Seitsinger v. Dockum Pontiac Inc.

• Decision Date: 28 March 1995
• Docket Number: No. 81255,81255
• Citation: 1995 OK 29,894 P.2d 1077
• Parties: Charles R. SEITSINGER, Jr., Appellant, v. DOCKUM PONTIAC INC., an Oklahoma Corporation, and V. Wendall Dockum, Appellees.
• Court: Oklahoma Supreme Court

Page 1077

894 P.2d 1077

1995 OK 29

Charles R. SEITSINGER, Jr., Appellant, v. DOCKUM PONTIAC INC., an Oklahoma Corporation, and V. Wendall Dockum, Appellees.

No. 81255.

Supreme Court of Oklahoma.

March 28, 1995.

Certiorari to the Oklahoma Court of Appeals, Division No. 3.

Certiorari granted to review the Court of Appeals' opinion which affirmed the trial court's grant of summary judgment to both defendants. Plaintiff brought suit seeking rescission of a contract or alternatively, damages for breach of warranty. Summary judgment was granted to both defendants in the District Court of Oklahoma County, Hon. Dan Owens presiding, and attorney's fees were awarded. We hold that summary judgment was properly granted to Wendall Dockum, individually, but improper as to Dockum Pontiac, Inc. because plaintiff presented sufficient evidentiary material to show a material fact in dispute. Attorney's fees are premature as to the dealership, but appropriate as to Dockum individually.

COURT OF APPEALS' OPINION VACATED; JUDGMENT OF TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR FURTHER PROCEEDINGS.

Mark Shores, Baum & Shores, Oklahoma City, for appellant.

James H. Buxton, Edmond, for appellees.

SUMMERS, Justice.

This is a suit by an automobile buyer against the company that sold him the car and the company's owner. Plaintiff seeks, in the alternative, the remedies of rescission or damages for breach of warranty. He claims the defendants sold him a used car as new. The trial court granted summary judgment in favor of both defendants, and plaintiff appealed. The Court of Appeals affirmed and we have granted certiorari. The judgment is affirmed as to the owner individually, but reversed and remanded as to the dealership.

Charles Seitsinger bought a car from Dockum Pontiac Inc. which the sales contract represented as new. The odometer stated that the car had 184 miles at the time of sale. Within a short time it began giving him trouble, and he returned it to another dealership for service. He was told that the warranty had almost run out of time. When he questioned this the servicing dealership pulled a GM "DCS" for the car from the computer, which appeared to show that the car had been leased to "PEP/CO" prior to the sale to Seitsinger. Seitsinger then confronted Dockum Pontiac. The dealership claimed that to the best of its knowledge, the car was new when sold to Seitsinger, that General Motors had sent the dealership a new car rebate after its sale, and the odometer reading was consistent with that of a new car.

Seitsinger sued, and set out by way of discovery to establish the line of ownership of the car. He, through his counsel, sent interrogatories to Dockum Pontiac and General Motors. He did not receive full answers to his interrogatories, and subsequently filed two motions to compel with the trial court. The trial court apparently granted both motions to compel, and ordered that the defendant Dockum Pontiac and the third-party General Motors answer the questions in the interrogatories. ¹

Prior to Dockum's responses to the interrogatories, Dockum Pontiac and V. Wendall Dockum, owner of the company, filed a motion for summary judgment. Seitsinger filed a response, containing both affidavits of his attorney and himself along with the DCS statement given to him by the servicing dealership. The trial court granted summary judgment in favor of Wendall Dockum, but granted a continuance as to the dealership in order that Seitsinger might be able to gain the information sought in his discovery requests. Two weeks later the motion came on for hearing, and was granted. Seitsinger objected, stating that he still had not obtained the information sought in his discovery requests, even after the trial court had granted his motions to compel.

In granting summary judgment to Dockum Pontiac, the Court stated that although Seitsinger had attached materials to his response opposing the motion for summary judgment, the materials did not contain evidence which would be admissible at trial and thus could not be considered. The court also granted attorney's fees to the defendants.

