NOT FOR OFFICIAL PUBLICATION IN THE COURT OF CIVIL APPEALS OF THE [ATE OF OKLAHOMA, DIVISION II CHRIS POINDEXTER, of CIE APPEALS inti COURT fe ‘STATE OF OKLAHOMA and MAY ~ 4 2016 PRIDEX CONTRUCTION, LLC, MICHAEL S. RICHIE CLERK Plaintiff/Appellant/ Cross Appellee, vs. Case No. 113,023 JACK STUTEVILLE, Defendant/Appellee/ Cross Appellant, and TMC CONSTRUCTION COMPANY, INC., RICHARD REYNOLDS, THE UNDERWRITERS GROUP, INC., LARRY G. WRIGHT and CITY OF KINGFISHER Defendants. APPEAL FROM THE DISTRICT COURT OF KINGFISHER COUNTY, OKLAHOMA HONORABLE PAUL K. WOODWARD, TRIAL JUDGE REVERSED. JURY VERDICT REINSTATED.James A. Choate NELSON & CHOATE For Plaintiff/Appellant Oklahoma City, Oklahoma Cross Appellee Andrew W. Lester Carrie L, Vaughn SPENCER FANE LLC For Defendant/Appellee Edmond, Oklahoma Cross Appellant OPINION BY P. THOMAS THORNBRUGH, PRESIDING JUDGE: Plaintiff Pridex Construction, LLC (Pridex) appeals the district court’s order granting a new trial to defendant Jack Stuteville, We reverse the grant of a new trial and reinstate the jury verdict in this case BACKGROUND This matter revolves around the award of a City of Kingfisher (City) contract for a construction project known as the “West Bottom Project” (Project). Pridex was the low bidder on the Project. The issues in the case arose around City’s bonding requirements on the Project (the “Performance Bond”). As stated by Pridex, the facts are these: Pridex offered to put up the required bond in cash. Stuteville, City’s Mayor, indicated to Pridex that this was acceptable. City Attorney Jared Harrison, however, advised that the bid specifications did not allow a cash bond, but required a bond from “a company listed on U.S. Treasury Circular 570.”Harrison’s advice left Pridex with an urgent need to obtain a suitable bond. It is at this point that the parties’ versions and interpretations of the facts begin to diverge. Pridex alleges that its principal, Chris Poindexter, met with Stuteville and City Manager Richard Reynolds, and Stuteville suggested that Poindexter contact one Steve Standridge, representing that Standridge could arrange a bond that would be acceptable to City. Pridex alleges that Standridge owed Stuteville money, and that Stuteville knew Standridge was unable to arrange a suitable bond. Standridge then directed Pridex to one Larry Wright, of a company known as the “Underwriters Group Inc.” (UGI or Underwriters Group), who was not licensed to write bonds in Oklahoma, and who was involved in several legal problems and investigations regarding bond writing, Underwriters Group is not a company listed on U.S. Treasury Circular $70, Pridex alleged that Stuteville discussed the matter of the bond with Wright, knew of Wright’s legal problems and inability to provide an acceptable bond, did not warn Pridex, and implied to Pridex that City would accept a bond from Underwriters Group, Wright testified that Stuteville had contacted him regarding the bond and that Wright had handled similar matters for Stuteville before. Pridex sent the Underwriters Group approximately $69,000 to secure the bond. Underwriters Group subsequently delivered an instrument titled as an “irrevocable trust instrument.” Pridex alleged that Mayor Stuteville told Pridex’s attorney that theinstrument was a bond, and that “these things have been used before.” City, however, subsequently refused to accept the “trust instrument” as a suitable bond. The City Council voted to give Pridex ten extra days to provide an acceptable bond. Pridex argued that it could no longer use another bonding agent because its bond money was being held by Underwriters Group. On day ten, Underwriters Group provided an “affidavit of individual surety” which was, again, found to be unacceptable as a bond, As aesult, Pridex lost the West Bottom Project bid for failure to provide a bond. Pridex alleged that City refunded the “bid bonds” of other bidders on the project, but refused to refund Pridex’s $23,823 bid bond unless Pridex released City from any liability that may have arisen during the prior contract process. Underwriters Group did not return the $69,000 Pridex had sent for the bond, leaving Pridex almost $100,000 out of pocket. Pridex also alleged that City then deviated from its established procedure by re-bidding the project instead of awarding the bid to the next lowest bidder. ‘The re-bid contract went to defendant ‘TMC Construction Company (TMC), the third-lowest bidder on the original project. Pridex alleged that TMC had substantial social, family, and business connections with Stuteville and City Attorney Harrison, and that the process by which it lost the contract and the contract was re-bid was engineered by Stuteville and Harrison to steer the contract towards a favored bidder.Stuteville denied any acts or intent other than a good faith attempt to help Pridex obtain a suitable bond within the required time frame. Stuteville denied any contact with Wright, or any knowledge of legal problems related to Wright or the Underwriters Group, and denied any knowledge that either Standridge or Wright could not provide a suitable bond meeting the required specifications. Stuteville denied any personal interest in the success of the TMC bid. Stuteville further argued that he had no legal ability or authority to make the various representations Pridex claimed, that Pridex knew this, and that Pridex could not have relied on them, In June 2012, Pridex filed suit against Mayor Stuteville, City Manager Reynolds, Larry Wright, Underwriters Group, TMC, and City. The theories of recovery raised against Stuteville were tortious interference with contract; interference with prospective economic advantage; fraud; and civil conspiracy. Before trial, the district court issued default judgments against Wright and the Underwriters Group, although they remained defendants for the punitive damages phase. City and City Manager Reynolds settled with Pridex during trial, leaving Stuteville as the sole trial defendant at the time of the jury's verdict. Stuteville moved for a directed verdict after the presentation of Pridex’s case, which the court stated it would “treat as a demurrer” because Stuteville had not yet presented his defense. The court denied this motion. Stuteville re-urgedhis directed verdict motion at closing. Tt was again refused, The jury was instructed that the issues in the case included fraud, conspiracy, interference with prospective economic advantage, and tortious interference with a business relationship. The jury unanimously found in favor of Pridex, awarding $150,000 in actual damages and $350,000 in later-stage punitive damages. Stuteville filed a motion for new trial/JNOV that was 75 pages long, The district court denied his request for JNOV, but granted a new trial without comment. Pridex then appealed the grant of a new trial. Stuteville appealed the district court’s refusal to grant JNOV. On July 13, 2015, this Court, noting that the district court’s opinion was silent concerning the basis for granting a new trial (and that Pridex had requested findings from the district court regarding the grant of a new trial), requested that the district court make brief findings regarding its decision. The district court did so, filing specific findings on September 17, 2015, and revised findings (due to a scrivener’s error) shortly thereafter, Both parties then submitted supplemental Statements regarding the court’s stated rationale. We now review the court’s decisions based on the entire record before us and the court’s articulated rationale. STANDARD OF REVIEW “A motion for NOV should not be granted unless there is an entire absence of proof on a material issue.” First Nat'l Bank in Durant v. Honey CreekEntertainment Corp., 2002 OK 11, 8, 54 P.3d 100; see also Harder v. F.C. Clinton, Inc., 1997 OK 137, § 6, 948 P.2d 298. Further, “[a]ll evidence favorable to the non-moving party and inferences therefrom, must be regarded as true and all evidence favorable to the moving party and inferences drawn therefrom must be distegarded.” Franklin v. Toal, 2000 OK 79, § 13, 19 P.3d 834. The standard of review for denial of a motion for a new trial is abuse of discretion, Capshaw v. Gulf Ins. Co., 2005 OK 5,47, 107 P.3d 595. