should not be granted unless there is an entire absence of proof on a material issue. Id.
Analysis
¶12 First, we must consider the threshold issue of whether or not the jury should have been instructed on and allowed to consider a punitive damage award in the first instance. This is a question of law to be determined by the trial judge. Sides v. Cordes, Inc., 1999 OK 36, ¶ 11 fn.10, 981 P.2d 301 (citing, Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶ 17, 867 P.2d 1241) (While the initial determination is a question of law for the court, the latter - whether to allow or deny punitive damages and their amount, if any - is left to the discretion of the trier of fact, be that judge or jury.).
¶13 23 O.S. Supp. 2002 § 9.1 now provides in part:


A. In an action for the breach of an obligation not arising from contract, the jury, in addition to actual damages, may, subject to the provisions and limitations in subsections B, C and D of this section, award punitive damages for the sake of example and by way of punishing the defendant based upon the following factors:


. . .


B. Category I. Where the jury finds by clear and convincing evidence that:
1. The defendant has been guilty of reckless disregard for the rights of others: or
2. An insurer has recklessly disregarded its duty to deal fairly and act in good faith with its insured; the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award punitive damages in an amount not to exceed the greater of:


. . .
The trial judge must give this instruction at the conclusion of the first stage of the trial if there is "...any competent evidence the defendant has acted with reckless disregard of the rights of others." Sides at ¶ 11. The Court in Estrada v. Port City Properties, Inc., 2011 OK 30, 258 P.3d 495 said: "We also noted that previous cases provide that the trial court has a duty to submit a punitive damages question to the jury unless there is a complete lack of evidence to support an inference of the conduct required by § 9." Id. at ¶ 18. Followed by "Nothing in the current statutory framework changes the trial court's responsibility to determine whether any competent evidence exists which would warrant submission of the question of punitive damages to the jury". Id. at ¶ 20 (citing, Shuman v. Laverne Farmers Coop., 1991 OK CIV APP 2, ¶ 9, 809 P.2d 76) (emphasis in original).
¶14 Review of the voluminous record testimony and evidence3 shows the trial judge received and evaluated extensive, detailed conflicting expert pollution studies, videos, pictures, sampling tests and testimony evidence relevant to the presence of pollution, possible reckless conduct related to Enogex's response and acts of Vance and their experts. Considering the evidence presented at trial, heard and seen by the trial judge, we do not agree with Enogex's argument that no competent evidence exists even to permit even an inference of reckless disregard for the rights of Vance. We find sufficient competent evidence to support an inference that Enogex employees saw and knew there was pollution and deliberately tried to conceal the leak and the resulting pollution caused thereby. We find the trial court properly and as a matter of law instructed the jury on its right to consider a punitive damage award to Vance and affirm.
¶15 Next, we consider the trial court's handling of the jury note indicating jury confusion. Again, this note was sent out to the judge while the jury was deliberating the second, punitive damage stage following second stage instructions. The record reveals the trial judge reviewed the unsigned note, advised counsel and discussion was had regarding how to handle the note with no reporter present and thus, no record of that discussion. The entire note read:
"The 10 jurors who signed the attached verdict checked the box at the bottom of the form in error. We thought we were giving a verdict of guilty or not guilty." The trial judge then brought the jury back into court and advised them:


Counsel, and I have discussed this - this - your writing to us. And - and I am going to tell you this that, the verdict that you rendered in the first stage cannot be undone.
That you have received your instructions for the second stage. And that you need to go back to the jury room continue your deliberations and come up with a verdict.


Party appeal briefs point out there was discussion the note was unsigned and whether it indicated clear intent to change the first stage verdict or, if the note was or was not one juror attempting to speak on behalf of all ten jurors who signed the verdict form, or one juror dissenting who disagreed with the initial verdict finding. The court had given OUJI 5.9 at the conclusion of the second stage which said:


You may now, in addition to actual damages, grant the plaintiff punitive damages in such sum as you reasonably believe will punish defendant and be an example to others.


