Tillery v. Oklahoma Farm Bureau Mut. Ins. Co.

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Tillery v. Oklahoma Farm Bureau Mut. Ins. Co.
1992 OK CIV APP 78
847 P.2d 819
64 OBJ 671
Case Number: 77357
Decided: 06/23/1992

 
CHARLES W. TILLERY, JR., APPELLANT,
v.
OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, APPELLEE.

Appeal from the District Court of Oklahoma County; Niles Jackson, Judge.
REVERSED AND REMANDED.

Tom R. Stephenson, Stephenson & Webber, Watonga, for appellant.
Reggie N. Whitten, Kathryn D. Mills, Mills, Whitten, Mills, Mills & Hinkle, Oklahoma City, for appellee.

MEMORANDUM OPINION

BAILEY, Judge

¶1 Appellant Charles W. Tillery, Jr. (Agent) seeks review of the Trial Court's order granting summary judgment to Appellee Oklahoma Farm Bureau Mutual Insurance Company (OFBM) in Agent's action against OFBM for wrongful termination of agency contract. Herein, Agent asserts error of law by the Trial Court, the Trial Court having failed to distinguish between an action for termination of an employee at-will and a breach of contract action.

¶2 In 1973, OFBM and Agent entered into an agency contract pursuant to which Agent would sell insurance on behalf of OFBM. The contract provided for termination by either party without cause upon ten days notice. In 1984, OFBM notified Agent of termination of the contract. After termination of the contract, OFBM received and retained all renewal commissions generated originally by Agent without compensating Agent therefor. Agent initiated this action in 1987 alleging OFBM wrongfully terminated the contract.

¶3 In 1987, the Trial Court granted summary judgment to OFBM, finding no evidence of bad faith termination of the contract by OFBM. On appeal, the Court of Appeals, Division IV, reversed the order of the Trial Court and remanded the action for further proceedings, finding "a material issue of fact exists as to whether [OFBM] ha[d], in bad faith, deprived [Agent] of `the fruits of his own labor.'"1

¶4 On remand, OFBM again moved for summary judgment, arguing (1) no evidence showing termination of the contract in bad faith, and (2) Agent's action, sounding in tort, stood barred by the statute of limitations. The Trial Court again granted OFBM's motion,

¶5 The first issue - that Agent failed to show bad faith on the part of OFBM in terminating the contract - raised by OFBM in its first and second motions for summary judgment, and upon which the Trial Court could have based its order granting same, has been specifically addressed by the Court of Appeals in Case No. 68,868, the prior appeal in this case. In its opinion in the prior appeal, the Court of Appeals found "a material issue of fact exists as to whether [OFBM] has, in bad faith, deprived [Agent] of `the fruits of his own labor,'" "i.e., loss of retirement, employment, fringe benefits, and lost commissions and wages,"

¶6 OFBM secondly asserts that Agent's cause of action sounds in tort and, because Agent initiated this action more than two years after termination of the contract, the action stands barred by the two year statute of limitations.

¶7 In the instant case, Agent raised the issue of whether OFBM terminated the contract and wrongfully deprived Agent of the fruits of his labor;

¶8 The order of the Trial Court granting judgment to OFBM is therefore REVERSED and the cause REMANDED for further proceedings.

¶9 GARRETT, P.J., and ADAMS, J., concur.

Footnotes:

1 Charles R. Tillery, Jr., v. Oklahoma Farm Bureau Mutual Insurance Company, Case No. 68,868 (Okl.App.Div. IV, Jan. 10, 1989).

2 Although only two grounds were raised in OFBM's second motion for summary judgment, the Trial Court granted same "for reasons stated in [OFBM's] briefs". However, OFBM's brief in support of its motion is not included in the record on appeal. This Court, then, will only consider those issues raised in OFBM's motion for summary judgment. See, e.g., Chamberlin v. Chamberlin, 720 P.2d 721, 723-724 (Okl. 1986); Eckel v. Adair, 698 P.2d 921, 925 (Okl. 1984) (Any part of an appellate record which has not been incorporated into the assembled record by a certificate of the clerk of the trial court will not be considered on appeal).

3 Tillery v. Okla. Farm Bureau Mut. Ins. Co., Case No. 68,868, at page 4.

4 See, e.g., Handy v. City of Lawton, 835 P.2d 870 (Okl. 1992).

5 12 O.S. 1991 § 95 .

6 Hall v. Farmers Insurance Exchange, 713 P.2d 1027, 1031 (Okl. 1985); Doyle v. Kelly, 801 P.2d 717, 718 (Okl. 1990).

7 Id.

8 Doyle, 801 P.2d at 720.

9 Hall, 713 P.2d at 1031; Doyle, 801 P.2d at 718.

10 Tillery v. Oklahoma Farm Bureau Mut. Ins. Co., Case No. 68,868, at page 4. See also, Hall, 713 P.2d at 1031; Doyle, 801 P.2d at 717.

11 Handy, 835 P.2d at 871.

12 Doyle, 801 P.2d at 720.

13 12 O.S. 1991 § 95 (Second).