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Spencer v. Ola. Gas & Elec, Co., 2007 OK 76, § 13, 171 P.3d 890 ANALYSIS On request, the district court produced the following stated rationale for its grant of a new trial: 1. The Plaintiff was the successful bidder on a bid for a public works contract with the City of Kingfisher (the “City”). 2. The successful bidder was required to comply with all terms of bid documents. 3. As one of the bid requirements, Plaintiff was to provide a performance and maintenance bond within 15 days of the approval of the bid by the City. ' We note that Stuteville’s Motion for JNOV omits this second, material requirement ‘when stating the standard of review.4, Oklahoma law and the bid specifications required the Performance and Maintenance bonds to be issued by a company listed on U.S. Treasury Circular 570. 5, Failure to timely obtain the required bonds entitled the City to annul the award 6. The Plaintiff was an experienced contractor and understood the terms and conditions of the bid documents utilized on this project with the City. 7. The Plaintiff understood the bond requirements as set forth in the bid documents. 8. The Plaintiff indicated that it sought the required bonds through BondPro, a company listed on U.S. Treasury Circular $70. 9. The Plaintiff testified that all the requirements for the required bonds with BondPro were met, except payment of the premiums. 10. Shortly prior to the expiration of time to have the required bonds secured, Plaintiff approached and sought the assistance of Defendant, Jack Stuteville, to help obtain the required bonds through someone other than BondPro. 11. Defendant Stuteville agreed with Plaintiff that a cash bond would be acceptable; however, the City determined a cash bond would not be acceptable. 12. The City gave Plaintiff an extension of time to obtain the required bonds. 13. During the extension of time, Defendant gave Plaintiff the name of Steve Standridge to help obtain the required bonds. 14, Plaintiff contacted Standridge who put Plaintiff in contact with Defendants Larry Wright and ‘The Underwriters Group, Inc.15. Plaintiff was aware that neither Larry Wright nor The Underwriters Group, Inc. were listed on U.S. Treasury Circular 570 and thus, would not be able to provide the required bonds in compliance with the bid and state law. 16, Plaintiff, with knowledge that Defendants Larry Wright and The Underwriters Group, Inc, were not providing an acceptable bond, went ahead and sent them $70,000.00 for the bond premium and deposit, 17. The Plaintiff did not show any evidence of wrongdoing on Defendant's part in persuading Plaintiff to utilize Larry Wright and The Underwriters Group, Inc, for a bond rather than paying BondPro, an approved provider, who was ready to proceed upon payment of the premium and deposit. 18. There was no evidence presented to the jury that Jack Stuteville: 1. Initiated the contact with Plaintiff about the required bonds; 2. Interfered in any way with Plaintiff proceeding with the required bonds through BondPro; 3. Indicated to Plaintiff that Larry Wright and/or The Underwriters Group, Inc, could provide acceptable bonds; or 4, Encouraged or recommended that Plaintiff send Larry Wright and/or The Underwriters Group, Inc. $70,000.00 for products that would not satisfy the bond requirements of bid. 19. The Plaintiff by its evidence had procured the required bonds from an approved company. It only lacked paying the premium and deposit. Subsequently, the Plaintiff then determined to send payment for the required bonds and deposit to a company who could not provide acceptable bonds. From this evidence, it appears the jury’s decision was: A, Based on a misunderstanding of the facts and/or; B. Based on prejudice against the Defendant, Jack Stuteville or; C, Based upon the evidence that was not produced in the trial.J, THE DENIAL OF JNOV ‘A. INOV and the Trial Court’s Stated Rationale for New Trial The standard of review governing Stuteville’s claim that the trial court erred in denying JNOV is the same as that of the trial court. Some of the district court's findings are puzzling as a rationale for a new trial, Certain findings do not speak of insufficient evidence or improper evidence on required elements, but of no evidence. To quote the court’s rationale No. 18: ‘There was no evidence presented to the jury that Jack Stuteville: 1. Initiated the contact with Plaintiff about the required bonds; 2. Interfered in any way with Plaintiff proceeding with the required bonds through BondPro; 3. Indicated to Plaintiff that Larry Wright and/or The Underwriters Group, Inc. could provide acceptable bonds; or 4, Encouraged or recommended that Plaintiff send Larry Wright and/or The Underwriters Group, Inc. $70,000.00 for products that would not satisfy the bond requirements of bid. (Emphasis added). ‘The court, when asked for findings supporting its decision to order a new trial, provided findings that, as a matter of law, there was no evidence on several material issues. Hence our puzzlement, as the court has three times rejected INOV in some form or another. A key element of Pridex’s case is the claim that Stuteville caused Pridex 10 lose the project by involving it with Standridge and UGI, and giving assurances that City would accept the type of “bond” UGI could provide. The court thus opines that no case existed for a jury to hear, even though the matter was sent to a jury over defendant’s objections. The court’s findings indicate that Stuteville is 10entitled to JNOV, despite the court having denied a demurrer, a motion for directed verdict, and a motion for INOV. As Stuteville has appealed the court's refusal of his motion for JNOV, we must first examine these findings. ‘Turning to the findings of the district court that there was no evidence on several key issues, the court first found no evidence presented that Stuteville “[iJnitiated the contact with Plaintiff about the required bonds.” Even if correct, this finding is not grounds for NOV. Pridex alleges that Stuteville knowingly directed them to a contact that could not write acceptable bonds while indicating to Pridex that he could, The party making the original contact is irrelevant to that inquiry. ‘The finding further appears disputed in the record. The trial record at Vol 1, pp. 101-103, contains testimony from Poindexter that he had contacted City regarding whether City would accept a cash bond on the project. Poindexter testified that, when he received no response, he went to see City Manager Reynolds, Reynolds then invited Stuteville to the meeting. Poindexter testified that Reynolds and Stuteville thought a cash bond would be acceptable, but also decided to involve City Attorney Harrison by conference call. Harrison opined that a cash bond was not acceptable. Poindexter testified that Reynolds then suggested another local agency, and Stuteville stated: Hey, I’ve got a guy you can contact that can take care of this, right now; we need to get a bond in place. The other bidders are ulstarting to complain and somehow they found out that you don’t have a bond to cover this project at this point in time, and it’s getting to be an issue and I want to help you out. So here’s a guy you can call and here’s his number and you can call him right here. TRL p. 103, ll 14-25. Although Stuteville did not “initiate the contact with Plaintiff about the required bonds” he did initiate the idea of using Standridge to obtain a bond. ‘The court next found that Stuteville had not interfered in any way with Plaintiff proceeding with the required bonds through another company, BondPro, which could provide acceptable bonds. This is also an irrelevant finding. The allegations were not that Stuteville directly interfered between Pridex and BondPro. The allegations were that Stuteville deliberately encouraged Pridex to use an alternative that he knew could not provide an acceptable bond. The