Creekmore v. Redman Industries, Inc.

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Creekmore v. Redman Industries, Inc.
1983 OK CIV APP 32
671 P.2d 73
Case Number: 57596, 57879
Decided: 05/24/1983

OLEN E. CREEKMORE, ALTA SUE CREEKMORE, F. JANE GILLESPY, AND CHERYL
LIEBERMAN, APPELLANTS/CROSS-APPELLEES,
v.
REDMAN INDUSTRIES, INC., A DELAWARE CORPORATION, AND REDMAN HOMES, INC., A DELAWARE CORPORATION, APPELLEES/CROSS-APPELLANTS.

AFFIRMED.

Jones, Givens, Gotcher, Doyle & Bogan, Inc. by Alfred K. Morlan, Graydon Dean Luthey, Jr., Tulsa, for appellants/cross-appellees.
Hall, Estill, Hardwick, Gable, Collinsworth & Nelson, P.C. by Frank M. Hagedorn, Tulsa, for appellees/cross-appellants.

ROBINSON, Judge:

¶1 In 1964, Appellants entered into a ten-year lease agreement containing automatic renewals for a period covering an additional fifty years with Appellees' assignor for a tract of land and industrial buildings in Tulsa County, Oklahoma. The lease agreement contains, among other things, a covenant against waste. No forfeiture provision for waste is contained in the lease, however, termination of the lease is specifically provided for in certain specified instances such as default in the payment of rent. The lease also provides for additions, alterations and manner of increased rental payments therefor.

¶2 Appellants brought this action seeking termination of the lease agreement for acts of waste, damages for commission of waste and for punitive damages. A partial summary judgment was granted Appellees by the trial court as to that portion of the Appellants' petition seeking termination of the lease. The court stated that neither Oklahoma statutes, nor the lease agreement provide for termination of a lease for waste and that Appellants' remedy for waste was a claim for damages. Jury trial was held on this issue and the jury returned a verdict for $20,000.00 actual damages and no punitive damages.

¶3 Appellants in this action also sought immediate possession of Tract B, a parcel of land adjacent to the north of Appellants' land covered by the 1964 lease. Tract B was purchased by Appellants at the request of Appellees in 1966. Thereafter, Appellees extended the fence to include Tract B and commenced paying increased monthly rental. Appellants contend that the lease of Tract B was a month-to-month tenancy, while Appellees contend that Tract B is covered by the original lease agreement as an "addition". The trial court ruled that the Tract B issue would not be submitted to the jury and reserved ruling on the same. Some two months after the jury trial, the trial court ruled that Appellants were entitled to immediate possession of Tract B and awarded judgment to Appellants for attorney's fees and denied Appellees' motion for attorney's fees.

¶4 Appellants, in their appeal, present two propositions of error: (1) whether the trial court properly granted Appellees' motion for partial summary judgment denying forfeiture of the lease for commitment of waste; and (2) whether the trial court correctly refused to instruct the jury that Appellants were entitled to treble damages under 21 O.S. 1981 § 1760 .

¶5 Appellees, in their cross-appeal, present three propositions of error: (1) whether the court erred in allowing Appellants to maintain an action for damages for waste prior to the expiration of the lease agreement; (2) whether the court erred in arbitrarily setting December 1, 1978, as the date on which to measure damages and further erred in allowing evidence of photographs taken prior to and during the time Appellees prior to and during the time Appellees were making repairs; and (3) whether the court erred in its instructions to the jury, numbered, 6, 7, 8, 9, 11, 13 and 14.

¶6 For their separate appeal of the trial court's subsequent order (which has been consolidated with the Appellants' original appeal), Appellees assert two additional propositions of error: (1) whether the court erred in finding that Tract B was not an addition under the terms of the lease agreement and in awarding possession thereof to Appellants; and (2) whether the court erred in awarding judgment to Appellants for attorney's fees and denying Appellees' motion for attorney's fees when both parties were partially successful.

I.

¶7 Appellants contend that the Statute of Gloucester,

¶8 We can find only four cases where this issue has been addressed by the Supreme Court. Two of these cases construed the law prior to statehood.

¶9 We must now determine whether the Statute of Gloucester was an English statute that was recognized and promulgated by the American courts as appropriate to the different conditions and situations of an early America? The Statute of Glouscester changed the common law punishment for waste to forfeiture of the thing wasted and treble damages.

II.

¶10 Appellants assert that they are entitled to treble damages for intentional destruction of the leasehold premises provided by 21 O.S. 1981 § 1760 .

III.

¶11 ppellees assert that the trial court erred in allowing Appellants to maintain an action for damages for waste prior to the expiration of the lease agreement. Article XI.A., of the lease agreement, [671 P.2d 78] entitled Repair and Maintenance,

IV.

¶12 Appellees assert that the court erred in setting December 1, 1978, as the date on which to measure damages and further erred in admitting photographs taken prior to and during the time Appellees were making repairs. When the injury to real property is "remediable, removeable, or abateable," damages are called "temporary" or "continuing" damages, and the recovery allowed will be those damages which have accured to the date of the suit.

¶13 Appellees further assert that Appellants were aware of part of the damage to the leased premises more than two years prior to the commencement of this action, and therefore, the statute of limitations barred Appellants' action in part.

