*1 AND THE T OUR HANDS 10 WITNESS appeal, but not right of his the trial court day this 8th of THIS COURT SEAL OF right to withdraw of his seek specifically March, error, 2001. as trial This was guilty plea. defendants specifically advise judges should Gary Lumpkin L. /s/ guilty right to withdraw to seek LUMPKIN, Presiding Judge L. GARY /s) acceleration. See Gonseth plea at the time of A. Johnson Charles 9, ¶11, State, P.2d 51. CR v. JOHNSON, Presiding A. Vice CHARLES Nevertheless, represented Appellant was Judge nothing in the record there is counsel and Chapel Charles S. /s/ - timely proper not CHAPEL, Judge

indicating counsel did CHARLES S. options appeal all his ly Appellant of advise M. Reta Strubhar /s/ acceleration ord followingthe District Court's STRUBHAR, Judge M. RETA addition, timely appeal In this er.1 Lile Steve /s/ attempt appellate counsel did not LILE, Judge filed STEVE applica time to file an appeal an out of seek proper plea guilty, the withdraw his

tion to the issue. See Rule

procedure to raise

21(E)(1), Oklahoma Court Rules App. Appeals, Title Ch. Criminal

(2000). he Appellant If indeed believes 2001 OK CIV APP 27 right to seek to deprived of his has been ELMORE, Appellee, Chris plea, proper proce guilty withdraw his v. Applicationfor Post-Convie dure is to file an FORD, DOENGES BROTHERS requesting Court tion Relief with the District INC., Appellant. 21(E)(1). That appeal out of time. Rule designed allow a procedure 93,241. No. it can be determined wheth hearing wherein in fact unaware of his Appellant was er counselwas ineffective

rights, and whether Oklahoma, Appeals of of Civil Court preserving and in those advising Appellant 2. Division No. State, 1980 OK CR rights. Smith v. See Aug. 2000. ¶ 2, 611 P.2d 276. Rehearing 2000. Denied Oct. Finally, after a review of the evidence T7 hearing, Feb. the acceleration this Certiorari Denied presented at in the abuse of discretion finds no Court April Amended As Appel decision to accelerate District Court's Judgment deferred Sentence. lant's State, 1981OK CR Mack THE IT THEREFORE ORDER

T8 IS the acceleration

OF THIS COURT Judgment and Sentence

Appellant's deferred in the District No. Case CF-97-73-B be, County should and is of Creek

Court

hereby, AFFIRMED.

1 9 IT IS SO ORDERED. argument, counsel admitted he did

1. At oral or not. Appellant advised know whether counsel had so

OPINION TAYLOR,J.

{1 Defendant, Ford, Doenges Brothers Inc., appeals deny- an order of the trial court ing its for new trial. The issues on motion (1) appeal are whether the verdict is sus- (2) evidence; by competent tained whether correctly the trial court denied (8) remittitur; request for a whether the trial (4) properly jury; court instructed the correctly whether the trial court awarded *4 Plaintiff, attorney fees to Chris Elmore. Having applicable reviewed the record and law, questions we answer all four in the denying affirmative and affirm the order motion for new trial. Belauste,

12 Alex one of em (a Jetta) ployees, placed Volkswagen a car on consignment with Defendant. had Belauste purchased brought the car in Mexico and Plaintiff, to the United States. another em Defendant, ployee buy wished car. pur Because Plaintiff desired to finance the Credit, through chase Ford Motor the sale of accomplished through the car was Defendant. 8, 1996, August On Belauste executed an Owner," "Assignment by Registered of Title appeared which on the reverse side of the official Certificate Title issued the State thereby of Oklahoma. Belauste transferred day, title to Defendant. On the same Defen Assignment by dant executed a "Re Okla Dealer," appeared homa which also on the reverse side of the official State of Oklahoma thereby Certificate of Title. Defendant re assigned the title to Plaintiff.1 sale, 13 Sometime after the the State de- termined that certain Environmental Pro- (EPA), Agency Department tection Transportation (DOT), and clear- customs missing. ance documents were Because of documents, the absence of these the State would not issue an official title to Plaintiff for the vehicle. Harris, Harris, Tulsa, Doyle Steven M. & T4 Due to the State's denial of Plaintiffs OK, Appellee. for title, request for sued Defendant McCollam, CHasseo, alleging ME. Tul- McCollam & breach of of title. The suit sa, OK, Appellant. proceeded to trial and a returned a 1. The title listed Plaintiff Kelisha D. lawsuit. and/or However, Fipps. Fipps party is a not a to this it, together every tending support Plaintiff in the amount of in favor of