The record shows Enogex made it clear to the jury they could return a punitive damage verdict of $0 under the instructions. As noted above, the jury then returned a verdict for Vance for punitive damages in the amount of $25,000. The court then polled all twelve jurors as it did following the first stage verdict, and the eleven jurors who signed the verdict in favor of the punitive damage award advised the judge it was each of their verdicts and they agreed with it. The jury was then instructed on discussing the case with others and discharged.
¶16 We agree with Vance that when the note was sent to the judge during second stage deliberations, it happened in a "separate" proceeding, after the first stage verdict had been read in open court by the clerk, jury polled and ordered recorded by the judge. The judge then excused the jury for the court and counsel to prepare for the second stage. We also agree that once the first stage verdict was received, jury polled and ordered recorded, it became a complete and final verdict regarding first stage issues.
¶17 While we find little law factually on point with what occurred in this case, we are guided by statutory provisions and case law discussing when a jury verdict is "complete", becomes final and is immune from later impeachment short of juror misconduct. The trial judge followed the procedures of 12 O.S. § 5854. 12 O.S. § 586 tells us when a jury verdict is "complete":


The verdict shall be written, signed by the foreman and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court. (Emphases added)


23 O.S. Supp. 2002 § 9.1(B) quoted above, tells us the punitive damage second stage is considered a separate proceeding which is only possible after an award of actual damages is returned along with the clear and convincing reckless disregard finding.
¶18 Our jurisprudence has long held that jurors will not be allowed by affidavit, deposition, or other sworn statements to impeach or explain their verdict, or show on what grounds it was rendered. Lawson v. Nat. Steel Erectors, Corp., 2000 OK CIV APP 69, ¶ 28, 8 P.3d 171 (citing, Willis v. Davis, 1958 OK 288, ¶ 24, 333 P.2d 314). Juries are free to change their votes at any time until their determination is accepted by the court and recorded as a verdict. Wiggins v. Dahlgren, 1965 OK 131, ¶ 7, 405 P.2d 1001. A jury can change their mind in any number of ways prior to the time they render a verdict. Evidence of intent of a jury note during deliberations is not admissible to impeach a verdict, and it is error for trial court to have granted a new trial based on speculation of a party as to intent of the note. Whitehead v. City of Tulsa, 1980 OK 105, ¶ 13, 614 P.2d 65 (Juror note indicated a possible intent on the part of the jury to return a percentage of fault verdict different from the verdict they finally signed and returned.) (citing, Burkett v. Moran, 1965 OK 165, 410 P.2d 876) (Example of ambiguous and clearly defective verdict.). Further, there is clear jurisprudence a trial judge has broad discretion to inquire of jurors at the time of a verdict return in order to clarify the will and intent of the jury. First Nat. Bank & Trust v. Exchange Nat. Bank & Trust, 1973 OK CIV APP 7, ¶¶ 22-23, 517 P.2d 805 (quoting, Smith v. S & F Construction Co., Inc., 62 Wash.2d 479, 383 P.2d 300 (1963); Turon v J. & L. Const. Co., 8 N.J. 543, 86 A. 2d 192 (1952))
¶19 The unsigned note does raise several possible explanations as to its motive, purpose and intent, all speculation. To bring the jury into court during the second stage deliberations and inquire of the foreperson, or other jurors, the explanation for the note could open a pandoras box, which we believe is out weighed as a public policy matter, by completeness and finality of a verdict once it has been received, jury polled and ordered recorded. Here the verdict was unambiguous and correct on its face with no defect in form. We find no abuse of discretion or error in the manner in which the trial judge dealt with the note and we affirm.
Attorney Fee Case Analysis
¶20 In its appeal of the trial court attorney fee award, Vance argues the trial court erred by failing to set and properly determine a "lodestar" fee and seemed to rely almost totally on the single criteria of the results obtained. Vance further argues the trial court did not consider the time required to be spent by Vance counsel in prosecuting the case in light of the "scorched earth" defense. Finally, Vance challenges the reduction of the fee award as being an arbitrary determination.
¶21 An attorney fee award is reserved to the sound discretion of the trial court and depends upon the facts and circumstances of each individual case. Reversal occurs only where the trial court ruling is without rational basis in the evidence or where it is based upon erroneous legal conclusions. Green Bay Packaging, Inc., v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091; Hall v. Globe Life and Accident Insurance Company, 1998 OK CIV APP 163, ¶ 3, 968 P.2d 1260. To reverse under an abuse of discretion standard, an appellate court must find the trial court's conclusions and judgment were clearly erroneous, against reason and evidence. Murlin v. Pearman, 2016 OK 47, ¶ 17, 371 P.3d 1094 (citing, Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550); Hall v. Globe Life and Accident Insurance Company, 1998 OK CIV APP 163, ¶ 3, 968 P.2d 1260.
¶22 Our review of the trial court's Final Judgment On Attorney Fees and Costs recites a careful review of case law, analysis under State ex rel. Burk v. City of Oklahoma City, 179 OK 115, 698 P.2d 659, cases of similar type and litigation history with findings that reflect "similar cases and the awards to be indicative of appropriate awards." The order demonstrates consideration of Vance's request for a "lodestar" fee plus enhancement under 12 O.S. § 940, and time spent by Vance attorneys to obtain the verdict they did in a case that involved "the zealous and diligent defense of this case by defendant's counsel."
¶23 After consideration of the party's briefs, we conclude the trial court's conclusions of fact and law adequately explains its decision. The trial court's order filed June 13, 2014, copy attached, is AFFIRMED UNDER OKLA. SUP.CT.R. 1.202(b)(d). See also Baytide Petroleum Inc., v. Whitmar Exploration Company, 2000 OK CIV APP 120, ¶ 6, 18 P.3d 378, 380.
AFFIRMED