court’s third finding was that Stuteville never indicated to Pridex that Larty Wright and/or Underwriters Group could provide acceptable bonds. This would appear to be a matter of interpretation of testimony reserved for the jury. ‘The court’s fourth finding is that there was no evidence that Stuteville “Encouraged or recommended that Plaintiff send Larry Wright and/or The Underwriters Group, Inc. $70,000.00 for products that would not satisfy the bond requirements of bid.” We find this question to be one of interpretation of the evidence, and not a basis for JNOV. We find no error in the court’s refusal to grant JNOV based on these findings 12B. Stuteville’s Rationale for NOV In addition to the court's findings, Stuteville presented some 50 pages of argument in his motion for JNOV essentially arguing that there was no evidence on any element of Pridex’s case, Much of the motion involves question of evidentiary interpretation that fall under the rule of Franklin, 2000 OK 79 at § 13, that “[aJll evidence favorable to the non-moving party and inferences therefrom, must be regarded as true and all evidence favorable to the moving party and inferences drawn therefrom must be disregarded.” Stuteville’s INOV motion does not strictly follow this rule.” Discounting those claims that revolve around evidentiary interpretation, we address the following arguments of law. Stuteville argues that Pridex could not rely on any representations he allegedly made as to the acceptability of bonds because the law contradicted those representations. This argument primarily coneems the requirement in the bid specification that the bonding agency be one listed on U.S, Treasury Circular 570. Stuteville argues that this requirement is the equivalent of a “law,” and hence Pridex could not have relied on any representation by Stuteville or City that bonds Standridge or UGI could provide would be acceptable, Stuteville relies on the Indeed, it stretches credibility and does a disservice to the trial judge to believe that this case survived summary judgment, two motions for a directed verdict, scrutiny by the jury, and a ‘motion for NOV with no evidence on any claim, as the motion for INOV argues. 13statement of First Nat. Bank & Trust Co. of Muskogee v. Muskogee Discount House of Muskogee, 1963 OK 130, § 12, 382 P.2d 137, that: ‘The general rule is well settled that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. The rule embraces opinions on questions of law based on facts known to both parties alike and representations as to what the law will not permit to be done, especially when the representations are made by the avowed agent of the adverse interest. Examining published civil cases discussing the “misrepresentation of law” doctrine, we find several cases collected as the source for OUJI-CIV Instruction No. 18.9 ~ “Statements of Law as False Representations.” The pertinent part of that instruction, which appears to correctly summarize the existing case law, states: A statement about the law or about the legal effect or consequence of a course of conduct /document does not constitute a false representation of a past or present fact unless: 2. It is an intentionally false statement about the past or present law.... ‘The first question is, therefore, whether the alleged representations that a bond in the form provided by UGI would be acceptable were “false statements about the law or about the legal effect or consequence of a course of conduct or document.” Some guidance as to what constitutes a “statement about the law” can be found in a recent case discussing this doctrine, First Nat’! Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, 54 P.3d 100, In that case, the 3 We note that the defense requested this instruction, but the trial court evidently refused togive it. The defense did not object on the record to this refusal, 4bank made a loan to Honey Creek. Security for the loan included Honey Creek’s own assets, an additional guarantee by a company called Acme, and a personal guarantee by one Lena Clancy. Honey Creek defaulted and declared bankruptcy, and the bank attempted to proceed against Clancy and Acme. Clancy and Acme defended by alleging that the bank fraudulently induced Clancy to execute the agreements with repeated assurances that, if Honey Creek were to default, Clancy would not incur liability and Acme’s mortgages would not be foreclosed until after all Honey Creek’s assets were sold and the sales proceeds applied to the debt, and even then Clancy would be liable only for one-third of any remaining indebtedness. This statement clearly misstated the true /egal effect of the guarantee Clancy was induced to sign. The Bank interposed the misrepresentation of law doctrine against this defense, The Supreme Court found that, although the bank misstated the legal effect of the guarantee: [The] alleged statements do not constitute misrepresentations of law. The statements allegedly made by [bank] to Clancy do not relate to Clancy's legal liability under the written agreements. Rather, they relate to the intention of the Bank not to enforce the written agreements to their fullest extent. We have no trouble characterizing [bank’s] alleged statements as misrepresentations of fact. Id., §] 11. In Honey Creek, although the legal effect of the guarantees as written was misrepresented by the bank, it was within the power of the bank to forego its rights under those guarantees, and hence the representation was one of fact, not one of 15lav, This assists us in the question before us. To gain JNOV based on a misrepresentation of law theory, Stuteville must show undisputed evidence that the bid specification requirement of a bonding agency listed on Circular 570 could not be varied by City. We find no such evidence. Even if this was established as undisputed fact, the instruction further excludes “intentionally false statements” from its scope.’ The intent of the parties in this matter was a question for the jury. We affirm the trial court’s denial of INOV. 1. THE GRANT OF A NEW TRIAL Precedent is clear that a motion for NOV should be granted if there is an entire absence of proof on a material issue, The trial court rejected this argument three times, and we have rejected it for a fourth time. Hence, a jury case existed, and we must now examine the trial proceedings for error. The statutory bases for seeking a new trial are outlined in 12 0.S.2011 § 651. (New trial--Definition--Causes for): as follow: A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application * Cases involving this doctrine appear to examine situations when a party claimed parol ‘evidence that he/she was fraudulently induced to sign a contract by false statements as to its legal effect. We do not read these cases as generally immunizing a fraud simply because a misrepresentation of law is made. To cite a classic fraud example, a person who sells householders lighting rods by claiming they are required by law is engaged in fraud, pure and simple, pot in an immunized “misrepresentation of the law.” 16of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party: 1, Imegularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial; 2. Misconduct of the jury or a prevailing party; 3. Accident or surprise, which ordinary prudence could not have guarded against; 4, Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; 5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property; 6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law; 7. Newly-discovered evidence, material for the party applying, which could not, with reasonable diligence, have been discovered and produced at the trial; 8. Error of law occurring at the trial, and objected to by the party making the application; or 9. When, without fault of the complaining party, it becomes impossible to prepare @ record for an appeal. ‘The court’s order of a new trial rests on three alternate grounds: 1) that the jury did not correctly apprehend the facts or apply them to the instructions; 2) that the jury was prejudiced against Stuteville: or 3) that the jury considered evidence that ‘was not produced at trial. 