{ "id": 1898811, "name": "TRUCK CENTER OF TULSA, INC. v. Norman AUTREY, d/b/a Autrey Trucking", "name_abbreviation": "Truck Center of Tulsa, Inc. v. Autrey", "decision_date": "1992-07-13", "docket_number": "91-352", "first_page": "260", "last_page": "274", "citations": [ { "type": "official", "cite": "310 Ark. 260" }, { "type": "parallel", "cite": "836 S.W.2d 359" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "756 P.2d 1232", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11949900 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/p2d/756/1232-01" ] }, { "cite": "474 U.S. 817", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6246150, 6249734, 6247751, 6248781, 6246479, 6249106, 6247445, 6250069, 6248055, 6248440, 6249402, 6247067, 6246749 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/474/0817-01", "/us/474/0817-12", "/us/474/0817-06", "/us/474/0817-09", "/us/474/0817-02", "/us/474/0817-10", "/us/474/0817-05", "/us/474/0817-13", "/us/474/0817-07", "/us/474/0817-08", "/us/474/0817-11", "/us/474/0817-04", "/us/474/0817-03" ] }, { "cite": "748 F.2d 1258", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 638537 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/748/1258-01" ] }, { "cite": "575 F. Supp. 132", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3619064 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f-supp/575/0132-01" ] }, { "cite": "589 P.2d 505", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "509" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "609 P.2d 1259", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10456323 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "1261" }, { "page": "1261" } ], "opinion_index": 0, "case_paths": [ "/p2d/609/1259-01" ] }, { "cite": "287 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876650 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "193" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ark/287/0190-01" ] }, { "cite": "612 P.2d 1357", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10454336 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "1359" } ], "opinion_index": 0, "case_paths": [ "/p2d/612/1357-01" ] } ], "analysis": { "cardinality": 894, "char_count": 26636, "ocr_confidence": 0.907, "pagerank": { "raw": 8.385158968175098e-08, "percentile": 0.4821109261582432 }, "sha256": "54428dd465ee1ffe37cc9290a7dd9e5fa853f062a43c0ae7f0e6376ae1a5c881", "simhash": "1:a737c1ca164addee", "word_count": 4226 }, "last_updated": "2023-07-14T21:02:16.191716+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TRUCK CENTER OF TULSA, INC. v Norman AUTREY, d/b/a Autrey Trucking" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nIn December of 1986, appellee/cross-appellant Norman Autrey purchased a 1986 Freight-liner truck from appellant/cross-appellee Truck Center of Tulsa, Inc. (Truck Center). Truck Center retained a security interest in the truck pursuant to a retail installment contract and security agreement. This agreement included a choice of law provision, specifying that the contract would be governed by the substantive law of Oklahoma. In early 1988, Autrey defaulted in his payments and Truck Center repossessed the truck. This suit arose out of the events subsequent to the truck\u2019s repossession.\nAt the time of default, Autrey owed $39,452.91 on his note to Truck Center. Truck Center eventually sold the truck and filed suit against Autrey for a deficiency of $21,452.91. Autrey counterclaimed, alleging that Truck Center was guilty of conversion for selling the truck in a commercially unreasonable manner. Autrey sought compensatory damages and punitive damages for the alleged intentional, wanton, malicious, and fraudulent conduct of Truck Center.\nA jury trial was held in Washington County Circuit Court. Truck Center testified that, following repossession of the truck, notice was sent by certified mail to Autrey\u2019s last known address to inform Autrey that the truck would be sold in a private sale on April 14, 1988. Autrey denied receiving such notice.\nTroy Mills, Truck Center\u2019s manager, testified that a sale did not \u201cphysically take place\u201d on April 14, 1988, but that Truck Center obtained telephone bids on the truck. Mills testified that Truck Center sold the truck for $ 18,000.00 to Arrow Truck Sales, the highest telephone bidder. Following this alleged \u201ctelephone sale,\u201d Arrow sent an $18,000.00 check to Truck Center. The next day, Truck Center sent an $18,100.00 check back to Arrow to repurchase the truck. Ultimately, Truck Center sold the truck to Ray Robinson, and Autrey introduced documentation indicating that Robinson paid $39,000.00 for a 1986 freightliner. However, Mills testified that Robinson paid only $18,200.00 for the actual truck, and explained that the $39,000.00 figure represented the price of the truck plus \u201ccredits\u201d to purchase necessary parts for the truck.