 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sullivan v. Forty-Second West Corp.6/2/1998
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 2
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HONORABLE BRYAN C. DIXON, TRIAL JUDGE.
MEMORANDUM
Plaintiff's case results from a landlord-tenant dispute in which the landlord originally brought action to foreclose upon a security interest in personal property and to recover damages relating to a breach of the lease agreement. Tenant asserted a counterclaim for conversion, relating to the property left on the rental premises and later leased in part to a subsequent tenant. The matter was presented to a jury which returned a verdict in favor of the landlord, Sullivan, finding no conversion occurred and awarding $7000.00 in damages.
Tenant appealed the jury verdict. The Court of Civil Appeals, in an [Editor's note: originally released as an unpublished opinion], affirmed in part, reversed in part and remanded the cause for further proceedings. The Court of Civil Appeals found fundamental error occurred because a jury instruction relating to the commercial reasonableness of the landlord's Disposition of the personal property was not submitted to the jury. Certiorari has been previously granted in this case. We vacate the Court of Civil Appeals opinion and affirm the trial court.
From the record provided to this Court, it appears no instruction was proposed at the trial level nor any exception made to the exclusion of an instruction regarding commercial reasonableness. Furthermore, Tenant directed no proposition of error at such an instruction on appeal.
Tenant's failure to preserve this error at any level poses two questions for this Court: First, can an appellate court reverse a judgment based upon a jury verdict for fundamental error in a jury instruction, if the issue regarding whether fundamental error occurred was not raised by either party on appeal; Second, if fundamental errors are reviewable without being raised in the appellate briefs, did such an error occur with the omission of an instruction pertaining to the commercial reasonableness of the landlord's Disposition of personal property in which he held a security interest. This Court finds fundamental errors reviewable even in the absence of addressing such error on appeal. However, we find no fundamental error in the instant case with regard to the omission of an instruction directed at the commercial reasonableness of the landlord's action.
With regard to error in jury instructions, we look to 12 O.S. 1991 Section 578:
A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating into the record in open court, out of the hearing of the jury, after the reading of all instructions, the number of the particular instruction that was requested, refused and is excepted to, or the number of the particular instruction given by the court that is excepted to. Provided, further, that the court shall furnish copies of the instructions to the plaintiff and defendant prior to the time and instructions are given by the court.
If objection to the refusing or the giving of an instruction is not made in accord with the procedure outlined in Section 578, the authority of the appellate court to review the alleged error is severely limited. Mason v. McNeal, 100 P.2d 451 (Okla. 1939); Sellars v. McGullough, 1989 OK 155, 784 P.2d 1060, 1062.
ithout exception saved to the inst
Page 1 2 3 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|