17A, “Misunderstanding of the Facts” We now turn to the first basis cited by the district court, that the jury verdict ‘was “based on a misunderstanding of the facts.” A “misunderstanding of the facts” is not directly stated as a ground for new trial in § 651, A small number of cases refer to a jury’s misunderstanding of the law ot a misunderstanding of the court's instructions as ground for a new trial, but we find no case law referring to “misunderstanding of the facts” as grounds. Similarly, substantial case law discusses the question of whether a jury was confused by the court's instructions but we find no mention of a jury being confused by the facts presented. We find it evident that the trial court intended to invoke § 651(6), i.e. “[t]hat the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.” However, in granting a new trial on grounds of insufficient evidence, a trial court may not substitute its own judgment for that of the jury or act as a “thirteenth juror.” Dodson v. Henderson Props., Inc., 1985 OK 71, { 11, 708 P.2d 1064. It is an abuse of discretion for a trial court to grant a new trial when a jury’s verdict is supported by competent evidence. Fletcher v. Meadow Gold Co., 1970 OK 135, 472 P.2d 885; Walker v. St, Louis-San Francisco Ry. Co., 1982 OK 25, 646 P.2d 593. On questions of fact, the appellate court is to Getermine the sufficiency of evidence “in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all 18evidence adduced by the adverse party which conificts with it” Florafazx International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, 43, 933 P.2d 282. Should any competent evidence be found tending to support the verdict, it shall not be disturbed on appeal. Florafax at §3. We do not find that the trial court's rationale identifies an insufficiency of the evidence pursuant to this standard, B. Prejudice ‘The court further found that the jury’s decision was “Based on prejudice against the Defendant, Jack Stuteville.” Section 651(4) identifies “Excessive or inadequate damages, appeating to have been given under the influence of passion or prejudice” as a basis for a new trial. “A clear showing of prejudice is required before we will allow a trial court to set aside a jury verdict, or set it aside ourselves, for excessiveness or inadequacy of damages.” Clark, § 1. The court made no reference to excessive damages in its findings, nor did it order the remitter of any portion of the damages. Further, the court noted no prejudicial act or occurrence at trial.’ The court must therefore base its decision on a finding that the jury reached its verdict because some jurors were personally prejudiced against Mayor Stuteville. we, by example, Taliaferro v. Shahsavari, 2006 OK 96, § 23, 154 P.3d 1240 (repeated presentation of evidence that testifying physician has vandalized defendant physician’s car became a distraction resulting in the prejudicial effect outweighing the probative value of the evidence). 19Civil case law regarding the granting of a new trial based on a juror’s personal prejudice against a defendant is sparse. Criminal cases generally require a defendant claiming juror prejudice as the basis for a new trial to “affirmatively show that the juror was actually prejudiced against him;” that any alleged “statements showing prejudice were in fact made”; and that “he suffered an injustice as a result.” Ellis v. State, 1990 OK CR 43, 47, 795 P.2d 107; Brecheen y, State, 1987 OK CR 17, § 18, 732 P.2d 889. The only recent case we find dealing with personal prejudice by a juror in a civil case is Fields v. Saunders, 2012 OK 17, 43, 278 P.3d 577, in which a juror, immediately after trial, voluntarily discussed his racial animus towards plaintiffs and his lack of impartiality.® The court in this case made no finding sufficient to invoke any of the above principles. In his motion for new trial, Stuteville did argue that the verdict was excessive due to prejudice, but presented no evidence that the amount of the verdict was “excessive,” compared to a rational amount of damages for the harm * The juror in question in Fields related to a member of the bar after trial that (1) the plaintiffs would have never won the case with him (the juror) serving in the case, (2) he (the juror) was not impartial despite stating in voir dire he could be, and (3) he (the juror) wanted to “play the judicial system” and believed plaintiffs had the burden to prove the defendants ‘intended harm beyond a reasonable doubt before they could recover on a medical malpractice claim, ‘The attorney also related that the juror expressed his dislike for African Americans, and plaintiffs in the case were African Americans. Fields, $3. 20claimed. Stuteville also raised a conventional argument that unfairly prejudicial testimony was admitted. He argued the following: 1. Pridex asked questions of Larry Wright regarding previous criminal investigations or civil cases/penalties that were not relevant to Wright's credibility because the court had already granted default judgment against Wright, and thereby unfairly impugned Stuteville’s character. 2. Pridex raised a question regarding how Wright had obtained funds to pay offa debt to a third party and Wright “took the Fifth,” creating a prejudicial suggestion that Wright was “dishonest, had done something illegal, or had something sinister to hide.” 3. The court erred in admitting the testimony of one Tina Lyles. 1. Questions Involving Other Actions Against Wright Stuteville first argues that neither Wright’s credibility nor his other business actions was before the jury (because Wright had defaulted), and the discussion of other problems involving Wright's business activities was irrelevant and unfairly prejudicial to Stuteville.” Pridex’s theory of the case was that Stuteville had contacted Wright regarding a bond for Pridex, knowing that Wright was a fraudster who could not provide an acceptable bond. Pridex was therefore required to prove, 7 Tt is not entirely accurate that Wright's credibility was “not at issue” both because Wright was still being tried on the punitive damages issue, and because Wright had given testimony that Stuteville contradicted —a classic credibility question, 21at a minimum, contact beiween Stuteville and Wright, Wright’s status as untrustworthy, and Stuteville’s knowledge of this. The questions were therefore relevant to Pridex’s case, and not unduly prejudicial. Wright’s testimony provided a basis for the jury to find or infer that Stuteville had greater connections with ‘Wright, and greater knowledge of Wright’s status and activities than he admitted at trial. 2. Fifth Amendment The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” In Kastigar v. U.S., 406 U.S. 441, 445, 92 S.Ct. 1653 (1972), the United States Supreme Court held the Fifth Amendment privilege, against compulsory self- inctimination can be asserted in a civil proceeding because such testimony may be used in a later criminal proceeding. It is clear that, in a criminal proceeding, the state is barred asking any question that the State believes will invoke a Fifth Amendment response before the jury. Battenfield v, State, 1991 OK CR 82, 816 P.2d $55. However, the privilege against being involuntarily called to the stand as a witness against oneself applies only in criminal cases. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551 (1976). Also, in Allen v. Illinois, 478 U.S, 364, 369, 106 S.Ct. 2988, 2992 (1986), the Supreme Court held that the criminal law standard of the privilege against self-incrimination was not available in sexually-dangerous-person proceedings because they are “essentially civil in nature.” This Court ruled in Matter of C.C., 1995 OK CIV APP 127, 907 P.2d 241. that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment “does not preclude the inference where the privilege is claimed by a party to a civil case. 