$25,000. timely motion for therefrom, Defendant filed inference deducible re reasonable remittitur, trial jecting which the the adverse new trial or for all evidence adduced granted Plain- The trial court court denied. with it." conflicts Florafax Defendant Int'l, Resources, Inc., fees. tiff's motion Inc. v. GTE Market rulings. appeals of these 9883P.2d 287. Where both tending any competent there evidence verdict, REVIEW STANDARD OF support appellate court will judgment not disturb the verdict or a based appeal, as it relates to the 15 This appellate An court must accord thereon. Id. verdict, deny originates from an order greatest "the deference to the determination ing for new trial or for remittitur. a motion Cordes, by the trier of fact." Sides v. John review of a trial court's The standard of 36, ¶ 17, denying a motion for new trial decision "A is vested with broad clear: trial court argument 18 Defendant's main with re- legal granting new discretion gard insufficiency centers of the evidence trial, clearly appears and unless it damages. around the issue pure simple ques erred in some trial court argues that Plaintiff "offered no evidence arbitrarily, judgment tion of law or acted *5 regarding damages; the issue of appeal." will not be disturbed on Dominion by required instruction No. calculation Masterson, Tenn. v. 1996 Bank Middle of 17, the difference between the value of the 99, 116, for the As OK accepted car car as and the value the would remittitur, damage a award will motion for a have had if it had been warranted." De- as subject and to remitti- not be held excessive argues verdict is exces- fendant also that the tur, grossly appears to unless the award be sive. passion, preju the result of excessive or is dice, improper sympathy. v. Re or LeFlore damages T9 of for breach The calculation Tulsa, Inc., 1985 708 warranty governed by 12A of of title is 0.8. flections of P.2d 2-714, provides pertinent § in 1991 which part as follows: appeals

