Hawk Enters., Inc. v. Cash Am. Int'l, Inc.

• Decision Date: 25 June 2012
• Docket Number: No. 109,226.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,109,226.
• Citation: 282 P.3d 786,2012 OK CIV APP 66
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Parties: HAWK ENTERPRISES, INC., an Oklahoma corporation, Plaintiff/Appellant, v. CASH AMERICA INTERNATIONAL, INC., a Texas corporation; Cash America Financial Services, Inc., a Delaware corporation; Cash America, Inc., of Oklahoma, an Oklahoma corporation; and Bronco Pawn & Gun, Inc. an Oklahoma corporation, Defendants/Appellees.

282 P.3d 786

2012 OK CIV APP 66

HAWK ENTERPRISES, INC., an Oklahoma corporation, Plaintiff/Appellant,

v.CASH AMERICA INTERNATIONAL, INC., a Texas corporation; Cash America Financial Services, Inc., a Delaware corporation; Cash America, Inc., of Oklahoma, an Oklahoma corporation; and Bronco Pawn & Gun, Inc. an Oklahoma corporation, Defendants/Appellees.

No. 109,226.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

April 19, 2012.

Certiorari Denied June 25, 2012.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Patricia G. Parrish, Trial Judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Glenn M. White, Ryan J. Reaves, Mullins, Hirsch, Edwards, Heath, White & Martinez, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Seth A. Day, Larry G. Ball, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees.

JOHN F. FISCHER, Chief Judge.

¶ 1 Plaintiff Hawk Enterprises, Inc., appeals an order of the district court granting Defendants' motion for summary judgment as to Hawk's tortious interference theory of recovery.¹ The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp.2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Because we cannot conclude as a matter of law that Defendants cannot be held liable for tortious interference, we reverse and remand this case to the district court for further proceedings.

BACKGROUND

¶ 2 In 2000, Hawk entered into a franchise agreement with Mr. Payroll Corporation. The franchise granted Hawk the exclusive right to operate check cashing facilities in Oklahoma City using the name Mr. Payroll. Defendant Cash America International, Inc. (Cash America), an affiliate of Mr. Payroll, ² signed the franchise agreement as guarantor for Mr. Payroll. Hawk filed this suit in 2010 alleging Cash America had started operating check cashing facilities in Hawk's exclusive territory. Hawk's petition stated two theories of recovery and requested an accounting. In the first, Hawk alleged that by operating competing check cashing facilities, Cash America tortiously interfered with its franchise agreement with Mr. Payroll. In the second, after incorporating the same factual allegations, Hawk alleged that this conduct was a breach of an implied covenant of good faith and fair dealing in Cash America's guaranty agreement. Third, Hawk sought an accounting of Cash America's check cashing operations in Oklahoma City.

¶ 3 Cash America, joined by the remaining Defendants, filed a motion for summary judgment to which Hawk responded. The district court granted the Defendants' motion as to Hawk's tortious interference claim but denied the motion with respect to the breach of contract claim. However, the court did find that as a guarantor of the franchise agreement, Cash America could assert any defense available to Mr. Payroll, including the waiver of economic damages for breach of the franchise agreement. The court held that Hawk would be limited to non-economic damages for any breach of contract. Hawk's request for an accounting was not addressed in Cash America's motion or in the district court's ruling.

¶ 4 The district court's Journal Entry of Judgment, which is the subject of this appeal, was filed June 3, 2010. Hawk's petition in error was filed January 27, 2011, more than thirty days after entry of this order. Although not raised by either party, it is incumbent on an appellate court to confirm its jurisdiction. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 25, 139 P.3d 873, 880. An appeal to the Supreme Court must be taken within thirty days of the judgment appealed unless otherwise provided by law. 12 O.S.2011 § 990.A. A judgment is the final determination of the rights of the parties. Id. § 681. Because the district court's ruling on the Defendants' motion left for further resolution Cash America's liability for any breach of contract, damages and the accounting issue, it was not a final determination of the rights of the parties to this action, and therefore not a judgment from which an appeal must be taken pursuant to section 990.A.

