Boyle v. Asap Energy, Inc.

• Decision Date: 24 October 2017
• Docket Number: Case Number: 112682
• Citation: 408 P.3d 183
• Parties: Michael BOYLE, Personal Representative of the Estate of Pamela R. Cain, Deceased and Ashley N. Haas, Plaintiffs/Appellants, v. ASAP ENERGY, INC., Fast Lane Stores Inc., d/b/a Fast Lane 3, Defendants/Appellees, and George Carothers, Black Hole Investments, LLC, d/b/a The Pit Stop, John Doe Members of Black Hole Investments, LLC, d/b/a The Pit Stop, Two B Sisters, Ltd, d/b/a The Country Palace and John Doe Members of Two B Sisters, Ltd d/b/a The Country Palace, Defendants.
• Court: Oklahoma Supreme Court

408 P.3d 183

Michael BOYLE, Personal Representative of the Estate of Pamela R. Cain, Deceased and Ashley N. Haas, Plaintiffs/Appellants,

v.ASAP ENERGY, INC., Fast Lane Stores Inc., d/b/a Fast Lane 3, Defendants/Appellees,andGeorge Carothers, Black Hole Investments, LLC, d/b/a The Pit Stop, John Doe Members of Black Hole Investments, LLC, d/b/a The Pit Stop, Two B Sisters, Ltd, d/b/a The Country Palace and John Doe Members of Two B Sisters, Ltd d/b/a The Country Palace, Defendants.

Case Number: 112682

Supreme Court of Oklahoma.

Decided: October 24, 2017

Rehearing Denied: December 11, 2017

G. Todd Ralstin, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Michael Boyle, as Personal Representative of Pamela Cain Deceased.

Ryan M. Oldfield, Oldfield & Buerlger, P.L.L.C., Oklahoma City, Oklahoma, for Ashley N. Haas, Plaintiff/Appellant.

Stephen D. Beam, Weatherford, Oklahoma, for ASAP Energy, Inc., and Fast Lane Stores, Inc., Defendants/Appellees.

Bruce Winston, Walker, Ferguson & Ferguson, Oklahoma City, Oklahoma, for ASAP Energy, Inc. And Fast Lane Stores, Inc., Defendants/Appellees.

EDMONDSON, J.

¶ 1 Plaintiffs brought an action in the District Court for Custer County and claimed a convenience store negligently and recklessly sold low-point beer to a noticeably intoxicated person who injured plaintiffs in a vehicle collision several hours later. Defendant filed a motion for summary judgment which was granted by the trial court.¹ We reverse the judgment of the District Court.

¶ 2 Two issues are raised in this appeal. First, does Oklahoma jurisprudence recognize a cause of action against a commercial vendor of alcohol who sells alcohol to a noticeably intoxicated adult for consumption off of the premises when the sale results in an injury to an innocent third party? We hold Oklahoma does recognize this cause of action. Second, were the facts submitted during the process for summary judgment sufficient to show a controverted issue of fact or a difference in inferences sufficient to reverse the trial court's summary judgment? We answer this question also in the affirmative.

Challenge to the Record On Appeal

¶ 3 This proceeding is an appeal which requires completion of an appellate record using the procedure pursuant to Oklahoma Supreme Court Rule 1.36. A record prepared by conventional means (as opposed to electronic filing) in accordance with this rule requires the parties to file in this Court photocopies from the original trial court record.² Fast Lane objects to part of the appellate record submitted by plaintiffs, specifically Shannon Keeves' response to Fast Lane's motion for summary judgment. The objection is based upon the allegation that this response was filed in the District Court for Beckham County³ and not filed in the Custer County case until after the trial court granted summary judgment which is the judgment appealed in the current appeal/certiorari proceeding.

¶ 4 The plaintiffs' response to Fast Lane's motion for summary judgment in the Custer County case is part of the record on appeal before us. That response states that it "incorporates the Response of Plaintiff, Shannon Keeves, to Defendant, ASAP Energy, Inc.'s Motion for Summary Judgment, as if fully set forth herein and in Beckham County, Oklahoma Case No. CJ-2012-118."

¶ 5 Adoption by reference, sometimes called incorporation by reference, is permitted by the Oklahoma Pleading Code, 12 O.S. 2011 2010(C). This provision was taken directly from Federal Rule of Civil Procedure 10(c).⁴ We have construed 2010(C) and found the federal jurisprudence on Federal Rule 10(c) to be instructive for construing 2010(C).⁵ The Committee Comment to 2010(C) states "While allegations from other pleadings or motions in the same action may be incorporated by reference, allegations from pleadings or motions in other actions, even if between the same parties cannot."⁶

An appellant has a burden to present a record on appeal that demonstrates the alleged error in the trial court's decision.⁷ Any material incorporated by reference in the trial court must actually appear in an appellate record when that material is used to either support or attack the judgment or order that is the subject of the appeal. Further, that material must have actually been before the trial court when it ruled on a motion for summary judgment .⁸ We need not address the merits of plaintiffs' claims Fast Lane acquiesced in plaintiffs' pleading practice, or the legal effect, if any, of such acquiescence if it indeed occurred. We need not address permissible methods for how, when, or what purposes, a document filed in one court may be judicially cognizable in a different court.

