King v. Modern Music Co.

• Decision Date: 03 April 2001
• Docket Number: No. 95467.,95467.
• Citation: 2001 OK CIV APP 126,33 P.3d 947
• Parties: Donna and Robert KING, Plaintiffs/Appellants, v. MODERN MUSIC CO. and Larry K. Phillips, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

33 P.3d 947

2001 OK CIV APP 126

Donna and Robert KING, Plaintiffs/Appellants, v. MODERN MUSIC CO. and Larry K. Phillips, Defendants/Appellees.

No. 95467.

Court of Civil Appeals of Oklahoma, Division No. 4.

April 3, 2001.

W. Brent Willis, Hiltgen & Brewer, P.C., Oklahoma City, OK, for Plaintiffs/Appellants.

Jeff R. Beeler, Beeler, Walsh & Walsh, P.L.L.C., Oklahoma City, OK, for Defendants/Appellees.

David B. Donchin, Hilary S. Allen, Durbin, Larimore & Bialick, Oklahoma City, OK, for Defendants/Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. RAPP, Judge:

¶ 1 The trial court plaintiffs, Donna and Robert King (Kings), appeal the grant of summary judgment to the trial court defendants, Modern Music Co. (Modern) and Larry Keith Phillips (Phillips.)

BACKGROUND

¶ 2 The Kings had been injured on September 13, 1997, by Timothy Wayne Haley (Haley) in an automobile accident. Kings alleged that Haley became noticeably intoxicated at an establishment owned and operated by F & J Venture, Inc. d/b/a Double Eagle (F & J). They sued and recovered a default judgment against Haley and F & J on November 5, 1999, in Oklahoma County District Court, cause number CJ 98-772. Modern and Phillips were not named as parties to that action.

¶ 3 Kings filed the present action on March 31, 2000, in Oklahoma County, against Modern and Phillips as a new case. Their action evolved into two claims against Modern.¹ First, Kings allege that they may pierce the corporate veil of F & J to determine whether Modern is liable for the default judgment. Second, they claim that Modern is a joint venture or a partnership with F & J. With respect to Phillips, Kings claim that F & J is a sham entity and seek to hold Phillips liable as the party who activated, promoted, and controlled the F & J entity.

¶ 4 Modern is a corporation owned by Phillips. Modern's business, for purposes of this case, consists of leasing property and then subleasing that property to others to operate taverns. In addition, Modern leases to the tavern owners the bar equipment, vending machines, and amusement machines used in the taverns. Here, Modern subleased premises to F & J for operation of a tavern at a rental of $150.00 per week pursuant to a written lease. In addition, Modern had an oral agreement with F & J to provide the vending and amusement machines, pool table, and other bar furniture in consideration of a payment to Modern of approximately 50 percent of the proceeds from the machines. Modern retained ownership of these fixtures and personal property and the bar operator could not substitute or use similar property furnished by another.²

¶ 5 The tavern premises involved here came into Modern's possession in 1992 when Modern acquired a business similar to Modern's enterprise. At that time, Phillips contacted a June Allison to arrange a sublease and she in turn took steps to open a tavern business by filing Articles of Incorporation to form a corporation called F & J Venture, Inc. The name was taken from the first names of Ms. Allison and her husband, Frank. However, the proposal between Modern and Allison never consummated and the Allisons took no further action with regard to the F & J corporation.

¶ 6 The record reflects a Certificate of Good Standing for F & J as of September 17, 1997, with Ms. Allison as the registered agent. According to Ms. Allison, the Allisons did not relinquish ownership of F & J nor did they give anyone permission to use the corporation. She further testified that she did not know that she was F & J's registered service agent. She testified that she had received a notice as registered agent from the Oklahoma Tax Commission, which she turned over to Phillips. Phillips, according to her testimony, told her that he would have her removed as service agent. Then she began to receive process papers served in this action, which she also turned to Phillips. Phillips has not refuted Ms. Allison's statements in this record.

¶ 7 Returning to events in 1992, Phillips contacted a Donald Hayes to operate the tavern when the Allisons declined to go forward. Kings claim Hayes forged documents pertaining to F & J and misrepresented facts to the Oklahoma ABLE Commission in order to obtain a liquor license for the tavern. Specifically, Hayes used the name of one Verna Stricklin. However, she testified that she had no relationship with F & J and had not given Hayes permission to use her name. She denied that the signature purporting to be hers on sundry documents was in fact her signature. The documents are not part of the appellate record but were referenced in the Stricklin deposition as having been submitted by someone, with the inference being Hayes, to obtain the liquor license for the tavern. The license was issued and is the license in effect when the accident causing Kings' injuries occurred.

¶ 8 In July 1996, an individual named Canning took over the tavern. It is not clear from the record who operated the tavern in the interim. The record contains a one year sublease agreement dated April 11, 1994, between Modern and F & J, but the signature on behalf of F & J is obscure. Based upon other testimony from Phillips, the signature appears to be that of a person named Jerry Jenkins.

¶ 9 In April 1997, Canning signed a lease agreement extension with Modern in which Phillips signed for Modern and Canning signed for F & J and its d/b/a entity the Double Eagle Club. Canning was not named in the tort action due to his bankruptcy. Canning testified that he obtained the tavern from a person named Bonhomme. Canning testified that he first learned of F & J from the ABLE Commission in regard to the liquor license. He further testified that he had no financial or operational involvement with F & J, other than the fact that the tavern's liquor license was held by F & J. He acknowledged execution of corporate minutes, but then claimed that they were just handed to him to sign.³

¶ 10 Phillips testified that he had no control over or involvement with F & J or the operation of the tavern other than as represented by the premises lease and the oral lease of the personal property. He specifically denied, without contradiction, that neither he nor Modern shared in any of the receipts from sale of beer or alcoholic beverages.

¶ 11 The trial sustained Modern and Phillips' motion for summary judgment. Kings appeal.

STANDARD OF REVIEW

¶ 12 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. This means without deference. Hulett v. First Nat. Bank & Trust Co. in Clinton, 1998 OK 21, 956 P.2d 879; see Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The pleadings and evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to one material fact. Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. Even though the facts may not be controverted, if reasonable persons may draw different conclusions from these facts, summary judgment must be denied. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288. When genuine issues of material fact exist, summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Oklahoma State Bank & Trust Co. of Vinita, 1993 OK 117, 860 P.2d 230; Flowers v. Stanley, 1957 OK 237, 316 P.2d 840. Because the trial court has the limited role of determining whether there are any such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

¶ 13 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff's claims or theories in order to prevail on motion for summary judgment. When, as here, a defendant moves for summary judgment without relying upon an affirmative defense the defendant must show: 1) that no substantial factual controversy exists as to at least one fact essential to plaintiff's theory of the cause of action; and, 2) that the fact is in defendant's favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific R.R. Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946.

ANALYSIS AND REVIEW

¶ 14 The gist of Kings' case consists of their contention that Phillips, for himself and on behalf of Modern, took over F & J and used it essentially as a front for his operation of a tavern after the Allisons declined to go forward with the operation of the tavern. In effect, Kings assert that Phillips simply "plugs in" whoever may be the current individuals running the tavern.

¶ 15 The theory relied upon by Kings as to Modern and Phillips is that the court may disregard the corporate entity of F & J and find that Modern and Phillips constitute F & J, and are therefore liable. In addition, as to Modern, Kings maintain that Modern and F & J were engaged in an unincorporated joint enterprise, the operation of the tavern under the name "Double Eagle." The summary judgment proceeding was presented on those legal theories and the trial court's...