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961)” (citing Ramil v, Keller, 68 Haw. 608, 726 P.2d 254, 262 (1986) (quoting Baxter at 1557-58)). Matter of C.C notes that moreover, that “[flailure of a party who is present at the trial to answer questions based on the privilege against self-incrimination raises a strong inference that the answers would have been unfavorable and damaging to him, and comment to that effect is proper” (Matter of C.C. at § 1, citing Asplin v, Mueller, 687 P.2d 1329 (Colo.Ct.App.1984)). Pridex therefore did not violate any duty by deposing Wright and asking him the question he refused to answer, even if that refusal was expected. Nor do we have any record that Pridex commented upon Wright’s refusal to answer, or request the jury to draw any inference from it, as prohibited by 12. 0.8.2011 § 2513(A). Subsection C of the same statute further indicates that the safeguard against the jury drawing any implication unaided is that “Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is 23entitled to an instruction that no inference may be drawn therefrom.” We find no record that Stuteville requested any such instruction, We find no error in this matter, 3. Tina Lyles ‘The same rationale apples to the testimony of Tina Lyles. Stuteville denied involvement with Wright. Wright testified that Stuteville had contacted him regarding the Pridex bond. Tina Lyles confirmed that Stuteville was in contact with Wright's office, and that Wright had numerous business problems. These facts were relevant to Pridex’s case. We find no error in the admission of this testimony. C. Evidence That Was Not Produced At Trial ‘The third basis — that the jury considered evidence that was not produced at trial - presumably falls under § 651 (1) - “Irregularity in the proceedings of the jury.” If the court ordered a new trial on the grounds that the jury considered “evidence that was not produced in the trial,” however, it must have some knowledge of what that evidence was and have some reason to believe that the jury considered it® However, despite stating 19 findings of fact, at no time did the trial 8 See, e.g., Ledbetter v, Howard, 2012 OK 39, 276 P.3d 1031 (jury considered outside information brought by juror). 24court identify any “outside evidence” the jury may have considered, or any basis for the suspicion that such evidence was introduced to the jury deliberations.” An unsupported conviction of the trial judge may have constituted a sufficient rationale for new trial prior to Clark v. Bearden, 1995 OK 71, 4 9, 903 P.2d 309, when a judge could order a new trial based only on “any error or misconduct which in the conscience of the court is sufficient justification for this action.”"" However, Clark was clear that “the conscience of the court” was no longer a rational ground for vacating a jury verdict without record support. Atrial court’s order granting a new trial must have some record support. “If allowed the unbridled substitution of his own opinion for that of the jury, [a trial court] could in effect partially abrogate both our jury system and right of appeal by repeatedly setting aside successive verdicts and granting new trials until a verdict was returned that conformed to his own personal idea of an adequate recovery.” Clark, id., citing Aldridge v, Patterson, 276 P.2d 202, 204 (Okla.1954). The court’s own subjective conclusion that the jury may have considered evidence not, produced at trial is insufficient to grant a new trial without some basis in the record ° If Stuteville believed that it was not possible to try the case in the venue because a jury ‘would inevitably be tainted by local knowledge or local political disputes, it was incumbent upon Stuteville to seek a change of venue. 10 4 trial court’s power to grant new trials is limited by the bounds of judicial discretion; and thus, in effect, have renounced the statement in Spence v. Park, {1952 OK 317, 248 P.2d 1000] to the effect that a trial court‘, .. may grant a new trial on account of any error oF misconduct which in the conscience of the court is sufficient justification for this action.” Clark, 18.indicating that this actually occurred, Neither the court nor Stuteville stated such a basis, and we find none in the record. We are not limited on review to the rationale stated by the court. See Parker v. Washington, 1966 OK 263, 421 P.2d 861; Fletcher v. Meadow Gold Co., 1970 OK 135, 472 P.2d 885. Returning, however, to Stuteville’s motion for new trial, we find no evidence there indicating that the jury considered evidence not produced at trial either. In total, we find no basis in the evidence for the court's third rationale, We find no evident basis for a new trial in the trial court’s findings. We are not, however, limited to the rationale stated by the trial court, and Stuteville raised numerous other bases for new trial in his motion. Stuteville claims the following prejudicial errors in the jury instructions. IIL. JURY INSTRUCTIONS We first note that Stuteville preserved objections to only two jury instructions at trial, These were the punitive damages instruction, and Instruction 26, “Deceit Defined.” (Tr. Il, p 439.) That instruction was identical to OUJI 18.6, and is therefore presumed to state the law correctly. When a party fails to preserve objection to a jury instruction, a later allegation of error concerning the instruction will be reviewed only for fundamental error by this Court. Sullivan y. Forty-Second W. Corp., 1998 OK 48, 26496-8, 961 P.2d 801. “The trial court’s duty is to state the law correctly, but not to frame the issues. If the nisi prius judge does not accurately state the law, ‘fundamental error’ occurs.” Sellars v. McCullough, 1989 OK 155, 784 P.2d 1060. Where no exception has been saved, the appellate court will look only for “erroneous statement of fundamental law, appearing upon the face of the instructions”; and the court will not examine the record further to search for “latent” errors. Zd., 410. It is the parties’ duty to assure that the instructions given accurately reflect the issues tendered by the evidence adduced at trial, Id. 9. “A breach of [this] duty is not fundamental error, but rather ordinary trial error which is not reviewable on appeal unless preserved by an exception.” Id. A, Instruction 24 The court gave a version of OUJI 18.1 as Instruction 24, OUJI 18.1 states: FALSE REPRESENTATION- ELEMENTS OF LIABILITY -In order for [Plaintiff] to recover from [Defendant] on [his/her] claim of deceit, you must find that all of the following have been established by clear and convineing evidence: 1. That [Defendant] made a material representation; 2. That it was false; 3. That [Defendant] made it when [he/she] knew it was false, or made it as a positive assertion recklessly, without any knowledge of its truth; 4, That [Defendant] made it with the intention that it should be acted upon by [Plaintiff];5. That [Plaintiff] acted in reliance upon it; and 6. That [Plaintiff] thereby suffered injury. Instruction 24, which was given by the court without objection, conforms to these elements with the exception that where OUJI 18.1 uses the phrase, “In order for [Plaintiff] to recover on its claim of deceit,” Instruction 24 uses the phrase “In order for [Plaintiff] to recover on this claim.” We find no rationale for this alteration in the record and note that it was the joint instructions of the defendants (not the plaintiffs) that edited the standard instruction and removed the phrase “of deceit.” (Record 619, Defendants’ joint requested instructions). Hence defendants invited this error.'