BIRD CONST. v. OKL. CITY HOUSING AUTHORITY

110 P.3d 560

1970 OK 169

2005 OK CIV APP 12

BIRD CONSTRUCTION COMPANY, INC., Plaintiff/Appellant/Counter-Appellee, v. OKLAHOMA CITY HOUSING AUTHORITY, Defendant/Appellee/Counter-Appellant.

No. 98,703.

Court of Civil Appeals of Oklahoma, Division No. 2.

September 7, 2004.

Certiorari Denied February 7, 2005.

Evan B. Gatewood, Hayes Magrini & Gatewood, Oklahoma City, OK, for Plaintiff/Appellant/Counter-Appellee.

R. Steven Haught, Daugherty Fowler, Peregrin & Haught, Oklahoma City, OK, for Defendant/Appellee/Counter-Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. Opinion by TOM COLBERT, Chief Judge:

¶ 1 Bird Construction Company, Inc., appeals from the trial court's post-judgment orders in its successful claim against the Oklahoma City Housing Authority (OCHA) for breach of contract and libel. OCHA counter-appeals from the judgment and award of pre-judgment and post-judgment interest. The issues on appeal are numerous. Based upon our review of the record and applicable law, we conclude that the majority of the issues raised by the parties do not warrant reversal, but that the trial court did err in part. We, therefore, affirm in part, reverse in part, and remand for further proceedings in accord with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On August 15, 1994, Bird and OCHA executed a construction contract for the rehabilitation of a housing project. Bird's performance as general contractor was delayed by errors in the plans and specifications and was further delayed by OCHA's procedures to make the necessary corrections. The parties also developed a dispute over payment. Bird's position was that OCHA had required it to perform work beyond the scope of the contract, entitling it to additional payment. OCHA's position was that the required work was part of the contract. Ultimately, OCHA declared Bird in default and completed the remaining work itself. OCHA also sent a copy of its letter declaring Bird in default, as well as copies of the preceding correspondence, to Bird's bonding company. Those letters placed full blame for the delays and ultimate termination on Bird, without acknowledging any other causes. Ultimately, Bird was unable to obtain bonds to secure new contracts.

¶ 3 Bird sued OCHA for breach of contract and libel. Following a trial, a jury returned a verdict in Bird's favor and awarded damages of $394,355.01, including $186,823.81 for breach of contract and $207,531.20 for libel. The trial court entered judgment on the verdict, including pre-judgment and post-judgment interest, but capped the libel award at $175,000. OCHA's motion for new trial was denied. Bird then filed a motion for attorney fees and OCHA filed a motion to prohibit execution on the judgment. The trial court denied Bird's motion, but granted OCHA's, prohibiting Bird from executing on the judgment.

¶ 4 Bird appeals from the trial court's orders denying attorney fees and prohibiting execution on the judgment. OCHA appeals from the underlying judgment, asserting that the trial court erred in awarding pre-judgment and post-judgment interest, used the wrong amount to cap the libel award, erred in permitting the libel action to go to the jury, and erred in allowing certain testimony. OCHA further asserts that the damages awarded by the jury were excessive.

DISCUSSION

¶ 5 Because OCHA appeals portions of the underlying judgment, we will consider the issues it has raised first. We will then address the issues Bird raises on appeal regarding the post-judgment orders.

I. Libel

¶ 6 OCHA contends the trial court erred in submitting Bird's libel claim to the jury. When we review a motion for directed verdict, we apply the same standard used in motions for judgment notwithstanding the verdict. See McInturff v. Okla. Natural Gas Transmission Co., 1970 OK 169, ¶ 9, 475 P.2d 160, 162. We must disregard the evidence favorable to the defendant and, unless there is an entire absence of proof of the plaintiff's right to recover, we must conclude that the motion should have been denied. Sadler v. T.J. Hughes Lumber Co., 1975 OK CIV APP 30, ¶ 4, 537 P.2d 454, 456. "Only if all the inferences to be drawn from the evidence are in favor of the moving party will a directed verdict withstand appellate scrutiny." Harder v. F.C. Clinton, Inc., 1997 OK 137, ¶ 6, 948 P.2d 298, 302.

¶ 7 OCHA argues that Bird did not establish the elements of libel. Libel is defined as "a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation." 12 O.S.2001 § 1441. Libel is a form of defamation, which requires "(a) a false and defamatory statement concerning another, (b) an unprivileged publication to a third party, (c) fault amounting at least to negligence on the part of the publisher, and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Restatement (Second) of Torts § 558 (1977). "A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Herbert v. Okla. Christian Coalition, 1999 OK 90, n. 4, 992 P.2d 322.

