## F I L E D United States Court of Appeals Tenth Circuit 

### February 16, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MURPHY OIL USA, INC., Plaintiff-Appellee/Cross Appellant,

v. LAWRENCE WOOD; TRIVENTAL, INC., Defendants-Appellants/CrossAppellees, and RANDALL RAMEY, Defendant - Appellee. Nos. 04-6183 and 04-6239

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 03-CV-42-C)
Robert W. Dace (and Sheryl N. Young, with him on th e brief), McAfee & Taft, A Professional Corporation, Oklahoma City, Oklahoma, for Plaintiff-Appellee/Cross Appellant. Robert N. Sheets (Heather L. Hintz, on the briefs, and Lyndon W. Whitmire, with him on the briefs), Phillips, McFall, McCaffrey, Mc Vay & Murrah, P.C., Oklahoma City, Oklahoma, for Defendants-Appellants/ Cross-Appellees.1 Defendant Wood’s appeal focuses on the district cou rt’s rejection of his

standing to pursue his individual tort claims. Thi s is addressed below. - 2 - Before SEYMOUR , EBEL , and KELLY , Circuit Judges.

KELLY , Circuit Judge.

Defendant-Appellant/Cross-Appellee Trivental, Inc. 1 (“Trivental”) appeals from a judgment as a matter of law (“JMOL”) in favo r of PlaintiffAppellee/Cross-Appellant Murphy Oil U.S.A., Inc. (“ Murphy”) on (1) Murphy’s breach of contract claim; (2) two of Trivental’s br each of contract counterclaims; and (3) Murphy’s breach of fiduciary duty claim. L awrence Wood, an officer of Trivental, also appeals the district court judgmentthat he lacked standing to pursue his individual counterclaims. Finally, Triv ental appeals the court’s award of attorney’s fees and pre-judgment interest in fav or of Murphy. Murphy cross-appeals from a judgment on a jury verd ict in favor of Trivental with regard to a third breach of contractcounterclaim. Murphy also cross-appeals the district court judgment denying p unitive damages. Finally, Murphy cross-appeals the determination that Murphy was not entitled to attorney’s fees with regard to Trivental’s counterc laims. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part, and reverse in part.- 3 - Background Murphy owns and operates gasoline service stations, including those in Wal-Mart locations, throughout portions of the country. Murphy and Trivental entered into a contract (“General Contract”), effec tive January 1, 2000, whereby Trivental was to perform work as the general contra ctor for the building of gasoline stations, four of which were relevant to t he litigation in this case. Before the construction of any individual gas stati on, Trivental and Murphy would enter into a particularized contract (“Specif ic Contract”) that would outline the scope of work, contract price, payment terms, c ompletion date, and other matters not addressed in the General Contract relev ant to that particular station. Trivental and Murphy entered into Specific Contract s to build four gas stations, in these locations: New Iberia, Louisiana; Hugo, Tulsa , and Oklahoma City, Oklahoma. Murphy sued Trivental claiming that Trivental breac hed its contract by failing to pay its subcontractors for work done on the Oklahoma City gas station.
See Aplt. App. at 82. Murphy further argued that Triv ental had misappropriated trust funds paid by Murphy, intended for the benefi t of the subcontractors, in violation of Okla. Stat. Ann. tit. 42, §§ 152, 153. Trivental counterclaimed, arguing that Murphy had failed to fully compensate Trivental for “extra work” performed and materials supplied at the New Iberia, Hugo, and Tulsa stations.2 The district court ruled that Louisiana law governe d the New Iberia station

counterclaim, and waiver did not apply there. Aplt . App. at 478, n.*. - 4 - See Aplt. App. at 88. These counterclaims were submitted to the jury. Th e claims relating to the Tulsa and Hugo stations were decided under Oklahomalaw, while the claim relating to the New Iberia station was decided unde r Louisiana law. Following deliberation, the jury awarded Trivental damages in the following amounts: (1) $37,500 for the Tulsa station, (2) $40,000 for the Hugo station, and (3) $137,500 for the New Iberia station. See Aplee. Br. 5-6. Over a month later, the district court partially se t aside the jury verdict in favor of Trivental, and granted JMOL for Murphy on the counterclaims relating to the two Oklahoma stations, ruling that Trivental ha d accepted negotiated amounts of money and therefore waived any right to pursue t he remainder allegedly due on the contract. Aplt. App. at 478-9. 2 The district court had not instructed the jury on waiver. See id. at 1634 (“There is no instruction on waiver on bre ach of contract claims.”). As such, Trivental was awarded $137,500 in damages. Next, the court entered JMOL on Murphy’s breach of contract claim, awarding Murphy $80,702.06 for actual damages, and an additional $9,074.76 in prejudgment interest. The district court also ente red JMOL on Murphy’s breach of fiduciary duty claim, ruling that the managing o fficers of Trivental, Defendants- 5 -

Wood and Ramey, could be held personally liable forbreach of trust. The district court also granted Murphy attorney’s fees in the am ount of $77,040.75. On appeal, Trivental argues that the district courterred in (1) setting aside the jury’s verdict and entering JMOL in favor of Mu rphy on the Oklahoma stations, (2) reserving the defense of waiver, (3) granting JMOL in favor of Murphy on its breach of fiduciary duty claim, (4) i mproperly shifting the burden of proof on damages to Trivental, (5) failing to in struct the jury on Trivental’s “first breach” theory, (6) failing to instruct on T rivental’s fraud and constructive fraud claims, and failing to grant it a new trial, (7) holding that Wood lacked standing to proceed on fraud and tortious interfere nce claims, (8) awarding attorney’s fees to Murphy, and (9) awarding prejudg ment interest to Murphy. In its cross-appeal, Murphy argues that the district c ourt erred in (1) not granting Murphy JMOL or a new trial or remittitur on Trivent al’s contract claim on the New Iberia station, (2) failing to submit Murphy’s laches defense to the jury, (3) not granting Murphy JMOL and awarding it punitive d amages on its breach of fiduciary duty claim, and (4) not awarding Murphy attorney’s fees in connection with Trivental’s counterclaims.

