M. Bryce Lair, an individual, Plaintiff, v. 25 (2025)

¶1 After a six-day trial, a jury returned favorable defamation verdicts for Plaintiffs/Appellees Janice Steidley and David Iski and found they were damaged in the respective amounts of $250,000 and $150,000. Defendant/Appellant John Singer (Singer) appeals from the trial court's Journal Entry of Judgment reflecting the verdicts, as well as the Order denying his post-trial motions. Singer claims the court erred by denying his motion for judgment notwithstanding the verdict because the allegedly defamatory publications in this case were privileged and/or were made without malice, and the jury's verdict therefore infringes on his First Amendment rights to free speech. Singer also contends he should have received a new trial because the court improperly instructed the jury about Iski's burden of proof; because there was an erroneous evidentiary ruling; and because the jury's verdicts were inconsistent. Finally, he alleges there are errors in the Journal Entry of Judgment that require correction. We agree the court erred by awarding Steidley and Iski prejudgment interest; post judgment interest was recalculated based on the erroneous inclusion of prejudgment interest. We otherwise identify no errors of law or abuses of discretion. Accordingly, we affirm in part, reverse in part, and modify in part.

¶2 This appeal arises out of an action for defamation and grand jury libel filed by Janice Steidley, the former district attorney for District 12 (Craig, Mayes, and Rogers Counties, Oklahoma), and David Iski, a former assistant district attorney in District 12, against John Singer, an investigator for the Claremore Police Department. The matter culminated in a jury trial in 2022, but the parties’ dispute began more than a decade ago. Steidley was elected district attorney in 2010. Her first four-year term began in 2011. According to both of their testimonies, Steidley and Singer initially worked together amicably. At some point, however, Singer became critical of the district attorney's office and began voicing his disapproval of the district attorneys’ failure to file charges against drug traffickers in a more expeditious manner.

¶3 Around the same time, the district attorney's office began investigating whether it had a duty under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), to disclose information about Singer's conduct on a criminal investigation that could impeach his credibility in other cases.¹ The alleged Giglio impairment ² stemmed from affidavits Singer prepared in a 2011 sexual abuse case he investigated. In the affidavit for a search warrant, Singer alleged the accused, Matthew Grant Sunday, told Singer that he “began kissing [name redacted], put his hands in her panties, and put his finger into her vagina” and “[t]his occurred without [name redacted]’s consent and against her will.” Singer similarly stated in the arrest affidavit, “Sunday told your affiant that she [sic] put his finger into the 16-year-old girl's vagina against her will.” An audio recording of Singer and Sunday's interview showed, however, that although Sunday admitted the alleged victim “did not ask” for him to put his finger in her vagina, and although he agreed that he “didn't have the right” to put his hands in her panties, Sunday never stated or conceded that he acted against the victim's will.³

¶4 The district attorney's office ultimately determined that it did, in fact, have a duty to disclose this information, and in early 2013, it disseminated materials concerning Singer's Giglio impairment to a federal prosecutor and to defense counsel in cases in which Singer was set to testify. Singer believed that Steidley's Giglio disclosure was political and retaliatory in nature, and on February 4, 2013, he filed a federal lawsuit pursuant to 42 U.S.C. § 1983 that accused Steidley and the first assistant district attorney in District 12, M. Bryce Lair (Lair), of manufacturing the evidence of Singer's Giglio impairment. Singer also intervened in several criminal proceedings affected by the Giglio disclosure. In one, Singer sought a determination that the materials were not, in fact, Giglio materials, but the court found Singer did not have standing to seek that finding in that matter. In another, Singer filed a motion to quash a subpoena compelling him to appear and testify (presumably to avoid being questioned about the Giglio materials). When the motion was denied, Singer indicated his desire to seek a writ and requested to stay the subpoena and the court's ruling on his motion; Singer's request for a stay was granted, but he never filed a writ.

