CORYELL ROOFING CONSTRUCTION INC v. BURGESS FARMS LLC (2025)

ORDER OF SUMMARY DISPOSITION

¶1 Rule 1.201 of the Oklahoma Supreme court Rules provides that “[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” Okla. S.Ct. Rule 1.201.

¶2 After reviewing the record in this case, THE COURT FINDS that our recent decision in Watson v. BNSF Railway Co., 2024 OK 74, 561 P.3d 67, disposes of the issues in this case. In Watson, we were asked to determine whether there was reversible error associated with the jury instructions. On certiorari, Appellee/Plaintiff, Coryell Roofing & Construction, Inc., asserted that the Court of Civil Appeals opinion reversing the trial court's Journal Entry of Judgment on Jury Verdict directing a new trial for erroneous jury instructions was not in accord with our prior decisions.

¶3 In Watson, we reiterated our longstanding position that “the mere possibility a different result might have been reached is insufficient to overturn a jury verdict and an appellate court must not re-weigh the evidence where a competent jury has decided the case.” Id. at ¶ 15, 561 P.3d at 72 (emphasis added). An appellate court must not disturb a jury verdict unless the record demonstrates the probability that the jury was so misled by the alleged errors to cause a different verdict. Id. Although the Court of Civil Appeals concluded in this matter that “[i]t is difficult to see given the facts of this case how the jury could have found Plaintiff liable on Defendant's counterclaim under a negligence theory when the jury found the Plaintiff not liable for breach of contract,”  ¹ it still determined that the trial court's failure to instruct on negligent breach of contract was prejudicial error and warranted a new trial. We disagree; such a conclusion contradicts Watson and our longstanding decisions. Id., See also, Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92.

¶4 The Burgess counterclaim for negligence rises from the same set of facts as its breach of contract counterclaim. Burgess failed to prove by the greater weight of the evidence “that Coryell Roofing breached the contract by failing to complete the contracted-work for services, or failing to complete the services in a workmanlike manner;.”  ² and that it suffered damages as a result of any breach.  ³ The jury found in favor of Coryell on this counterclaim. Burgess did not preserve any error as to this portion of the verdict on appeal.

¶5 In order for Burgess to recover on its negligence claim, the jury would have to find under identical facts that there had been a negligent failure by Coryell to perform its work or services under the contract “skillfully, carefully, diligently, and in a workmanlike manner.” Keel v. Titan Constr. Corp., 1981 OK 148, ¶ 8, 639 P.2d 1228, 1231. The jury already determined that Burgess failed to meet its burden of proof on this very standard with respect to a contract claim. Burgess has failed to demonstrate the jury was misled to the extent of rendering a different verdict. Watson, supra. ¶ 15, 561 p.3d at 72.

¶6 When a trial court refuses to give additional jury instructions, the test of reversible error “is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred.” Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92-93.

¶7 After reviewing the record in this matter, THE COURT FINDS that its decision in Watson involves the same primary legal questions as those in this appeal. Our holding in Watson disposes of the issue raised here. We also note that Burgess did not ask appellate review with respect to Burgess’ counterclaim on breach of contract, rendered in favor of Coryell. The record does not support finding that a jury would have reached a different verdict under identical facts if the instruction of negligence had been given. We find that omission of the instruction does not constitute reversible error under the facts presented.

¶8 IT IS THEREFORE ORDERED that the Court of Civil Appeals’ opinion is vacated, and the Journal Entry of Judgment on Jury Verdict is affirmed.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 3rd day of November 2025.

¶1 I agree with the majority that the trial court's refusal to instruct the jury on Defendant/Counterclaim Plaintiff Burgess Farms, LLC's (Burgess Farms) negligence counterclaims is not reversible error. Burgess Farms could not have prevailed on the negligence counterclaim against Coryell Roofing & Construction, Inc. (Coryell) as a matter of law.

¶2 Previously, this Court has determined that parties to a contract have a duty to act reasonably and diligently in the performance of a contract, which is encompassed within the implied covenant of good faith and fair dealing. Embry v. Innovative Aftermarket Sys. L.P., 2010 OK 82, ¶ 14, 247 P.3d 1158, 1161. In most circumstances, the breach of a contract's implied duty of good faith and fair dealing “merely results in damages for breach of contract, not independent tort liability.” Wathor v. Mut. Assur. Adm'rs, Inc., 2004 OK 2, ¶ 5, 87 P.3d 559, 561. By contrast, a tort is a violation of a duty imposed by law independent of contract. See McVay v. Rollings Const., Inc., 1991 OK 102, ¶ 12, 820 P.2d 1331, 1333.

¶3 In this case, Burgess Farms failed to present evidence at trial that Coryell breached any duty, independent of Coryell's contractual obligations, to support tort liability.  ¹ Thus, the trial court's refusal to instruct the jury on Burgess Farms’ negligence claim was not reversible error.

¶1 I concur in the Court's result which vacates the Court of Appeals opinion and affirms the Trial Court's Journal Entry of Judgment on jury verdict. Because of the reasons I expressed in my dissent in Watson v. B.N.S.F. Railway Co., 2024 OK 74, 561 P.3d 67, I cannot concur in the Court's reliance on Watson in the present case.

