                                                               F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                               FEB 18 1998
                                  PUBLISH
                                                             PATRICK FISHER
                                                                   Clerk
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT




ADVANTOR CAPITAL
CORPORATION, a Delaware
corporation, formerly known as
Sonitrol Financial Corporation,

      Plaintiff-Appellee and
      Cross-Appellant,

v.                                             No. 96-6400
                                               No. 96-6408
JAMES HARRISON YEARY;
SONITROL OF OKLAHOMA CITY
INC., an Oklahoma corporation,

      Defendants-Appellants and
      Cross-Appellees,

and

LINDA JENSEN YEARY,

      Defendant-Appellee.
 ADVANTOR CAPITAL
 CORPORATION, a Delaware
 corporation, formerly known as
 Sonitrol Financial Corporation,

       Plaintiff-Appellee,

 v.                                                   No. 97-6106

 JAMES HARRISON YEARY;
 SONITROL OF OKLAHOMA CITY
 INC., an Oklahoma corporation,

       Defendants-Appellants,

 and
 LINDA JENSEN YEARY,

       Defendant.


                    Appeal from United States District Court
                     for the Western District of Oklahoma
                            (D.C. No. 95-CV-2009)


Kenneth I. Jones, Jr., Jones & Blaney, of Oklahoma City, Oklahoma, for the
appellants.

Terry McCollough, Terry McCollough P.A., of Orlando, Florida (John B. Heatly,
Fellers, Snider, Blankenship, Barley & Tippens, of Oklahoma City, Oklahoma,
with him on the brief), for the appellees.


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.

                                       -2-
      Defendants James Yeary and Sonitrol of Oklahoma City, Inc., appeal the

district court’s denial of their motion for judgment as a matter of law on plaintiff

Advantor Capital Corporation’s fraud and abuse of process claims, and the court’s

entry of judgment on those claims. Advantor cross-appeals the court’s denial of

its motion for judgment as a matter of law on defendants’ counterclaim. 1 We

affirm.

                                            I.

      In December 1986, Sonitrol Financial Corporation and its parent, Sonitrol

Corporation, commenced case No. 86-2703-A against Sonitrol of Oklahoma City,

Inc., in federal district court. 2 The parties and James and Linda Yeary,

stockholders of Sonitrol of Oklahoma City, entered into a settlement agreement

whereby Sonitrol of Oklahoma City executed two promissory notes to Sonitrol

Financial for $337,169.39 and $94,096. The district court entered consent


      1
         This court issued a show cause order because it was unclear from the docketing
statement whether the counterclaim had been adjudicated. See Fed. R. Civ. P. 54(b).
After the order was issued, the district court entered an order adjudicating the
counterclaim. Accordingly, we have jurisdiction. See Lewis v. B.F. Goodrich, 850 F.2d
641 (10th Cir. 1988).
      2
         Jurisdiction in the district court was based on diversity of citizenship and the
amount in controversy. 28 U.S.C. § 1332. At the time the complaint was filed, plaintiff
was a Virginia corporation, Sonitrol Financial Corporation was located in Florida, James
and Linda Yeary resided in Oklahoma, and Sonitrol of Oklahoma City was an Oklahoma
corporation.

                                           -3-
judgments for Sonitrol Corporation and against Sonitrol of Oklahoma City which

totaled the sum of the two promissory notes. In January 1993, Sonitrol

Corporation and Sonitrol Financial commenced various garnishment and

execution proceedings to enforce the consent judgments. At a hearing concerning

his assets, James Yeary testified that no one was holding any property in trust for

Sonitrol of Oklahoma City. Kline & Kline, counsel for Sonitrol of Oklahoma

City, also represented there were no records of property being held in trust for

Sonitrol of Oklahoma City by any third party.

      A garnishee summons was issued to Sonitrol of Oklahoma City and to

Kline & Kline. Counsel did not answer the summons but moved for a temporary

restraining order on behalf of the Yearys in case No. 93-1247-A, a bankruptcy

adversary proceeding, to restrain further collection efforts against Sonitrol of

Oklahoma City. Counsel asserted the validity of the judgments in 86-2703-A was

subject to the bankruptcy proceeding and that it held $150,000 in trust for the

Yearys individually, not for Sonitrol of Oklahoma City. The court issued the

TRO, preventing Sonitrol Financial from reaching the funds in the trust account.