¶5 On May 22, 2013, Singer filed grievance forms with the Oklahoma Bar Association against Steidley, Iski, Lair, and three other district attorneys from District 12. He attached to the grievances a 28-page document outlining his complaints about the district attorneys and a CD of materials to corroborate his allegations. Singer did not allege, as he did in his federal § 1983 case, that the district attorney's office manufactured the evidence of his Giglio impairment, but instead he claimed the district attorneys had “maliciously manufactured a bogus perjury allegation against Singer as punishment for Singer's criticisms and for political benefit.” Singer alleged the district attorneys had all violated various rules of professional responsibility, including Rule 8.4 (professional misconduct for engaging in dishonesty, fraud, deceit or misrepresentation); Rules 3.6 and 3.8 (extrajudicial statements); Rule 1.1 (competence); Rule 3.3 (candor towards the tribunal); Rule 3.1 (meritorious claims and contentions); and Rule 1.7 (conflict of interest). Singer admitted at trial that the Sunday case was “a central theme” behind his bar complaints and that he was alleging misconduct, not just seeking an investigation.

¶6 Singer filed a petition for grand jury investigation on August 26, 2013. In the petition, Singer requested the empaneling of a grand jury to investigate whether Steidley had conspired with others to commit witness tampering in violation of 21 O.S. §§ 421 and 452; whether Steidley and Lair conspired with others to intercept wire, oral, or electronic communications by endeavoring to wiretap employee workspaces in the courthouse in violation of 21 O.S. § 421 and 13 O.S. § 176.3; whether Steidley had threatened a deputy sheriff with “war” in a text message in violation of 21 O.S. § 1172(A)(2); whether Steidley and Lair conspired to falsely report a crime in violation of 21 O.S. §§ 421 and 589(A); whether Steidley and Iski conspired to willfully omit to perform their duties under the Oklahoma Records Management Act by ordering another person to destroy government emails in violation of 21 O.S. §§ 421 and 345; whether Steidley attempted to obtain money by false pretenses by using fraudulent data to obtain federal grant money in violation of 21 O.S. § 1541.2; and whether Iski intentionally misled a judge in violation of 21 O.S. § 554.⁴ The petition ended by asking “whether Steidley should be removed from office, pursuant to 22 O.S. § 1181, for oppression and corruption in office and willful maladministration” and “[w]hether each crime described above supports Steidley's removal from the office of District Attorney.”

¶7 On August 29, 2013, a Rogers County district judge issued an order finding that Singer's petition for grand jury investigation “contained a reasonably specific identification of areas to be inquired into” and that it “contained sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment or action for removal.” See 38 O.S. §§ 101 and 102. Accordingly, Singer and others circulating the petition had 45 days from the entry of the order to obtain a sufficient number of signatures to empanel a grand jury. See 38 O.S. § 103. When the signatures were returned, they were not attached to the actual grand jury petition Singer had filed; instead, the signatures were submitted with a one-page summary drafted by Singer of the allegations in the grand jury petition. The court dismissed the petition, finding, “The signatures were contained on an unapproved form, not the judicially-approved petition for grand jury investigation.”

¶8 Steidley, Iski, and Lair filed a lawsuit against Singer and the other individuals who pursued the grand jury petition, asserting claims for defamation and grand jury libel under 38 O.S. § 108.⁵ Lair settled his claims and dismissed his petition in 2019. The other defendants were dismissed throughout the pendency of the lawsuit, leaving Singer as the only defendant. After a six-day trial, the jury returned verdicts for Singer on the grand jury libel claims. The jury found in Steidley and Iski's favor, however, on defamation and awarded Steidley $250,000 and Iski $150,000. Singer filed a motion for judgment notwithstanding the verdicts and a motion for new trial, both of which were denied.

¶9 On appeal, Singer raises three overarching propositions of error, each of which involve multiple subpropositions. Singer's primary arguments are (1) the trial court erred by failing to grant his motion for judgment notwithstanding the jury's verdicts; (2) the court abused its discretion by not granting his motion for new trial; and (3) the Journal Entry of Judgment is erroneous. We address each in turn.

MOTION FOR JUDGMENT NOTWITHSTANDING VERDICTS

¶10 Singer contends the court erred by denying his motion for judgment notwithstanding the verdicts (JNOV). The standard of review for a court's ruling on a motion for JNOV is identical to the standard for determining a motion for a directed verdict. Barnett v. Okay Public Works Authority, 2022 OK 24, 9, 507 P.3d 1245, 1247-48 (citing 12 O.S. § 698). We consider as true all evidence favorable to the non-moving party together with all inferences that may be reasonably drawn and disregard all conflicting evidence favorable to the moving party. A district court should grant a motion for JNOV only when there is an entire absence of proof on a material issue. Id. “We will not disturb a judgment on appeal unless it is apparent that the district court erred on a pure question of law or acted arbitrarily.” Id.