The Court of Appeals affirmed. Having earlier granted certiorari, we reverse in part and affirm in part. ²

SUMMARY JUDGMENT

Summary judgment is proper only when it appears that there is no substantial controversy as to any material fact, and that one of the parties is entitled to judgment as a matter of law. Erwin v. Frazier, 786 P.2d 61, 62 (Okla.1989). The trial court may look beyond the pleadings at submitted evidentiary materials such as, but not limited to, affidavits, depositions, and answers to interrogatories. Hargrave v. Canadian Valley Elec. Co-op., 792 P.2d 50, 55 (Okla.1990); 12 O.S.1991, Ch. 2. App., Rule 13. All inferences must be taken in favor of the opposing party. Manora v. Watts Regulator Co., 784 P.2d 1056 (Okla.1989). The moving party has the initial burden of showing that there is no substantial controversy to any material fact. Loper v. Austin, 596 P.2d 544, 545 (Okla.1979). Thereafter, the opposing party must show, by materials included with the response, that there is a material fact remaining in dispute. Samuel Roberts Noble Foundation, Inc. v. Vick, 840 P.2d 619, 623 (Okla.1992); Hargrave, 792 P.2d at 55.

As these considerations strongly suggest, summary judgments are not favored, Love v. Harvey, 448 P.2d 456, 462 (Okla.1968); and, they should be granted only where it is 'perfectly clear' that there are not issues of material fact in a case....

Erwin v. Frazier, 786 P.2d at 62-63 quoting Flanders v. Crane, 693 P.2d 602, 605 (Okla.1984).

SUMMARY JUDGMENT AS TO V. WENDALL DOCKUM

Seitsinger urges that the trial court erred in granting summary judgment to Wendall Dockum individually, because Wendall Dockum, on occasion, had acted in his individual capacity rather than as a corporate entity. Specifically, Wendall Dockum had signed individually when he sold Dockum Pontiac Inc. Seitsinger attached to his response opposing the motion for summary judgment a copy of the sales contract for the sale of the company showing him in his individual capacity.

Wendall Dockum replies that he did not individually sell the vehicle to Seitsinger, and made no representations about it. He points out that his sale of Dockum Pontiac had nothing to do with the transaction between Seitsinger and Dockum Pontiac; in fact the sale of the company occurred almost two years later. His name in his individual capacity appears nowhere on the sales contract between Dockum Pontiac and Seitsinger.

The general rule is that the individual and the corporation are two separate and distinct legal entities. The distinction is not ignored unless it can be shown that there is a scheme to defraud. Hulme v. Springfield Life Insurance Co., Inc., 565 P.2d 666, 670 As authority Seitsinger cites Watkins v. Cotton, 180 Okla. 73, 67 P.2d 957 (1937). We find that Watkins better supports the position of Wendall Dockum. There the issue was whether both the corporation and the corporate president were liable for breaches of contract. The contracts were between the plaintiff and the corporation. There was no written evidence that the president of the corporation intended to bind himself individually, or that he was acting outside the purpose and authority of the corporation. The trial court held that the president did not act to bind himself individually. We agreed, stating that the president "is not liable at law because of position as an officer or director of the corporation...." Id., 67 P.2d at 958.

                (Okla.1977). 3  Officers of a corporation are not generally liable to third persons if they act within the power and purpose of the corporation and do not purport to bind themselves individually.  Hall v. Sullivan-Dollars Inc., 471 P.2d 453, 455 (Okla.1970).  The only way a corporation can act is through its officers, directors and employees.  To permit liability when the officer is acting within the scope of the corporation would be, in essence, a total disregard of the corporate entity.  Id
                

It is clear that the trial court correctly granted summary judgment in favor of Wendall Dockum. Seitsinger presented nothing to indicate that Wendall Dockum was acting so as to bind himself individually. In fact, the only way that Wendall Dockum was connected to the transaction was as the owner of Dockum Pontiac Inc. An employee of the company dealt with Seitsinger. Furthermore, Seitsinger did not allege, as required by Hulme, that the corporate veil should be pierced because of a scheme to defraud.

SUMMARY JUDGMENT AS TO THE CORPORATION

The trial court also granted summary judgment to the corporation, Dockum Pontiac, Inc. The Court of Appeals affirmed, noting that the documentation presented by Seitsinger in his response opposing summary judgment contained inadmissible hearsay. Seitsinger urges that under the language of Davis v. Leitner, 782 P.2d 924 (Okla.1989), his response was sufficient to avoid summary judgment.

Initially we note that the documentation provided by Seitsinger was not contested by Dockum Pontiac before the trial court ruled on the summary judgment motion. The record shows that the defendant did not question the validity of the attached exhibits until the plaintiff's motion to reconsider came before the trial court. When a party fails to timely object to the supporting documentation, the objection is waived and the evidence may be considered by the trial court. Olympic Ins. Co. v. H.D. Harrison, Inc., 418 F.2d 669 (5th Cir.1969); Cinocca v. Baxter Lab. Inc., 400 F.Supp. 527 (E.D.Okla.1975). ⁴

Rule 13, Rules for District Courts, 12 O.S.1991, Ch. 2, App., reads in pertinent part:

b. If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they...