! ‘The record shows no objection to this instruction during trial, The question is therefore whether the omission of the phrase “of deceit” constituted an “erroneous statement of fundamental law, appearing upon the face of the instructions.” Stuteville argues that, without the inclusion of the phrase “recover on its claim of deceit”, as opposed to “recover on its claim” in Instruction 24, the jury could find Stuteville liable for “deceit,” based on other instructions, without '" Although the law appears unsettled on exactly how we should treat a party who writes a non-standard instruction that may constitute fundamental error, and thus damages their own case, we note that, generally. “A party on appeal is not permitted to secure a reversal of @ judgment based on invited error.” State ex rel. Oklahoma Bar Ass'n v, Perkins, 1988 OK.63, 17, 757 P.2d 825. The question would be one of whether a court has @ duty to step in and save a party from its own invited error. We find no clear precedent on this question, 28{finding two of the required elements of false representation — a material fact, and reliance on the statement. Examining the record, however, we also find the jury was given a version of QUJL Instruction No, 18.2 - Nondisclosure Or Concealment- Elements Of Liability as Instruction 25. In order for [Plaintiff] to recover from [Defendant] on [his/her] claim of deceit, you must find that all of the following have been established by clear and convincing evidence: 1. That [Defendant] concealed or failed to disclose a past or present fact which he had a duty to disclose; 2, That the fact was material; 3. That [Defendant] concealed or failed to disclose it with the intent of creating a false impression of the actual facts in the mind of [Plaintiff]; 4, That [Defendant] concealed or failed to disclose it with the intention that it should be acted upon by [Plaintiff]; 5. That [Plaintiff] acted in reliance upon it; and 6. That [Plaintiff] thereby suffered injury. ‘This instruction stated the necessary legal elements required for deceit to translate to liability. We find no fundamental error is demonstrated in this matter. B. “Missing” Instructions Stuteville next argues that if the court gave a version of UJI 18.3 (False Representation- Defined) it was fundamental error not to also give OUII 18.9 29(Statements of Law as False Representations) and 18.10. (Statements of Opinion or “Puffing” As False Representation), Although these instructions are options when the court deems them “appropriate,” we find no mandatory requirement the court, give them, and no record that Stuteville requested them or the court refused to give them when asked. “Once the court has instructed generally, it is incumbent on the parties to request a more specific instruction.” Middlebrook v. Imler, Tenny & Kugler M.D.’s, Inc., 1985 OK 66, 713 P.2d 572. No error appears on the face of the instructions given, and the absence of a non-mandatory instruction is not fundamental error by the court. The same rationale applies to Stuteville’s next claim of error- that, having given OUII 18.2 (Nondisclosure Or Concealment- Elements Of Liability), it was mandatory that the court give OUJI 18.5 (Nondisclosure - Duty To Disclose). If Stuteville felt these instructions were appropriate, it was incumbent on him to request them, The omission of this instruction does not constitute fundamental error. C. Instruction 32, The court also gave a non-OUJI instruction No, 32 regarding “Civil Conspiracy” which stated: CIVIL CONSPIRACY Pridex claims that each of the Defendants participated in a civil conspiracy and that it was damaged as a result of unlawful acts 30committed by the conspirators. In order to prevail on, this claim as to the Defendants, Pridex must prove by the greater weight of the evidence as to that particular Defendant that: 1, Two or more persons conspired, and one was the individual Defendant; 2, There was an object or purpose to be accomplished; 3. The parties to the conspiracy had a meeting of minds as to the abject or purpose to be accomplished; 4, The conspirators committed one or more unlawful overt acts; and 5, Plaintiff was damaged as a result of the conspiracy. ‘There can be no civil conspiracy where the act complained of and the means employed were lawful. An “unlawful act” does not require a criminal wrong, but rather means an act that is in violation of the law—such as negligence, fraud or breach of fiduciary duty. If you find by the weight of the evidence that a defendant conspired with another person to commit a legal wrong against Pridex, then you must find in favor of Pridex on the civil conspiracy claim. ‘There was no objection to this instruction at trial, Based on the next-to-last paragraph, Stuteville argues that it fundamentally misstates the law because it instructs that a party may be found liable for a “conspiracy to commit negligence” ora “conspiracy to breach a fiduciary duty.” ‘The paragraph in question does not misstate the law. An “unlawful act” does not require a criminal wrong, and can mean an act that is in violation of the law—such as negligence, fraud or breach of fiduciary duty. It is the court's duty is to state the law correctly, but not to frame 31the issues. Sellars, id, If further exposition was required in order to apply this law to the issues, it was Stuteville’s burden to request it D, OUJI 18.4 Stuteville argues that Instruction 29, based on OUJI 18.4, constituted fundamental error because the court gave the optional second paragraph below: Instruction 18.4 - MATERIAL FACT: DEFINED A fact is material if a reasonably careful person under the circumstances would attach importance to it in determining [his/her] course of action. ‘A fact may also be material even though a reasonably carefull person might not regard it as important, if [(the person stating it knows)/(a person conceals it knowing)] the person with whom [he/she] is dealing will very likely regard it as important in determining [his/her] course of action. Again, we note that defendants requested this instruction. Nonetheless, Stuteville argues that the OUJI “Notes on Use” state that this second part of the instruction should only be given when “there is evidence to support it and, also, where there is evidence that the defendant may have deliberately taken advantage of the plaintiffs deficiencies or peculiarities.” Stuteville argues that there was no evidence that Poindexter had any “deficiencies or peculiarities” that would allow this instruction. By requesting the instruction, however, Stuteville inherently argued to the court that there was such evidence, and he is likely estopped from changing that position on appeal. 32This argument further fails because of Stuteville’s failure to object to the instruction at trial. It is axiomatic that a standard OUII states the law correctly. Beyond that, it becomes a question of framing the issues. Further, Stuteville appears to define the word “peculiac” as meaning “strange and odd” rather than “specific to a person or situation.” We find that statements between Stuteville and Poindexter in the context of this case might have significance not clear to the average person. E. Instruction 28 - Constructive Fraud Despite having written and requested this instruction, Stuteville now argues that it fails to properly define constructive fraud because Croslin v. Enerlex, Inc., 2013 OK 34, 12, 308 P.3d 1041, defines constructive fraud as “a breach of a legal or equitable duty to the detriment of another, which does not necessarily involve any moral guilt, intent to deceive, or actual dishonesty of purpose.” Instruction 28 lacks the phrase “which does not necessarily involve any moral guilt, intent to deceive, or actual dishonesty of purpose.” Even assuming the instruction misstates the law (and we do not think it does), it is a matter of simple common sense that a misstatement of the law in instructions must be prejudicial to the appealing party. ‘The instruction as given makes it harder to prove constructive fraud, by implying that moral guilt and intent to deceive may be required elements. Nonetheless, Stuteville argues that the instruction, by making it 33harder to prove constructive fraud, somehow misled the jury regarding the legal elements of actual fraud, The elements of actual fraud are, however, properly defined in Instruction 24. This allegation of error is without merit. F, Instruction 33, Among his defenses, Stuteville argued that he was acting within his scope of employment pursuant to the GTCA. He now argues that Instruction 33 improperly defines that scope of employment and hence represents fundamental error. Again, it was the defense that requested this instruction and defined the scope of Stuteville’s employment in a manner that he now claims constitutes fundamental error.” The instruction states in part that an elected official acts within the source and scope of his official duties when he engages in activities authorized by the city charter or state law in the fulfillment of the responsibilities imposed on him by the citizens of the community. Stuteville argues that this instruction unduly limits his scope of GTCA employment in that it implies that only acts authorized by the city charter or state law were within his scope of employment. We review this instruction, however only for a fundamental misstatement of the law. The challenged statement does not fundamentally misstate the law. If Stuteville desired further clarification that "2 The plaintiffs did object to this instruction on the grounds that Stuteville’s acts could not have been within his scope of employment. 