Opinion
No. 92187
April 11, 2000
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 2.
¶ 0 In a tort action for wrongful interference with advantageous relations, the District Court, Creek County, Donald D. Thompson, trial judge, gave summary judgment to the defendant. The Court of Civil Appeals affirmed. On certiorari granted upon the plaintiff's petition,
THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S SUMMARY JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH TODAY'S PRONOUNCEMENT.
James Patrick Hunt, James R. Moore and Associates, Oklahoma City, Oklahoma, for Appellant.
Kimberly Lambert Love, Mary L. Lohrke, Donna Thompson-Schneider, Boone, Smith, Davis, Hurst Dickman, Tulsa, Oklahoma; J. Patrick Cremin, Stephen A. Broussard, Hall, Estill, Hardwick, Gable, Golden Nelson, Tulsa, Oklahoma; Robert J. Fries, Bartlesville, Oklahoma, for Appellee.
Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.
ORDER GRANTING CERT OF 12-7-99 IS WITHDRAWN AS HAVING BEEN IMPROVIDENTLY GRANTED. 2000 OK 28 HAS BEEN VACATED; SEE 2001 OK CIV APP 54.
¶ 1 The issue on certiorari is whether summary judgment for the defendant was erroneously entered. We answer in the affirmative.
I ANATOMY OF LITIGATION
¶ 2 Keith McNickle [McNickle] was employed by Southwestern Bell Telephone Co. [Southwestern Bell] on 18 December 1996 as a telephone technician to provide on-site support at Phillips Petroleum Company's [Phillips] headquarters in Bartlesville pursuant to a contract between the two companies for technical support services. Phillips is said to have requested McNickle's removal from its premises because he allegedly (a) had acquired for his business use certain surplus computer equipment without first obtaining the consent from Phillips employees in charge of the Southwestern Bell contract; (b) was disrespectful to a Phillips employee who had asked him about the equipment and (c) lacked the qualifications and experience necessary for the job. The day after Phillips lodged the complaint against McNickle, Southwestern Bell terminated his employment (on 7 January 1997).
¶ 3 McNickle brought a common-law tort action against Phillips for wrongful interference with advantageous relations, alleging in a single cause of action that (1) Phillips' communication with Southwestern Bell about McNickle's performance, which was malicious and without justification, constituted wrongful interference with his at-will employee status and that (2) Phillips wrongfully interfered with a prospective economic advantage by preventing another of its contractors, Crisp Communications and Electric Company, from offering him employment. Phillips interposed several affirmative defenses to defeat McNickle's suit. Two of those formed the basis of its quest for summary relief — (a) McNickle's at-will employee status does not rise to a contractual-interest level that is protected by tort law and (b) Phillips' efforts to have McNickle removed from its Bartlesville premises are "privileged" because it was acting to protect its own legitimate business interests. McNickle defended against the motion as well as pressed for a ruling that the issue of "whether an employer/employee agreement is a contract that can be tortiously interfered with" is a question of fact for the jury. The trial court, without explanation, denied McNickle's request and gave summary relief to Phillips on McNickle's single cause of action.
Phillips' summary judgment motion tenders the following evidentiary materials: (1) 11 May 1994 letter to McNickle from Phillips; (2) 15 June 1992 contract between Phillips and Southwestern Bell; (3) six affidavits — Robert Lummis, supervisor of telecommunications and wireless services for Phillips; Mike Beard, telecommunication analyst for Phillips; Jeff Campbell, area manager for Southwestern Bell; Roy Best, manager of business services for Southwestern Bell; Keith Means, director of sales for Southwestern Bell; Judy McElwee, area manager of employee relations for Southwestern Bell; Marvin Crisp, owner of Crisp Communications and Electric Company; (4) 23 January 1997 letter to Gary Reheis of Phillips from Bob Clyne of Southwestern Bell; (5) 20 January 1997 letter to McNickle from Art Evans of Southwestern Bell; (6) copy of several out-of-state cases; (7) portions of McNickle's deposition.