      Sonitrol Financial moved to dissolve the TRO and the court granted its

motion on March 2, 1994, finding there had been a “misrepresentation of material

facts in obtaining the issuance of” the TRO, and further the TRO had expired on

December 17, 1993. There was evidence the money Kline & Kline held in trust


                                         -4-
was for Sonitrol of Oklahoma City. Sonitrol Financial eventually recovered the

money in the trust account. Sonitrol Financial entered into a stipulation with the

Yearys in 93-1247-A. The Yearys agreed to dismiss with prejudice all of their

claims against Sonitrol Financial, including the Yearys’ counterclaim, and to

“waive all rights, if any, to stay execution or otherwise impede [Sonitrol

Financial] from obtaining satisfaction of the judgments.” Appellants’ Suppl. App.

369.

       Advantor, formerly known as Sonitrol Financial, filed the instant action,

alleging claims for the wrongfully-entered restraining order, fraud, malicious

prosecution, and abuse of process against the Yearys and Sonitrol of Oklahoma

City. In addition, it sought punitive damages from James Yeary and Sonitrol of

Oklahoma City, and sought to collect on its $94,096 note from Sonitrol of

Oklahoma City. The Yearys and Sonitrol of Oklahoma City answered and

asserted several affirmative defenses as well as a counterclaim seeking

declaratory judgment. Advantor moved for judgment as a matter of law on the

counterclaim, contending the parties’ stipulation in 93-1247-A precluded

consideration of the counterclaim. The court denied the motion.

       The trial of this case began on October 22, 1996. Defendants moved for

judgment as a matter of law following the close of Advantor’s case and the court

granted the motion as to Advantor’s wrongfully-entered restraining order claim.


                                         -5-
Following the close of all evidence at trial, defendants renewed their motion for

judgment as a matter of law and the court granted the motion as to Linda Yeary,

but denied the balance of defendants’ motion seeking judgment on the abuse of

process, fraud, and malicious prosecution claims. The court also denied

Advantor’s renewed motion for judgment as a matter of law. The jury returned a

verdict for Advantor on its abuse of process and fraud claims, but found for

defendants on the malicious prosecution claim. The jury awarded actual damages

of $88,400 and punitive damages of $100,000, but found Sonitrol of Oklahoma

City had paid in full its $94,096 note to Advantor.

                                         II.

             Defendants’ Motions for Judgment as a Matter of law

      We review de novo the district court’s determination of a motion for

judgment as a matter of law, applying the same standard as the district court.

Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997). The

standard is essentially identical to the “genuine issue” requirement in the

summary judgment context. Pendleton v. Conoco Inc., 23 F.3d 281, 286 (10th

Cir. 1994). Judgment as a matter of law is warranted “only if the evidence points

but one way,” Mason, 115 F.3d at 1450, and “[t]he evidence and inferences

therefrom must be construed most favorably to the nonmoving party.” Wolfgang

v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir. 1997).


                                         -6-
Further, judgment as a matter of law is appropriate if there is no legally sufficient

evidentiary basis with respect to a claim or defense under the controlling law.

Mason, 115 F.3d at 1450.



Submission of fraud claim to jury

      Defendants argue that, as a matter of law, no cause of action exists with

regard to fraud, misrepresentation, or perjury in connection with underlying

litigation. They cite W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770

n.14 (1983), for the proposition that a party injured by the issuance of an

injunction later determined to be erroneous has no action for damages in the

absence of a bond. The district court granted summary judgment to defendants on

Advantor’s wrongful restraining order claim, however, and Advantor does not

appeal that ruling. Therefore, Grace is not relevant here.

      Defendants also cite Morgan v. Graham, 228 F.2d 625, 627 (10th Cir.