¶ 6 In a strict sense, a judgment or appealable order is that which is appealed and not a "case."⁹ The "Journal Entry of Final Judgment" was filed in the Custer County case and grants a motion for summary judgment to one party, "ASAP Energy, Inc./ d/b/a Fast Lane Stores."¹⁰ The appellate record herein contains two responses by plaintiffs to defendant's motion for summary judgment, one in the Custer County case and one in a Beckham County case. The response filed in the Custer County case is sufficient to show the trial court's judgment is erroneous and defendant was not entitled to a judgment on the merits, and we need not rely on the Beckham County filing in this appeal.¹¹

Summary Judgment and Appellate Review

¶ 7 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment.¹² Summary judgment is proper when a party is entitled to judgment "as a matter of law" based upon the submitted evidentiary materials, and all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion.¹³ Summary judgment is improper when reasonable persons may reach different inferences or conclusions from the undisputed facts.¹⁴

The Record

¶ 8 Carothers consumed alcohol and caused a vehicular homicide and permanent injuries to two additional people. Plaintiffs' state Carothers started drinking alcohol in the morning, and between 8:30 a.m. and 5:00 p.m. he consumed 18-21 beers, 3-4 shots of vodka, and 2 "sips of moonshine." Plaintiffs alleged he consumed 14-16 beers at a golf tournament and one sip of moonshine on the day of the homicide. The golf tournament at Roman Nose State Park ended at approximately 2:00 p.m., and he returned home at 3:20 p.m. He testified that when he returned to his truck to drive home he "was probably beginning to sober up a little bit."

¶ 9 Carothers stated he did not remember what he did upon returning home, except that he grilled chicken for dinner, drank 4-5 beers from his cooler, 3-4 shots of vodka, and an additional sip of moonshine. He stated the beers were from his golf game. Defendant's motion for summary judgment agrees that Carothers attended a charity golf tournament where he consumed "approximately fourteen to sixteen beers" and "a sip of moonshine."

¶ 10 He drove himself to a Fast Lane convenience store in Clinton at approximately 5:17 p.m., and with a credit card bought a 9-pack of low-point Miller Lite beer containing 16 ounce cans and a pack of cigarettes. The beer is located in the back of the store and Carothers was required to walk to the back of the store and then to the front to pay for his purchase. When purchasing the cigarettes he was required to talk with Fast Lane's employee, Mr. Dodge, and indicate his desired purchase.

¶ 11 Carothers remembers some of the events that day, but does not remember going to Fast Lane and purchasing beer. He testified he typically drank Miller Lite beer and because he often smoked cigarettes when drinking he would often buy cigarettes when buying beer. He stated Fast Lane was a convenient place for him to stop because it is located between his house and Interstate 40. He also stated he did not know the Fast Lane employees and they did not know him, however Fast Lane was one of two locations he purchased gasoline.

¶ 12 Carothers returned home after his purchase of beer, and then left at approximately 9:00 p.m. to attend a party in Elk City. Carothers testified when he left his home to attend the party he was "worried" about his "ability to drive," but he wanted "to do something, to get out of the house." He testified he was "drunk" when he arrived at the party, and had "one shot of vodka" at the party but no more because "I'd had enough." He stated no beer was served at the party.

¶ 13 At approximately 11:00 p.m. and five to six hours after the Fast Lane sale, Carothers was driving his vehicle, a pickup truck, and ran a four-way stop at a high rate of speed and collided with another vehicle resulting in the death of Pamela Crain and allegedly permanently injuring Ashley Haas and Shannon Keeves. Haas was driving the other vehicle, allegedly a "Take Out Taxi," a sober ride taxi service for Elk City, Oklahoma, and both Crain and Keeves were passengers. Haas was giving Keeves a ride from her home to her workplace when the collision occurred.

¶ 14 Empty beer cans, allegedly Miller Lite cans, were observed on the roadway near Carothers' truck at the scene of the collision. Carothers testified there were no empty beer cans in his truck or cooler when he left the golf course earlier in the day. Carothers was observed at the scene of the collision having bloodshot eyes, slurred speech, and a staggering gait. He failed a "Walk and Turn" test three times at the scene. Carothers' blood was drawn at approximately 11:45 p.m., and he had a blood alcohol content of 0.29g% (0.29 gm/100 ml).

¶ 15 An employee of Fast Lane, Mr. Dodge, stated he (1) does not sell beer to a customer who appears to be intoxicated, (2) has refused sales to such customers, Fast Lane having a policy prohibiting sales to customers who appear intoxicated, and (3) has no independent...