JOPLIN, J., concurs; BELL, P.J., dissents.

ATTACHMENT

FOOTNOTES

1 Cases numbered 112,783 and 113,027 were consolidated under 112,783 for appeal consideration purposes by Supreme Court Order dated August 15, 2014.


2 Enogex had also preserved for appeal various rulings concerning right-of-way encroachment issues. Enogex filed a Notice Of Appeal Issue Now Rendered Moot on January 12, 2015, and an Order was entered on January 14, 2015 finding these issues moot in this appeal.


3 The evidence relevant to this issue presented by both sides is too voluminous to recite in this opinion.


4 "When the jury have agreed upon their verdict they must be conducted into court, their names called by the clerk, and their verdict rendered by their foremen. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk or the court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out, for further deliberation."





Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Civil Appeals Cases
 CiteNameLevel
 2000 OK CIV APP 120, 18 P.3d 378, 71 OBJ        3270, BAYTIDE PETROLEUM, INC. WHITMAR EXPLORATION CO.Discussed
 1991 OK CIV APP 2, 809 P.2d 76, 62 OBJ        1248, Shuman v. Laverne Farmers Co-op.Discussed
 1973 OK CIV APP 7, 517 P.2d 805, FIRST NAT. BANK & T. v. EXCHANGE NAT. BK. & T.Discussed
 1998 OK CIV APP 163, 968 P.2d 1260, 98 OBJ        3999, Hall v. Globe Life and Accident Insurance CompanyDiscussed at Length
 2000 OK CIV APP 69, 8 P.3d 171, 71 OBJ        1796, LAWSON v. NAT. STEEL ERECTORS, CORP.Discussed
Oklahoma Supreme Court Cases
 CiteNameLevel
 1993 OK 160, 867 P.2d 1241, 64 OBJ        3709, Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd.Discussed
 2000 OK 79, 19 P.3d 834, 72 OBJ        639, FRANKLIN v. TOALDiscussed
 1958 OK 288, 333 P.2d 311, WILLIS v. DAVISCited
 1958 OK 290, 333 P.2d 314, HURST v. KRAVISCited
 2002 OK 11, 54 P.3d 100, 73 OBJ        560, FIRST NATIONAL BANK IN DURANT v. HONEY CREEK ENTERTAINMENT CORP.Discussed
 1965 OK 131, 405 P.2d 1001, WIGGINS v. DAHLGRENDiscussed
 1965 OK 165, 410 P.2d 876, BURKETT v. MORANDiscussed
 2009 OK 5, 213 P.3d 550, CURRY v. STREATERDiscussed
 1996 OK 121, 932 P.2d 1091, 67 OBJ        3291, Green Bay Packaging, Inc. v. Preferred Packaging, Inc.Discussed
 2011 OK 30, 258 P.3d 495, ESTRADA v. PORT CITY PROPERTIES, INC.Discussed
 2016 OK 47, 371 P.3d 1094, MURLIN v. PEARMANDiscussed
 1980 OK 105, 614 P.2d 65, Whitehead v. City of TulsaDiscussed
 1999 OK 36, 981 P.2d 301, 70 OBJ        1445, Sides v. John Cordes, Inc.Discussed
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 585, Jury VerdictCited
 12 O.S. 586, Form of VerdictCited
 12 O.S. 698, Judgment Notwithstanding Verdict - New Trial in Lieu of JudgmentCited
 12 O.S. 940, Negligent or Willful Injury to Property - Attorney's Fees and Costs - Offer and Acceptance of JudgmentDiscussed
Title 23. Damages
 CiteNameLevel
 23 O.S. 9.1, Damages for Sake of Example and Punishment of Defendant - Punitive Damages Awards by JuryDiscussed















