Gabler v. Holder and Smith, Inc., 94,308.

• Decision Date: 01 September 2000
• Docket Number: No. 94,308.,94,308.
• Citation: 2000 OK CIV APP 107,11 P.3d 1269
• Parties: Darrell GABLER and Kathern Gabler, husband and wife, Plaintiffs/Appellants, v. HOLDER AND SMITH, INC., d/b/a Allegra Print & Imaging, an Oklahoma corporation, American Speedy Printing Centers, Inc., a Michigan corporation, Jerry W. Holder, individually and as president of Holder and Smith, Inc., and Robert L. Todd, individually and as vice-president of Holder and Smith, Inc., all jointly and severally, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

11 P.3d 1269

2000 OK CIV APP 107

Darrell GABLER and Kathern Gabler, husband and wife, Plaintiffs/Appellants, v. HOLDER AND SMITH, INC., d/b/a Allegra Print & Imaging, an Oklahoma corporation, American Speedy Printing Centers, Inc., a Michigan corporation, Jerry W. Holder, individually and as president of Holder and Smith, Inc., and Robert L. Todd, individually and as vice-president of Holder and Smith, Inc., all jointly and severally, Defendants/Appellees.

No. 94,308.

Court of Civil Appeals of Oklahoma, Division No. 3.

September 1, 2000.

James C. Hodges, Kevin H. Wylie, Tulsa, Oklahoma, for Appellants.

Gerri A. Inman, Tulsa, Oklahoma, for Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

CAROL M. HANSEN, Vice-Chief Judge:

¶ 1 Appellants, Darrell Gabler and Kathern Gabler (Gablers), who are husband and wife, initiated this action after they were involuntarily discharged from employment by Appellee, Holder & Smith (H & S). Darrell Gabler began working for H & S in 1988. When he was discharged on May 29, 1999, he was vice-president of H & S, and owned five percent of its common stock. Kathern Gabler, who was also discharged on May 29, 1999, began working for H & S in 1996 and was manager of its graphics department.

¶ 2 H & S is an Oklahoma corporation operating in Tulsa as Allegra Print and Imaging. Appellees, Jerry Holder (Holder) and Robert Todd (Todd), are president and vice-president of H & S, and own substantially all common stock in the corporation. Appellee, American Speedy Printing Centers, Inc. (American), is a Michigan corporation. Gablers alleged in their Petition that American was "controlling corporation/owner/franchiser of Defendant H & S and doing business in Tulsa County."

¶ 3 In their Petition, Gablers further alleged their firing constituted [1] breach of oral and written agreements, and violation of the public policy of the state of Oklahoma, [2] tortious interference with present and prospective business relations, [3] a violation of the Oklahoma General Corporation Act, 18 O.S.1991 § 1001 et seq., emotional distress, with loss of consortium.

¶ 4 H & S, Holder and Todd moved to dismiss Gablers' Petition on the basis that Gablers could "prove no set of facts which entitle them to relief" on any claim. American filed a separate motion seeking dismissal for lack of in personam jurisdiction. The trial court granted both motions to dismiss without specific findings. Gablers asked the trial court to reconsider its dismissal orders. The trial court denied the motions to reconsider and Gablers appeal from that denial. Their appeal is submitted without appellate briefing in accordance with the accelerated procedure under Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1999, Ch.15, App.

RIGHT TO HEARING ON MOTION TO RECONSIDER

¶ 5 As a preliminary procedural matter, Gablers contend the trial court abused its discretion by denying their motions for reconsideration without a hearing "in contravention of OKL. STAT. TIT. 12, § 651." However, § 651 does not contain an express provision relating to a hearing, and Gablers do not direct us to any other legal authority finding an implied right to a hearing under that section.

¶ 6 To the contrary, Rule 4(h), Rules for District Courts, 12 O.S. Supp.1999, Chap. 2, App. 1, provides "[m]otions may be decided by the court without a hearing." Further, we find nothing in the record to indicate Gablers even requested a hearing. Issues not raised at trial will not be considered for the first time on appeal. Northwest Datsun v. Okla. Motor Vehicle Comm., 1987 OK 31, 736 P.2d 516.

STANDARD OF REVIEW

¶ 7 Because Gablers' motions to reconsider were filed within ten days of filing of the orders dismissing their claims, they may appeal from both the dismissal orders and the order denying the motions to reconsider. 12 O.S. Supp.1999 § 990.2(A). The order denying the motions to reconsider is reviewed under the same standard as a motion for new trial. Id.; Schepp v. Hess, 1989 OK 28, 770 P.2d 34.