¶11 The citizen-initiated grand jury statutes, located at 38 O.S. §§ 101-108, have not been thoroughly examined by Oklahoma appellate courts. No case has addressed how these provisions interact with common law or other statutorily based defamation principles.⁶ We begin with the basics.

¶12 A defamation claim has four elements: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication.” Yates v. Gannett Co., Inc., 2022 OK CIV APP 41, 14, 523 P.3d 69, 76 (citation omitted). A publication can be defamatory per se, which means “the language used is susceptible of but a single meaning that is opprobrious[,]” or a publication can be defamatory per quod, which means the words are reasonably susceptible of both a defamatory and an innocent meaning. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 35, 958 P.2d 128, 146-7 (providing that a publication is libelous per se if it “exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation”). If the plaintiff is a public official, he or she must also establish that the defamatory falsehood was made with “actual malice” — i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. Yates, 14, 523 P.3d at 76.

¶13 “[T]he defendant may deny and offer evidence to disprove the charges made, or he may prove that the matter charged as defamatory was true[.]” 12 O.S. § 1444.1. He may also defend himself by proving that the statement, although false and defamatory, “was published or spoken under such circumstances as to render it a privileged communication.” Id. A communication is “privileged” if it is made under one of the following circumstances:

First. In any legislative or judicial proceeding or any other proceeding authorized by law;

Second. In the proper discharge of an official duty;

Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.

12 O.S. § 1443.1(A).

¶14 Citizen-initiated grand juries are provided for in the Oklahoma Constitution.⁷ See Okla. Const. art. II, § 18. The Legislature enacted supplemental provisions in 1989. See 38 O.S. §§ 101-108. These provisions explain the procedure that must be followed by citizens desiring to circulate a petition for the impaneling of a grand jury.

¶15 The person, group of persons, or organization seeking to cause the impaneling of a grand jury must file a petition with the county court clerk that includes “a reasonably specific identification of areas to be inquired into” and “sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment or action for removal of a particular public official.” Id., §§ 101 and 102. Upon the presiding district judge's approval of the petition, the circulators have forty-five days to obtain signatures and return the completed petitions to the court clerk. Id., §§ 102, 103, and 106. The court clerk copies the petitions and delivers the originals to the election board. Id., § 106. The election board determines how many of the signers are qualified electors within the county. Id. Within seven business days, the election board must return the original petitions to the county clerk with a certification of the number of signers who are qualified electors. Id. The presiding district judge must then determine whether that number “meets the requirement of a grand jury petition pursuant to Section 18 of Article II of the Oklahoma Constitution.” Id., § 107. If the court determines the number to be sufficient, it must order the impaneling of a grand jury. Id.

¶16 Recognizing the serious personal and professional consequences that could come to individuals named in a petition for grand jury investigation if the process is abused, the Legislature also enacted 38 O.S. § 108. It provides as follows:

Any person responsible for the creation, drafting or circulating of a grand jury petition may be held liable for civil damages for libel or slander due to any false allegation made in the body of said petition, if such allegations are proven to be made with malice and with an ulterior or illicit purpose.

Id.

¶17 In his first subproposition of error, Singer emphasizes his First Amendment rights to free speech and to petition the government. He also emphasizes that the jury did not return plaintiffs’ verdicts on grand jury libel. Therefore, according to Singer, the defamation verdicts violate his First Amendment rights.

¶18 We do not agree. The First Amendment does not shield an individual from liability for defamation. “Although every person is free to speak, write, or publish his sentiments on all subjects, it must not be forgotten that every citizen is responsible for the abuse of that right․ Libel is one such abuse.” SSS Fence, LLC v. Pendleton, 2023 OK CIV APP 11, 16, 528 P.3d 304, 309 (internal quotation marks and citations omitted).