16 Defendant also the award fees, arguing (2) that Plaintiff is not of damages of for breach The measure of entitled to such award. issue warranty of is the difference at the time attorney fees entitlement to an award of place acceptance the value of between Questions question law. of law presents a they goods accepted and the value subject to the de novo standard of re they war- would have had if had been as Co., 1994 view. Weeks Cessna ranted, Aircraft 895 P.2d special unless circumstances show 171, ¶ 5, OK CIV damages amount. proximate of a different by (approved publication of the for order (3) any proper In a case incidental and Court). Supreme Under that Oklahoma consequential damages under the next see- standard, plenary, independent and we claim may tion also be recovered. authority to reexamine the non-deferential legal rulings. trial court's Kluver v. Weath disagree 110 We Auth., Hosp. erford prove argument that Plaintiff failed to P.2d car ac differential in value between the cepted Plaintiff testified and as warranted. THE SUFFICIENCY OF EVIDENCE car, but, because title that he tried to sell the THE VERDICT TO SUPPORT name, in his he could not to the car was not Plaintiff, buyer According no a for it. to find argues T7 Defendant first the ver give paid him what he had one would close to supported dict is not sufficient evidence the car. Plaintiff further testified contrary appellate An or is to law. court de only find were parties interested he could sufficiency of the evidence to termines business, they salvage in wanted to light "in of the evidence sustain give sup This evidence him $2002 that, blush, $100 say 13 We cannot at first damages finding awarded the instant ports a the difference between ($100 outrageous. case are unreasonable accepted value of the car as or Again, presented we note Plaintiff evidence $200) if and the value the car would have had only potential buyers that the of the car with ($10,500) $10,400 been as warranted had salvage the title defect were from the indus- $10,300. or try willing pay approximately who were 11 Defendant attacks Plaintiff's evidence $10,300 paid less than Plaintiff had for the ground that it on on the is based the value of Furthermore, being car. in addition to enti- trial, the car at the time of not the value of value, pro- § tled to the differential 2-714 acceptance required the car at the time of consequential damages vides for in a breach §by agree 2-714. that Plaintiff did tes- Consequential case. tify at terms of the value the time of trial. "any resulting include loss from However, under the circumstances of this particular requirements needs of case, particular testimony Plaintiff's is still contracting the seller at the time of had probative. The defect the car is a defect reason to know and which could reason- ably prevented by title-it was the same at the time of be cover or otherwise." § 12A 0.8.1991 Plaintiff testified he acceptance as it was at the time of trial. Therefore, purchase was unable to another car evidence of the value of the car at because making payments he was still on (salvage the Jetta. according the time of trial value Plaintiff) equally probative transporta- of evidence of He further testified that loss of tion, inability due to to drive the Jetta be- acceptance the value of the car at the time problems, cause the title caused him to be (again, salvage value). unemployed approximately eight months. Plaintiff, According salary average also *6 $2,500 month, approximately per resulting in damages are and should have been excessive $20,000. approximately a loss of income of jury may remitted. A be set aside as Therefore, counting the in differential value may granted or a remittitur excessive be $10,300 income, pre- and the lost only appears if it that "the verdict is so damages sented evidence of of a minimum of mankind, blush, excessive as to strike at first $30,300. Thus, $25,000 jury's the verdict of being beyond all measure unreasonable range was within the of the evidence as to outrageous, showing jury the have to damages say and we cannot that it strikes by passion, partiality, preju been actuated this court as excessive. corruption." Hampton, dice or v. Currens 10, 939 1138, 1141; 1997 OK P.2d see ¶ 114 Defendant maintains that Plain LeFlore, also 1985 OK 408 P.2d at consequential damages tiff is not entitled to may "An appellate court not substi damages because he waived such under the judgment jury tute for that of the in its Buyer's Agreement. argues Defendant the body; fact-finding exercise as a it must con trial court instructing jury erred the sider the evidence most favorable to the regarding the affirmative defense of waiver. plaintiffs establishing concerning the Initially that, facts regard we note with to the Currens, waiver, the of the verdict." excessiveness merely issue of Defendant stated in ¶58, 10, 1997OK at 1141. 939 P.2d its motion for new trial that the "verdict was argues presented supporting 2. We note that Defendant conflicts with the evidence and infer Int'l, evidence that Plaintiff could have the car at sold ences. Inc. v. GTE Market Re Florafax state, an auction in another even with the title sources, ¶ 3, 933 P.2d Disregarding defects. the issue of whether Plain- Moreover, weight given "[the effect and to be required tiff should even to search be for such an conflicting testimony ques or inconsistent hopes selling signifi- auction a car with by jury tions of fact to be determined and not defects, cant title we need not consider this evi- by appellate to be retried courts where there applicable dence under the standard of review. support jury's is evidence to determination." We consider the evidence and reasonable infer- v. 744 P.2d Holley Shepard, tending support reject ences to the verdict and produced by all evidence the adverse warrant, provi expressly contrary in that the contractual car. Because Defendant to law title, waiving provision disclaiming liability by the Defendant ed agreed to sion consequential incidental consequential damages is not effective as to allegation consequential damages or effect." This given no force for breach of the war- proper ranty being so as not to of title. borders on ly appeal the issue of failure to preserve for regard to the amount of 116 With give regarding waiver. See the instruction damages, jury Defendant also Corp. Independent Sch. generally Federal determined its verdict under the influence of Dist. No. 1978OK CIV passion prejudice. support argu To this (approved publication order of ment, points to two notes that the Horizons, Court); Supreme the Oklahoma jury judge during sent to the deliberations. Co., Leasing Inc. v. Keo The first note asked: P.2d 757. money plaintiff Can we award to and also Assuming properly that Defendant provide [Defendant] instruct to valid title issue, preserved this find that the trial EPA, DOT, we paperwork? & Customs refusing give not err to court did question by The trial court answered this buyer's agreement instruction. The con- advising that its verdiet was "limited following tained a disclaimer with the lan- you." to the instructions as guage: second note asked: ALL THE VE- VEHICLES: WHETHER figure plaintiff, If we award dollar does NEW, A IS DEMONSTRATOR HICLE pay attorney he out of that? or can we DEALER FUR- OR USED: UNLESS pay plaintiff's ask [Defendant] A BUYER SEPARATE NISHES WITH damages? & court fees over WRITTEN WARRANTY OR SERVICE question The trial court answered this MADE BY THE DEALER CONTRACT "attorney advising the fees are not BEHALF, DEALER ON HIS OWN your concern." _ WARRANTIES, ALL DISCLAIMS - responses 1 17 We find the trial court's WRITTEN, IMPLIED, EXPRESS OR jury's questions adequately dealt with WARRANTIES, ALL INCLUDING OF presume their concerns. must MERCHANTABILITY OR FITNESS jury followed the trial court's directions and PURPOSE, A AND FOR PARTICULAR light the in considered the evidence DEALER EXPRESSLY DISCLAIMS *7 Glenn, 158, Bateman v. 1969 structions. OK PURCHASER, LIABILITY ANY TO ¶ 14, not 459 P.2d 858. Defendant has CONSEQUENTIAL FOR ANY DAM- clearly showing prejudice met its burden AGES, LOSS OF TIME OR INCONVE- finding jury that would a the verdict warrant THE NIENCE OUT OF ARISING Bearden, was excessive. See Clark 1995 OPERATION OF THE PURCHASE OR ¶71, 11, 903P.2d added.) (Emphasis VEHICLE. above, Finally, language emphasized argues Defendant Pursuant to the jury disregarded no if the the instructions in that Defendant's disclaimer was of effect separate Plaintiff with a not find for Defendant on its defense of Defendant furnished did circumstances."} However, warranty. "special written The of Title Certificate trial, through attempted pass which motion for new Defendant did not refer Defendant "special expressly provided that De- to either the cireumstances" title to issue assigned party." mere fendant and warranted title of the 3or"accommodation by give buyer argument which the rea- 3. Defendant's is based on 12A O.S. or circumstances person selling son to know that the does not § as follows: provides (1) (2) purporting Subject title in or that he is to subsection there is in a claim himself warranty by the only right contract for sale a seller or title as he or a third sell such (a) good, person may have. the title shall be and its conveyed rightful.... transfer jury court instructed the consistent trial * (1) (2) warranty A be under subsection will this section. only by specific language excluded or modified contrary to 1121 Defendant first attacks instruc ly alleged verdict was "[the jury which instructed the tion number rendered in disre the verdict was law that allega given." This follows: gard of the instructions you If cannot decide the intention of the preserve