McNickle's response brief tenders the following evidentiary materials: (1) affidavit of McNickle; (2) deposition of Roy Best; (3) deposition of William McGuire, technician for Southwestern Bell; (4) deposition of James Wesley Weir, customer service technician for Southwestern Bell; (5) copy of several out-of-state cases.
There can be but one "judgment" in a suit pressing a single cause of action. FDIC v. Tidwell, 1991 OK 119, 820 P.2d 1338, 1341.
¶ 4 The Court of Civil Appeals affirmed, resting its pronouncement on the absence of disputed material facts concerning Phillips' contract-based claim of privilege. According to COCA, the contract, which reserves in Phillips the right " to evaluate" Southwestern Bell's " overall performance," empowers the former party to communicate to the latter (Southwestern Bell) about any unsatisfactory performance by its employees. COCA opined that Phillips' actions in response to McNickle's failure to go through the proper channels for permission to use the equipment may have been a "strong, aggressive, and intentionally made" measure that worked to his detriment, but it was not "improper and unfair" so as to place Phillips' conduct outside that privilege. Phillips' right to rectify McNickle's unsatisfactory performance was, in COCA's view, equal or superior to McNickle's employment interest. COCA (a) deemed significant the absence of evidentiary material that would show Phillips representatives "requested, suggested, or expected" Southwestern Bell to terminate McNickle's employment and (b) considered immaterial the opinions of Phillips' managers and personnel, who had no connection with the contract, concerning the propriety of the methods McNickle used in obtaining the property for use on the project.
For Phillips' contract-based privilege, COCA relies on the following text of the 15 June 1992 "Agreement For Contract Labor":
* * * 1. The CSR's [Customer Service Representative] services in connection with the work shall be specified by Company [Phillips] through Allyson Linehan ("Company Representative") or other designated representative(s).
* * *
12. In Contractor's [Southwestern Bell] performance hereunder, it is mutually agreed that Contractor is an independent Contractor, and Company is interested only in the results obtained under this Agreement and Company does not have the right to control the details, means or methods that may be employed by Contractor while performing hereunder; provided, however, Company does have the right to evaluate the Contractor's overall performance to ensure satisfactory compliance with this Agreement and require that Contractor comply with all safety and security rules that may be applicable. * * *"
(emphasis added).
II THE STANDARD OF REVIEW
¶ 5 Summary process — a special pretrial procedural track to be followed with the aid of acceptable probative substitutes — is a search for undisputed material facts that, sans forensic combat, may be applied in the judicial decision-making process. Only those evidentiary materials which eliminate from trial some or all fact issues may afford legitimate support for nisi prius resort to summary process. All summary relief issues stand before us for de novo examination. Facts and inferences must be viewed in the light most favorable to the nonmovant. Just as nisi prius courts stand enjoined to do, so too appellate tribunals must equally carry out their affirmative duty to test all evidentiary material tendered below in summary process for its legal sufficiency to support the relief sought by the movant. Only if the court should conclude that there is no substantial controversy over any material fact and the law favors the movant's claim or liability-defeating defense — is the moving party entitled to summary judgment in its favor. A fact is "material" if its proof would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.
"`Acceptable probative substitutes' are those which may be used as `evidentiary materials' in the summary process of adjudication." Manley v. Brown, 989 P.2d 448, 455-56; Gray v. Holman, 1995 OK 118, 909 P.2d 776, 781 n. 16 (quoting from Seitsinger v. Dockum Pontiac Inc., 1995 OK 29, 894 P.2d 1077, 1080-81); Davis v. Leitner, 1989 OK 146, 782 P.2d 924, 926-27.
The focus in summary process is not on the facts which might be proven at trial ( i.e., the legal sufficiency of evidence that could be adduced), but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief. Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, 777 P.2d 932, 936 n. 15.
Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 496-497; Gray, supra note at 781. In reviewing any summary adjudication the court may consider, in addition to the pleadings, such items as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary material offered by the parties, which are in an acceptable form. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, 792 P.2d 50, 55.