1956), where this court held that, in the absence of a statute to the contrary, an

unsuccessful litigant who lost his case because of perjured testimony may not

maintain a civil action against the person who committed the perjury. However,

we went on to hold perjured testimony can support an action in fraud. On the

other hand, Cooper v. Parker-Hughey, 894 P.2d 1096 (Okla. 1995), casts some

doubt on a plaintiff’s ability, under Oklahoma law, to premise an action for fraud


                                          -7-
solely on perjured testimony. Cooper, who was convicted of rape, alleged the

state’s expert witness committed perjury. The district court dismissed Cooper’s

action for tortious perjury, and the Oklahoma Supreme Court affirmed. The court

found Okla. Stat. tit. 76, § 2 described an action for deceit or fraud. 3 When a

person testifies falsely, however, he deceives the fact finder and the judicial

system, not the litigants. Id. at 1100.

       Cooper is distinguishable from the instant case in two respects. First,

Cooper did not seek damages for fraud so we cannot be certain the Oklahoma

Supreme Court would have rejected such an action. In Morgan, this court applied

Oklahoma law to find defendant, who had filed a false affidavit and testified

falsely, was liable for fraud. 228 F.2d at 627-29. Cooper cites Morgan for the

proposition that there is no civil cause of action for perjury, but does not

disapprove of this court’s interpretation of Oklahoma law that perjury can support

an action for fraud. 894 P.2d at 1100 n.3. Second, and more importantly,

Advantor’s case was premised on more than James Yeary’s false testimony.

Counsel for Sonitrol of Oklahoma City misrepresented facts to the court and in a

letter to counsel for Advantor. While misrepresentation to the court could, like

perjury, be considered deceit upon the judicial system rather than upon Advantor,


       3
          Okla. Stat. tit. 76, § 2 provides that “[o]ne who willfully deceives another, with
intent to induce him to alter his position to his injury or risk, is liable for any damage
which he thereby suffers.”

                                             -8-
the letter to counsel for Advantor surely manifests an intent to deceive Advantor.

      Finally, defendants cite Security State Bank v. Reger, 151 P. 1170, 1171

(Okla. 1915), where the court held no action lies for fraudulently aiding a debtor

to dispose of his property to prevent a general creditor from attaching it.

However, Advantor was a judgment creditor, not a general creditor. Therefore,

Reger is inapposite. The district court did not err in denying defendants’ motion

for judgment as a matter of law on Advantor’s fraud claim.



Submission of abuse of process claim to jury

      Defendants also contend the district court erred in submitting the issue of

abuse of process to the jury. In essence, they argue there was insufficient

evidence to satisfy the elements of such a cause of action. The elements of abuse

of process under Oklahoma law are “(1) the improper use of the court’s process

(2) primarily for an ulterior or improper purpose (3) with resulting damage to the

plaintiff asserting the misuse.” Greenberg v. Wolfberg, 890 P.2d 895, 905 (Okla.

1994). Courts have also required the plaintiff to prove “a willful act in the use of

process not proper in the regular conduct of the proceeding.” Meyers v. Ideal

Basic Indus., Inc., 940 F.2d 1379, 1382 (10th Cir. 1991).

      Defendants cite Hokanson v. Lichtor, 626 P.2d 214, 222 (Kan. App. 1981),

where the court held the basis for liability for abuse of process “is not the


                                          -9-
wrongful procurement of legal process or the wrongful initiation of criminal or

civil proceedings,” but rather misuse of process. Defendants submit resolution of

the issue of whether the TRO was properly obtained does not decide the issue of

whether Advantor has a cause of action for abuse of process. Defendants’

argument goes to the distinction between abuse of process and malicious

prosecution. Malicious prosecution “is concerned with maliciously causing

process to issue,” while abuse of process “is concerned with the improper use of

process after it has been issued.” Jackson & Scherer, Inc. v. Washburn, 496 P.2d

1358, 1366 (Kan. 1972). As the district court instructed the jury, however, the

complained of issuance of process was the Yearys’ filing of a motion for TRO

and serving the motion on Advantor, not the court’s issuance of the TRO. The

facts of this case would support an action for abuse of process in that James

Yeary’s misrepresentation at the TRO hearing occurred after process had been

issued.