Discussion A. Trivental’s Appeal (04-6183)3 Trivental also argues that the district court’s setting aside the verdict

resulted in misleading jury instructions and deniedit the right to trial by jury. In view of our reversal on other grounds, we need not address this issue. - 6 - 1. Waiver Trivental argues that sufficient evidence of Murphy ’s breach of contract existed, and therefore the district court erred in setting aside the jury verdict on its counterclaims. Trivental further asserts that the district court erred in granting JMOL on waiver grounds, contending that waiver pres ents a question of fact for the jury. 3 Murphy argues that the court’s ruling was proper because Trivental voluntarily and intentionally accepted partial paym ent pursuant to a negotiated contract modification and thereby waived its right to claim the remainder. When a district court sits in diversity, it is requ ired to apply the most recent statement of applicable substantive state law as pr onounced by the particular state’s highest court. See Phillips v. New Hampshire Ins. Co. , 263 F.3d 1215, 1218 (10th Cir. 2001). On appeal, we use the “norm al federal standards of appellate review to examine the district court’s de cision process.” Id. (internal citations and quotations omitted). Thus, we reviewa district court’s decision on a motion for judgment as a matter of law de novo , applying Oklahoma law. Tanberg v. Sholtis , 401 F.3d 1151, 1156 (10th Cir. 2005). This courtapplies the same standard as that applied by the district court . See Cummings v. Gen. Motors, Corp. , 365 F.3d 944, 949 (10th Cir. 2004).- 7 -

The Federal Rules of Civil Procedure allow for JMOL , “[i]f during a trial by jury a party has been fully heard on an issue an d there is no legally sufficient evidentiary basis for a reasonable jury to find forthat party on that issue.” Fed. R. Civ. P. 50(a)(1). As such, JMOL is appropriate only if “the evidence points but one way and is susceptible to no reasonable inf erences which may support the opposing party’s position.” See Cummings , 365 F.3d at 949. Here, Murphy raised the defense of waiver in its an swer to Trivental’s counterclaim, and it was an issue identified in the pretrial order. Aplt. App. at 68, 83. Murphy sought JMOL on its waiver theory. Aplt . App. at 1576-77. The district court reserved ruling on it. Id. at 1577. Apparently later, at a jury instruction conference, the court indicated it was inclined to accept Murphy’s waiver theory as a bar to Trivental’s breach of con tract counterclaim regarding the Oklahoma stations. Id. at 716, 813. However, it wanted a written respons e from Trivental. Ultimately, the court submitted th ose breach of contract counterclaims without any instruction on waiver to the jury. Id. at 716. Thereafter, before entering judgment on the jury’s verdict, the district court granted JMOL in favor of Murphy on the waiver defen se and set aside the jury’s verdict on those claims. In post-judgment motions, Trivental argued that Murphy had never preserved waiver for jury consideration b ecause Murphy failed to request an instruction. Aplt. App. at 619. In res ponse to Trivental’s post-- 8 -

judgment motions, Murphy stood on its entitlement t o JMOL, and argued that it was entitled to JMOL before the case was submitted to the jury. Aplt. App. at 687-88. This argument, however, ignores the plain language of Fed. R. Civ. P 50(b), which provides: “If, for any reason, the cou rt does not grant a motion for judgment as a matter of law . . . the court is cons idered to have submitted the action to the jury subject to the court’s later dec iding the legal questions raised by the motion.” Fed. R. Civ. P. 50(b). In Oklahoma, waiver is the voluntary and intentiona l relinquishment of a known right. Barringer v. Baptist Healthcare of Ok la. , 22 P.3d 695, 700 (Okla. 2001). As such, the doctrine of waiver focuses on the intention of the party against whom the waiver is asserted; that is, the p arty must have the intent to waive its right. Id. ; Bay Petroleum Co. v. May , 264 P.2d 734, 736 (Okla. 1953). In cases of contractual waiver, the agreement must be founded upon valuable consideration. See Smith v. Minneapolis Threshing Mach. Co. , 214 P. 178, 180 (Okla. 1923). Waiver can occur both expressly and implicitly. Ba rringer , 22 P.3d at 701. When the evidence concerning waiver is conflicting, or when more than one reasonable inference may be drawn from the evidence , the existence or nonexistence of waiver is a question of fact for the j ury. See id. ; see also Kincaid and Assoc. v. Black Angus Motel, Inc. , 983 P.2d 1016, 1021 (Okla. 1999); Bay- 9 -

Petroleum , 264 P.2d at 736; Skelly Oil Co. v. Funk , 174 P.2d 241, 242 (Okla. 1946); Smith , 214 P. at 181. It is only where there is an expr ess, knowing, and willing waiver that the issue becomes a question of law for the court. Barringer , 22 P.3d at 701; Smith , 214 P. at 181. In this case, Murphy argues that the district court ’s waiver holding was appropriate because Trivental “voluntarily and inte ntionally accepted money paid pursuant to negotiated change orders,” but never in formed Murphy of its intent to sue for additional money. This argument proves too much. In order to show an express waiver, there must be actual evidence that Trivental waived its right to full payment. Smith , 214 P. at 180-81. Murphy is unable to make this showing. Upon thorough review of the record generally, and the General Contract, Specific Contracts, and change orders particularly, there is simply no evidence that Trivental expressly waived its rights to the remain der of the contracted for price.
See e.g. , Aplt. App. at 3971 (listing costs for the Tulsa s tation). As such, Murphy must show an implied waiver. Impli ed waiver can be shown by conduct which warrants an inference of an intent to relinquish. Barringer , 22 P.3d at 701. In order to waive a legal right, though, there must be a “clear, unequivocal and decisive manifestation of t he party’s relinquishment of the right.” Id. Here, the change orders themselves distinguish be tween the original contract price and the prices associated w ith the changes, and then add- 10 -

the two at the end of the change order. Aplt. App. at 3971-72. Murphy insists that Trivental’s request for full payment, yet acce ptance of only partial payment pursuant to the change orders submitted by Murphy, establishes as a matter of law that Trivental intended to relinquish its right to full payment. We do not think that this evidence ineluctably demonstrates a clearand unequivocal manifestation of Trivental’s intent to relinquish its right to fu ll payment. See Barringer , 22 P.3d
at 701. Murphy’s position overlooks the factual dispute reg arding whether Trivental implicitly waived its rights to full paym ent. First, there was testimony, albeit from Mr. Wood, that partial payments from Mu rphy were accepted due to Murphy’s inability to pay the full amounts as a res ult of the number of change orders it was receiving. See Aplt. App. at 1361. Then there was testimony that Trivental relied on promises by Murphy representati ves that once Murphy was more stable financially, full payment would be made by adding on to future projects. Id. at 1360-62. Finally, Mr. Wood testified that the only reason he accepted partial payments on behalf of Trivental was that he was ass ured in a March 9, 2001 meeting by Murphy representative Kevin Roussel thatTrivental ought to accept the partial payment, because “[w]e’re going to give you so many jobs you’re not going to have to work for anybody else and there wi ll be money in those jobs to- 11 -