\nAutrey introduced by deposition the testimony of Buzz Stanfield, Truck Center\u2019s former sales manager. This deposition testimony included a recorded telephone conversation between Stanfield and Autrey in which Stanfield informed Autrey that Truck Center\u2019s sale to Arrow and subsequent repurchase of the truck was a \u201cset up deal\u201d to establish a deficiency on the part of Autrey.\nThe jury returned a verdict on interrogatories, finding that the sale of the truck was commercially unreasonable, and that the fair market value of the truck was $28,000.00 at the time of the sale. The jury further found that the actions of Truck Center were willful, wanton, and malicious, and based on this finding, the trial court refused to enter a deficiency judgment for Truck Center. Finally, the jury awarded Autrey $7,000.00 punitive damages, and the court awarded Autrey $664.00 in costs. The court, however, denied Autrey\u2019s request for attorney fees.\nAppellant Truck Center raises six arguments for reversal, with Autrey cross-appealing the trial court\u2019s denial of attorney fees. The arguments for reversal are: 1) the trial court erred in denying appellant a deficiency judgment including attorney fees and costs; 2) the trial court erred in allowing the recorded telephone call between Autrey and Buzz Stanfield to be read into the evidence; 3) the trial court erred in ruling that a finding of commercial unreasonableness constitutes conversion as a matter of law; 4) the trial court erred in refusing to instruct the jury that the law allows the creditor substantial flexibility in the disposition of repossessed collateral; 5) the trial court erred in submitting the issue ofpunitive damages to the jury; and 6) the trial court erred in awarding Autrey $664.00 in costs. We find no merit to any of the arguments raised on appeal, with the exception of the costs awarded to Autrey for a court reporter. Accordingly, we reverse the award of costs for the court reporter, and affirm on all other grounds.\nInitially, we note that the trial court applied the substantive law of Oklahoma, and the evidentiary and procedural rules of Arkansas. As the parties do not dispute the trial court\u2019s choice of law, we do not address the issue on appeal.\nAppellant\u2019s first argument is that the trial court erred in refusing to enter a deficiency judgment including attorney fees and costs against Autrey. The trial court interpreted Oklahoma law as depriving a creditor of the right to a deficiency judgment in cases where the creditor has acted maliciously.\nIn Beneficial Fin. Co. v. Young, 612 P.2d 1357 (Okla. 1980), the Oklahoma Supreme Court held that a creditor\u2019s noncompliance with the Uniform Commercial Code generally does not deprive the creditor of his right to a deficiency judgment. However, the Oklahoma court expressly limited its holding to cases that do not involve \u201cmalice, fraud, or oppression\u201d:\nTo hold that noncompliance deprived creditors of their right to a deficiency judgment would not only protect the debtor, but it would also penalize the creditor. In light of the fact that the sale of collateral is necessitated by the fault of the debtor, we hold that the punishment of creditors for noncompliance with the provisions of Part 5 of Article 9 would be unjustified, in the absence of malice, fraud, or oppression. [Emphasis added.]\nId. at 1359. The trial court relied on this language to hold that Oklahoma law does deprive a creditor of the right to a deficiency judgment when malice is proven.\nAppellant argues that the trial court took out of context the qualifying phrase \u201cin the absence of malice, fraud, or oppression.\u201d According to appellant, Oklahoma law does not deprive a creditor of the right to a deficiency judgment, regardless of the creditor\u2019s conduct. Under appellant\u2019s interpretation of the Young case, the qualified holding does not limit the creditor\u2019s right to a deficiency but allows for the imposition of punitive damages under non-code law in cases involving malice, fraud, or oppression.\nWe disagree with appellant\u2019s interpretation of Oklahoma law. The afore-quoted language of the Young court appears in the section of the opinion addressing the narrow question of whether a creditor is entitled to a deficiency judgment when the creditor fails to act in a commercially reasonable manner. In this context, the phrase \u201cin the absence of malice, fraud, and oppression\u201d is only relevant as a condition on the creditor\u2019s right to a deficiency. We therefore agree with the trial court that Oklahoma law does not allow recovery of a deficiency in cases involving malice, fraud, or oppression. As the jury in this case found that the actions of Truck Center were willful, wanton, and malicious, we find no error in the trial court\u2019s refusal to grant a deficiency judgment including attorney fees and costs.