      Defendants also cite to Restatement (Second) of Torts, which provides that

the gravamen of an action for abuse of process is the “‘misuse’ of legal process

for some purpose other than that which it was designed to accomplish.” See Gore

v. Taylor, 792 P.2d 432, 436 (Okla. App. 1990) (citing Restatement (Second) of

Torts § 682 cmt. a (1977)). Defendants contend there can be no abuse of process

unless plaintiff can show the process was used for some purpose other than that


                                        -10-
for which it was designed. According to the Yearys, they used the TRO for a

permissible purpose, i.e., to restrain collection activities by Advantor.

      At first blush, defendants’ argument appears to have merit. However, in

Greenberg, the court explained there may be abuse of process if the process is not

“used legitimately to its authorized conclusion.” 890 P.2d at 905. Comment b to

Restatement § 682 also elaborates on the principle that abuse of process involves

the use of process primarily to accomplish a purpose for which it is not designed:

      The significance of [the word “primarily”] is that there is no action
      for abuse of process when the process is used for the purpose for
      which it is intended, but there is an incidental motive of spite or an
      ulterior purpose of benefit to the defendant. Thus, the entirely
      justified prosecution of another on a criminal charge, does not
      become abuse of process merely because the instigator dislikes the
      accused and enjoys doing him harm; nor does the instigation of
      justified bankruptcy proceedings become abuse of process merely
      because the instigator hopes to derive benefit from the closing down
      of the business of a competitor.

(Emphasis added.) This case is distinguishable from the Restatement examples.

First, one can argue the Yearys’ pursuit of a TRO was not justified because their

objective was to conceal assets of Sonitrol of Oklahoma City. Second, the

Yearys’ ulterior purpose in moving for the TRO, concealment of assets, was not

merely incidental to some legitimate purpose.

      The district court’s denial of defendants’ motion for judgment as a matter

of law is in line with Oklahoma case law. See Ellison v. An-Son Corp., 751 P.2d

1102, 1105-06 (Okla. App. 1987) (reversing district court’s grant of summary

                                         -11-
judgment on Ellison’s abuse of process claim where there was evidence that

purpose behind An-Son’s lawsuit to cancel Ellison’s mineral lease was to “tie up”

the lease); Spencer v. Arnold, 4 P. 2d 55 (Okla. 1931) (upholding verdict for

plaintiff on abuse of process claim where plaintiff told defendant she owned the

land she occupied, and defendant, without further inquiry, filed trespass action).

Courts which have dismissed abuse of process claims have often done so because

plaintiff has failed to prove an improper “willful act” in the use of legal process.

See, e.g., Meyers, 940 F.2d at 1383 (applying Oklahoma law to affirm dismissal

of abuse of process claim where plaintiff alleged defendant had filed suit to

intimidate plaintiff, but alleged no further willful act in use of the process); Gore,

792 P.2d at 437 (no willful act in use of process where defendant, who on

information and belief had filed lawsuit alleging fraud, merely commented on

suit’s incidental effect on settlement of unrelated matter). 4

       4
          Defendants cite two cases which applied Illinois law to hold perjured testimony
did not constitute an abuse of process. In Erlich v. Lopin-Erlich, 553 N.E.2d 21 (Ill. App.
Ct. 1990), defendants sought a TRO to restrain plaintiff from concealing marital assets.
Following a hearing on the motion, plaintiff sued defendants for abuse of process,
alleging a defense witness testified falsely. The court held it was proper in a marriage
dissolution proceeding to prevent one spouse from disposing of marital assets and that
seeking a TRO was therefore proper in the regular course of the proceedings. The fact
that the defense made misrepresentations to the court to obtain the TRO was irrelevant.
See also Wainwright v. Doria, No. 93 C 0095, 1994 WL 178347 (N.D. Ill. May 9, 1994)
(presentation of perjured testimony insufficient to constitute abuse of process where
defendant instituted eviction proceeding for legitimate purpose of evicting plaintiffs).
Illinois’ definition of abuse of process is similar to that of Oklahoma and requires proof
of two elements--ulterior purpose and an act in the use of legal process not proper in the
                                                                              (continued...)