Brown v. Nicholson, 1997 OK 32, 935 P.2d 319, 321 n. 1. An order that grants summary relief, in whole or in part, disposes solely of law questions. It is hence reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings. Kluver v. Weatherford Hospital Auth., 1993 OK 85, 859 P.2d 1081, 1084.
Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053.
Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682, 684-85 (approved for publication by the Supreme Court).
Hargrave, supra note at 55. The function of summary process is not to set the stage for trial by affidavit, but to afford a method of summarily terminating a case (or eliminating from trial some of its issues) when only questions of law remain. Russell, supra note at 503; Bowers v. Wimberly, 1997 OK 24, 933 P.2d 312, 316; Stuckey v. Young Explor. Co., 1978 OK 128, 586 P.2d 726, 730.
See Akin v. Missouri Pacific R. Co., 1998 OK 102, 977 P.2d 1040, 1044 (to prevail as the moving party on a motion for summary judgment, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or (b) prove each essential element of a liability-defeating affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action.); Runyon v. Reid, 1973 OK 25, ¶ 12, 510 P.2d 943, 946. Accord, Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).
Summary Process Allows For A Continuance To Permit The Completion of Discovery
¶ 6 McNickle argues for the first time on certiorari that judgment was entered before discovery for summary process stood completed. Rule 13(d), Rules for District Courts of Oklahoma, allows for a continuance under certain circumstances. We cannot tell from this record that summary judgment was entered prematurely. There is no paper trail of McNickle's request at nisi prius that summary process not be terminated until discovery was completed. Legal error may not be presumed from a silent record; it must be affirmatively demonstrated.
The pertinent terms of Rule 13(d), Rules For District Courts of Oklahoma, 12 O.S.Supp. 1993, Ch. 2, App., are:
d. Should it appear from an affidavit of a party opposing the motion that he cannot for reasons stated present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(emphasis supplied).
See Prudential Insurance Co. of America v. Glass, 1998 OK 52, 959 P.2d 586, 593 n. 12.
A refusal to grant a continuance under Rule 13(d), supra note, is subject to review by an abuse of discretion standard. Bookout v. Great Plains Regional Medical Center, 1997 OK 38, 939 P.2d 1131, 1134 n. 8
First Fed. Sav. Loan v. Nath Assn, 1992 OK 129, 839 P.2d 1336, 1342; Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497.
¶ 7 McNickle's claim against Phillips for wrongful interference with advantageous relations rests upon the premise that Phillips intentionally engaged in a course of conduct having as its primary purpose to deprive him of the benefits of his at-will employment relationship with Southwestern Bell.
¶ 8 The elements that constitute wrongful interference with an existing advantageous relation are: (1) the existence of a business or contractual right with which there was interference; (2) the act of interference was malicious and wrongful; (3) the interference was neither justified, privileged nor excusable and (4) that damage was proximately sustained as a result of the complained-of interference.
Morrow Dev. Corp. v. American Bank Trust Co., 1994 OK 26, 875 P.2d 411, 416 (the court observed the relevance of the Restatement (Second) of Torts in delineating the elements of wrongful interference); Mac Adjustment, Inc. v. Property Loss Research, 1979 OK 41, 595 P.2d 427, 428; James Energy Co. v. HCG Energy Corp., 1992 OK 117, 847 P.2d 333, 340. The most recent Restatement describes the elements of a claim for wrongful interference with contractual or business relations in these words:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.
Restatement (Second) of Torts § 766 (emphasis supplied).
¶ 9 Phillips' argument for summary relief is founded on (a) the liability-defeating defense that its actions were "justified and/or privileged" as well as on (b) want of probative support for an indispensable element of McNickle's claim — a malicious motive. Whether Phillips' conduct was privileged or McNickle's claim lacks proof for an indispensable element presents a critical "issue on the merits" of the claim.
Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 985 n. 25. The word "merits" has a well-defined meaning in law. See, e.g., Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1206; Ellison v. Ellison, 1996 OK 64, ¶ 5, 919 P.2d 1, 2; Pierson v. Canupp, 1988 OK 47, 754 P.2d 548, 552 n. 8; Pryse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 437-38 (when a case is terminated as time-barred, the disposition is "on the merits" because in that context the statute of limitations presents an affirmative defense against the claim).
One of the centerpieces of Phillips' argument for affirmance is Paul Hardeman, Inc. v. Bradley, 1971 OK 71, 486 P.2d 731, 732, which is cited as authority for claim-defeating privilege that supports summary judgment. Hardeman is factually distinguishable. There, the agreement between contractor and subcontractor gave the former the power to remove the latter's personnel who supervised construction quality. The contract provided no qualification standards for approval (or rejection) of supervisors; the contractor's withholding of its approval could be based on purely subjective standards. Unlike in Hardeman, the contract's qualifications for removal of a person from the job appear in this case to rest on objective standards.
¶ 10 What is on or dehors the merits depends on whether the issue at hand affects one or more elements of the claim for relief or any elements of the defense that stand interposed against the claim. If a case tenders a disputed fact issue on the merits of the controversy it is unfit for disposition by summary process. The disputed issue must be resolved by submission to the trier. Whenever uncontroverted proof lends support to conflicting inferences, the choice to be made between opposite alternatives also presents an issue of fact for the trier.
See, e.g., Akin, supra note at 1044; Runyon, supra note at 946. According to Black's Law Dictionary, 5th Ed. at 881:
In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is `material' if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action. Austin v. Wilder, 26 N.C. App. 229, 215 S.E.2d 794, 796 (1975). See Fed.R.Civ.P. 56(c). A fact is `material' and precludes . . . summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties. Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975).
The terms of 12 O.S. 1991 § 557[ 12-557] provide:
All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury, or referred as provided in this Code.
Trial is a judicial determination of issues "on the merits." Practice, procedure and evidence are not embraced within the latter term, but are deemed matters "dehors the merits." Roark v. Shelter Mut. Ins. Co., 1986 OK 82, 731 P.2d 389, 390 n. 2 (Opala, J. concurring); Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261.
Jackson v. Jones, 1995 OK 131, 907 P.2d 1067, 1072; Wetsel v. Independent School Dist. I-1, 1983 OK 85, 670 P.2d 986, 991; Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201, 203; Holland v. Dolese Co., 1982 OK 43, 643 P.2d 317, 320; Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261; Morain v. Lollis, 1962 OK 105, ¶ 3, 371 P.2d 473, 475; Mistletoe Express Service v. Culp, 1959 OK 250, ¶ 9, 353 P.2d 9, 12.
¶ 11 The sole support for McNickle's position, Phillips argues, consists entirely of uncorroborated hearsay statements set forth in his own affidavit, which are inadmissible and not sufficient to create a genuine dispute on the malice issue. The material tendered in response to a motion for summary judgment is sufficient if it reasonably shows that the nonmovant will, at the time of trial, be able to present admissible evidence to support the allegations. None of McNickle's evidentiary material appears facially lacking in probative value. He can testify as to the contents of his counteraffidavit and there is a "reasonable probability" that he can secure admissible testimony by the day of trial. Phillips' response brief did not explain in what respect McNickle's proof offered by his counteraffidavit cannot be converted to admissible evidence.
Phillips argued that McNickle has not and cannot produce any evidentiary material that would dispute its position. According to Phillips, McNickle's showing consists of his own affidavit in which he states that he followed what he thought was the proper procedure and that other Phillips employees told him that he had done nothing wrong. This is irrelevant, Phillips argues, because it does not establish improper motive.
Evidentiary materials tendered in response to a quest for summary relief "are not to be held to the standard of competent, admissible [forensic] evidence." The nonmovant need only tender with his response brief "affidavits and other materials containing facts that would be admissible in evidence." Leitner, supra note at 926. Rule 13(b), Rules for the District Courts, 12 O.S.Supp. 1993, Ch. 2, App. Leitner teaches that the nonmovant need only "present something" to show the "reasonable probability" that by the day of trial he will have competent, admissible evidence to support the claim. Id. at 927.