\nAppellant\u2019s second allegation of error concerns the trial court\u2019s admission of a partial transcript of a recorded telephone call between Autrey and Buzz Stanfield, the former general manager of Truck Center. Stanfield was not present at trial, but the trial court found that Stanfield was not amenable to process in Arkansas, and Autrey\u2019s counsel was allowed to read into evidence Stanfield\u2019s previously taken deposition.\nDuring Stanfield\u2019s deposition, Autrey\u2019s counsel questioned Stanfield about the transaction between Truck Center and Arrow Truck Sales involving the repossessed truck. Stanfield was asked several .times whether he told Autrey during a phone conversation that the sale from Truck Center was simply a \u201cwash sale\u201d in which $18,000.00 checks were exchanged. Stanfield repeatedly denied making such statements, and maintained that he had always been under the impression that Truck Center repurchased the truck from Arrow for a price in excess of $18,000.00.\nAt this point in the deposition, Autrey\u2019s counsel proceeded to play a tape recorded telephone conversation between Stanfield and Autrey. During the conversation, Stanfield informed Autrey that the truck was sold to Arrow \u201cfictitiously,\u201d and that Arrow had sent Stanfield a check for the truck, whereupon Stanfield \u201cturned around and sent them one back for it and bought it back.\u201d Stanfield also admitted in the course of the phone conversation that the transaction with Arrow was \u201ca set-up deal\u201d so that Autrey could be sued for the deficiency. Stanfield prefaced these statements by remarking that he did not \u201cwant to get in no goddamn lawsuit,\u201d and Stanfield threatened to deny in court any statements he made to Autrey.\nThe sole argument raised by appellant regarding Autrey\u2019s deposition testimony concerns the portion of the deposition containing the phone conversation transcript. Appellant argues that the phone conversation was inadmissible hearsay. Appellant also argues that Stanfield\u2019s recorded statements were not admissible for impeachment purposes under A.R.E. Rule 613 because the recorded statements were not inconsistent with Stanfield\u2019s deposition testimony.\nARCP Rule 32 governs the use of depositions in court proceedings. This rule provides in pertinent part:\n(a) Use of Depositions. At the trial. . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:\n(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; . . . or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena [.] [Emphasis added.]\nIn this case, the trial court prefaced the reading of Mr. Stanfield\u2019s deposition by stating that Mr. Stanfield lived outside the State of Arkansas and was not amenable to subpoena. Appellant does not challenge this finding and, in fact, the record reveals that both parties anticipated that Stanfield\u2019s deposition would be used as evidence at trial. Autrey\u2019s pretrial Motion for Subpoena for Out of State Witnesses explicitly stated that Stanfield\u2019s deposition would be taken \u201cfor the purpose of evidence in the trial[.]\u201d The order granting Autrey\u2019s motion also stated that the depositions of the out of state witnesses would be used as evidence at trial. As both parties anticipated that Stanfield\u2019s deposition would be utilized as evidence at trial, we need only to consider whether the portion of the deposition containing the phone conversation transcript was admissible under the Arkansas Rules of Evidence, applied as though Stanfield were present and testifying at trial.\nUnder A.R.E. Rule 613, a prior inconsistent statement by a witness is admissible for impeachment purposes. While appellant argues that Stanfield\u2019s deposition testimony is not inconsistent with Stanfield\u2019s statements during the phone conversation, our reading of Stanfield\u2019s testimony indicates otherwise.\nAt Stanfield\u2019s deposition, Stanfield repeatedly denied stating that the sale to Arrow was a \u201cwash sale,\u201d in which the two truck companies merely exchanged checks. However, in the previously recorded phone conversation, Stanfield had unequivocally apprised Autrey that the transaction between Truck Center and Arrow Truck Sales was not a legitimate sale. In fact, Autrey had described the transaction as a \u201cset up deal,\u201d arranged so that Autrey could be sued for a deficiency. While we concede that Stanfield did not use the term \u201cwash sale\u201d in his phone conversation with Autrey, the question posed by Autrey\u2019s counsel defined the term \u201cwash sale\u201d as the mere exchange of checks. This clarification put Stanfield on notice of the term\u2019s definition, and gave Stanfield the opportunity to either explain or deny his prior statements to Autrey.