                                           -12-
      The district court properly instructed the jury on the elements of abuse of

process. The court instructed the jury that the Yearys’ filing and serving of a

motion for a TRO constituted issuance of legal process. Further, there was

sufficient evidence for the jury to find defendants had the ulterior motive of

concealing assets and that defendants committed an act, misrepresentation, that

was not proper in the regular course of a proceeding to obtain a TRO. The court

did not err in denying defendants’ motion for judgment as a matter of law.

                                 Allowable Damages

      Defendants maintain Advantor was not entitled to recover damages for loss

of use of the $150,000 in the trust fund or for attorney fees incurred in trying to

obtain that money. Essentially, they argue the district court incorrectly stated the

law when it instructed the jury it could consider such items. This court conducts

a de novo review to determine whether, as a whole, the instructions “correctly

stated the governing law and provided the jury with an ample understanding of

the issues and applicable standards.” Harrison v. Eddy Potash, Inc., 112 F.3d

1437, 1442 (10th Cir. 1997).

      Advantor presented evidence that defendants frustrated its efforts to obtain


      4
       (...continued)
regular prosecution of the proceedings. Erlich, 553 N.E.2d at 22. Apparently, Illinois
does not consider perjury to be an improper act in use of legal process. No court outside
Illinois has cited either Erlich or Wainwright, however, and we decline to follow these
cases.

                                           -13-
the $150,000 trust fund from May 1993 until December 1994. However,

defendants argue Advantor’s damages are limited to those incurred while the TRO

was in effect. See, e.g., Houghton v. Cortelyou, 208 U.S. 149, 160 (1908);

Monolith Portland Midwest Co. v. Reconstruction Fin. Corp., 128 F. Supp. 824,

878 (S.D. Cal. 1955). Defendants also contend that, contrary to the court’s

instructions, Advantor was not entitled to recover attorney fees and other

expenses incurred in resisting the TRO. See, e.g., Missouri, Kan., & Tex. Ry. Co.

v. Elliott, 184 U.S. 530, 539 (1902); Monolith, 128 F. Supp. at 878. However, the

jury awarded Advantor damages for abuse of process and fraud, not for the

wrongfully-entered restraining order. The cases defendants cite are inapposite.

      Defendants next argue Advantor had no right to the money in the trust

account at the time it attempted to garnish the funds. They submit the money was

loaned to Sonitrol of Oklahoma City for a specific purpose, i.e., to fund the

Yearys’ Chapter 13 plan. They cite Jacobs v. Colcord, 275 P. 649, 652-53 (Okla.

1929), for the proposition that funds loaned to a debtor for the purpose of retiring

a specific debt are not subject to garnishment by the debtor’s general creditors.

See also Remes v. Schwarz Paper Co., 164 B.R. 557, 559 (W.D. Mich. 1994)

(“[F]unds loaned to a debtor that are ‘earmarked’ for a particular creditor do not

belong to the debtor because he does not control them.”); Haskins v. Spears, 22

B.R. 367 (Bankr. W.D. Okla. 1982) (funds representing contingent liabilities are


                                         -14-
not subject to garnishment).

      The judgments Advantor sought to enforce by garnishment were against

Sonitrol of Oklahoma City, not the Yearys, and Advantor presented evidence at

trial that the money in the trust account was held for Sonitrol of Oklahoma City,

not the Yearys. The cases cited by defendants do not apply because the funds

Advantor sought to garnish were not loaned to the Yearys, but to Sonitrol of

Oklahoma City. More importantly, defendants did not raise the “earmarking”

defense in an answer to the garnishment summons. Instead, they denied existence

of the trust fund, having unilaterally determined the fund was not subject to

control of Sonitrol of Oklahoma City. As noted by the district court, defendants

deprived the parties of the opportunity to litigate the issue: “[N]obody on

[Advantor’s] side had a chance to hit the ball because the ball was hidden.”

Appellants’ App. at 247. The cases cited by defendants do not support the

proposition that a garnishee can conceal the nature of its assets and later avoid

liability for fraud and abuse of process on the grounds that the nature of its assets

precluded garnishment.