Leitner, supra note at 927.
A. PHILLIPS' PROBATIVE BURDEN AS MOVANT FOR SUMMARY JUDGMENT 1. Liability-Defeating Defense of Privilege
¶ 12 A party interposing privilege as a liability-defeating defense does not deny the interference but rather seeks to avoid tort responsibility based upon its own interest that is equal or superior to that held (or claimed) by the opponent. To defeat one's claim for wrongful interference with advantageous relations the defendant must establish as a matter of law that its actions were privileged.
Defenses which constitute a privilege are in the nature of confession and avoidance. See in this connection 12 O.S. 1991 § 2008[ 12-2008](C)(20). Its pertinent terms are: "C. AFFIRMATIVE DEFENSES. In pleading to a preceding pleading, a party shall set forth affirmatively: * * * 20. Any other matter constituting an avoidance or affirmative defense. * * *"
It is not unlawful for one to interfere with the contractual relations of another if this is done "by fair means," if it is "accompanied by honest intent," and if it is done "to better one's own business and not to principally harm another." Morrow, supra note at ¶ 10, 416 (quoting Del State Bank v. Salmon, 1976 OK 42, 548 P.2d 1024, 1027); see also Hinson v. Cameron, 1987 OK 49, 742 P.2d 549, 551 n. 3.
See in this connection Thomas v. Hillson, 361 S.E.2d 278, 280 (Ga.App. 1987); Cohen v. Hartlage, 348 S.E.2d 331 (Ga.App. 1986). Modern jurisprudence appears to be divided on this issue. See Restatement (Second) of Torts § 767, comments k and l:
Comment k: Burden of proof. When speaking in terms of justification, a majority of the courts place the burden of proof on the defendant. * * * Others place the burden on the plaintiff, especially when they speak of malicious interference. * * * Still others suggest that it may vary, depending on the factual situation. * * * Comment l: Court and jury: When there is not a crystallized determination of whether interference is improper or not, the determination is usually left to the jury. * * *
(citations omitted).
¶ 13 Treating, as we must, Phillips' summary process strategy both as an attack upon McNickle's claim for lacking proof of improper conduct and as a liability-defeating defense grounded on absence of wrongful and malicious conduct, we cannot find probative support for Phillips' summary victory on any issue.
¶ 14 An examination of the evidentiary materials submitted in opposition to Phillips' quest for summary relief reveals that opposite inferences may be drawn from the facts presented. According to Phillips, the undisputed facts establish that (1) it did not request Southwestern Bell to fire McNickle, but rather to remove him from the Phillips job site; (2) Phillips' request was based on (a) McNickle's failure to follow proper procedures for obtaining equipment, (b) an inappropriate comment McNickle made to a Phillips employee and (c) Phillips' belief that McNickle lacked the proper experience and background for the job; and (3) in reliance on its broad authority under the contract with Southwestern Bell, Phillips had a legitimate interest in the qualifications and conduct of those employees who stood assigned by Southwestern Bell to the Phillips job site and (4) that Phillips acted in furtherance of these interests. Phillips argues that McNickle failed to present any evidentiary material to controvert the notion that its request to have McNickle removed from its premises was fair, with honest intent, and in furtherance of Phillips' legitimate business interest without any intention to harm McNickle. The "legitimate business interest" Phillips invokes here is its contract-based right to assess (a) McNickle's allegedly unsatisfactory performance in obtaining equipment without the knowledge and permission of the proper Phillips representatives and (b) McNickle's qualifications for the job.