¶19 Similarly, the right to petition the government is not unlimited. Title 38 O.S. §§ 101-108 confers a limited privilege, not a right, to seek the impaneling of a grand jury.⁸ Under § 1443.1, “any and all criticisms upon the official acts of any and all public officers” are privileged. Id. But such criticism is excepted from the privilege if it “falsely imputes crime to the officer so criticized.” Id. Section 101 requires a grand jury petition to contain allegations that, if true, would subject the public official named therein to criminal indictment or removal proceedings (i.e., the person(s) bringing the petition must impute the public official with a crime or a removal-worthy act). See 38 O.S. § 101. The person(s) responsible for a grand jury petition may be liable for damages caused by any false allegation in the petition only if the public official can show the false allegations were made “with malice and were made with an ulterior or illicit purpose.” See 38 O.S. § 108 (emphasis added). In other words, because § 108 requires an additional element of mens rea, § 101 creates a specific instance in which a person is privileged to falsely impute a public official with a crime, even if the allegation is made with actual malice (so long as it is not also made with an ulterior or illicit purpose).

¶20 But the Legislature prescribed a specific procedure for citizens wishing to initiate a grand jury investigation, and that procedure emphasizes the importance of the grand jury petition itself. As noted above, citizens must file a copy of the petition with the court clerk prior to obtaining any signatures on the petition. 38 O.S. § 101. The presiding district judge must enter an order within four days stating whether the face of the petition is statutorily sufficient. Id., § 102. If the petition is deficient, the court must “set forth clearly in writing each and every deficiency found by said judge.” Id. The petitioners have two days to amend the petition to conform with the court's order. Id. Upon the amended petition's filing, the trial court must enter another order within two days stating whether the face of the amended petition meets the statutory requirements. Id. Finally, and notably, the person or persons responsible for creating, drafting, or circulating a grand jury petition may be held liable for damages caused by “any false allegation made in the body of said petition[.]” Id., § 108 (emphasis added). Together, these provisions indicate that §§ 101-108 affords a limited privilege: the person, group of persons, or organization seeking to cause the impaneling of a grand jury are privileged to make defamatory allegations against a public official, with malice, via the judicially approved grand jury petition.

¶21 Here, Steidley and Iski contended Singer violated their rights in two distinct ways: by libeling them with false allegations in the § 108 judicially approved grand jury petition and by libeling them with false allegations in the unauthorized petition summary that Singer drafted and circulated for signatures. Singer emphasizes on appeal, as he did below, that he merely sought to determine “whether” a grand jury should be empaneled “to investigate” Steidley, Iski, and the others. But there is no question that his unauthorized petition imputed crimes to the persons named therein. And although he was privileged to seek a grand jury investigation, we reiterate that his privilege was a limited one. The Legislature decided, in the public's interest in seeking truth and accountability in public officials, to allow citizens to circulate petitions for the impaneling of a grand jury that contain false, defamatory, and even malicious allegations. It balanced that decision with a public official's interest in not being made to defend defamatory allegations that turn out to be false and malicious by requiring the public's allegations to be made and published in a petition that meets statutory requirements and receives judicial approval. Accordingly, Singer has not shown that his First Amendment rights were infringed upon by a defamation verdict based on publications he made outside of the grand jury process.⁹

¶22 We also disagree with Singer's claim that he was absolutely privileged to circulate the unauthorized petition under § 1443.1 or Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941. Singer may have drafted the unauthorized petition in connection with a legal proceeding that was “authorized by law” as contemplated by § 1443.1, but he published the unauthorized petition outside of that proceeding. Only communications that are published “in any legislative or judicial proceeding or any other proceeding authorized by law” are privileged pursuant to § 1443.1. Id. (emphasis added).

¶23Kirschstein does not extend to these circumstances because the summarized petition Singer drafted was not “relevant” and his circulation of that document did not have “some relation” to the grand jury proceeding in the ways Kirschstein contemplated. In that case, the Oklahoma Supreme Court held that the person named in a defamatory affidavit that was prepared by an attorney, signed by a witness, and given to the client, who then published the affidavit to others, could not recover for defamation or intentional infliction of emotional distress against the attorney, witness, or client. Kirschstein, 2-4, 788 P.2d at 945. The Court reasoned that even though the communications involved were made preliminary to a proposed legal proceeding that was never instituted, they were privileged because they “were relevant” and “had some relation to the proposed proceeding.” Id., 21-22, 788 P.2d at 951.