                                Amount of Damages

      Defendants contend Advantor’s evidence of actual damages supported a

maximum award of $61,850, which is $26,550 less than the $88,400 in actual


                                         -15-
damages awarded. Advantor presented evidence it incurred $44,290 in

unrecovered attorney fees between May 1993 and December 1994 and that it

could have earned $17,560 in interest on the $150,000 during that time period.

Defendants argue the jury’s award of $88,400 in actual damages was against the

weight of the evidence. “Our review focuses on whether the verdict is clearly,

decidedly, or overwhelmingly against the weight of the evidence, with the trial

court’s decision to stand absent a showing of a manifest abuse of discretion.”

Continental Cas Co. v. Southwestern Bell Tel. Co., 860 F.2d 970, 972 (10th Cir.

1988).

         The jury was instructed that, if it found for Advantor, it could assess as

actual damages an amount that would “fairly and justly compensate plaintiff for

harm directly caused by the wrongful conduct.” Appellants’ App. at 170. In

addition to the evidence regarding attorney fees and interest, Advantor’s vice

president testified he himself invested time pursuing the trust fund and he

rearranged his schedule to accommodate court appearances and meetings with

counsel. The jury could properly have considered these factors in determining

Advantor’s damages. The fact finder is “clothed with a wide latitude and

discretion in fixing damages, pursuant to the court’s instructions, deemed proper

to fairly compensate the injured party.” Bennett v. Longacre, 774 F.2d 1024,

1028 (10th Cir. 1985). “[T]he amount of damages awarded by a jury can be


                                           -16-
supported by any competent evidence tending to sustain it.” Id. at 1028. We

cannot conclude the jury’s award of damages was clearly, decidedly, or

overwhelmingly against the weight of the evidence.

                                   Cross-Appeal

      The stipulation in 93-1247-A between the Yearys and Sonitrol Financial

contained the following recitation of the course of litigation between Sonitrol

Financial and defendants: The Yearys filed an answer in 93-1247-A and

counterclaimed that Sonitrol Financial had acted in bad faith. The Yearys moved

the court for a TRO to prevent Sonitrol Financial from attempting to collect on its

judgments against Sonitrol of Oklahoma City in 86-2703-A. The district court

issued a TRO, but later dissolved it. The Yearys moved for a preliminary

injunction to prevent Sonitrol Financial from enforcing its judgments against

Sonitrol of Oklahoma City, and the district court denied the motion. The

operative provisions of the stipulation are:

             7. The parties hereby stipulate and agree that an order may be
      entered in this case dismissing with prejudice all of the Yearys’
      claims against [Sonitrol Financial], including without limitation, the
      counterclaim and any and all claims asserted by the Yearys in this
      case.
             8. The parties hereby stipulate and agree that the dismissal
      with prejudice is expressly conditioned upon the [Yearys] waiving
      any right they may have to seek reconsideration, appeal or review of
      the district court’s orders of March 2, 1994, and October 3, 1994.
      Further, the Yearys, individually, stipulate and agree to waive all
      rights, if any, to stay execution or otherwise impede [Sonitrol
      Financial] from obtaining satisfaction of the judgments rendered in

                                        -17-
      CIV-86-2703-A.

Appellee’s Suppl. App. at 368-69. The district court dismissed with prejudice all

claims asserted by the Yearys in their counterclaim, as well as all other claims of

the Yearys set forth in the stipulation.

      Advantor argues, as a matter of law, defendants waived their right to assert

their affirmative defense of payment to Advantor’s note claim and their

counterclaim in this case. Advantor submits the claims dismissed in 93-1247-A

are substantially the same as those asserted by the Yearys here.

      The district court rejected Advantor’s argument when it denied Advantor’s

motion for judgment as a matter of law prior to trial and again at the close of

evidence. Advantor sought to bar defendants’ argument that the two judgments

entered against Sonitrol of Oklahoma City in 86-2703-A had been paid and that

the debt to Sonitrol Financial had therefore been fully satisfied. The court found

the amount of any remaining debt was an issue of fact to be decided by the jury.