make up what you’re going to [lose by accepting partial payment].” Id. at 1455. The jury verdict on these claims should be reinstat ed notwithstanding that a factual dispute existed as to waiver, and no waiverinstruction was given the jury. Initially, as Trivental objected to an instruction on waiver, the court told Trivental that there was no jury instruction on waiver. Aplt . App. at 1634. Murphy failed to object to any instructions, including the lack of an instruction on waiver, given to the jury on Trivental’s breach of contract count erclaims, apparently relying on its motion for JMOL. Id. at 1635-37. It now argues that it was not require d to request a waiver instruction because the district c ourt indicated that it would rule in Murphy’s favor on the waiver defense. Aplee. Br . at 28; Aplt. App. at 478, 687; Fed. R. Civ. P. 51(a)(1). We disagree. Given the district court’s decision to submit Trive ntal’s breach of contract counterclaims to the jury (and effectively deny Murphy’s JMOL motion at the time under Rule 50(b), supra ), it was incumbent on Murphy to object to the instructions as incomplete (lacking Murphy’s affirm ative defense of waiver) and to provide a waiver instruction. Fed. R. Civ. P. 5 1(d)(1)(B); Royal Maccabees Life Ins. Co. v. Choren , 393 F.3d 1175, 1179 (10th Cir. 2005) (“Absent a p roper objection, a party’s argument is deemed waived.”) ( internal citation omitted). Murphy did not object. Aplt. App. 687 (“Murphy is not claiming error in failing to instruct the jury concerning waiver.”). Having stood on the strength of the- 12 -

waiver evidence, even though the district court sub mitted the claims to the jury, it may not now claim that it is entitled to a retrial with a proper waiver instruction. Had the district court merely granted JMOL in Murphy’s favor on this issue and we reversed, there is no question that a trial on t he breach of contract counterclaims with a waiver instruction would be ap propriate. But that is not what occurred here–the breach of contract countercl aims were tried to the jury, and no objection was made to the failure to instruc t on waiver. 2. Breach of Contract and Assigned Contractual Rights - Tulsa and Hugo stations The district court granted Murphy JMOL on its claim s that Trivental breached the General Contract and contracts of subc ontractors assigned to Murphy. Trivental argues that the court erred in n ot allowing these issues to go to the jury, and in failing to instruct the jury as to its “first breach” defense. We address each argument in turn. It is well settled in Oklahoma that a party to a co ntract who prevents or hinders performance thereof cannot seek performance by the other contracting party. See F.D.I.C. v. Everett A. Holseth & Co. , 36 F.3d 1004, 1007 (10th Cir. 1994); Dayton Hudson Corp. v. Macerich Real Estate Co. , 812 F.2d 1319, 1323 (10th Cir. 1987); Townsend v. Melody Home Mfg. Co. , 541 P.2d 1370, 1374 (Okla. Ct. App. 1975). This is the so-called “firs t breach” defense. First, Trivental’s failure to pay its subcontractor s constitutes a breach of the4 The dissent apparently rejects the concept of the G eneral and Specific

Contracts forming an interrelated “exchange of prom ises,” see Restatement (Second) of Contracts, § 237 (1981), through refere ncing and incorporating each other. The general contract covers “work performed at Murphy facilities,” Aplt. App. 4034, and the entire course of performance dic tates that the projects were interrelated. Not only is this consistent with the reality of the construction business, but also the evidence adduced at trial. See Aplt. App. at 931-34, 942- 43, 979-80, 4022, 4038. While the three Specific C ontracts and the General Contract may be “separate” in some attenuated or fo rmalistic manner, we are reminded that “[t]he form of the agreement is not c ontrolling, and the actual bargain of the parties is not to be determined mere ly by reference to such criteria as whether . . . separate promises are contained in a single writing or in separate writings.” Restatement (Second) of Contracts § 231 , cmt. d. - 13 - General Contract with Murphy. Trivental contends that Murphy’s breach of contract regarding the Tulsa and New Iberia project s precipitated its breach. Both the General Contract and the Specific Contracts ref erence and incorporate each other. See Aplt. App. at 4038 (The General Contract provides that “Prior to the commencement of any work under the GENERAL CONTRACT , the parties will enter into a SPECIFIC CONTRACT to cover matters suc h as the scope of the work, contract price, terms of payment, completion date, and other matters not provided herein . . . .”) (emphasis in original); s ee also id. at 4022 (The Oklahoma City Specific Contract, like all the others provide d in the record, provides that the “[c]ontractor shall furnish the materials, labor [e tc.] . . . necessary to construct and finish expeditiously, in a workmanlike manner and in accordance with the . . . documents hereinafter listed . . . [including the] General Contract No. 2005-05.”). The parties have treated the contracts together and so do we. 45 The dissent contends that as Murphy’s breach pre-dated the Oklahoma City

station contract’s formation, it “would mean that T rivental already had a defense to its failing to pay” the subcontractors before en tering into the Oklahoma City contract. Dissent at 6. But Trivental would not h ave had any notion that it had a “defense” to its breach with regard to the subcontr actors at the time of the Oklahoma City contract’s formation, because it stil l believed that Murphy was going to pay for the extra work as promised. - 14 - Trivental presented evidence that its inability to pay the subcontractors from which this breach of contract claim derived re sulted directly from the debt Trivental incurred for the extra work that it was r equired to perform in Hugo, New Iberia, and Tulsa. Aplt. Br. at 41-42; Aplt. App. at 1409-1410. Trivental has also presented evidence that Murphy promised to pay Trivental for this extra work. Aplt. App. at 1409-10. It should be noted, of course, that the jury did find that Trivental was entitled to compensation from Mu rphy for extra work performed at those stations, and therefore this evi dence could support a jury finding that Murphy’s breach of the contract in notpaying with regard to these three stations constituted a “first breach” of the Oklahoma station contract. See Townsend , 541 P.2d at 1374-75. As such, the district courterred in refusing to submit Murphy’s breach of contract claim, and Trive ntal’s “first breach” defense, to the jury. 5 Murphy also claims that it is entitled to the damag es based on an assignment of the claims subcontractors had againstTrivental. The district court agreed, granting Murphy JMOL on the issue. Aplt. App. at 475. It is true that6 We note that the purported assignment to Murphy of claims arising under