¶ 15 On the other hand, according to McNickle's counteraffidavit, he did not circumvent Phillips' procedure when he obtained the equipment. The procedures he followed in requesting surplus equipment, McNickle states, were no different from those he had utilized while working on-site as a contract employee for Entex (another entity by which he was engaged during the period from 1994 through 1996). He obtained some of the equipment from Kathy Brandt [Brandt], a Phillips employee in the surplus equipment department, and the rest came from other Entex personnel working on-site at the Phillips facility. The deposition of William McGuire, another Southwestern Bell technician, confirmed that McNickle obtained the equipment from these sources. McNickle testified that Brandt told him he had not violated any Phillips' procedure and that she had sent a statement to her supervisor advising he had done nothing wrong. McNickle stated that two Phillips employees who had been contacted by him — one in the ethics department and another in security — reported they had no record of any wrongdoing on his part. A third employee — from corporate affairs — told him there was no problem with what he had done.
2. Want Of Probative Support For An Indispensable Element Of McNickle's Claim
¶ 16 Malicious and wrongful conduct — an element of McNickle's wrongful interference claim — can be established by showing reckless disregard or conscious indifference to consequences. To prevail as the summary-judgment movant, Phillips had the initial burden of showing (by its evidentiary material) want of a disputed fact on the issue of malice. If, as McNickle urges, Phillips' ban of McNickle was based on a knowingly groundless reason, a trier could find maliciousness from reckless conduct in utter indifference to consequences.
Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 362; Mitchell v. Ford Motor Credit Co., 1984 OK 18, 688 P.2d 42, 45-46; Wootan v. Shaw, 1951 OK 307, 237 P.2d 442, 444.
Malice ordinarily is a fact-driven issue. Hutchinson v. Proximire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411 ("proof of `actual malice' calls a defendant's state of mind into question, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and does not readily lend itself to summary disposition," citing 10 C. Wright A. Miller, Federal Practice and Procedure § 2730, pp. 590-592 (1973)). See in this connection Weaver v. The Prior Jeffersonian, 1977 OK 163, 569 P.2d 967, 973 (in a libel action by a candidate for office, the court opined that while ordinarily the plaintiff has the burden of proving the existence of malice, on summary process the defendant as movant has the burden of showing want of probative support for this indispensable element of the claim).
¶ 17 Phillips relies on (a) the deposition testimony of Phillips employees that McNickle's expulsion from the job site was sought because they believed that he had improperly acquired the equipment for use on the premises, as well as on (b) McNickle's testimony that he did not know of any "evil intent" that certain Phillips supervisors had toward him. McNickle's evidentiary material, on the other hand, demonstrates that he utilized acceptable procedures for obtaining surplus computer equipment. In sum, this very record excerpt presents a dispute on whether Phillips' request to remove McNickle from the job site was utterly and knowingly groundless and hence demonstrates a complete indifference to the dire consequences of its actions.
¶ 18 We hold there is no probative support for the conclusion that the materials tendered at nisi prius present undisputed facts supportive of but a single inference that is favorable solely to the movant's position. At a maximum, the record reveals some undisputed material facts from which opposite inferences may be drawn with respect to (a) whether Phillips' actions that affected McNickle's employment status were malicious and wrongful and (b) whether McNickle's removal from Phillips' premises on the ground that he failed to follow proper procedure for obtaining Phillips' equipment for on-site use at the Phillips' facility was either justified or privileged. The trial court cannot choose between conflicting inferences. The choice that is to be made between opposite alternatives inferable from an undisputed fact presents an issue of fact for the trier.
We need not search for or test here any other facts that may be in dispute or be amenable to conflicting inferences. Among these are: (1) whether Phillips' contract-based power to evaluate Southwestern Bell's overall performance is sufficiently broad to give Phillips a controlling voice in choosing Southwestern Bell personnel or vest in it unbridled power to veto deployment of any human resources to be assigned to the job on the basis of their qualifications, and if so (2) whether McNickle was in fact unqualified for the position he had occupied. It suffices to say summary judgment cannot stand. On this record, McNickle's precise status vis-a-vis Phillips also is unclear and fact-dependent. Phillips' insistence on absolute contract-based control of Southwestern Bell's hiring and firing of the project employees appears somewhat in tension with its asserted status as hirer of Southwestern Bell, an independent contractor.