\nWe have not limited the admission of prior inconsistent statements to those instances in which diametrically opposite assertions have been made. See Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985). Rather, we have adopted Judge Weinstein\u2019s view that a witness\u2019 prior statement is admissible \u201cwhenever a reasonable man could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.\u201d Id. at 193, 697 S.W.2d at 116, quoting4 Weinstein\u2019s Evidence \u00b6 801 (d) (1) (A) [01]. In this case, a reasonable person could conclude that Stanfield\u2019s deposition testimony contradicted his earlier recorded statements, and we perceive no error in the admission of his prior statements regarding the transaction between Truck Center and Arrow.\nStanfield\u2019s statements were also admissible as substantive evidence under A.R.E. Rule 801(d)(1). This rule provides that a witness\u2019 prior inconsistent statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement. When deposition testimony is utilized at trial pursuant to ARCP Rule 32, subsection (a) of that rule provides that the rules of evidence be applied \u201cas though the witness were then present and testifying.\u201d As we have already determined that Stanfield\u2019s statements during the phone conversation were inconsistent with his deposition testimony, and Stanfield was subject to cross-examination about these statements at the deposition, we find no error in the substantive admission of Stanfield\u2019s prior statements.\nAppellant next argues that the trial court erred by refusing to instruct the jury on the elements of conversion. The trial court ruled that under Oklahoma law, a commercially unreasonable sale constitutes a conversion as a matter of law.\nWe agree with the trial court\u2019s interpretation of Oklahoma law. In Davidson v. First Bank & Trust Co., Yale, 609 P.2d 1259 (Okla. 1976), a creditor bank rightfully repossessed the collateral at issue, yet subsequently failed to proceed in a commercially reasonable manner. The debtor sued for conversion, and the Oklahoma Supreme Court upheld a stipulation of actual damages, and affirmed an award of punitive damages. The court\u2019s reasoning is set out on page 1261 of the opinion:\nIf repossessed property is sold in a commercially unreasonable manner there is a conversion, the actual damages being the difference between the value of the property and the proceeds of the sale. If there is a conversion, and the actions are malicious or willful, punitive damages may be awarded by the jury under existing statutory and case law. [Emphasis added.]\nId. at 1261. The following statement also appears in the Davidson opinion: \u201cIn its brief Bank admits that conversion may be the result of either wrongful repossession or wrongful sale, and we agree.\u201d Id. at 1261.\nBased on the explicit language set out in the Davidson opinion, we agree with the trial court that a finding of commercial unreasonableness constitutes conversion as a matter of law under Oklahoma law. Accordingly, we find no error in the trial court\u2019s refusal to instruct the jury on the elements of conversion.\nAppellant\u2019s fourth amendment for reversal is that the trial court erred in refusing to instruct the jury that Oklahoma law allows a creditor \u201csubstantial flexibility\u201d in the disposition of repossessed collateral. The trial court refused the instruction proffered by appellant, and dealt with the disposition of collateral in Instructions 11 and 13.\nInstruction No. 11 informed the jury of the commercial reasonableness limitation on a creditor\u2019s disposition of collateral. This instruction provided as follows:\nSale or other disposition of the 1986 Freightliner may be made at any time and place and on any terms but every aspect of the disposition, including the method, manner, time, place, and terms must be commercially reasonable.\nInstruction No. 13 defined the commercially reasonable standard:\nAs to the issue of whether this sale was conducted in a commercially reasonable manner, the law states that Truck Center of Tulsa, Inc. acts in a commercially reasonable manner when, in the process of disposing of the repossessed collateral, it acts in good faith and in accordance with commonly accepted commercial practices which afford all parties fair treatment.\nInstruction No. 13 essentially quotes the standard of commercial reasonableness set out in Wilkerson Motor Co. v. Johnson, 589 P.2d 505 (Okla. 1978). The Oklahoma Supreme Court explained the standard as follows:\nGenerally, the secured party acts in a commercially reasonable manner when the process of disposing of repossessed security he acts in good faith and in accordance with commonly accepted commercial practices which afford all parties fair treatment.\nId. at 509.