Okla. Stat. tit. 42, §§ 152, 153 is presumed invali d, as the common-law prohibition against the assignment of a tort action , such as breach of a fiduciary duty, obtains unless otherwise provided by statute. See Dippel v. Hunt , 517 P.2d 444, 447 (Okla. Civ. App. 1973). While Okla. Stat. tit. 42, §§ 152, 153 do appear to allow the assignment of a valid lienable claim, Murphy surely cannot file a lien against its own property in order to recover agains t Trivental. In any case, Murphy does not need to stand on this assignment inorder to press the breach of fiduciary duty claim, because the statutory provisi ons are construed to include owners as beneficiaries of the trust, provided the existence of a valid lienable claim. See In re Harris , 49 P.3d 710, 715-718 (Okla. 2002). - 15 - Murphy secured a valid assignment of claims from various subcontractors, 6 for Oklahoma law is clear that the lien statutes are cu mulative, i.e., they do not preclude aggrieved parties from pressing alternativ e claims, such as breach of
contract. See Wyant v. Davidson & Case Lumber Co. , 49 P.2d 151, 154 (Okla. 1935) (“[T]his court has repeatedly held that the r emedy provided by statute in this state for foreclosure of mechanic’s or materia lman’s lien is a cumulative remedy.”); see also Love v. Caylor , 227 P. 98, 98 (Okla. 1924) (“The plaintiff was not required to foreclose his lien and exhaust his remedy in that manner before he could maintain a personal action against the defendants to recover the amount of this indebtedness.”). But the JMOL cannotbe upheld under this theory either, for the subcontractors’ breach of contract claims (validly assigned to Murphy) implicate Murphy’s alleged refusal to pay f or additional work, just as Murphy’s own breach of contract claim does, and sti ll present questions of fact for the jury. As the assignee, Murphy’s rights aga inst Trivental would be subject7 The dissent argues for an overly narrow reading of § 336(4), yet despite

the thoughts of one federal district court judge in Georgia (sitting by designation in Tennessee) cited by the dissent, the better rule is that explained in State v. Hogg , 535 A.2d 923, 934-35 (Md. 1988) (overruled on oth er grounds), and amply supported by the authorities listed therein, includ ing two treatises, see 4 A. Corbin, Corbin on Contracts § 896, at 527 (1951); Lord, Williston on Contracts § 74.47, at 538 (4th ed. 2005), and Winchester v. Hackley , 6 U.S. (2 Cranch) 342, 343 (1805); Pates v. St. Clair , 52 Va. 22, *2 (1854); Restatement (Second) of Contracts § 336(4); Restatement of Contracts § 167( 2) (1932) (“an assignee’s right against the obligor is subject to all set-off s and counterclaims which would have been available against the assignee if he were the original obligee”). As the court said in Hogg , the alternative position suggested by the dissentattempts to “state[] the universe of rules applicable to assign ments” yet fails to “undertake to describe, one way or the other, the effect of antec edent defenses against the assignee.” Hogg , 535 A.2d at 935. Merely because the Restatement (Second) of Contracts illustrated the situation the dissent des cribes does not mean that the illustration is exclusive. Indeed, this rule makes perfect sense here given the allegations – Trivental contends that Murphy’s cond uct resulted in Trivental’s breach of the subcontracts.

8 Section 152 provides, in pertinent part, that the a mount “payable under any building or remodeling contract shall, upon receiptby any contractor or subcontractor, be held as trust funds for the payme nt of all lienable claims due and owing or to become due and owing by such contra ctors or subcontractors by - 16 - to any setoffs or counterclaims that Trivental migh t have against Murphy, and to defenses as a result of Murphy’s conduct. See 6 Am. Jur. 2d § 149 (2d ed. 1999); Restatement (Second) of Contracts, § 336(4). 7 3. Breach of Fiduciary Duty The district court also granted Murphy JMOL on its claim that Trivental breached its fiduciary duty under Okla. Stat. tit. 42, §§ 152, 153, by spending money entrusted by Murphy for purposes other than p ayment of the invoices of the subcontractors. 8 Trivental argues that Murphy cannot prevail on th is claimreason of such building or remodeling contract.” O kla. Stat. tit. 42, § 152(1)

(1968). Section 153 provides, in pertinent part: “ The trust funds created under Section 152 of this title shall be applied to the p ayment of said valid lienable claims and no portion thereof shall be used for anyother purpose until all lienable claims due and owing or to become due and owing sha ll have been paid.” Okla. Stat. tit. 42, § 153(1) (1968). - 17 - because in order to obtain the statutory remedy the re must exist a valid lienable claim at the time of the breach. Murphy argues that the breach occurs upon the misapplication of the trust funds, and as liens cou ld have been filed during that time, they are entitled to the statutory remedy. Oklahoma law is clear that the statutory duty impos ed on a general contractor to hold funds in trust for the payment o f subcontractors creates a fiduciary relationship between the owner and the co ntractor. See Okla. Stat. tit. 42, §§ 152, 153; see also In re Harris , 49 P.3d at 716. The fiduciary duty, however, exists only to the extent that there are l ienable claims due and owing by reason of a building or remodeling contract. In re Harris , 49 P.3d at 716. It is also well settled that the owner of real property w ho places trust funds with a general contractor pursuant to the Oklahoma constru ction trust fund statutes is a beneficiary of the statutory construction lien sche me to the extent of any valid lienable claims arising from the contract between t he owner and the general
contractor. See In re Harris , 49 P.3d at 716; see also In re Tefertiller , 772 P.2d 396, 397-98 (Okla. 1989).- 18 -

A subcontractor’s valid lienable claim arises upon commencement of work or the furnishing of materials pursuant to a subcontract. In re Tefertiller , 772 P.2d at 399; Fleharty & Co. v. Nat’l Loan & Inv. Co

. , 215 P. 744 (Okla. 1923). From that point onward, this lienable claim remains “inchoate” throughout the construction period and for ninety days following the last furnishing of materials or performance of labor under the subcontract. Id. If the subcontractor takes no action to enforce the lien, or if the lien is not perfected according to the statutory procedures, th en the lienable claim loses “all its vitality and force.” In re Tefertiller , 772 P.2d at 399; Bohn v. Divine , 544 P.2d 916, 920 (Okla. 1975) (“Unless the lienable cl aim was perfected within 90 days of completion of the work or the furnishing of materials, the character of the claim was no longer ‘lienable.’”). As such, a subc ontractor can only recover under the construction trust fund statutes if “ther e was a perfected lien at the time [it] brought suit.” Bohn , 544 P.2d at 920. Murphy, as the project owner, is subject to a slightly more nuanced rule. A common sense reading of the statute would not requi re a project owner to file a lien on his own property, nor is it good policy to require the owner to wait ninety days before paying subcontractors. Okla. Stat. Ann . tit. 42, §§ 152, 153. Furthermore, requiring a project owner to file a li en on his own property could cloud title, even if temporarily, and would require an eventual release of the lien.9 Only one lien was filed and perfected by a subcontr actor, Mustang Electric

Company, in the amount of $27,525. See Aplt. App. at 1816-18. From all appearances, Mustang complied with Okla. Stat. tit. 42, § 143’s notice and perfection procedures, and the lien claim was timel y filed. Id. The relevance of this, if any, will be taken into account by the jury on remand.