¶24 The unauthorized petition Singer drafted and circulated is not “relevant” to the grand jury proceeding in the same way the affidavit was relevant to the proceeding contemplated in Kirschstein. The affidavit there was relevant because it concerned parentage and “[s]uch an affidavit is one document that may be submitted and given consideration in the process” for issuing a delayed birth certificate. Id., 21, 788 P.2d at 951. The unauthorized petition in this case was prepared by Singer, a non-attorney; was not submitted for court approval prior to its circulation; and was ultimately rejected by the court due to its non-conformance. As such, it was not “relevant” to this proceeding.

¶25 Nor did the unauthorized petition have “some relation” to the grand jury proceeding as contemplated by Kirschstein. According to the Court, “[t]his inquiry narrows the scope of the privilege much more than the relevancy inquiry and turns to a large extent on determining to whom the publication was made.” Id., 22, 788 P.2d at 951. “A measure of protection is, thus, afforded to an alleged victim of defamation for publication to the public at large or to third parties unconnected with the proposed proceeding.” Id. Singer was privileged to publish to the public at large the judicially approved grand jury petition. See 38 O.S. §§ 101-108. He was not privileged to publish to the public at large an unauthorized and unapproved summary of the grand jury petition containing defamatory statements. Accordingly, the unauthorized petition and the circumstances of its publication did not “have some relation” to the grand jury proceeding. The absolute privilege recognized by Kirschstein does not apply here. See also Chimento v. Gallagher Benefit Services, Inc., 2023 OK 22, 21, 533 P.3d 748, 753 (“[T]here is no indication in Kirschstein that the Court contemplated its pronouncements extending beyond the circumstances unique to that case.”).

¶26 Singer next contends the court should have granted his motion for JNOV because there was no evidence of actual malice, i.e., that he had a high degree of awareness of the probable falsity of his statements. In support of this argument, he emphasizes that he presented evidence showing he researched each claim in the petition. Under our standard of review, we may only reverse if there is “an entire absence of proof on a material issue.” Barnett, 2022 OK 24, 9, 507 P.3d at 1247-48. There was abundant evidence concerning the history of this dispute from which jury could determine Singer proceeded with his claims with knowledge of or with reckless disregard as to their falsity.

¶27 Finally, for several reasons, we disagree with Singer's argument that § 108 supplanted the common law and was the exclusive remedy available here. First, the conflict Singer sets up is somewhat disingenuous, as defamation claims derive from common law and statute. See 12 O.S. §§ 1441-1450 (addressing claims for libel and slander). Second, the common law remains in full force unless a statute explicitly provides to the contrary, 12 O.S. § 2, and legislative intent to abrogate the common law will not be found by mere implication. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 5, 873 P.2d 983, 987. There is no explicit language in the grand jury provisions abrogating common law claims for defamation, and Singer does not direct us to any statutory language demonstrating clear legislative intent to do so.

¶28 Moreover, this argument requires us, again, to ignore the ample trial evidence concerning the history of this dispute, only a portion of which is recounted above, and to accept Singer's limited characterization of the legal issues. As noted above, Steidley and Iski presented several theories of liability, and the mere fact that this case involves a grand jury petition does not mean that Steidley and Iski were limited to a cause of action for grand jury libel. “[P]arties are allowed to set forth statements of claims alternatively or hypothetically and rely on inconsistent theories rather than to elect a single legal theory.” Beshara v. Southern Nat. Bank, 1996 OK 90, n.6, 928 P.2d 280, n.6. In sum, Singer has not shown this case presents an “exclusive remedy” issue or that court erred by submitting both grand jury libel and defamation to the jury.¹⁰

¶29 The court did not err on a pure question of law or act arbitrarily. It correctly submitted the cause to the jury and denied Singer's subsequent motion for JNOV. This proposition of error is denied.

MOTION FOR NEW TRIAL

¶30 Singer next contends the court erred by denying his motion for new trial. We review the trial court's denial of Singer's motion for new trial for an abuse of discretion. See Robinson v. Okla. Nephrology Assocs., Inc., 2007 OK 2, 6, 154 P.3d 1250, 1253 (denial of new-trial motion reviewed “for error of a pure question of law or for an abuse of discretion which is arbitrary, clearly against the evidence, and manifestly unreasonable”).