34other acts might also be in the scope of his GTCA employment, it was incumbent upon him to request such instructions. IV. PROOF OF DAMAGES. Stuteville argues that he was entitled to a new trial on the question of damages because Pridex did not produce proper evidence of “lost profits.” Stuteville cites Cook v. Oklahoma Bd. of Pub. Affairs, 1987 OK 22, 41, 736 P.2d 140, for the rule that lost profits “will not be awarded where the contractor presented neither evidence of its profits for preceding years nor an expert analysis with a breakdown of damages.” A fair part of the cited paragraph is missing from this summation. Paragraph 41 of Cook states: ‘As the contract provides for a change order before any extra work is done, this was not an award based on express contract but on quantum meruit. Lost profits in such a case will not be awarded where the contractor presented neither evidence of its profits for preceding years nor an expert analysis with a breakdown of damages Cook cites this paragraph to two sources. The first is Morgan v. Underwood, 1956 OK 4, § 7, 292 P.2d 1001, which states the longstanding principle, “A person damaged by breach of a contract and thereby deprived of anticipated profits may recover such profits as damages where the same may be established with reasonable certainty and such profits were contemplated by the parties on the date of the execution of the breached contract.” However, the language regarding expert testimony and prior year’s profits is cited to page 1007of the California case, Warner Constr, Corp. v. City of Los Angeles, 2 Cal. 3d 285, 466 P.2d 996 (1970). Investigating Warner Constr., the theory of of lost profits in that case was an exotic one based on an “impairment of capital” theory. Warner Construction had sued the City alleging that it was fraudulently induced into making a low bid to build a retaining wall because the city concealed known subsurface conditions that would render construction much more expensive than normal. Wamer alleged that the excess money it had to tie up in this project “forced a curtailment in construction operations and in research; the loss likewise led to a reduction of bonding capacity as well as the destruction of plaintiff's former advantageous competitive position in the industry.” /d., 1007. The California court found that such a complex and exotic theory of loss posed “imponderable factors which may affect different companies to differing extents and amounts” and that the evidence presented was insufficient to make such a complex calculation with any degree of certainty. We find no similarity between Warner Constr., and the current case, The lost profits in this case were raised as the specific difference between the bid price on the project and Pridex’s estimated costs. We find that Poindexter, as the person who put together Pridex’s estimated costs for the bid, a list of which was entered into evidence, was qualified to testify on these matters. 36V. VERDICT AS THE RESULT OF PASSION AND PREJUDICE Stuteville argues that he is entitled to a new trial because the verdict is excessive and the result of passion and prejudice. Stuteville brings no credible analysis that the verdict was “excessive.” Rather he complains of “prejudicial remarks” by opposing counsel during closing. We are neither directed to, nor find, any objection to these remarks made during closing argument. Although eriminal cases note that claims of prejudicial remarks during closing that are not preserved by timely objection will be reviewed for plain error only,"* the civil rule is that “alleged prejudicial remarks of counsel in his argument to the jury are not preserved for review by this court unless objected to and exception is taken at the time the remarks are made.” Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, $23, 148 P.3d 880; Nail By & Through Nail v. Oklahoma Children's Mem'l Hosp., 1985 OK 101, 710 P.2d 755; Bateman v. Glenn, 1969 OK 158, § 16, 459 P.2d 854; Lawton Transit Mix, Inc, y. Larson, 1969 OK 83, 455 P.2d 696. The law does not allow review of such remarks (if not objected to) to be raised as error on an appellate theory of “prejudice during the trial.” We find no principle that the same remarks can be raised as error supporting a new trial based on “prejudice in the verdict.” °3 See Goode, 2010 OK CR 10, 473 and Harmon v. State, 2011 OK CR 6, 479, 248 P.3d 918, 943, as comrected (Apr. 1, 2011), 37CONCLUSION Our canvass of the record reveals no objective basis upon which this Court would order a new trial in this matter, and we find no specific indication, in either the trial court's rationale or the record, that a correctable error of law occurred in this trial. However, several recent cases indicate an unusually high level of deference to a decision of the trial judge to grant a new trial, when the grant of new trial is based on a court’s finding of prejudice, rather than its statutory or legal interpretations, The standard of review for the denial of a motion for a new trial is traditionally abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, 7, 107 P.3d 595. However, Ledbetter , Howard, 2012 OK 39, § 9, 276 P.3d 1031, notes, “The threshold for upholding the grant of a new trial is muuch lower than where the motion is overruled.""* “Furthermore, when, as here, the new trial is granted by the same judge who tried the case, a much stronger showing of error or abuse of discretion is required for this Court to reverse than if a party appeals ftom a refusal to grant a new trial.” Id. Taliaferro v. Shahsavari, 2006 OK 96, 33, 154 P.3d 1240, appears to reinstate the doctrine disavowed in Clark v. Bearden, 1995 OK 71, 903 P.2d 309, by rendering the opinion of the trial judge sufficient grounds for \6 Given that an abuse of discretion occurs only when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling (Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, § 13, 171 P.3d 890), how added deference can be given within this standard remains unknown. 38anew trial, “It is the duty of the trial court to safeguard the rights of the litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred.” Id, 4133. ‘These cases indicate that we are required to start from an abuse of discretion standard; then make the standard muich lower; and then add yet more deference because it was the same judge who both held the trial and granted a new trial; and finally give deference to that judge’s opinion and make all presumptions in favor of the trial judge. These cases may be read as requiring that, unless a judge grants a new trial based on a pure misinterpretation of statutory or case law, we must give deference to that decision. However, examining these recent cases in more detail, the record in each case actually showed a clear, identifiable and objective error that supported the grant ofa new trial. In Ledbetter, a jury affidavit alleged that the jury foreperson communicated her professional knowledge and experiences to her fellow jurors with the apparent intent to sway their votes in favor of the defendants. In Taliaferro, the court identified as prejudicial the repeated testimony that a plaintiff's medical witness had damaged the defendant doctor’s car during a dispute. In Frelds v. Saunders, 2012 OK 17, 278 P.3d 577, a juror’s post-verdict statement that he had attempted to influence the jury based on his racial prejudice was properly cited as the basis 39for a new trial. We find no such facts or apparent rationale for the grant of a new trial in this case. In 1985, the Supreme Court stated in Dodson v, Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064: ‘The function of a motion for new trial is to open judicial inquiry into errors occurring during the conduct of trial proceedings; its office is to invoke the power of the trial court to correct and cure its own errors. Moreover, it is not within a court's province to substitute its own judgment for that of the jury and a trial court’s order sustaining a motion for new trial will be reversed [when] there appears to be no tangible, substantial, or reasonably certain basis for concluding that if the cause were retried, the result would be different. 