10 It should be noted, of course, that Murphy cannot r ecover, as a matter of law, under the construction trust fund statutes forany of its other payments to subcontractors if those payments came after those s ubcontractors’ lienable claims became extinguished.

11 The district court was correct insofar as it found that if Murphy is entitled to any remedy for breach of trust, it can proceed a gainst Trivental’s officers individually. See Okla. Stat. tit. 42, § 153(3) (“For purposes of th is section, the natural persons subject to punishment shall be the managing officers of [the] corporation. . . .”). - 19 - Therefore, project owners, who pay subcontractors w ithin the ninety day period in which the subcontractor could have filed a lien, should be deemed to have a “lienable claim.” After thorough review of the record, it appears that four claims were paid by Murphy to subcontractors for work performed at the Oklahoma City station before the ninety day period expired. These paymen ts include those to: (1) S. R. Dutch Construction, paid on June 26, 2002 in the am ount of $16,002.22; (2) Metroplex Sprinkler, paid on July 2, 2002, in the a mount of $7,347; and (3) George Patrick’s Plumbing Company, paid on July 9, 2002, in the amount of $2200; and 4) Mustang Electric Company, in the amou nt of $27,525. 9 See Aplt. App. at 462; see also Aplt. Supp. Br. at 1-2. 10 Thus, the district court’s entry of JMOL for Murphy was in error. 11- 20 -

Nevertheless, regardless of whether Murphy is allow ed to proceed under the construction fund statutes on these four claims , Trivental may still argue (as it has) that it was Murphy’s “first breach” that preci pitated Trivental’s breach of its fiduciary duty to its contractors. That is, a jury question remains as to whether Murphy can show it felt obliged to pay the subcontr actors and its conduct vis-avis Trivental was not the precipitating cause of th e non-payment.

4. Mr. Wood’s Counterclaims Mr. Wood, a managing officer of Trivental and a cod efendant, appeals the district court decision that he lacked standing to pursue his personal tort counterclaims. The district court was correct. Mr . Wood counterclaimed against Murphy seeking to recover monies he voluntarily adv anced to Trivental when Murphy failed to reimburse Trivental pursuant to th e alleged Murphy-Trivental oral agreement. Mr. Wood does not have standing to recover what is essentially an obligation owed to Trivental. See J. F. Shea Co., Inc. v. City of Chicago , 992 F.2d 745, 749 (7th Cir. 1993) (holding that employe e cannot assert claims of corporation). Indeed, the amounts advanced to Triv ental by Mr. Wood are included in and part of the very same damages sought by Trivental itself against Murphy. Were this any different, presumably anytime a share holder was required to- 21 -

contribute capital or make a loan to a cash-strappe d corporation, the shareholder could then seek to collect on monies owed the corpo ration. This would result in liability mayhem. Mr. Wood’s recourse, in the abse nce of any direct relationship with Murphy, would only lie against Trivental. As such, Mr. Wood lacks standing to press his individual claims against Murphy. 5. Actual and Constructive Fraud Trivental argues that the district court erred in c ombining the fraud claims related to the Hugo, Oklahoma station and the New I beria, Louisiana station under one instruction. Trivental argues that this instruction only states fraud under Louisiana law, and there are “substantial dif ferences” between Louisiana and Oklahoma law. Trivental also argues that the d istrict court erred in failing to instruct the jury on constructive fraud. We addres s each of these arguments in

turn. While it is clear that a party is entitled to an in struction on her theory of the case if the instruction is a correct statement of l aw and she has submitted sufficient evidence for the jury to find in her fav or, it is certainly “not error to refuse to give a requested instruction if the same subject matter is adequately covered in the general instructions.” F.D.I.C. v. Schuchmann , 235 F.3d 1217, 1222 (10th Cir. 2000). We review the district court’s decision to give a particular jury instruction for an abuse of discretion. Id. at 1221. The instructions are- 22 -

considered as a whole de novo to determine whether they accurately informed the jury of the governing law. Id. at 1222. While the fraud instruction in this case does not e mploy Trivental’s preferred wording for fraud in Oklahoma verbatim, the instruction clearly spells out that Murphy could be held liable if it intentio nally made misrepresentations in order to obtain “an unjust advantage for one party or to cause a loss or inconvenience to the other.” See Aplt. App. at 424. This more than adequately states the governing law of fraud for both Oklahomaand Louisiana. See Schuchmann , 235 F.3d at 1223. As such, the jury instruction on fraud was not

error. With regard to Trivental’s claim that the district court erroneously failed to instruct on constructive fraud, we note that constructive fraud does not require an intent to deceive; indeed, negligent or even innoce nt misrepresentation may provide the basis for a finding of constructive fraud. Faulkenberry v. Kansas City S. Ry. Co. , 602 P.2d 203, 206 (Okla. 1979). Nevertheless, inorder to recover under a theory of constructive fraud, there must be a “special relationship” between the parties that requires the party charged with constructive fraud to comply with an affirmative statutory duty. Silver v. Slusher , 770 P.2d 878, 882 (Okla. 1988). In its brief, Trivental failed to el ucidate the existence of a “special relationship” between the parties that would impose a statutory duty on Murphy12 Trivental also argues on appeal that the district c ourt erred in not

instructing the jury on constructive fraud under Lo uisiana law. We decline to reach this argument, as Trivental waived it on appe al by failing to object at trial. Aplt. App. 1630-31. - 23 - upon which the claim for constructive fraud could p ossibly stand. See Aplt. Br.
44-45. 12 As such, the district court’s failure to instructthe jury on constructive fraud was not an abuse of its discretion. 6. Shifting Burden, Attorney’s Fees, and Pre-Judgment Interest Trivental argues that when the district court requi red Trivental to prove that the extra work it claimed fell outside the General Contract, it erred in shifting the burden to prove damages from Murphy to Trivental. Trivental also argues that the district court erred in awarding Murphy attorne y’s fees. Finally, Trivental argues that the district court erred in awarding Mu rphy pre-judgment interest. We decline to address these arguments, for the basi s of these awards, if any, will be reevaluated on remand. B. Murphy’s Cross-Appeal (04-6239) 1. Breach of Contract - New Iberia station On cross-appeal, Murphy argues that the district co urt erred in neither granting its motion for JMOL nor granting its reque st for a new trial with regard to the New Iberia station. As discussed, the distr ict court ruled that waiver did not apply to this contract, because it was decided under Louisiana law. Trivental- 24 -