¶2 Therefore, I respectfully concur in result.

¶1 I dissent to the proposition that Watson v. BNSF Railway Co., 2024 OK 74, 561 P.3d 67, disposes of the present case. The matter before us today presents a materially different factual and legal scenario than was presented in Watson. In Watson, it was alleged on appeal that the instructions given to the jury were so misleading there was a probability that the jury could have come back with a different verdict had the instructions been correct. We disagreed, finding the instructions to be free from fundamental error.

¶2 Here, however, the suggestion is not that the instructions given to the jury were flawed. The complaint is that an essential instruction explaining a litigant's theory of the case was not given to the jury.

¶3 The record reflects that Burgess Farms, LLC (“Burgess”) incurred a weather casualty loss to their roof. Burgess agreed to pay Coryell Roofing & Construction, Inc. (“Coryell”) roughly $604,000 to repair the roof, initially paying Coryell $352,500. Later, disputes arose, and Burgess refused to pay Coryell the balance. Coryell admitted it had (at least) a $10,000 gutter correction to make, but it sued for the balance of the contract and asserted a mechanic's and materialmen's lien. Burgess counterclaimed for breach of contract and negligence. Burgess cited numerous failures and roof leaks. During the jury trial, the trial court decided sua sponte to deny the negligence counterclaim instruction. The jury subsequently denied the Burgess counterclaim on the negligence action without having been given the negligence instruction.

¶4 While I believe that Watson was rightly decided,  ¹ it has no application to the facts set forth above. In Watson, we were tasked with determining whether the instructions actually tendered to the jury were misleading to an extent that they created fundamental error. In the present case, the instruction explaining the litigant's theory of the case was withheld from the jury--they never saw it. The law applicable to this scenario is not Watson, but Bradley Chevrolet, Inc. v. Goodson, 1969 OK 25, 450 P.2d 500, which teaches that it is ALWAYS fundamental error to refuse to instruct the jury on a litigant's theory of the case:

Defendant cites Pechacek v. Hightower, Okl., 269 P.2d 342 [(1954)], for the proposition that where instructions fail to present the theory of a party on which the case was tried and on which evidence was introduced, which theory goes to the right to recover, such failure constitutes fundamental and prejudicial error.

Bradley Chevrolet, ¶ 8, 450 P.2d at 502.

¶5 In other words, we need not, and cannot, “bootstrap” a conclusion of fairness by looking at the instructions that were given as a dim substitute for the required (but omitted) instruction that told the jury how to weigh and act upon the claim pled and presented in the trial. The omission was fundamental error, and no review of the other instructions can cure it. Cf. Grisham v. City of Oklahoma City, 2017 OK 69, ¶ 22, 404 P.3d 843, 853 (“A trial court has a duty to instruct on the decisive issues raised by the pleadings and the evidence. This rule is consistent with the function of jury instructions as well as the concept of fairness to both sides of the controversy.”) (footnotes omitted).

¶6 I further note that applying Watson to this case effectively overrules the prior line of cases, such as Bradley Chevrolet, and is thus a new statement of law, not an application of existing precedent. This fact is borne out by citationizing Bradley Chevrolet--it is currently not flagged as overruled. Prior to today, no one expected that Watson would apply to refusals to instruct on a litigant's theory of the case.

¶7 Given that the majority purports to extend Watson to now overrule Bradley Chevrolet, and a host of other precedent to the same effect, Summary Disposition was an improper vehicle to adjudicate the current dispute.  ² In any event, the extension of Watson and overruling of prior precedent setting forth good law is ill considered, in my view.

¶8 I respectfully dissent.

FOOTNOTES

1.   Court of Civil Appeals Op., p. 14, Coryell Roofing & Constr., Inc. v. Burgess Farms, LLC, Case No. 121,275.

2.   R. p. 477, Elements of Counterclaim for Breach of Contract.

3.   Id.

1.   This result is supported by the widely-accepted economic loss rule. As this Court has noted, “the purpose of the economic loss rule is to preserve the boundary between tort and contract by precluding recovery for purely economic losses where contract remedies exist ․” Mills v. J-M Mfg. Co., Inc., 2025 OK 23, ¶ 20, 567 P.3d 385, 390. Other than a few well-defined exceptions in the common law, “there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.” Restatement (Third) of Torts: Liab. for Econ. Harm § 3 (Am. L. Inst. 2020). While we have not explicitly adopted the economic loss rule outside of the product liability context, it supports the conclusion that Burgess Farms cannot prevail on its negligence claim.

1.   I concurred in Watson.

2.   “In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” 12 O.S. 2021, Ch. 15, App. 1, Rule 1.201 - Summary Disposition.

CONCUR: ROWE, C.J., KUEHN, V.C.J., WINCHESTER, EDMONDSON, COMBS, GURICH, and JETT (by separate writing), JJ. CONCUR IN RESULT: DARBY, J. (by separate writing). DISSENT: KANE, J. (by separate writing).