FOX v. CROWGEY
2015 OK CIV APP 23
| Okla. Civ. App. | 2014Background
- Don Fox (Big Giant Warehouse) sued his son Tim Fox (Fox Wholesale) and Stan Crowgey/K.I.N.E., alleging conversion, interference with business relations, breach of fiduciary duty, misappropriation of confidential information and related claims based on side deals while Tim worked for Big Giant. Crowgey sold donated goods to Tim, who resold them.
- Claims against Crowgey/KINE were largely undefended; claims against Tim proceeded to trial after partial summary judgment dismissing fraud and punitive damages. Parties tried consolidated matters; trial focused on Big Giant vs. Tim/Fox Wholesale.
- Don presented an expert (Klingenberg) estimating lost profits near $1.7–1.8M; Tim presented a rebuttal expert (Daily) who criticized assumptions and causation. Witness testimony conflicted on whether deals were permitted by Don, whether customers were diverted, and on pallet sales and use of donated goods.
- After six days, the jury returned a general verdict for Don but awarded $0 in actual damages; it initially found reckless conduct by Tim (clear and convincing) but later — after the court called jurors back to resolve an apparent inconsistency — returned a verdict for Don with zero damages and no clear-and-convincing finding.
- Don moved for a new trial, arguing the zero-damages award was inconsistent and that the court erred by refusing a fraud instruction; the trial court denied the motion. Don appealed.
Issues
| Issue | Fox's Argument | Tim's Argument | Held |
|---|---|---|---|
| Whether a general verdict for liability but $0 damages is inconsistent | A verdict for liability on conversion, interference, breach of fiduciary duty, misappropriation requires at least some damages; evidence established damages | Jury heard conflicting evidence; zero damages supported by testimony and expert dispute | Not inconsistent; jury may find liability but award zero if plaintiff failed to prove compensable loss; affirmed |
| Whether denial of new trial on damages was abuse of discretion | Trial court should grant new trial because award of $0 ignored uncontroverted proof of damages | Trial court reasonably found competent evidence supported $0 award | No abuse of discretion; denial affirmed |
| Whether post‑verdict communication between judge and jurors was improper/ex parte | Judge’s off‑record comments to jurors and later reliance on a juror remark created appearance of impropriety and prejudiced Fox | Court’s brief inquiry (any questions) and juror comment did not address case merits; conduct complied with judicial conduct rules | No misconduct; discussion fell within permissible post‑trial juror contact and did not require reversal |
| Whether trial court erred by refusing fraud/deceit jury instruction | Evidence at trial warranted deceit/fraud instruction; refusal prejudiced Fox | Fraud claims were dismissed earlier; Fox failed to preserve request to re‑submit fraud instruction at trial | No fundamental error: fraud was not a tried claim and Fox failed to preserve objection to refusal; affirmed |
Key Cases Cited
- Stroud v. Arthur Anderson & Co., 37 P.3d 783 (Okla. 2001) (appellate deference to jury findings where competent evidence supports verdict)
- Pine Island RV Resort, Inc. v. Resort Mgmt., Inc., 922 P.2d 609 (Okla. 1996) (review whether record supports award of zero damages)
- Burkett v. Moran, 410 P.2d 876 (Okla. 1965) (example of verdict ‘‘inconsistent within itself’’ when jury awards some elements but omits others proven)
- Wright v. Central Oklahoma Milk Producers Ass'n, 509 P.2d 464 (Okla. 1973) (jury may decline to award certain damages where evidence conflicts)
- Kerlin v. Hunt, 310 P.3d 1114 (Okla. Ct. App. 2013) (ex parte post‑verdict juror discussions can create appearance of impropriety)
- Baker v. Locke Supply Co., 736 P.2d 155 (Okla. 1987) (plaintiff bears burden to prove injuries and entitlement to compensation)