\nBoth the Wilkerson case and Instruction No. 13 incorporate the standard for commercial reasonableness set out in 12A Okl. Stat. Ann. \u00a7 9-507(2) (Supp. 1992). However, the Wilkerson opinion prefaced its analysis of the commercial reasonableness standard by stating, \u201cThe clear intent of the applicable provisions of the UCC is to allow the repossessing secured party substantial flexibility as to the method chosen to dispose of the collateral.\u201d Id. at 507. Appellant cites this language in support of his argument that a \u201csubstantial flexibility\u201d instruction was necessary to give the jury a complete definition of \u201ccommercially reasonable sale.\u201d\nWe disagree. The trial court instructed the jury on the commercial reasonableness limitation as that limitation has been defined by Oklahoma statute and case law. The Wilkerson court\u2019s recognition of the substantial flexibility afforded to a creditor in disposing of collateral is not a definition of the commercial reasonableness limitation but a broad interpretation of the purpose of the U.C.C.\u2019s default provisions. As the instructions given by the trial court did not mislead the jury on the commercial reasonableness limitation as defined under Oklahoma law, we find no error in the refusal of appellant\u2019s proffered instruction.\nAppellant\u2019s fifth argument is that the trial court in submitting the issue of punitive damages to the jury because the evidence was insufficient to show that the actions of Truck Center were willful, wanton, or malicious. In order for punitive damages to be awarded under Oklahoma law, two requirements must be met: first, actual damages must be shown; second, the secured party\u2019s acts must be wanton, malicious, and intentional. Davidson, supra. Appellant\u2019s specific challenge is to the second of these requirements. However, we discuss the actual damages prerequisite in order to clarify our ultimate disposition of this case.\nUnder Oklahoma law, the measure of actual damages for a commercially unreasonable sale is the difference between the value of the property and the proceeds of the sale. Beneficial Fin. Co. v. Young, 612 P.2d 1357 (Okla. 1980); Davidson v. First Bank & Trust Co., Yale, 609 P.2d 1259 (Okla. 1976). In this case, Truck Center sold the repossessed truck to Arrow for $18,000.00. The jury found that the sale was commercially unreasonable, and that the fair market value of the truck was $28,000.00. Accordingly, Autrey sustained actual damages in the amount of $10,000.00.\nGenerally, under Oklahoma law, the damages sustained in a commercially unreasonable sale are set off against a deficiency. Young, supra. In this case, however, the finding of malicious conduct on the part of Truck Center negated the possibility of a set-off situation by depriving Truck Center of its right to a deficiency judgment. Therefore, Autrey did not actually receive compensatory damages for the commercially unreasonable sale.\nWe do not interpret Oklahoma law as depriving the wronged debtor of his right to seek punitive damages in such situations. Such an interpretation would allow a secured party to shield itself from punitive damages behind its own wrongful conduct. The Oklahoma Supreme Court addressed a similar situation in the Davidson case, supra. In that case, the court held that a secured bank could not escape liability for punitive damages by virtue of the bank\u2019s earlier stipulation that the value of the collateral equaled the debt. In so holding, the court indicated that it would not allow secured creditors to exploit the actual damages requirement:\nBank may not extricate itself from liability for punitive damages by admitting the amount of actual damages sustained and then claiming because it has made this concession there are no actual damages on which to base a punitive award.\nId. at 1262.\nBased on the rationale expressed in the Davidson opinion, we interpret Oklahoma\u2019s actual damages prerequisite as a requirement that such damages be shown rather than awarded in conversion actions based on commercially unreasonable sales. As the jury in this case found that the fair market value of the truck exceeded the proceeds of the commercially unreasonable sale, Autrey\u2019s right to seek punitive damages was unaffected by his failure to actually receive compensatory damages.\nThe evidence amply supports the jury\u2019s finding that the actions of Truck Center were willful, wanton, or malicious. The testimony and exhibits relating to the transactions between appellant and Arrow indicate that appellant simulated a sale of the truck in order to establish an excessive deficiency. Troy Mills, the owner of Truck Center testified that Truck Center sold the truck to Arrow for $18,000.00, yet Arrow never received title to the truck. Appellee introduced documentation showing that Truck Center sold the truck to Arrow for $18,000.00 on June 1, 1988, and that Truck Center repurchased the truck on the following day for $18,100.00. Appellee introduced additional documentation indicating that the truck was ultimately purchased by Ray Robinson for $39,000.00. The difference in the $18,100.00 repurchase price and the sale price in the sale to Robinson supports a finding that Truck Center acted willfully in its original \u201csale\u201d to Arrow.