5 (citations omitted). We have analyzed both the court’s findings and Stuteville’s motion/brief, and find no demonstrated legal error in the court’s conduct of this trial. This matter was tried before a jury that reached a unanimous verdict. As previously noted, a motion for new trial invokes the power of the trial court to correct and cure its own errors, not a power to examine the decisions and strategies of the parties in presenting their case, or to decide whether a jury would have come to a different decision had the parties conducted the trial differently, The fact that an identical trail could result in a different result does not render this jury’s verdict etroneous, or show an error of law. We find no objective evidence of an error by the court in this trial. It is the duty of the trial court to safeguard the rights of both 40the litigants to a fair trial. We find that it did so in this case. We therefore reverse the grant of a new trial, and reinstate the jury verdict in this case. REVERSED. JURY VERDICT REINSTATED, BARNES, J., concurs, and RAPP, J., dissents. RAPP, J., dissenting: respectfully dissent from the decision to reverse the trial court’s Order granting a new trial to the defendant, Mayor Jack Stuteville. In my view, the trial court’s grant of a motion for new trial should be affirmed, but only on the basis of 12.08.2011, § 651(6) (That the verdict is not sustained by sufficient evidence, or is contrary to law). The relevant facts, which appear undisputed, are: 1. Pridex bid a contract for the City of Kingfisher, Oklahoma. 2, The bid specifications required a performance bond issued by a bonding company listed on U.S. Treasury Circular $70.’ ‘The bond requirement is a requirement of law. As an experienced contractor, Pridex was aware of and understood the bond requirement. There were no ambiguities, 61 OS. Supp. 2015, § 113 (general bond requirements). See for example, Regulation of ‘Oklahoma Department of Environmental Quality, Okla. Admin, Code §252:515-27-78(d) (Acceptable bonds. ‘The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.) 4lmisunderstandings, or misleading components pertaining to the bond requirement and the specified authority to issue the bond. 3. Pridex did make application for a bond from a listed company and we approved subject to payment of the premium. 4, Pridex initiated the contact with Stuteville. For reasons, not apparent, of its own, Pridex chose not to complete the bonding process with the listed company. Instead, its owner went to the see the City of Kingfisher’s Mayor Stuteville, Giving all benefit of the evidence to Pridex, from this point on Pridex became embroiled in a series of events with one or more charlatans in Arkansas and Florida and which may charitably be described as fraudulent. According to the evidence, Pridex was bilked out of $69,000.00 by Larry G. Wright and his firm.” ‘The issues raised against Stuteville were tortious interference with contract, interference with prospective economic advantage, fraud, and civil conspiracy, In order to recover in an action for malicious interference with contract or business relations, “a plaintiff must show: 1. That he or she had a business or contractual right that was interfered with. 2. That the interference was malicious and wrongful, and that such interference was neither justified, privileged nor excusable, [and] 3. That damage was proximately sustained as a result of 2 The trial court, however, concluded that Pridex sent its money to Wright and his firm knowing that 2 suitable bond was not being provided. 42complained-of interference.” Mac Adjustment, Inc. v, Property Loss Research Bureau, 1979 OK 41, § 5, 595 P.2d 427, 428. I note further that there was no contract that could be the subject of interference because the City of Kingfisher and Pridex never signed a contract. Thus, the interference would have to be interference with entering into the contract. I conclude that the interference element has not been demonstrated here. The facts are that Pridex had the knowledge of the performance bond requirement to use a listed company, applied for and was approved for such performance bond, and yet went to Stuteville in his capacity as the Mayor to avoid the bond.> The torts of interference with prospective economic advantage and interference with contractual or business relations have similarities. However, “the underlying theories of liability differ. Interference with a prospective economic advantage usually involves interference with some type of reasonable expectation of profit, whereas interference with a contractual relationship results in loss of a property right.” Therefore, the two torts are not synonymous, Overbeck v. Quaker Life Ins, Co., 1984 OK CIV APP 44, § 4, 757 P.2d 846, 847-48. Again, the interference element has not been demonstrated here because Pridex initiated the 3 Moreover, whether at the stage where City of Kingfisher and Pridex had not signed a contract, interference with a contract is problematic, However, interference with contract and interference with business relations are the same. Tuffp's Ine. v. City of OMlahoma City, 2009 OK 4, 212 P.3d 1158, 43avoidance of the bond process that was required by the bidding instructions and thus became disqualified to contract with the City of Kingfisher. “The elements of actionable fraud are that the defendant made a material representation that was false, that [defendant] knew when he made the representation that it was false, and that [defendant] made it with the intention that it should be acted upon by plaintiff, and that plaintiff acted in reliance upon it and thereby suffered detriment.” Silk v. Phillips Petroleum Co., 1988 OK 93, { 12. 760 P.2d 174, 176-77. The absence of any element is fatal to a fraud claim. Id. § 13, 760 P.2d at 177. Here, the plaintiff went to Stuteville, without Stuteville’s. invitation to do so. In my opinion, the ensuing circumstances do not show that Pridex could reasonably rely upon any statement made by Stuteville because Pridex knew that the contract required a performance bond from a listed issuer and that the referred party to whom Pridex was referred did not meet that requirement. “A civil conspiracy consists of a combination of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Unlike its criminal counterpart, civil conspiracy itself does not create liability. In order to be liable the conspirators must pursue an independently unlawful purpose or use an independently unlawful means. There can be no civil conspiracy where the act complained of and the means employed are lawful.” Gaylord Entertainment Co. v. Thompson, 1998 OK 30, | 40, 958 P.2d 128, 148. “A conspiracy between two or 44more persons to injure another is not enough; an underlying unlawful act is necessary to prevail on a civil conspiracy claim.” Id. at n.86. Due to the conclusion that there is not an underlying tort here, the conspiracy claim against Stuteville necessarily fails. Therefore, I would affirm the trial court’s order granting a new trial to the defendant, Jack Stuteville. May 4, 2016