argues that there was sufficient evidence for the j ury to find as it did. As noted above, JMOL is appropriate only if the evi dence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position. See Miller v. Eby Realty Group, LLC , 396 F.3d 1105, 1110 (10th Cir. 2005); see also Cummings , 365 F.3d at 951. A motion for a new trial on the ground that the verdict is against the weight of the evidence presents a question of fact, not of law. See Patton v. TIC United Corp. , 77 F.3d 1235, 1242 (10th Cir. 1996). Thus, the district court will no t be reversed unless the verdict is clearly, decidedly, or overwhelmingly against the w eight of the evidence. See id. (internal citations and quotations omitted). The Louisiana oral modification statute requires th at an oral contract, such as the one alleged here by Trivental, that exceeds $500 in price, “must be proved by at least one witness and other corroborating cir cumstances.” See La. Civ. Code Ann. art. 1846 (1985). It is well settled in Louisiana that a party may qualify as its own witness to prove the contract’s existence. See Suire v. Lafayette City-Parish Consol. Gov’t , 907 So. 2d 37, 58 (La. 2005). The corroborating circumstances need only be general, t hat is, independent proof of every detail of the agreement is not required. Id. Yet, the corroborating circumstances must come from someone other than the party asserting the agreement’s existence. Id. ; see also Deubler Elec. Inc. v. Knockers of La., Inc. ,- 25 -

665 So. 2d 481, 484 (La. Ct. App. 1995). With regard to the first prong, Trivental has prese nted evidence of an oral agreement. Mr. Wilson has testified that extra wor k was performed at the New Iberia station, and that it was specifically sugges ted by Murphy. See Aplt. App. at 1205. Further, Mr. Wilson testified that Murphyrequired that they keep workers onsite even when the weather conditions pre cluded meaningful work. Id. at 1203. Mr. Wood testified to these same oral mod ifications with Murphy, with particular emphasis on the New Iberia station. Id. at 1455-57. As such, it is clear that Trivental provided enough evidence that an ora l agreement existed for the jury’s consideration. With regard to the second prong, Murphy argues thatTrivental’s corroborating circumstances only come from its own representatives, and thereby fail to satisfy the requirement that they arise fro m someone other than the party. To the contrary, Mr. Buzbee, a Murphy representativ e, testified that if there were errors in the grading of the New Iberia site, then Trivental would be required to perform extra work. See Aplt. App. at 1244-45. Mr. Buzbee further testifi ed that after negotiation on extra work generally, or a cha nge order specifically, Murphy would agree to pay Trivental (or any contractor) fo r the extra costs. Id. at 1244-
46. As such, we find that because Trivental has present ed corroborating- 26 -

circumstances of the agreement that do not come fro m its own representatives, combined with other evidence that does, it has sati sfied the two part showing required under the Louisiana statute and case law. See La. Civ. Code Ann. art. 1846; see also Suire , 907 So. 2d at 58. Therefore, the district court did not err in denying Murphy’s motions for JMOL or a new trial. 2. Remittitur Murphy claims that the district court erred by fail ing to grant its motion for remittitur. Such a denial is entitled to considera ble deference on appeal. We will not disturb this determination absent a gross abuse of discretion. See Sheets v. Salt Lake County , 45 F.3d 1383, 1390 (10th Cir. 1995). We will onl y find an abuse of discretion if the jury award is “so excess ive . . . as to shock the judicial conscience and to raise an irresistible inference t hat passion, prejudice, corruption or another improper cause invaded the trial.” Id. (internal citations and quotations omitted). As the awarding of damages is traditionally within the province of the jury, and the jury’s award of $137, 500 certainly does not shock our conscience, we thus affirm the district court’s denial of remittitur. 3. Laches Murphy argues that Trivental unreasonably delayed i n asserting any claim it may have had against Murphy, and that the district court’s refusal to instruct the jury on laches amounted to an abuse of discretion. It is well settled in Louisiana- 27 -

that the time for prescription is “determined by th e character which the plaintiff gives his pleadings and that the form of the action governs prescription.” Antoine v. Franichevich , 167 So. 98, 99 (La. 1936). According to the Loui siana Supreme Court, “[t]here is no prescription other than that established by legislation.” Fishbein v. State , 898 So. 2d 1260, 1270 (La. 2005) (quoting La. Civ . Code Ann. art. 3457, cmt. b). Indeed, the “common law doctri ne of laches does not prevail in Louisiana and the legislature may create, shorte n, lengthen or abolish prescriptive periods at its discretion.” Id. (holding that to the extent that other cases had left open the possibility of laches’ appl icability, those cases were overruled as inconsistent with the state’s statutory scheme); see also Picone v. Lyons , 601 So. 2d 1375, 1377 (La. 1992); Corbello v. Sutton , 446 So. 2d 301, 302 (La. 1984) (“The doctrine of laches has no place in the law of this state.”). While we note that there is some dispute regarding the statutory prescriptive period for breach of contract claims r elating to general contractors, the Louisiana Supreme Court has held that “the law is clear that a contractor’s claim is prescribed by ten years” rather than the t hree year period that governs a suit to recover past wages. See Antoine , 167 So. at 99 (noting that suits by contractors who furnish labor and materials in perf orming jobs for another under a verbal agreement are governed by article 3544, an d not article 3538); see also La. Civ. Code Ann. arts. 3544, 3538.- 28 -

Even if the statute of limitations covering this br each of contract claim were three years though, Trivental would not be bar red because less than two years elapsed before it filed suit. As such, the d istrict court did not err in refusing to instruct the jury on laches, an affirmative defense that does not exist in Louisiana. 4. Punitive Damages and Attorney’s Fees Murphy argues that it is entitled to JMOL on its cl aim for punitive damages from Trivental on Murphy’s claim for breach of fidu ciary duty. Murphy also argues that it is entitled to attorney’s fees relat ing to Trivental’s counterclaims. Given our disposition of the breach of fiduciary duty claims, we need not reach either of these claims.

Conclusion With regard to Trivental’s appeal, the district cou rt’s order on JMOL as to (1) the waiver of Trivental’s two breach of contrac t counterclaims, (2) Murphy’s breach of contract claim, and (3) Murphy’s breach o f fiduciary duty claim, is reversed. The district court shall reinstate the j ury verdict in favor of Trivental on its two breach of contract counterclaims, and co nduct a new trial in accordance with this opinion. The district court’s award of attorney’s fees and pre-judgment interest to Murphy are reversed, as these matters m ay be considered if the need- 29 -

arises in connection with the trial on remand in ac cordance with this opinion. With regard to Murphy’s cross-appeal, we affirm the judgment on the jury verdict in favor of Trivental on its counterclaim f or breach of contract for the New Iberia station, and any recovery of punitive da mages or attorney’s fees related to Trivental’s counterclaims by Murphy may be considered if the need arises in connection with the trial on remand in ac cordance with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED.Trivental v. Murphy Oil , Nos. 04-6183, 04-6239

EBEL, Circuit Judge, dissenting in part.

While I agree with much of the majority opinion, I must dissent from the majority’s decision to overturn the judgment as a m atter of law entered in Murphy’s favor on its claim for breach of contract. Because I would conclude that the district court correctly determined that M urphy was entitled as a matter of law to recover on both its breach-of-contract theor ies, I respectfully dissent from that portion of the majority’s opinion. Murphy’s breach-of-contract claim sought to recoverfrom Trivental for money Murphy paid Trivental’s unpaid subcontractors on the Oklahoma City project. Murphy asserted two different theories supporting this breach-of-contract claim. First, Murphy asserted that Trivental had b reached the General Contract between Murphy and Trivental, which expressly requi red Trivental to pay all subcontractors on any project it undertook for Murp hy. Second, Murphy asserted that, by failing to pay the Oklahoma City subcontra ctors, Trivental breached its contracts with those subcontractors and that Murphy , as the assignee of those subcontractors, is now entitled to recover from Tri vental for its breach. Trivental has never disputed that it failed to pay some of th e Oklahoma City subcontractors as required by both the General Contract and the in dividual contracts between Trivental and the subcontractors. In light of that , Murphy is entitled as a matter- 2 -

of law to recover, under either theory, for breach of contract. The majority, however, concludes that a jury should have considered Trivental’s defense to these breaches, premised on Murphy’s own breach of the Specific Contracts governing the New Iberia, Tulsa and Hugo projects. While Murphy’s breach of those three Specific Contracts c ertainly provides Trivental with a counterclaim that it can, and has, asserted against Murphy, it does not provide Trivental with a defense to its breaching of the General Contract and the contracts Trivental had with its Oklahoma City subc ontractors. For this reason, I dissent.
I. Trivental’s asserted defense. Trivental asserts a “first breach” defense, arguing that Murphy’s earlier breach of the Specific Contracts covering the New I beria, Hugo and Tulsa projects provides Trivental with a defense to Trive ntal’s later breach of its General Contract with Murphy. And although Trivent al never makes the argument on appeal, the majority concludes that thi s same “first breach” defense should also apply to Murphy’s breach-of-contract cl aim that Murphy asserts as the subcontractors’ assignee. Under such a defense, one party’s material breach o f a contract will excuse the other party from performing his reciprocal obli gations due under that same contract. “[I]t is a condition of each party’s rem aining duties to render- 3 -

performance to be exchanged under an exchange of pr omises that there be no uncured material failure by the other party to rend er any such performance due at an earlier time.” Restatement (Second) of Contract s § 237 (1981). The Restatement recognized that, similar to this case, “[i]n many disputes over failure of performance, both parties fail to finish perform ance, and the question is whether one of them is justified in doing so by the other party’s failure.” Id. § 237 cmt. b. This “first breach” defense, however, applies only when the entities involved are parties to the same contract: “Under the [first breach] rule stated in [§ 237], only duties with respect to the performanc es to be exchanged under the particular exchange of promises are affected by a f ailure of one of those performances. A duty under a separate contract is not affected.” Id. § 237 cmt. e; see also id. § 231 cmt. d (noting that “[t]he rules that protec t parties whose performances are to be exchanged unde r an exchange of promises apply only when the promises are exchanged as part of a single contract”). This is where Trivental’s “first breach” defense fa ils. Trivental seeks to excuse its breach of the General Contract as it pertains to Trivental’s paying the Oklahoma City subcontractors, and its contracts with the Oklahoma City subcontractors, by relying on Murphy’s breach of other, separate contracts addressing the New Iberia, Hugo and Tulsa projects.- 4 -

II. The General and Specific Contracts are not one s ingle contract. At the outset of the parties’ business relationship , Trivental and Murphy entered into a General Contract. That General Cont ract did not award Trivental any specific construction project, but instead cont emplated that any construction project that Trivental undertook for Murphy in the future would be governed both by the terms of the General Contract and by a Speci fic Contract that addressed the details of that particular project. Each project h ad its own separate Specific Contract. While the General and Specific Contracts were certainly related, they cannot be considered all one contract. Nor can the separate Specific Contracts be considered together to create a single contract. Because they are not all one contract, Murphy’s bre ach of the Specific Contracts governing the New Iberia, Hugo and Tulsa projects cannot give Trivental a defense to its own breach of the Genera l Contract. The General Contract required that Trivental pay the subcontrac tors on all projects. But it did not include a reciprocal provision requiring Murphyto pay Trivental on each specific project. Rather, the Specific Contract go verning each particular project addressed Murphy’s duty to pay Trivental. Therefor e, Murphy’s failure to pay Trivental in full for the New Iberia, Hugo and Tuls a projects was a breach of the Specific Contracts governing each of those projects . Murphy’s breach would1 The General Contract’s paragraph 8 reiterates this:

[Murphy] retains the right to withhold, retain, and/or set off any payments due to [Trivental] in this or any other transaction or under any contractsuch amounts as [Murphy] deems sufficient to prote ct [Murphy] and its property against any claim by [Tri vental’s] employees, fabricators, material men, subcontractors, supplier s, and workmen which could or may become a lien or claim against [ Murphy] or its property. [Murphy] may at any time pay and dischar ge such lien or claim and deduct the amount so paid with together w ith costs and attorney’s fees, from any payment then due or there after to become due to [Trivental]. This language also further indicates that each proj ect was governed by a separate contract. - 5 - certainly give Trivental a cause of action to recov er against Murphy. 1 But Murphy’s breach of those Specific Contracts would n ot amount to a breach of the General Contract. The result is the same even if we assume that the S pecific Contracts each incorporate the General Contract’s terms. In that case, because the Specific Contracts represent separate contracts between Triv ental and Murphy, the fact that Murphy breached the Specific Contracts governi ng the New Iberia, Hugo and Tulsa projects would not excuse Trivental from payi ng the subcontractors under the separate Specific Contract addressing the Oklah oma City project. To conclude otherwise and treat all these agreement s as a single contract produces an anomalous result. Timewise, Murphy bre ached the Specific Contracts concerning the New Iberia, Hugo and Tulsaprojects before Trivental2 It is difficult to say exactly when Murphy breached those orally

modified Specific Contracts. Trivental asserts that Murphy agreed to pay for extra work Trivental performed on these projects th rough later payments Murphy would make to Trivental on future projects. Nevertheless, it seems safe to say that Trivental considered Murphy to have breached t hat promise before Trivental ever agreed to construct the Oklahoma City project. - 6 - and Murphy agreed to undertake the Oklahoma City pr oject. 2 Viewing all these contracts as one, therefore, would mean that Triven tal already had a defense to its failing to pay the Oklahoma City subcontractors bef ore the parties even agreed to the Specific Contract addressing the Oklahoma City project. I cannot accept such a view of Trivental’s and Murphy’s business relatio nship.
III. . Trivental’s breach of the contracts with its Okl ahoma City subcontractors. Even if the General and Specific Contracts between Trivental and Murphy can be considered a single contract, Murphy’s breac h of that contract by not paying Trivental in full on the New Iberia, Hugo, a nd Tulsa projects would still not excuse Trivental from paying its Oklahoma City subcontractors the amount Trivental owed on the separate contracts Trivental had with these subcontractors. It is telling that Trivental does not even rely on such a defense in its arguments to this court. And there is no suggestion that Trivental’s contracts with its subcontractors should be considered part of the contractual relationship between Trivental and Murphy. Moreover, Trivental concedes that it breached its contracts with several subcontractors by failing to pay them in full on that project.- 7 -

Murphy, therefore, as the subcontractors’ assignee, is entitled as a matter of law to recover from Trivental for Trivental’s breach of its contracts with those subcontractors. In nevertheless providing Trivental with a defense, the majority relies upon the Restatement (Second) of Contracts § 336(4) (198 1), which indicates that “[a]n assignee’s [here Murphy’s] right against the obligo r [Trivental] is subject to any defense or claim arising from his conduct or to whi ch he was subject as a party or a prior assignee because he had notice.” But § 336 ’s comment h further explains that [t]he conduct of the assignee [here Murphy] or his agents may, like that of any obligee, give rise to defenses and claims wh ich may be asserted against him by the obligor [here Trivental]. An ob ligee who is subject to such a defense or claim cannot improve his posit ion by assigning the right to an assignee who is not subject to the defense orclaim and then take a reassignment

. Id. cmt. h (emphasis added). By way of example, the c omment gives this illustration: A is fraudulently induced by B, the agent of C, to sell goods to C. C assigns his rights to D, who pays value in good fai th and without notice. D assigns to E, who knows of the fraud. A cannot avoid the contract as against E, who succeeded to D’s rights. But if E a ssigns to C, A’s power of avoidance will revive. Id. illus. 15. Section 336’s comment h and illustration 15 do not at all describe what occurred here. Therefore, that section of the Rest atement would arguably not- 8 -

even apply to this situation. But even if this cou rt interpreted § 336(4) to apply beyond the language and example used by comment h a nd its illustration 15, there is no indication that § 336(4) suggests that an ass ignee’s conduct in the performance of a completelyseparate contract , occurring prior to the assignment, would give an obligor such as Trivental a defense t o its breach of a contract with an assignor who then later assigned his rights to that assignee. Although there is only minimal case law applying th e Restatement’s § 336(4), those cases for the most part support thi s narrow interpretation of § 336(4). In particular, Federal Deposit Insurance Corporation v. Dempster , 637 F. Supp. 362 (E.D. Tenn. 1986), held that “[a] care ful reading of Section 336 indicates that the assertion of any defenses agains t an assignee applies only in instances where the assignee is a party to the unde rlying contract or where the conduct of the assignee occurs subsequentto the initial assignment but prior to a reassignment.” Id. at 366 (emphasis added) (relying on American Train ing Servs., Inc. v. Commerce Union Bank , 415 F. Supp. 1101 (M.D. Tenn. 1976), aff’d , 612 F.2d 580 (6th Cir. 1979)); see also F.D.I.C. v. Manatt , 723 F. Supp. 99, 105 (E.D. Ark. 1989) (following Berryand holding that litigant could not “assert defenses against the FDIC as assignee based on acti ons taken by the FDIC in its corporate capacity prior to the assignment”); F.D.I .C. v. Berry , 659 F. Supp. 1475, 1482 (E.D. Tenn. 1987) (following Dempster ). In reaching this conclusion,- 9 -

the district court in Dempsterrelied on the “general principle of assignment [th at] provides that the assignee steps into the shoes of the assignor upon assignment of the interest and takes the assignment subject to th e defenses assertable against the assignor.” Dempster , 637 F. Supp. at 165-66. But to read Restatement § 336 to permit “actions by the assignee [occurring] prior t o the assignment” would improperly subject the assignee “to actions not ass ertable against the assignor and therefore [the assignee] would have additional char acteristics not applicable to the assignor and would not be, as it were, stepping int o the shoes of the assignor or taking on the characteristics of the assignor.” Id

. at 366. The only contrary case, which does expressly rejectthe reasoning in Dempsterand Berry , State v. Hogg , 535 A.2d 923, 933-35 (Md. 1988), has been overruled on other grounds. See Dawkins v. Baltimore City Police Dep’t , 827 A.2d 115, 115-16 (Md. 2003). And Oklahoma courts d o not appear to have ever adopted or applied this Restatement provision. In light of this uncertainty, I would not rely upon § 336(4) to grant Trivental a n ew trial based upon a theory that Trivental never argued to this court.
IV. Conclusion Because I do not think that Murphy’s failure to payTrivental in full on the New Iberia, Hugo, and Tulsa projects gave Trivental any defense to its failure to pay its subcontractors on the later Oklahoma City p roject, I respectfully dissent- 10 -

from the majority’s decision to reverse the distric t court’s judgment for Murphy, entered as a matter of law, on Murphy’s breach-of-c ontract claim.