The dispute between the parties went to whether defendants were entitled to fully

collect on the judgments and also on the underlying notes. We review de novo

the denial of Advantor’s motion for judgment as a matter of law.

      Advantor argues we should treat the stipulation in this case like a contract,

see McFarling v. Demco, Inc., 546 P.2d 625, 630 (Okla. 1976) (some stipulations

are tantamount to contracts), and that as an unambiguous contract, its


                                           -18-
interpretation is a matter of law for the court, Lewis v. Sac & Fox Tribe of Okla.

Housing Auth., 896 P.2d 503, 514 (Okla. 1994). If an agreement contains

ambiguities, however, the intent of the parties is a question of fact for the jury to

decide. Sonitrol Fin. Corp. v. Oklahoma City Abstract & Title Co., 55 F.3d 504,

507 (10th Cir. 1995). The Oklahoma Supreme Court has specifically held waiver

is a question of fact to be determined by the jury. Bay Petroleum Corp. v. May,

264 P.2d 734, 736 (Okla. 1953). “Whether facts on which a claim of waiver is

based have been proved, is a question for the trier of the facts, but whether those

facts, if proved, amount to a waiver is a question of law.” Garvey v. Blatchford

Calf Meal Co., 119 F.2d 973, 975 (7th Cir. 1941). The burden of proof is on the

party invoking the bar of waiver. Hall v. Duncan Sav. & Loan Ass’n, 820 P.2d

1360, 1362 (Okla. App. 1991).

      Defendants respond they did not intend to waive their right to assert their

affirmative defense and counterclaim in this case by virtue of the stipulation in

93-1247-A, in that their defense of payment and counterclaim had not yet arisen

at the time they entered into the stipulation. They submit they did not make the

final payment satisfying the judgments against them until the court entered its

agreed order on December 20, 1994. Indeed, the counterclaim in this case

specifically alleged Sonitrol Financial was required to release its consent

judgments against Sonitrol of Oklahoma City as of December 12, 1994. The


                                          -19-
December 20 agreed order evidences defendants’ belief that the stipulation did

not constitute a waiver of their right to assert their subsequent payment to

Advantor. The agreed order stated Sonitrol of Oklahoma City “disputes the

amount claimed due by [Sonitrol Financial] in its Garnishee Summons and

Affidavit, but consents to disbursement of the above-referenced funds to [Sonitrol

Financial].” Appellee’s Suppl. App. at 306.

      Oklahoma law supports the concept that only a known, existing right can be

waived. In Faulkenberry v. Kansas City S. Ry. Co., 602 P.2d 203 (Okla. 1979),

plaintiff entered into an out-of-court settlement with his employer and signed a

waiver of his rights under the Federal Employers’ Liability Act. Plaintiff later

sought to avoid the waiver, asserting defendant did not inform him of his rights

under the Act. The Oklahoma Supreme Court upheld a verdict for plaintiff,

finding there was evidence that plaintiff did not have knowledge at the time of the

transaction of the existence of his rights and of all the material facts upon which

they depended. See also Silver v. Slusher, 770 P.2d 878, 882 n.12 (Okla. 1988)

(“‘Waiver’ is the voluntary, intentional relinquishment of a known right. The

person against whom waiver is asserted . . . must have had full knowledge of the

existence of his rights.”); Irwin v. Irwin, 136 P.2d 940, 942 (Okla. 1943)

(“Waiver is the intentional relinquishment of a known right. If there is no right

there is nothing to waive.”).


                                         -20-
        Admittedly, the Yearys agreed to “waive all rights, if any, to stay execution

or otherwise impede [Sonitrol Financial] from obtaining satisfaction of the

judgments rendered in CIV-86-2703-A.” Appellee’s Suppl. App. at 369. A

strong argument can be made, however, that the parties did not intend that the

stipulation bar defendants from asserting they subsequently satisfied the

judgment, i.e., proper credit for payments made. The interpretation of this

ambiguous stipulation and the question of whether Advantor proved the facts on

which it bases its claim of waiver were questions of fact properly submitted to the

jury.

        AFFIRMED.




                                          -21-