\nThe statements of Buzz Stanfield, Truck Center\u2019s former general manager, provide the most compelling evidence of malice and willfulness. Stanfield stated that appellant\u2019s transaction with Arrow was \u201ca set up deal\u201d so that appellant could sue Autrey for a deficiency. Stanfield also stated that the exchange of checks between appellant and Arrow was for the purpose of arranging a fictitious sale. These statements, combined with the progressive documentation of appellant\u2019s transactions involving the truck, provided sufficient evidence for the jury to be instructed on punitive damages.\nAppellant\u2019s final argument is that the trial court erred in awarding Autrey $664.00 in costs. Specifically, appellant objects to the $477.00 in costs awarded to the court reporter who took the depositions of Buzz Stanfield and Ray Robinson. Appellant also objects to the award of $34.00 each to William Lash and Susan Fox for witness fees.\nWe affirm the $68.00 awarded as witness fees. Under ARCP Rule 45(d), trial witnesses are entitled to $30.00 per day for attendance, and $0.25 per mile for travel from the witness\u2019 residence to the place of the trial or hearing. At the post-trial hearing in this case, counsel for appellee informed the trial court that the $34.00 figures included $4.00 allotted as mileage based on the rate of $0.25 per mile. Under ARCP Rule 54(d), costs are allowed as of course to the prevailing party unless the court otherwise directs. As Rule 45 (d) provides for trial witnesses to be paid $30.00 for attendance and $0.25 for mileage, we find no error in the trial court\u2019s award of $68.00 in witness fees for Lash and Fox.\nWe do, however, find error in the $477.00 awarded for the court reporter who took the depositions of Buzz Stanfield and William Lash. The only documentary proof of the court reporter fee is its inclusion on an unnotarized itemization of expenses attached as \u201cExhibit A\u201d on appellee\u2019s post-trial brief for attorney fees and expenses. Such unsubstantiated proof is deficient for purposes of an award of costs under Rule 54(d). See Monahan v. Nebraska, 575 F. Supp. 132 (D. Neb. 1983), mod. on other grounds sub nom. Rose v. Nebraska, 748 F.2d 1258 (8th Cir. 1984), cert. denied, 474 U.S. 817 (1985). We therefore reverse the portion of the judgment awarding appellee costs for the court reporter fee.\nAppellee cross-appeals the trial court\u2019s denial of attorney fees. Appellant relies on 12 Okl. Stat. Ann. \u00a7 936 (1988) in arguing that he is entitled to attorney fees. This statute provides as follows:\nIn any civil action to recover on [a] . . . contract relating to the purchase or sale of goods, . . . unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.\nWe disagree with appellee\u2019s assertion that he prevailed on a contract action. Appellee responded to appellant\u2019s suit on the sales contract by counterclaiming for conversion. We agree with the trial court that the conversion action did not arise out of the sales contract but out of the events subsequent to appellee\u2019s default on the contract and appellant\u2019s repossession of the collateral. As the claim on which appellee prevailed was for the tort of conversion, we find no error in the trial court\u2019s denial of attorney fees.\nAffirmed in part, reversed in part, and modified on direct appeal; affirmed on cross-appeal.\nWe are aware of the Oklahoma Supreme Court\u2019s decision in Brigance v. Velvet Dove Restaurant, 756 P.2d 1232 (Okla. 1988), in which the court stated, \u201cIt is settled law in Oklahoma that punitive damages are not recoverable unless actual damages are allowed and recoverable.\u201d Id. at 1235. However, we do not find that statement dispositive of the actual damages prerequisite in cases such as the instant one, because the Brigance case was a personal injury action that did not implicate the actual recovery limitations of the forfeiture rule.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Roy & Lambert, by: Robert J. Lambert, Jr., for appellant.", "Jeff Slaton and Esther M. White, for appellee." ], "corrections": "", "head_matter": "TRUCK CENTER OF TULSA, INC. v Norman AUTREY, d/b/a Autrey Trucking\n91-352\n836 S.W.2d 359\nSupreme Court of Arkansas\nOpinion delivered July 13, 1992\nRoy & Lambert, by: Robert J. Lambert, Jr., for appellant.\nJeff Slaton and Esther M. White, for appellee." }, "file_name": "0260-01", "first_page_order": 298, "last_page_order": 312 }