¶14 Lastly, Appellees, under this proposition, allege several additional errors. We will only briefly discuss them. (1) We find that the trial court acted properly in excluding Appellees' evidence offered to establish the value of the leased premises at the time of trial, as such evidence was immaterial. (2) We find that the trial court did not err in allowing Appellants to introduce evidence regarding alleged structural and exterior damage to the improvement even though a lease provision provided that lessor would maintain the structure and the exterior of the improvements, as the alleged intentional acts of the Appellees in damaging structural supports and exterior walls did not fall under the classification of "maintenance". (3) The measure of damages to be applied in this case is the reasonable costs of repairing the property or restoring the property to its former condition and the court so instructed in Instruction No. 10.

V.

¶15 Appellees object to certain of the trial court's jury instructions. We have reviewed the instructions and when considered as a whole, we find they fairly instruct the jury as to the law applicable to the issues raised by the pleadings and the evidence.

VI.

¶16 Appellees contend that the court erred in finding that Tract B was not an addition under the terms of the lease agreement but was a month-to-month tenancy. Appellees concede that the lease agreement, as originally written in 1964, contemplated that "additions" under Article V of such agreement would refer only to the construction of new buildings or appurtenances. Nonetheless, Appellees contend that the terms of the lease were orally modified by action of the parties to include Tract B upon its purchase. For this proposition, Appellees rely on 15 O.S. 1981 § 237 , wherein it is stated "a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise". Such reliance is misplaced as an "executed oral agreement" must be established by positive, clear and convincing evidence,

VII.

¶17 Finally, Appellees contend that the trial court erred in awarding judgment to Appellants for attorney's fees and denying Appellees' motion for attorney's fees when both parties were partially successful. Appellants commenced this action seeking (1) termination of the lease agreement for waste, (2) damages for waste, and (3) punitive damages. The trial court granted Appellees motion for partial summary judgment as to the issue concerning forfeiture of the lease agreement for waste. Appellees seek attorney's fees for the two-year period from commencement of this action to the court's sustaining of Appellees' motion for partial summary judgment. They claim they were the "prevailing party" in this phase of the litigation under 12 O.S. 1981 § 936 .

¶18 For the foregoing reasons we affirm.

¶19 AFFIRMED.

¶20 REYNOLDS, P.J., and YOUNG, J., concur.

Footnotes:

1 6 Edw. I, c. 5: "It is provided also, that a man from henceforth shall have Writ of Waste in the Chancery against him that holdeth by Law of England, or otherwise for Term of Life, or for Term of Years, or a Woman in Dower. (2) And he which shall be attainted of Waste, shall leese (lose) the thing that he hath wasted, and moreover shall recompense thrice so much as the Waste shall be taxed at. . . ."

2 12 O.S. 1981 § 2 : "The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general Statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."

3 McKennon v. Winn, 1 Okl. 327, 33 P. 582 (1893); Hoppe Hardware Co. v. Bain, 21 Okl. 177, 95 P. 765 (1908).

4 Phillips v. Chambers, 174 Okl. 407, 51 P.2d 303 (1935); McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okl. 1980).

5 15A C.J.S. Common Law § 4.

6 15A C.J.S. Common Law § 4, fn. 41.

7 93 C.J.S. Waste § 3.

8 15A C.J.S. Common Law § 13, fn. 37; Worthington Motors v. Crouse, 80 Nev. 147, 390 P.2d 229 (1964); Smith v. Smith, 219 Ark. 304, 241 S.W.2d 113 (1951); Blake v. Hoover Motor Co. et al., 28 N.M. 371, 212 P. 738 (1923).

9 21 O.S. 1981 § 1760 provides: "Every person who maliciously injures, defaces or destroys any real or personal property not his own, in cases other than such as are specified in the following sections, is guilty of a misdemeanor, in addition to the punishment prescribed therefor, he is liable and treble damages for the injury done, to be recovered in a civil action by the owner of such property or public officer having charge thereof."

10 Moran v. State, 316 P.2d 876 (Okl.Cr. 1957).

11 Article XI.A. provides: "Repair and Maintenance. . . . The Lessee shall at its sole cost and expense keep and maintain the remainder of the improvements, and every part thereof, in good, sanitary and safe order, condition and repair. The Lessee shall keep the grounds of the premises in sanitary and safe order. By acceptance of the demised premises, Lessee accepts the same as being in good, sanitary and safe order, condition and repair, and agrees that on the last day of said term, renewal, or sooner termination of this lease, it shall surrender to the Lessor all and singular the said demised premises with the said appurtenances thereto in essentially the same good, sanitary and safe order, condition and repair, ordinary wear and tear excepted. . . .

12 Klayman v. Putter, 171 Okl. 215, 43 P.2d 150 (1935).

13 22 Am.Jur.2d Damages, § 28.

14 12 O.S. 1981 § 95 .

15 Labor Inv. Corp. v. Russell, 405 P.2d 1008 (Okl. 1965).

16 U.S. Fidelity and Guaranty Co. v. Minnehoma Oil Corp., 116 Okl. 10, 243 P. 154 (1926); Walters v. Tulsa Rig, Reel & Mfg. Co., 113 Okl. 293, 241 P. 1095 (1926).

17 Ellison v. Walker, 281 P.2d 931 (Okl. 1955).

18 Kimery v. Public Service Co. of Oklahoma, 622 P.2d 1066 (Okl. 1980).

19 Dewberry v. Universal C.I.T. Credit Corp., 415 P.2d 978 (Okl. 1966).

20 12 O.S. 1981 § 936 provides: "In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject (of) the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs."