Opinion:Hayes v. Northeast Oklahoma Electric Cooperative, 2022 OK CIV APP 20
Subject matter:Procedure and Evidence
Date Decided:July 23, 2021
Trial Court:District Court of Mayes County
Route to this Court:Plaintiffs Mack Coy Hayes, OkeOzark Wine, LLC, Roy Dale Kelly, and Co-Trustees of the Cagle Revocable Trust appealed judgments rendered in favor of Defendants/Appellees Northeast Oklahoma Electric Cooperative, Inc. and Northeast Rural Services, Inc. (NEOEC and NRS).
Facts:An employee of NEOEC sprayed chemicals in an area adjacent to the Plaintiffs’ property in order to maintain Defendants’ power line rights of way. After learning that NEOEC had sprayed chemicals nearby, Mr. Hayes called NEOEC to complain about changes on his vineyard. The Department of Agriculture (ODA) conducted an investigation in response to the complaint and collected sampled of Mr. Hayes’s property. Plaintiffs claimed that Defendants did not apply the chemicals properly and, as a result, the chemicals drifted onto Plaintiffs’ land and destroyed their property. Plaintiffs alleged that they lost trees, vines, hay and crops as a direct result of Defendants’ negligent behavior and trespass. Hayes asserted that his entire vineyard had to be replaced as a result of Defendants’ actions.

NRS filed a Motion for Summary Judgment and claimed that it owed no duty to Plaintiffs and, therefore, that NRS arguably should be awarded summary judgment. NRS claimed that it was not involved with the application of chemicals to the rights of way near Plaintiffs’ property during September of 2014. NRS alleged that Tyson Hessee was an employee of NEOEC. Therefore the NRS argued that it should be granted summary judgment as a matter of law.

Prior to trial, Plaintiffs filed a motion in limine seeking to exclude from evidence the results of laboratory tests conducted by the ODA. The samples collected by the Department of Agriculture from Plaintiffs’ property during 2014, were tested and the test results indicated that there were no chemicals present on Plaintiffs’ property. The trial court also granted a directed verdict against OkeOzark Winery because Mr. Hayes owns it and to grant both parties damages rewards would be a double recovery. The Jury entered a verdict in favor of NEOEC, to which the Plaintiffs filed a motion for a new trial. The trial court denied the motion and granted NRS attorney fees of $375,192.25.
Standard of Review:This appeal involved issues arising from the grant of summary judgment, a directed verdict, the admission of evidence allegedly as being excepted from the hearsay rule, both the issuance of and the refusal of certain jury instructions, a motion for new trial, and an award of attorney fees and costs. A trial court’s grant of summary judgment is reviewed de novo. In Re Estate of MacFarline, 2000 OK 87. The standard of review for directed verdicts is very similar to the standard for summary judgments. Harder v. F.C. Clinton, Inc., 1997 OK 137, ¶6. A trial court’s determination regarding admission or rejection of evidence under one of the hearsay exceptions will not be disturbed absent an abuse of discretion. Muratore v. State ex rel. Dept. of Public Safety, 2014 OK 3, ¶6. When reviewing assigned error in jury instructions, the Court must consider the instructions as a whole and determine whether the instructions reflect Oklahoma law on the relevant issue, not whether the instructions were perfect. Nealis v. Baird, 1999 OK 98, ¶15. However, the question of whether a case is “fit for the application for the application of res ipsa loquitur” is a question of law. Qualls v. U.S. Elevator Corp., 1993 OK 135, ¶7. Abuse of discretion is the applicable standard of review when a trial court denies a motion for new trial. Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶5. The question of whether Defendants are entitled to an award of attorney fees is a question of law and is reviewed de novo. Hall v. Dearmon, 2015 OK CIV APP 40, ¶11.
Analysis:The most important issue before the court was the trial court’s admittance of the ODA Reports following its investigation of the Plaintiffs’ properties. NEOEC argued that under 12 O.S. § 203(8)(d) the Report fell under the exception for a public office or agency setting forth its regularly recorded activities where there is a duty to report, and therefore the Report was not hearsay. The Court rejected this argument because § 203(8)(d)’s language denies exemption status for “factual findings resulting from special investigation of a particular complaint, case or incident.” Because the ODA’s investigation of the properties precisely after the Plaintiffs’ complaints indicate that the Report was most definitely a special investigation, therefore it was hearsay. The Court relied on an Arkansas Court of Civil Appeals case, McCorkle Farms, Inc. v. Thompson, 84 S.W.3d 884 (Ark. App. 2002), which determined that allowing the report of an administrative agency presented a difficulty of weighing the evidence, and the “[t]he difficulty must be especially great for a jury, which is apt to give exaggerated weight to an official finding of a state body.” NEOEC relied on three cases: Hadley v. Ross, 1944 OK 366; Clark v. State ex rel. Dept. of Public Safety, 2007 OK CIV APP 12; and State ex rel. Fisher v. Heritage National Insurance Co., 2006 OK CIV APP 119. The Court distinguished the first two cases from this one briefly, and Heritage National Insurance Co. was distinguished from this case because in Heritage, the Oklahoma Insurance Department’s report was accepted because it was part of a regularly scheduled report that the company conducted. Here, the ODA report was most definitely not part of a regularly scheduled inspection because it was only conducted in response to the Plaintiffs’ complaints.

NRS claimed that it did not apply the herbicides near Plaintiffs’ land during September of 2014 because its workload at that time did not allow it to conduct that spray treatment specifically and that NRS did not owe a duty to Plaintiffs because it was not involved in the herbicide spraying. The Court reviewed the undisputed facts, and found that NRS and NEOEC were so closely related that there existed a question of fact as to whether NRS could be liable as a result of the application of herbicide on Plaintiffs’ property. Thus the Court found that summary judgment in favor of NRS was granted in error.

The Plaintiffs claimed relief for negligence, trespass and wrongful injuries to timber. Because the allegation that NRS and NEOEC engaged in ultrahazardous activities was instructed as a separate cause of action, the trial court should have provided a separate verdict from which to find the Defendants strictly liable. The Court then determined that 23 O.S. § 72, which addresses wrongful injury to timber, merely states an element and measure of damages, not a separate cause of action. Also, because there was a myriad of possible intervening causes of damage to Plaintiffs’ property, there was no error committed by the refusal to an instruction to the jury regarding res ipsa loquitur. In conclusion, the Court held that NRS should not have been granted attorney’s fees because, as a result of the overturned judgments, there was no prevailing party to the litigation.
Outcome:The matter is remanded to the trial court for a new trial.
Vote:3-0. Goree, P.J., Mitchell, J., and Prince, J. (author) concur.
Other: N/A