¶31 First, Singer alleges the court erred by determining Iski was not a public official; Iski should have been required to prove “actual malice” as an element of his defamation claim; and the court erred by failing to instruct the jury accordingly. At the start of the trial, the court ruled that Iski was not a public figure and noted there was no Oklahoma case law finding an assistant district attorney to be a public figure for purposes of a defamation claim. The court advised, however, that if evidence came forward that showed Iski fit the elements of a public figure, it would revisit the jury instructions. The court ultimately determined that no evidence changed the court's preliminary ruling. After reviewing the record and the law, we find no errors of law or abuses of discretion in the court's ruling.

¶32 Next, Singer argues it was error for the court to exclude admission of the multi-county grand jury interim report and to prohibit him from testifying about the basis of the grand jury allegations. A decision to exclude evidence will not be overturned on appeal “absent a clear abuse of discretion.” Cities Service Co. v. Gulf Oil Corp, 1999 OK 14, 32, 980 P.2d 116, 132. Prior to trial, the court granted a motion in limine finding that Singer could not admit the report because (1) it was a “special report” and was therefore not allowed under the public records exception to hearsay and (2) any probative value was outweighed by the danger of unfair prejudice and confusion of the issues. Singer, however, never made a formal offer of proof concerning the report or the testimony he wished to offer. “In civil actions the general rule is that the exclusion of evidence in the trial court will not be reviewed on appeal unless a proper offer of the excluded evidence is made and included in the record.” Midwest Scale Co. v. England, 1966 OK 23, 7, 411 P.2d 531; see also 12 O.S. § 2104(A)(2). Even without this technicality, we see no abuse of discretion in the court's decision to exclude the evidence.

¶33 Lastly, Singer alleges the jury's verdicts were inconsistent. Specifically, he contends that the jury's failure to return plaintiffs’ verdicts on grand jury libel means they found there was no malice and, because the defamation claims required findings of malice as to Steidley and negligence as to Iski, the defamation verdicts are inconsistent. As noted above, grand jury libel requires proof of an additional element — namely, an ulterior or illicit purpose — that defamation claims do not. The jury could have found Singer allegations were made with malice but without an ulterior or illicit purpose. Accordingly, we cannot say the jury's verdicts were inconsistent.

¶34 The trial court did not commit an error of law or abuse its discretion. Accordingly, we may not overturn its ruling on Singer's motion for new trial. This claim is denied.

JOURNAL ENTRY OF JUDGMENT

¶35 In his last proposition of error, Singer claims the Journal Entry of Judgment requires correction. First, he alleges there are issues with the court's award of prejudgment and post judgment interest. Second, he claims the court erroneously awarded costs where Steidley and Iski failed to move for them and where he was not allowed to object. Finally, he argues the court failed to reduce the judgment based on Steidley and Iski's prior settlements with other defendants.

¶36 Singer alleges Steidley and Iski were not entitled to prejudgment interest under 12 O.S. § 727.1 because the jury awarded damages for financial and other types of losses without segregating those damages. This claim has merit. Section 727.1 provides that the court shall add prejudgment interest to a verdict “for damages by reason of personal injuries or injury to personal rights including, but not limited to, injury resulting from bodily restraint, personal insult, defamation, invasion of privacy, injury to personal relations, or detriment due to an act or omission of another[.]” Id., § 727.1(E). The Court has construed this language and concluded that “recovery for either personal injury or injury to personal rights is a necessary element” for a prejudgment interest award under § 727.1. See Badillo v. Mid Century Ins. Co., 2005 OK 48, 72, 121 P.3d 1080, 1108 (citing Majors v. Good, 1992 OK 76, 832 P.2d 420). On the other hand, “recompense for economic loss or harm ․ is not the type of injury” the Legislature contemplated in § 727.1(E). Id., 73, 121 P.3d at 1109 (emphasis added).

¶37 In Badillo, the jury was instructed to consider past and future financial losses, embarrassment, and mental pain and suffering when fixing the amount of damages. Id. The Court noted that a recovering party may recover prejudgment interest on the part of a judgment that represents damages for personal loss, but only if the jury severs and separately identifies the portion of recovery that is for personal injuries. Id., 74. Because the jury returned a general verdict that made no distinction between financial loss and personal injury, the Court found the plaintiff could not recover prejudgment interest on the entire verdict or a portion thereof. Id.