¶ 5 “When an action contains more than one claim for relief and a judgment is rendered that leaves a claim or claims unadjudicated, that judgment is not an appealable event in the absence of the statutorily required certificate of the trial judge.” Liberty Bank and Trust Co. of Oklahoma City, N.A. v. Rogalin, 1996 OK 10, ¶ 10, 912 P.2d 836, 838. On June 4, 2010, the district court directed that its June 3 order be entered as a final judgment pursuant to 12 O.S.2011 § 994(A):

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment, decree, or final order.

Failure to appeal within thirty days after a judgment entered pursuant to section 994(A) is jurisdictional. Southwestern Bell Yellow Pages, Inc. v. Barr, 2008 OK 46, 187 P.3d 718. However, not every interim ruling can be advanced for appeal. “A judgment is unsuitable for § 994 certification when the court disposes of but a portion of the contest by leaving unresolved any issue on the merits of the partly-decided claim.” Oklahoma City Urban Renewal Auth. v. City of Oklahoma City, 2005 OK 2, ¶ 11, 110 P.3d 550, 557. As stated, the June 3 order left for further determination Cash America's liability for breach of contract, and any determination of amount of damages to be awarded, as well as Hawk's request for an accounting. However, it is clear that all of Hawk's claims against Cash America arose out of the same transaction or occurrence, the operation of check cashing facilities in Hawk's exclusive territory. Although stated as separate claims for relief, Hawk's petition instead asserts two alternate theories of recovery, tortious interference and breach of contract, for the same alleged wrong. See Chandler v. Denton, 1987 OK 38, ¶ 15, 741 P.2d 855, 863–64. And, “if the unadjudicated claim arises from the same transaction or occurrence as the adjudicated claim the District Court does not have the power to enter a final appealable order as to only the adjudicated portion.” Liberty Bank and Trust Co., 1996 OK 10, ¶ 10, 912 P.2d at 838. Consequently, the June 4 Certification of Judgment of the June 3 order was not authorized by section 994.³ Therefore, Hawk's failure to file its present petition in error within thirty days of that date does not deprive this Court of jurisdiction.

¶ 6 The district court also found that its June 3 order affected a substantial part of the merits of the controversy and that an immediate appeal would advance the ultimate termination of the litigation, citing 12 O.S.2011 § 952(b)(3):

(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

....

3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. If the Supreme Court assumes jurisdiction of the appeal, it shall indicate in its order whether the action in the trial court shall be stayed or shall continue.

The Supreme Court declined to hear Hawk's appeal on this basis.⁴ Further, with respect to this provision, “[t]he failure of a party to appeal from an order that is appealable under either subdivision 2 or 3 of subsection (b) of this section shall not preclude him from asserting error in the order after the judgment or final order is rendered.”

12 O.S.2011 § 952. Therefore, Hawk's appeal is not precluded.

¶ 7 On January 27, 2011, Hawk dismissed its breach of contract theory of recovery and request for an accounting. As a result, the June 3 order granting the Defendants' motion for summary judgment as to Hawk's tortious interference claim, its sole remaining theory of recovery, became immediately appealable. Hawk's petition in error filed February 28, 2011 was timely and this court has jurisdiction to decide this appeal.

STANDARD OF REVIEW

¶ 8 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment. A motion for summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. § 2056(C). We review the district court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

ANALYSIS

¶ 9 Because Hawk dismissed its breach of contract claim and request for an accounting, the only remaining theory of recovery in this case is the tortious interference claim asserted against Cash America. The sole issue for this appeal, therefore, is whether the district court erred in granting Cash America's motion for summary judgment as to that claim. In some respects, the material facts are undisputed. The franchise agreement was signed by Mr. Payroll as franchisor and Hawk as franchisee. Prior to this transaction, it appears Mr. Payroll was purchased by Cash America and that Cash America may be the parent corporation of Mr. Payroll, although the extent of Cash America's ownership and control of Mr. Payroll is not established in the record. Mr. Payroll is a Delaware corporation and Cash America is a Texas corporation. Although the two entities are...