tion is too prior parties considering after in- regarding special the defense of argument structions, you interpret then should _- generally See Federal cireumstances.4 - express unclear terms of the written war- 606 P.2d 1141 Corp., 1978 OK CIV ranty strongly against most re- by (approved publication order of the uncertainty. sponsible for the Horizons, Inc., Court); Supreme Oklahoma out, correctly points 1984OK 681P.2d 757. As Defendant the writ warranty language contained on the ten was jury's by supported 119 The and, side of the certificate of title reverse evidence, liability competent both as thus, party. was not drafted either De Furthermore, damages. the verdict does not instruction, best, argues fendant this at con by passion or appear to have been actuated However, jury. jury in fused the where a Therefore, prejudice. the trial court did not obviously applicable, struction not it must arbitrarily or act or con- abuse its discretion presumed jury recognized the be instruc trary to law Defendant's motion inapplicable tion reached its verdict for new trial or for remittitur. unaffected the instruction. Federer v. Davis, Furthermore, argued Defendant has not or ADEQUACY THE THE OF JURY probability jury shown a that the was misled INSTRUCTIONS and reached different conclusion due to the inapplicable instruction. 120 Defendant next 122 Defendant next attacks instruction instructing jury trial court erred being unnecessary 14" number 5as and con grant in refusing to a new trial on that basis. fusing specific in view of the more instruc standard of review for instruc "[Tlhe However, regarding tions warranties. De probabili is whether a tions or refused fendant, again, argued has shown a misled, ty jurors thereby exists that were probability that misled reaching they a different conclusion than reached a different conclusion due to the questioned have reached but for in would inapplicableinstruction. struction(s)." Feeders, Cimarron Inc. v. Tri-County Coop., Elec. Finally, Defendant attacks in ¶ 5, P.2d must consider struction number which instructed the law, accuracy "the of the statement of jury as follows: applicability of the to. the instructions issues you If [Plaintiff] decide for on his claim for when instructions are considered as a express breach of of title or writ- whole, all, probability and above whether the warranty, you fix ten must then jurors arose that were misled and reached a *8 damages. of amount This is the different conclusion to an error in the due money put amount of that is needed to him 6, 902; T instruction." Id. at 818 P.2d at see good position in a as as he would have America, Mosley Truckstops Corp. also warranty if been the of title had not been of ¶79, 1983OK 891 P.2d 581. breached. agree McCoy 4. We also with Plaintiff that there is suffi- based on that evidence. See v. Oklahoma cient evidence in the record-the cir- Co., Farm Bur. Mut. Ins. 1992 OK 841 P.2d surrounding transaction; the ti- cumstances the receiving tle which shows Defendant title from transferring it Plaintiff; Belauste and and jury Instruction number 14 instructed the as testimony Plaintiff's that Defendant treated Plain- follows: regular question a tiff as a customer-to raise of warranty express warranty A of title and an fact in Defendant's status the transaction. Thus, correctly breached or broken when a does not do the trial court submitted the issue promised express jury presume jury what it to do in the written to the and' we must that the warranty. listened to the and evidence made its decision