¶ 8 The statements Bird alleged were libelous were made in the termination letter sent by OCHA to Bird and its bonding company. It stated, "A determination has been made that your failure to perform is not excusable." Additional statements in the letter were, "You have failed to perform work in a timely manner;" "You have failed to comply with the requirements of ... the contract;" "You have failed to follow specifications;" and "You have been unreasonable regarding unit pricing."

¶ 9 OCHA first argues that Bird did not establish malice. Bird, however, was not required to prove malice, because it is not a public figure. Sturgeon v. Retherford Publ'ns, Inc., 1999 OK CIV APP 78, ¶ 10, 987 P.2d 1218, 1223. It needed to prove only that the statements were false or malicious. 12 O.S.2001 § 1441.

¶ 10 OCHA next asserts that the statements could not be termed false, because they are statements of opinion.

As a general rule, statements which are opinionative and not factual in nature, which cannot be verified as true or false, are not actionable as slander or libel under Oklahoma law. However, if an opinion is stated as or "is in the form of a factual imperative," or if an opinion is expressed without disclosing the underlying factual basis for the opinion, the opinion is actionable under Oklahoma law if the opinion implies or creates a reasonable inference that the opinion is justified by the existence of undisclosed defamatory and false facts.

Metcalf v. KFOR-TV, Inc., 828 F.Supp. 1515, 1529 (W.D.Okla.1992) (emphasis added; citations omitted). Taking the statements in the light most favorable to Bird, we conclude that they are not stated as opinions, but as verified facts.

¶ 11 Bird introduced evidence that the statements in the letter are false. When questioned about the letter, Charlie Allen Dunbar, contracting officer for OCHA, admitted that it did not acknowledge that Bird was not responsible for all of the delays. Dunbar admitted that the letter "lays all the blame at [Bird's] doorstep," without acknowledging that much of the delay was due to errors in the plans and to OCHA's bureaucratic process. Indeed, Dunbar admitted that, during the several-month delays blamed in the letter on Bird, it was contractually forbidden from proceeding on the areas causing the problems. As a result, even if we interpret OCHA's statements as opinions, they support the reasonable inference that they are "justified by the existence of undisclosed defamatory and false facts." Id.

¶ 12 OCHA asserts further that the letter was not published because Bird did not prove that it was sent to Bird's bonding company. This argument ignores the testimony by OCHA's own employee that the letter was sent to the bonding company. Similarly, OCHA's argument that Bird did not establish that it was damaged by the defamatory statements ignores the evidence of just such damage.

¶ 13 Finally, OCHA contends Bird's libel claim cannot succeed because the Governmental Tort Claims Act (GTCA) exempts governmental entities from liability for "unintentional misrepresentations." See 51 O.S. Supp.2003 § 155(17). This issue was not raised at trial and is waived. "Trial courts are not traditionally reversed for error unless the error was called to their attention at a time when they themselves could reasonably be expected to correct it." Gaines v. Sun Ref. & Mktg., 1990 OK 33, ¶ 20, 790 P.2d 1073, 1080 (overruled on other grounds by Davis v. B.F. Goodrich, 1992 OK 14, 826 P.2d 587); see also Carswell v. Okla. State Univ., 2003 OK CIV APP 3, ¶ 6, 62 P.3d 786, 788; Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.3d 600, 605 (10th Cir.1994)(governmental entity can waive GTCA's application).¹ The trial court did not err in submitting Bird's libel claim to the jury.

II. Damages

¶ 14 OCHA next asserts the damages award was flawed in two ways. First, it contends the verdict was excessive. Second, it contends the tort damages should have been capped at $100,000, rather than $175,000.

A

¶ 15 Whether the damages awarded by the jury are excessive presents a question of fact. We accord great deference to a jury's verdict and will affirm it as long as it is supported by any competent evidence. Elmore v. Doenges Bros. Ford, Inc., 2001 OK CIV APP 27, ¶ 7, 21 P.3d 65, 69 (citing Florafax Int'l, Inc. v. GTE Mkt. Res., Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287; Sides v. John Cordes, Inc., 1999 OK 36, ¶ 17, 981 P.2d 301, 307).

¶ 16 The jury awarded total damages of $394,355.01, which included $186,823.81 for...