¶ 8 A trial court is vested with broad discretion in granting or denying a new trial. Dominion Bank of Middle Tennessee v. Masterson, 1996 OK 99, 928 P.2d 291, 294. Unless it is apparent the trial court erred in some pure simple question of law, or acted arbitrarily, the ruling on a motion for new trial will not be disturbed on appeal. Id.; Poteete v. MFA Mut. Ins. Co., 1974 OK 110, 527 P.2d 18.

¶ 9 In their response to the motion to dismiss filed by H & S, Holder and Todd, Gablers attached several documents in support of their claims. A motion to dismiss pursuant to 12 O.S.1991 § 2012(B)(6) [failure to state a claim upon which relief can be granted] is converted to one for summary judgment when materials outside the pleadings are presented to and not excluded by the court. Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, 915 P.2d 359; Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910.

¶ 10 Upon conversion to a proceeding for summary judgment, the burden changes and the movant must demonstrate there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. Shaffer, at 914. Review of a summary judgment is de novo. Vance v. Federal Nat. Mortg. Ass'n, 1999 OK 73, 988 P.2d 1275.

MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

¶ 11 As noted above, American's motion to dismiss was based on the defense of lack of personal jurisdiction. Gablers also attached matters outside the pleading to their response to American's motion. Normally, this would raise the question whether American's jurisdictional motion should also be converted to a summary judgment proceeding. However, we need not answer that question, or the issue of jurisdiction itself, because even if personal jurisdiction were established, American would be entitled to summary judgment in accordance with § 2012(B)(6). Gablers have failed to state a claim upon which relief could be granted. We are not bound by the reasoning of the trial court and may affirm a correct result on a different legal theory. McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517.

¶ 12 Gablers alleged by their Petition that the acts of Holder and Todd were "imputed to Defendants H & S and [American] under the theories of actual and apparent agency and respondeat superior." That imputation is not in controversy as to H & S, but the allegation fails as to American.

¶ 13 In its motion to dismiss, American attached an affidavit from its president. In addressing the H & S relationship, the affidavit, among other things, stated American [1] was merely the franchiser of H & S's printing centers, [2] had no common employees, officers, directors, or shareholders with H & S, [3] exercised no day-to-day control over H & S or any of its officers, and [4] had no knowledge of the circumstances relating to Gablers' employment, nor was asked by H & S whether Gablers should be retained as employees.

¶ 14 Gablers argue it can be assumed the franchise agreement provides for "significant monetary consideration" and "some control" by American over H & S, and that "dependent upon the amount and type of control, [American] can be held liable for the acts of [H & S] under the theories of agency and/or respondeat superior." Gablers, however, fail to counter American's evidentiary materials on the question of agency.

¶ 15 In support of their argument that further discovery may produce evidence to show the relationship between American and H & S might be a joint venture, Gablers attached to their response a copy of a page from American's internet website. The web page shows American offers both franchise and joint venture opportunities, but Gablers offer nothing to show the relationship is other than a franchise. With no other support, Gablers joint venture assertion is pure speculation.

¶ 16 The trial court's ruling on summary judgment must be based on the record actually presented, not on that which is potentially possible. Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17. Gablers may not rely on the allegations of their pleadings, or the bald contention that facts exist, to defeat a motion for summary judgment. Zaragosa v. Oneok, Inc., 1984 OK CIV APP 53, 700 P.2d 662. We need not address whether Gablers should have been allowed discovery because they have not raised that issue here.

¶ 17 The only evidentiary material of record on point, i.e., the affidavit of American's president, states the relationship is a franchise. Gablers are entitled to favorable inferences regarding that relationship. Diamond Plastics, 891 P.2d at 1266. We may infer, as assumed by Gablers, some monetary consideration passes or has passed from H & S to American, and that American, as franchiser, exercises some degree of control over how H & S does business. See, 71 O.S. Supp.1999 § 802(5)(Defines "franchise" under the Oklahoma Business Opportunity Sales Act as agreement between seller and purchaser whereby franchisee is granted right to engage in business under marketing plan prescribed in substantial part by franchiser.)

¶ 18 Nevertheless, the burden of proving an agency status is on the one asserting it, and such status will not be assumed. Enterprise Management Consultants, Inc. v. State, ex rel. Oklahoma Tax Commission, 1988 OK 91, 768 P.2d 359. Gablers have failed to show any evidence of the detailed assertion of control which may make a franchise agreement the source of an agency relationship. Id. at 362, n. 15. Without evidence American exercised the control and direction over H & S necessary to create an agency relationship, Gablers' attempt to invoke respondeat superior must also fail. Patton v. Memorial Hosp. of Southern Oklahoma, Inc., 1995 OK CIV APP 7, 895 P.2d 298. ¶ 19 There remains no material question of law regarding Gablers' claims against American, and the trial court did not commit any reversible error of law in...