73 questioned instructions. is a modified version of Okla- See Cimarron This instruction - Feeders, 104, ¶ 5, 1991 OK 818 P.2d at 902. Jury Instruction homa' Uniform criticizes this instruction 28.51. Defendant PLAINTIFFS ENTITLEMENT comport with ground that it does not on the TO ATTORNEY FEES 28.51. The the Notes on Use OUJI the instruction Notes on Use state that 126 The trial court Plain awarded attorney pursuant tiff fees and costs 12 jury. question if there is a should be § concerning damages. of the amount ©.S8.1991 allows an of award attorney prevailing party any fees to the "[in that, in the last on Use further state *9 singly cumulatively, probably or misled the agent cheaper fi- enable Plaintiff's obtain nancing purchase and caused it to reach a different conclu- automobile employee originally owning the ve- from the sion than it would have reached but for pretrial challenge order 6. Defendant does not the amount of 7. Plaintiff stated in §O.S. that its claim was based on "12A the award. (Emphasis Law." written Common added.) 74A saying the old case verifies

hicle. This goes unpunished. As a car good

no deed

salesman, knowledgeable of the Plaintiff was and, selling buying and vehicles

intricacies

here, employer a foil used the negli- own deep pockets to cover his any failing investigate discover

genee in failing mitigate damages.

title defects and profit made a

He asserted Defendant question of fact profit

that this then raised a status, agent forgetting that an

as to its profit for its activities.

allowed jury disregarded

T2 I would hold the under Defendant's defense

instructions

special circumstances. The award appear to be as a

ed ridiculous

prejudicial against I would bias car dealers. v. also hold that under State ex rel. Jones 68, ¶ 12, 5,

Baggett, 1999OK n. allegation irregulari- n.

ty in trial was sufficient to its motion new Plaintiff, court,

inform the trial and this Thus, I hold the

Court of its defense. would

trial court erred the motion trial.

new

2001 OK CIV

Sharylin Fuller, FULLER and C.A.

Plaintiffs/Appellants, Vickrey Heating

Steven PACHECO and Conditioning,

and Air an Okla Corporation, Defendants/Appel oma

h lees, Farm Mutual

State Automobile Company,

Insurance

Intervenor. 93,222.

No. Oklahoma, Appeals

Court of Civil No. 2.

Division

Jan.

Certiorari Denied March Notes instruction, brought damages to recover judge action "the trial sentence of the civil warranty breach or to enforce jury express to calculate need to tell how will of express warranty the terms of an made un type contract particular for the der 2-313 of Title 12A of the Section Okla Although involved in the case." added.) (Emphasis homaStatutes...." De trial court in the instant case did not techni- expressly fendant warranted title to Plaintiff. cally comply the directions the Notes Thus, Plaintiff is entitled to fees Use, jury separately on instructed § 939. under proper method instruction number on calculating damages. find Plaintiff's § 1 27 Defendant 989 does not that, together, was when read apply to the instant case because Plaintiff's do, fairly and instructed to instructions implied breach of claim based on as to the meth- warranty good title found 12A0.8.1991 accurately instructed T.R.W., calculating damages. § See In re od of which is not included in (jury 722 P.2d 1985 OK § language 989. Plaintiff's claim was warranty also on the written of title whole, as a instructions are to be viewed not based included on the back of the OklahomaCertifi Sch., separately); Juvenal v. Okeene Pub. Therefore, reject 878 P.2d at 1026-1082 cate we Defen of Title.7 argument. dant's fairly accurately instructions and {where law, applicable stated the technical error in CONCLUSION harmless). giving OUJI instruction was €28 The trial court did not abuse its dis- also criticizes in cretion in Defendant's motion for conflicting with in struction number 15 as remittitur, jury's trial new or for because the struction number 17. The two instructions supported by verdict is the evidence and the in in do not conflict. The method included jury. instructions did not mislead the Fur- put than struction 17 does no more thermore, the trial court did not err good position "in as as he would have been awarding attorney fees to Plaintiff. if the of title had not been breach AFFIRMED. ed," Further as stated instruction 15. more, if con even instructions did two COLBERT, J., concurs, RAPP, 1 30 flict, jurors powers with certain are "credited P.J., dissents. perception understanding" presumed recognize inconsistencies in the RAPP, P.J., dissenting. Darden, instructions. Lee v. See appear T1 Plain- It would Defendant was 220, ¶ 22, 845, 849; 421 P.2d In re T.R.W. best, and, agent at an accommodation tiff's ,1985 ¶ 27, party or strawman between two of its em- any 1125 Defendant has failed to show that ployees-both familiar with the car salesmen instructions, perceived in the either errors buying selling business of vehicles-to