LANE v. FLOORCRAFT CLYDE BEHERENS, LTD.

LANE v. FLOORCRAFT CLYDE BEHERENS, LTD.
2001 OK CIV APP 103
29 P.3d 1092
72 OBJ 2450
Case Number: 95350
Decided: 06/29/2001
Mandate Issued: 07/26/2001
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

SUBSTITUTE OPINION AFTER REHEARING THE COURT'S PRIOR OPINION HAVING BEEN WITHDRAWN

CALVIN LANE, Plaintiff/Appellant
v.
FLOORCRAFT CLYDE BEHERENS, LTD, an Oklahoma Corporation; CLYDE BEHERENS, Individually; and KAY BEHERENS, Individually, Defendants/Appellees

APPEAL FROM THE DISTRICT COURT OF KAY COUNTY, OKLAHOMA

HONORABLE LESLIE D. PAGE, JUDGE

REVERSED AND REMANDED

Lori L. Young, Ponca City, Oklahoma, for Appellant
Thomas M. Askew, Harry A. Parrish, Chad C. Taylor, Tulsa, Oklahoma, for Appellee

OPINION

JONES, Judge

¶1 Appellant, Calvin Lane (Lane), was employed by Appellees, Floorcraft Clyde Beherens, Ltd., Clyde Beherens and Kay Beherens. On March 23, 1999, the parties entered into a written agreement which specified Lane's rate of pay and work schedule. The document was silent as to its duration. On July 14, 1999, Mr. Beherens notified Lane that he had decided to pay Lane hourly instead of the agreed upon salary of $2,000.00 a month. Lane initiated this lawsuit seeking damages for breach of contract.

¶2 A jury trial was held on June 13, 2000. At the close of Lane's evidence, the Beherens moved for a directed verdict on the grounds the employment agreement violated the statute of frauds. The trial court granted Beherens' motion. The effect of a directed verdict is to remove the case from the jury. Courtney v. Gibson,

¶3 The issue on appeal is whether the trial court properly directed the verdict for the Beherens. A motion for new trial is addressed to the sound discretion of the trial court. Unless it appears that the trial court acted arbitrarily, or erred on a pure question of law, the ruling on the motion will not be overturned on appeal. McMinn v. City of Oklahoma City,

¶4 Lane argues the trial court committed reversible error by granting the Beherens' motion for directed verdict because the statute of frauds does not apply to a written agreement. Title

"It is hereby agreed between Floorcraft (Clyde & Kay Beherens) and Calvin Lane, that he (Calvin) shall draw a Salary of $1,000.00 on the 1st and 15th of each mo., until decided otherwise. He shall draw (no commission).

It is also agreed that Calvin shall work one Sat. every other mo. at the store, because he is employed by Floorcraft.

This Salary shall be negotiated at any time and agreed to by both parties depending on Business produced.

Calvin shall be on 24 hr. call and delegate to someone else his pager if he is unavailable.

Calvin shall receive a $50.00 fee, on Water extraction emergencies."

¶5 This is the writing which Lane asserts was breached by the Beherens. It is apparent the parties do have a writing which is signed by the party to be charged evidencing their agreement which removes the parties agreement from the purview of the statute of frauds.

¶6 The confusion appears to have come from Lane's testimony that although no definite time frame was outlined in the agreement, the parties had discussed the agreement being in effect for three years. The Beherens argue the employment was terminable at will and then argued the three year agreement was a separate oral agreement which did not meet the requirements of the statute of frauds. The agreement which Lane is attempting to enforce is the written agreement. Whether parol evidence is admissible to help interpret the agreement depends on whether the written agreement is determined by the trial court to be clear and unambiguous, or if an ambiguity exists as a [29 P.3d 1094] result of the agreement being silent on the time duration. This must be determined by the trial court. Prudential Ins. Co. v. Glass,

¶7 The trial court improperly directed a verdict as the statute of frauds is inapplicable to the written agreement Lane is seeking to enforce. This matter is reversed and remanded for proceedings consistent with this opinion.

¶8 REVERSED AND REMANDED.

¶9 ADAMS, P.J., concurs; JOPLIN, J., dissents.