Alliance Steel, Inc. v. Martin Yack Construction Co., Inc.

1 Alliance Steel, Inc. (Alliance) appeals a trial court judgment based upon a jury verdict in favor of Martin Yack Construction Co., Inc. (Yack Construction) on Alliance's breach of contract claim and on Yack Construction's counterclaim against Alliance.1 We conclude that alleged errors identified in Propositions I and II, all of which relate to the sufficiency of the evidence to support the verdict, were not preserved for review, and that the trial court committed no error as alleged in Proposition III, Alliance's only other proposition of error. Therefore, we affirm the trial court's judgment.

2 Alliance's first two propositions of error – "Yack Construction failed to prove Alliance had waived its right to payment" and "The Undisputed Evidence established that Yack Construction breached the contract by failing to provide Alliance adequate assurance" – call for an appellate examination of the evidence to determine whether it was legally sufficient to support the jury's verdict. In its answer brief, Yack Construction argues that Alliance failed to preserve for appellate review any question regarding the sufficiency of the evidence to support the verdict because Alliance did not move for a directed verdict at the close of all the evidence and before the issues were submitted to the jury.

3 The transcript of the three-day jury trial and the record do not demonstrate that Alliance demurred, moved for directed verdict or in any other manner attacked the sufficiency of Yack Construction's evidence, formally or informally, after all of the evidence had been admitted. However, Alliance did question the sufficiency of the evidence in its Motion for New Trial, and Yack Construction did not assert at that time that Alliance had not challenged the sufficiency of the evidence properly at trial.

4 The Oklahoma Supreme Court has long held that where a plaintiff submits his case to the jury, after the close of all the evidence, without demurring to the evidence or asking for an instructed verdict, or otherwise legally attacking its sufficiency, the question whether there is any evidence reasonably tending to support the defense is not preserved for review, even where the sufficiency of the evidence is challenged by post-verdict motion. Reedy v. Weathers, 1970 OK 130, 472 P.2d 914; Birmingham Steel & Supply, Inc. v. Smithco Mfg. Co., 1965 OK 37, 399 P.2d 471; Sheppard v. Gaddy, 1950 OK 60, 215 P.2d 827; Ruby v. Barrett, 1928 OK 235, 265 P. 1048; Norman v. Lambert, 1917 OK 227, 167 P. 213.

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of the Court's opinion.

Affirmed.

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