ASHER v. PARSONS ELECTRIC L.L.C.

ASHER v. PARSONS ELECTRIC L.L.C.
2020 OK CIV APP 13
Case Number: 117203
Decided: 12/21/2018
Mandate Issued: 04/02/2020
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

BRAD D. ASHER; KIRBY L. JONES, JR.; ARMANDO BELMONTE; FLOYD KENDRICK; LARRY MARTINEZ; STEVE CARTWRIGHT; KEVIN SMITH; DAVID WALTON; GARY SOUTHARD; MICAH KENDRICK; CALEB BECK; RICKY SPRADLIN; STEVE THOMA; CARSON CLAYTON; ERON GIBSON; JOSEPH CHANDLER; WARREN HARVEY, JR.; JIM SELF; AARON GREGORY; BILLY CAPPS; PATRICK SKAGGS; EDWARD PERKINS; DEREK HOEFGEN; JOHN MILLER; JAMES PATTERSON; RON RENO; TIM NICHOLSON; ERIC MOORE; BILLY SPAIN, JR.; WAYNE BETHANY; STEVE ANDERSON; CRAIG IVY; COUGUN LEDFORD; JESSE GERKEN; ROBERT CALVIN; JASON THOMPSON; LAVELLE COLE; RICKEY CARROLL; SHARON CARWRIGHT; DANIEL "KEVIN" POLOVINA; PHILLIP HUDGINGS; DENZEL CLARK; MATTHEW MOSS; TED ZELLERS; TERRY MATTHEWS; DAVID BRITT; ALLAN SEHER; PERRY CARPENTER; KHAMPHACHANH NASSATH; and JEREMY VOSS, Plaintiffs/Appellants,
v.
PARSONS ELECTRIC, L.L.C.; P1 GROUP, INC.; and WHITING-TURNER CONTRACTING COMPANY, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF
MAYES COUNTY, OKLAHOMA

HONORABLE TERRY McBRIDE, JUDGE

AFFIRMED

Frank W. Frasier, FRASIER, FRASIER & HICKMAN, L.L.P., Tulsa, Oklahoma, for Plaintiffs/Appellants,

Andre' B. Caldwell,OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,Oklahoma City, Oklahoma, for Defendant/Appellee Parsons Electric, L.L.C.,

Denelda Richardson, RHODES, HIERONYMUS, JONES, TUCKER & GABLE, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee P1 Group, Inc.,

Mark Waller, J. David Jorgenson, ALLER JORGENSON WARZYNSKI, P.L.L.C., Tulsa, Oklahoma, and Ronald W. Taylor. VENABLE, L.L.P., Baltimore, Maryland, for Defendant/Appellee Whiting-Turner Contracting Company.

Kenneth L. Buettner, Judge:

¶1 This appeal arises from claims asserted by fifty electrical workers (Plaintiffs) against Parsons Electric, LLC (Parsons), P1 Group, Inc. (P1 Group), and Whiting-Turner Contracting Company (WT). Plaintiffs brought claims for blacklisting against Parsons, P1 Group, and WT, and claims for breach of contract against Parsons and P1 Group. The trial court held (1) Parsons and P1 Group were in a joint venture and the alleged "blacklist" was therefore not published to a third party, (2) there was no evidence of breach of contract by Parsons or P1 Group, and (3) WT had no involvement in creating or disseminating the alleged "blacklist". The trial court granted summary judgment in favor of all three defendants. Because there was no dispute of material fact and the defendants were entitled to judgment as a matter of law, we affirm.

¶2 Plaintiffs' claims arose from work related to a construction projection in Pryor, Oklahoma (the Project). On April 1, 2014, Parsons and P1 Group entered into a joint venture agreement (the Joint Venture) in order to submit a bid for the electrical work for the Project. The general contractor for the Project, WT, awarded the electrical subcontract to the Joint Venture. As agreed, P1 Group managed the manpower, while Parsons provided foremen and equipment for the Joint Venture.

¶3 During the course of the Project, a separate lawsuit arose in which the Plaintiffs alleged blacklisting by Parsons, P1 Group, WT, and other defendants, Kendrick, et. al. v. Allison-Smith Co., LLC., et al., No. CJ-2014-164 (Mayes County filed Sept. 11, 2014) (the Kendrick case). On February 13, 2015, Parsons and P1 Group entered a notice of settlement in the Kendrick case. WT was not party to the February 2015 settlement and the Kendrick case is still ongoing.

¶4 Plaintiffs filed their petition in this case July 3, 2017, bringing new claims for blacklisting and conspiracy to blacklist against Parsons, P1 Group, and WT. Plaintiffs also brought a claim for breach of contract against Parsons and P1 Group. Plaintiffs' claims in this case stemmed from a July 23, 2015 email from a P1 Group employee to a Parsons employee regarding a list of names generated from P1 employment records (the List). The List indicated those persons who had been terminated from employment on the Project, along with the reasons for termination. Plaintiffs argued that this communication constituted blacklisting and thus a breach of the settlement agreement in the Kendrick case.