¶38 The jury here was instructed like the jury in Badillo to consider financial losses such as loss of earnings/profits, injury to reputation and standing in the community, personal humiliation, and mental anguish and suffering. And, like the jury in Badillo, the jury's verdicts for Steidley and Iski were general ones that do not separately identify whether the awards are for financial or personal injuries. Accordingly, as in Badillo, the matter appears to be placed squarely within the rule: “[i]f damages by reason of personal injuries are shown to have been intermixed with other elements of damage in one general verdict, the provisions of [§ 727.1(E)] cannot be invoked for allowance of prejudgment interest.” Id., 74, 121 P.3d at 1109. The court's awards to Steidley and Iski for prejudgment interest in the respective amounts of $14,518.86 and $8,674.65 are reversed.

¶39 Singer has not shown that the court erred by awarding costs to Steidley and Iski. He claims they failed to move for costs and simply pulled the figures out of thin air and inserted them into the proposed journal entry without giving him an opportunity to challenge the numbers. But the law and the record do not support this contention. Under 12 O.S. § 696.4(A), “A judgment, decree or appealable order may provide for costs, attorney fees, or both of these items” and “[s]uch items may be determined by the court if a timely request is made[.]” Id. “If attorney fees or costs, including the amount of such attorney fees or costs, have not been included in the judgment, decree or appealable order[,]” a party seeking these items must file an application. Id., § 696.4(B) (emphasis added).

¶40 The Journal Entry of Judgment in this case, which includes an award of $4,930.77 in costs for Steidley and $4,930.77 in costs for Iski, was filed the day after the court held a hearing on Steidley and Iski's motion to settle the journal entry. The docket entry/minute order on that date notes, “counsel for defendant announces that he does not object to computation of interest or costs.” We presume Steidley and Iski made a “timely request” for costs at the hearing, and Singer bears the burden of producing a record that shows otherwise. See Hamid v. Sew Original, 1982 OK 46, 6, 645 P.2d 496, 497 (“Absent a record showing otherwise, this court presumes that the trial court did not err.”). Because Singer has not produced a record showing the court erred by including costs in the judgment, this claim is denied.

¶41 Singer also has not shown the court erred by refusing to reduce the judgment against him based on Steidley and Iski's prior settlements with other defendants. He cites 12 O.S. § 832(H), which provides:

When a release, covenant not to sue, or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury ․ it reduces the claim against other [tort-feasors] to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater[.]

Id., § 832(H)(1). However, if a non-settling defendant wishes to pursue a § 832(H) credit, he is “required to press for a jury assessment of the settling defendant's ‘ghost tortfeasor’ liability.” Pain v. Sims, 2012 OK CIV APP 76, 7, 283 P.3d 343, 345 (citing Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, 933 P.2d 272). Singer did not seek a jury finding as to the settling defendant's liability; thus, he effectively waived the right to a credit against the judgment. Id., 10-11, 283 P.3d at 345-46.

¶42 Singer also contends the court erroneously found judgment was rendered on June 8, 2022, which means the court awarded duplicate prejudgment and post judgment interest from 6/8/22 — 11/16/22 (the date judgment was actually rendered). The court's reference to June 8, 2022 appears to be scrivener's error in a part of the final order that is unrelated to the court's calculation of post and prejudgment interest. However, there do appear to be compounding or other errors in the post judgment interest calculations. Furthermore, because prejudgment interest is a variable that is typically included in post judgment calculations ¹¹ and the court erroneously awarded prejudgment interest here, the post judgment figures in the journal entry require recalculation. Pursuant to § 727.1(C), post judgment interest through June 13, 2025 as to Steidley is $40,659.11. Post judgment interest through June 13, 2025 as to Iski is $7,139.32. Post judgment interest continues to accrue from June 14, 2025 at the statutory rate until paid in full.

¶43 The court's Journal Entry of Judgment and Order denying Singer's motions for JNOV and for new trial are AFFIRMED IN PART, REVERSED IN PART, AND MODIFIED IN PART.

¶1 The grand jury petition proceedings set forth at 38 O.S. §§ 101-108 do not operate as an absolute privilege within the context of 12 O.S. § 1443.1 because 38 O.S. § 108 expressly permits liability for damages for libel.