If, as Phillips appears to claim, its contract with Southwestern Bell confers upon it plenary control over hiring and firing of Southwestern Bell's personnel for the project, Phillips may be interposing itself — vis-a-vis McNickle — as the latter's direct employer (or co-employer) rather than as the hirer of an independent contractor. If this be true, Southwestern Bell would be reduced from direct-employer status to a mere human resources agent for Phillips. Moreover, should the latter status apply to Phillips, McNickle's theory of recovery (Phillips' tortious interference with employment contract) would not fit his claim. Phillips' liability, if any there be, for the actions in suit would be solely for McNickle's discharge in breach of some public policy.
In sum, McNickle's employment status, which Phillips seeks to ascribe to him in summary process, presents a mixed issue of law and fact. A master/servant bond does not depend exclusively on contract, but is rather divinable from the facts that surround the parties' relationship and from their conduct vis-a-vis one another at the critical time and place. See, e.g., Frazier v. Bryan Memorial Hosp. Authority, 1989 OK 73, 775 P.2d 281, 289; Brown v. Burkett, 1988 OK 49, 755 P.2d 650, 652-53; Hinson, supra note at 557 n. 32; Brewer v. Bama Pie, Inc., 1964 OK 58, 390 P.2d 500, 502. For determining the existence of a master/servant, principal/agent, co-employer/loaned servant relationship the critical factor is not the text of a written contract but the right of control that is shown to have been exercised by the employer (master or principal). An assessment of the quantum of control one party exercised over another at a critical time in contest requires a thorough exploration into surrounding facts. Frazier, supra at 289; Enterprise Management, supra at 362; Hinson, supra note at 557 n. 32; Brown, supra at 652-53; Tulsa Rig, Reel Manufacturing Co. v. Millsap, 1980 OK 165, 619 P.2d 625, 628; Bama Pie, supra at 502. The most recent Restatement (Third) of Agency, Tentative Draft No. 1, comment e, pages 26-33 (20 March 2000), reiterates unequivocally full support for this common-law doctrine.
IV McNICKLE'S AT-WILL EMPLOYMENT STATUS IS NOT AN INSUPERABLE BARRIER TO A CLAIM FOR WRONGFUL INTERFERENCE WITH ADVANTAGEOUS RELATIONS
¶ 19 Phillips also pressed for summary judgment an alternate theory that McNickle's at-will employment status with Southwestern Bell was not protected by tort law from liability for interference. According to Phillips, a claim for wrongful interference with an at-will employment relation will not lie. This position clearly is contrary to extant authority.
¶ 20 The parties in an employment at-will relationship have no less of an interest in the integrity and security of their contract than do those in any other type of contractual relationship. Employment terminable at the pleasure of the employer is not valueless. Until an at-will contract is terminated, it constitutes a valid and subsisting agreement that is presumed to continue in effect. A third party may not improperly interfere with that bond. The law does (and should) protect an at-will employee from third persons' unwarranted and unprivileged interference with that advantageous relationship. One who labors as an at-will servant of another must be allowed to expect that one's continued employment depends on the will of the employer rather than upon the whim of a stranger. An intentional and improper interference with an at-will contract by third parties may hence be deemed actionable as tortious harm to advantageous relations.
As early as 1915 the United States Supreme Court acknowledged an important limitation on the at-will rule:
The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will.
Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 9, 60 L.Ed. 131, 134 (1915) (emphasis added); Haddle v. Garrison, 525 U.S. 121, 126, 119 S.Ct. 489, 492, 142 L.Ed.2d 502 (1998) ("third-party interference with at-will employment relationships . . . has long been a compensable injury under tort law"). See also discussion in Schonwald v. Ragains, 1912 OK 210, 122 P. 203, 207.
By 1939 the common law recognized tort liability for interference with contracts terminable at will. Restatement of Torts § 766, comment c. This rule has not changed. Until an at-will contract is terminated, it is " valid and subsisting, and the defendant may not improperly interfere with it." Restatement (Second) of Torts § 766, comment g (emphasis supplied); W. Prosser, Handbook Of The Law Of Torts, § 129 at 932-33 (4th ed. 1971). In Georgia Power Co. v. Busbin, 250 S.E.2d 442, 444 (Ga. 1978) the court observed that "even though a person's employment contract is at will, he has a valuable contract right which may not be unlawfully interfered with by a third person."