¶5 P1 Group filed its motion for summary judgment November 13, 2017. P1 Group asserted that summary judgment should be granted because (1) only six of the fifty Plaintiffs were included on the List, (2) P1 Group had never employed thirty-one of Plaintiffs, (3) the email between the P1 Group and Parsons employees was an internal communication and therefore not blacklisting, and (4) even if the communication was between distinct entities, the communication was privileged. P1 Group further asserted that Plaintiffs' claim for conspiracy was without legal support, as the blacklisting statute did not provide for a conspiracy cause of action.

¶6 Parsons also moved for summary judgment November 22, 2017. Like P1 Group, Parsons asserted that forty-four of the fifty Plaintiffs were not named on the List. Additionally, Parsons stated it had never employed any of the Plaintiffs and therefore could not be sued under the blacklisting statute. Parsons also asserted similar legal arguments as P1 Group, stating that because it was in the Joint Venture with P1 Group, the email between the two did not qualify as blacklisting.

¶7 WT filed its motion for summary judgment December 1, 2017. WT maintained that it had never employed any of the Plaintiffs and had not been involved in the creation, dissemination, or receipt of the July 23, 2015 email or the List. WT refuted the conspiracy claim on the same bases.

¶8 The trial court held a hearing on the defendants' motions May 9, 2018, and granted summary judgment June 15, 2018. In its order, the trial court stated that because Parsons and P1 Group were in the Joint Venture, the List had not been published to a third party and did not qualify as blacklisting. The trial court also stated that no evidence had been presented indicating a breach of the settlement agreement by Parsons and P1 Group. Lastly, the trial court found there had been no evidence presented indicating WT's involvement in the creation or sending of the List. The trial court therefore determined that there was no dispute of material fact and that the defendants were entitled to judgment as a matter of law. Plaintiffs appeal.

¶9 Proceedings for summary judgment are governed by Rule 13, Rules for District Courts, 12 O.S. 2011, Ch. 2, App. 1. A trial court may grant summary judgment when there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Brown v. All. Real Estate Grp., 1999 OK 7, ¶ 7, 976 P.2d 1043. Summary judgment is not appropriate where reasonable minds could reach different conclusions based upon the undisputed facts. Id. We review the evidence de novo and in the light most favorable to the opposing party. Vance v. Fed. Nat'l Mortg. Ass'n, 1999 OK 73, ¶ 6, 988 P.2d 1275.

¶10 On appeal, Plaintiffs claim that the trial court erred by (1) holding that Parsons and P1 Group were a single entity for employment purposes and that the List was therefore an internal communication, and (2) holding that some Plaintiffs were not employees of Parsons or P1 Group and could therefore not bring blacklisting claims against them.

¶11 The first issue on appeal is whether the blacklisting statute should categorize members of a joint venture as a single entity and consequently exclude communications within such joint ventures from the scope of the statute. When interpreting a statute, this Court will look to the legislative intent behind the law. Cooper v. State ex rel. Dep't of Pub. Safety, 1996 OK 49, ¶ 10, 917 P.2d 466. In so doing, we look first to the text of the statute. Id. Where the text is clear from the plain language, no further inquiry is needed. Id.

¶12 Claims for blacklisting are governed by 40 O.S. 2011 § 172:

No firm, corporation or individual shall blacklist or require a letter of relinquishment, or publish, or cause to be published, or blacklisted, any employee, mechanic or laborer, discharged from or voluntarily leaving the service of such company, corporation or individual, with intent and for the purpose of preventing such employee, mechanic or laborer, from engaging in or securing similar or other employment from any other corporation, company or individual.

According to the text of 40 O.S. § 172, a "firm, corporation or individual" may be a defendant under the blacklisting statute. It remains unclear from the text of the statute, however, whether two or more companies in a joint venture constitute a singular entity under the statute. We therefore look to case law.

¶13 Cases interpreting the blacklisting statute are few. Nichols v. Pray, Walker, Jackman, Williamson & Marler, P.C., 2006 OK CIV APP 115, ¶ 17, 144 P.3d 907. The leading case on blacklisting is State v. Dabney. 1943 OK CR 98, 77 Okl. Cr. 331, 141 P.2d 303. In Dabney, the plaintiff's former employer wrote a letter to the plaintiff's new employer, stating that the plaintiff was a "trouble-maker." Id. at 333. In an effort to define the term "blacklist," the Dabney court looked to Black's Law Dictionary:

A list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union 'blacklists' workmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.

Id. at 338. The court also looked to Webster's Dictionary, which defined "blacklist" as "[a] list of individuals regarded as suspect or as deserving of censure or adverse discrimination." Id.

