Brown v. WBH&G

----ooOoo----

Linda Brown,
Plaintiff and Appellee,

v.

Wardley Better Homes & Gardens, Robert L. Miller,
Owna Miller, Gerald E. Richards, and Steven B. Goff,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000279-CA

F I L E D
April 19, 2001 2001 UT App 125 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Darwin H. Bingham and Steven B. Smith, Salt Lake City, for Appellant
Dana T. Farmer and David L. Knowles, Ogden, for Appellee

-----

Before Judges Greenwood, Bench, and Orme.

ORME, Judge:

As discussed at some length during oral argument, it is difficult to reconcile the stipulation reached by counsel during trial(1) with the instructions given to the jury. In addition, the verdict is confusing, primarily, no doubt, because the jury verdict form itself was far from clear.

We believe the key to unraveling the first mystery is to recognize that the stipulation was not self-executing. Instead, it explicitly contemplated the preparation and submission of jury instructions implementing the stipulation. This never happened. Whether the reason was trial strategy, mistake, ineptitude, or some combination of such factors, we cannot say. The result, however, is that the stipulation was abandoned, and the case was instead submitted to the jury on instructions that in no way recognized any ongoing vitality of the stipulation. When that happened, the stipulation ceased to have any force or effect.

Turning to the second mystery, neither side objected to the verdict form, and both sides acquiesced in its submission and use. When the verdict was announced, neither side objected to how the verdict was computed or how the form was completed, and neither sought clarification.(2) There is no question that the evidence supports an award of $18,000 in general damages.(3) An actual allocation of $9,000 to each of Wardley and Richards makes no sense given plaintiff's sole reliance, as concerns Wardley, on a theory of vicarious liability. However, Wardley is not prejudiced by a judgment against it for $9,000 given that the correct result should have been a judgment against it--actually, against both defendants jointly--for $18,000.

As to punitive damages, we see no basis in the record for an award of such damages directly against Wardley. However, there was sufficient evidence of Wardley's ratification of Richards's actions to make it vicariously liable for punitive damages assessed by reason of Richards's actions. "Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if . . . the principal or a managerial agent of the principal ratified or approved the act." Restatement (Second) of Torts § 909 (1979) (emphasis added); Restatement (Second) of Agency § 217C (1958) (emphasis added). See Johnson v. Rogers, 763 P.2d 771, 777-78 (Utah 1988). Given the exclusive focus on vicarious liability as concerns Wardley, and the jury's allocation of general damages between Richards and Wardley as seemingly required by the verdict form, it appears that the jury awarded all of the punitive damages because of Richards's acts, and then allocated them between the two defendants, as it had done with general damages and as, again, seemingly required by the verdict form.

We acknowledge that it would have been preferable for the jury to simply compute the total amount of damages owed the plaintiff rather than make separate allocations of compensatory and punitive damages against Wardley and Richards. However, where the jury was not given that opportunity,(4) we must assume, all things considered, that it found a total of $18,000 in actual damages and awarded a total of $27,000 in punitive damages. Wardley is responsible for the total, insofar as it has not already been paid. It follows that the trial court did not err in denying Wardley's motions for directed verdict and for judgment notwithstanding the verdict.

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge

1. We note that Wardley has new counsel on appeal.

2. See Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1083 (Utah 1985) (stating that party who fails to object to ambiguous verdict waives right to move for new trial based on defective verdict).

3. The Utah Supreme Court has held that "[t]he proper measure of damages in an action for fraud and deceit is the difference between the value of the property purchased and the value it would have had, if the representations were true, viz., the benefit of the bargain rule." Dugan v. Jones, 615 P.2d 1239, 1247 (Utah 1980) (footnote omitted). See Pace v. Parrish, 122 Utah 141, 150, 247 P.2d 273, 277 (1952). This principle was echoed in the jury instructions in this case.

4. Wardley bears much of the responsibility for the quandary in which it finds itself and of which it now complains. Trial counsel stipulated to vicarious liability as the sole basis for Wardley's responsibility, after which Wardley objected to any argument concerning, or explanation of, this concept to the jury, even going so far as to reject proposed jury instructions which would have adequately explained to the jury the law regarding vicarious liability for punitive damages and given it the opportunity to make an explicit finding concerning ratification. Further, without objection from Wardley, the jury was instructed to fill in an answer to each question on the verdict sheet, which seemed to invite the kind of allocation that was done. Finally, as noted above, Wardley failed to seek clarification when the jury verdict was returned.