FOOTNOTES

1.   In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the U.S. Supreme Court held that suppression of material evidence in a criminal matter justifies a new trial, irrespective of the good or bad faith of the prosecutor. Id., 373 U.S. at 87, 83 S.Ct. at 1197. Giglio expands Brady, holding, “When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady’s] general rule.” Giglio, 405 U.S. at 154, 92 S.Ct. at 766. Disclosing evidence concerning a material witness's credibility “is the responsibility of the prosecutor.” Id.

2.   The requirement of disclosure to the defense regarding an officer's character which results in a prosecutor's decision not to allow the law enforcement officer to testify in a criminal trial is often referred to as the “Giglio impairment” of the officer. See Krile v. Lawyer, 2020 ND 176, 5, 947 N.W.2d 366, 371 (defining “Giglio impairment” and citing other cases referencing the phrase).

3.   Evidence that Sunday acted against the victim's will was necessary to establish the element of force required by 21 O.S. §§ 1111 and 1111.1.

4.   Singer also sought an investigation to determine whether assistant district attorney Timothy Wantland violated 21 O.S. § 345 by depriving a child victim's parents of knowledge of a plea bargain and of the right to victim impact statements and to determine whether Wantland intentionally misled a judge in violation of 21 O.S. § 554 by representing that the victim's family had agreed to the plea agreement. Singer also sought an investigation of Rogers County Commissioners Mike Helm and Kurt Thacker related to their purchase and use of county equipment.

5.   The dispute also evolved in other ways while this suit was pending. The Oklahoma Attorney General empaneled a multi-county grand jury to investigate the district attorney's office, which issued a report finding there was not enough evidence to indict any of the district attorneys. The district judge in Singer's federal lawsuit granted Steidley and Lair's motion for summary judgment on all claims except for his First Amendment retaliation claim. The Oklahoma Bar Association investigated Singer's bar complaints but recommended no disciplinary action. Steidley lost her bid for re-election.

6.   Statutory construction presents a question of law that we review by a de novo standard. Fanning v. Brown, 2004 OK 7, 8, 85 P.3d 841, 845. Under this standard, we have plenary, independent, and nondeferential authority. Id.

7.   A grand jury is a body of twelve jurors impaneled and sworn to inquire into all public offenses committed or triable within the county and to present them to the court by indictment or accusation in writing. 22 O.S. §§ 311 and 331.

8.   Singer does not argue or ask us to determine whether he has an individual right under the state constitution to seek a grand jury investigation. But we note that the language of Article II, § 18 provides that a “grand jury shall be ordered by a district judge upon the filing of a petition therefor signed by qualified electors of the county equal to the number of signatures required to propose legislation by a county by initiative petition․” (emphasis added).

9.   We also note that witnesses testified about the very public campaign for signatures and about Singer's communications with “[his] girl” at the local newspaper office. In addition, a witness who signed the unauthorized petition testified that he asked Singer if the allegations were true, and Singer said yes. When he asked to see Singer's evidence, Singer refused, stating that it would not be appropriate. In other words, there was other direct and circumstantial evidence from which the jury could conclude that Singer engaged in multiple instances of defamation.

10.   Had the jury returned favorable verdicts on both claims, an argument could be made that Steidley and Iski presented two causes of action that could have, depending on the evidence, supported separate damage awards. It is not clear whether the court considered this to be one or multiple transaction(s) or occurrence(s) because Singer did not raise this issue until the post-verdict portion of the proceedings. Of course, only one cause of action can be predicated on the same set of facts, and double recovery for the same injury is not permissible. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 30, 932 P.2d 1091, 1097 and Beshara, n.6. But because the jury returned affirmative verdicts on only one of Steidley and Iski's claims, double recovery is not a concern here. Singer also did not object to instructing the jury on defamation and, in fact, included the Uniform Jury Instruction for defamation in his own requested instructions.

11.   See 12 O.S. § 727.1 (“After the computation of all prejudgment interest has been completed, the total amount of prejudgment interest shall be added to the amount of the judgment rendered pursuant to the trial of the action, and the total amount of the resulting judgment shall become the amount upon which postjudgment interest is computed[.]”).

OPINION BY E. BAY MITCHELL, III, JUDGE:

BELL, C.J., concurs and GOREE, J. (sitting by designation), concurs specially.