¶14 The blacklisting statute states that an employer may not blacklist an employee with the intent to prevent that employee "from engaging in or securing similar or other employment from any other corporation, company or individual," indicating that the communication would need to be between distinct entities in order to satisfy the statute. 40 O.S. § 172 (emphasis added). In analyzing whether a joint venture constitutes a singular entity, it is helpful to understand the legal nature of joint ventures. In Martin v. Chapel, Wilkinson, Riggs, and Abney, the Supreme Court of Oklahoma explained:

A joint venture is generally a relationship analogous to, but not identical with, a partnership, and is often defined as an association of two or more persons to carry out a single business enterprise with the objective of realizing a profit. The essential criteria for ascertaining the existence of a joint venture relationship are: (1) joint interest in property, (2) an express or implied agreement to share profits and losses of the venture and (3) action or conduct showing cooperation in the project. None of these elements alone is sufficient. . . . Each member of a joint venture acts for himself as principal and as agent for the other members within the general scope of the enterprise. The law of partnership and of principal and agent underlies the conduct of a co-adventurer and governs the rights and liabilities of co-adventurers and third parties as well.

1981 OK 134, ¶ 11, 637 P.2d 81.

¶15 Where in this case an explicit joint venture agreement has been signed by Parsons and P1 Group, the relevant analysis is easily satisfied by the provisions therein.1 The question remains, however, whether such a joint venture would constitute a singular "firm" or "company" under the blacklisting statute.

¶16 Because the few cases interpreting the blacklisting statute do not shed light on the question, we must look to related areas of the law. Like blacklisting, the tort of defamation requires that an individual or entity publish a defamatory statement to a third party before the statement becomes actionable. 12 O.S. 2011 § 1442. Where case law on blacklisting is sparse, we look to the more ample case law relating to defamation.

¶17 In Thornton v. Holdenville General Hospital, this Court reiterated the rule previously stated by the Oklahoma Supreme Court: "Communication inside a corporation, between its officers, employees, and agents, is never a publication for the purposes of actions for defamation." 2001 OK CIV APP 133, ¶ 11, 36 P.3d 456 (citing Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 35, 148 P.2d 468). There, a doctor alleged defamation by a hospital, claiming that publication of the negative statements occurred when the comments were communicated by hospital employees to employees of a separate company contracted to fulfill staffing needs for the hospital. Id. ¶ 12. This Court disagreed with the plaintiff in Thornton and ruled that where an agency relationship exists between two defendants, communication between them does not constitute publication for purposes of defamation. Id. ¶ 13.

¶18 Applying the same logic here, we hold that the blacklisting statute requires a communication be addressed to a person or entity other than an agent, partner, or joint venturer in order to constitute an actionable offense. Though distinct from the concepts of agency or partnership, a joint venture is largely analogous to those relationships and a similar standard should apply. Based upon the plain language of the statute, paired with the dictionary definitions of "blacklisting" referenced by this Court in Dabney, it appears that the legislature intended to prohibit the intentional interference of a former employer with an employee's attempt to seek work elsewhere. If we were to construe the statute to mean that entities engaged in agency relationships, partnerships, or joint ventures could not communicate regarding hiring and firing, we would undermine the legislative intent imbued in the plain text of the blacklisting statute. Accordingly, we hold that the trial court properly held that the List was a communication between joint venturers regarding the business concerns of the venture and was therefore not made to an "other corporation, company, or individual" and did not constitute blacklisting.

¶19 The second issue in this appeal is whether a plaintiff must demonstrate that he or she was once employed by a defendant in order to bring a claim for blacklisting. On this issue we need look no further than the text of the statute. The blacklisting statute states that a company shall not blacklist "any employee, mechanic or laborer, discharged from or voluntarily leaving the service of such company . . . ." 40 O.S. § 172. This provision clearly indicates that a plaintiff must have been employed by a defendant in order to bring a claim under the blacklisting statute. Plaintiffs do not dispute that P1 Group never employed thirty-one of the Plaintiffs, or that Parsons never employed any of the Plaintiffs.2 As such, Plaintiffs' second argument on appeal must also fail.

¶20 The List sent as part of the July 23, 2015 email was a communication between co-venturers regarding business of the Joint Venture and therefore did not constitute blacklisting. Further, the claims of those Plaintiffs who were never employed by the defendants against whom they asserted claims also must fail as a matter of law. Because there remained no dispute as to a material fact and the defendants were entitled to judgment as a matter of law, we affirm the trial court.

¶21 AFFIRMED.

BELL, P.J., and JOPLIN, J., concur.

FOOTNOTES

1 This Court also takes note of the fact that the Joint Venture Agreement provided for the creation of a limited liability company (LLC) with Parsons and P1 Group as the members, and that such an LLC was in fact created. Because the Plaintiffs sued Parsons and P1 Group in their individual entity capacities and not as an LLC, however, and because the defendants do not raise the issue of the formation of the LLC as a defense, we continue our analysis of whether a joint venture constitutes a singular entity under the blacklisting statute.

2 We also agree with the trial court's conclusion that no evidence was presented regarding WT's involvement in the creation or distribution of the List. WT's employment relationship with the Plaintiffs is therefore immaterial, and summary judgment in its favor is also appropriate.