For states that have recognized a cause of action for wrongful interference with an employment-at-will relationship, see Evans v. Swaim, 18 So.2d 400, 402 (Ala 1944); Wagenseller v. Scottsdale Memorial Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); Mason v. Funderburk, 446 S.W.2d 543, 546 (Ark. 1969); Pacific Gas Elec. Co. v. Bear Stearns Co., 791 P.2d 587, 590-91 (Cal. 1990); American Standard, Inc. v. Jessee, 258 S.E.2d 240, 244 (Ga.App. 1979); Gibson v. Fidelity and Casualty Co., 83 N.E. 539 (Ill. 1907); Bochnowski v. Peoples Federal Savings Loan Ass'n, 571 N.E.2d 282, 284 (Ind. 1991) (a contract, terminable at will, may form the basis of an action for interference with a contractual relationship); Hilton v. Sheridan Coal Co., 297 P. 413, 416-17 (Kan. 1931); Pino v. Trans-Atlantic Marine, Inc., 265 N.E.2d 583, 586-87 (Mass. 1970); Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn. 1991) ("at-will employment subsists at the will of the employer and employee, not at the will of a third party meddler"); Smith v. Ford Motor Co., 221 S.E.2d 282, 290-91 (N.C. 1976); Sides v. Duke Hospital, 328 S.E.2d 818, 828 (N.C.App. 1985); Smith v. Klein, 492 N.E.2d 852 (Ohio App. 1985); Lewis v. Oregon Beauty Supply Co., 733 P.2d 430 (Ore. 1987); Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758, 760 (Tenn. 1977); Bachand v. Connecticut General Life Ins. Co., 305 N.W.2d 149 (Wis 1981).
Truax, supra note, 239 U.S. at 38, 36 S.Ct. at 9; Restatement (Second) Torts § 766 comment g (1979); Prosser, supra note, § 129 at 932-33.
¶ 21 We hold that McNickle's at-will employment status is no barrier to his claim against Phillips for wrongful interference with his advantageous relations.
V SUMMARY
¶ 22 Summary process is a search for non-triable facts — not a technique for defeating the opponent's right to trial by jury. Viewed as a whole, the evidentiary materials reveal some utterly unexplored facts as well as some undisputed material facts from which opposite inferences may be drawn concerning Phillips' assertion of its privileged status when seeking McNickle's removal from the job site. On this record, it is error to declare that Phillips' conduct is privileged as a matter of law. Summary judgment cannot hence stand.
¶ 23 McNickle's at-will employee status is not a barrier to pressing his claim against Phillips for wrongful interference with his employment relation. Until an at-will master/servant bond is terminated by the parties to that relationship, their status constitutes a valid and subsisting contract with which strangers may not unlawfully interfere.
¶ 24 We express no opinion on Phillips' liability for tortious interference with McNickle's prospective economic advantage. The cause must be remanded for a nisi prius resolution of all untried issues, tendered or to be tendered. When on reversal a cause is remanded for trial, it returns to the nisi prius court as if it had never been decided before, save only for the "settled law" of the case. This cause must be remanded and the parties afforded an opportunity to replead.
Following reversal and remand of a cause for trial, the parties are relegated to their posture at the commencement of the suit. Nelson v. Pollay, 1996 OK 142, ¶ 16, 916 P.2d 1369, 1376-1377; Fent v. Okla. Nat. Gas, 1994 OK 108, 898 P.2d 126, 134; Thomas v. National Auto. Cas. Ins. Co., 1994 OK 52, ¶ 15, 875 P.2d 424, 428; Dyke v. St. Francis Hosp., 1993 OK 114, 861 P.2d 295, 304 n. 36; Parker v. Elam, 1992 OK 32, 829 P.2d 677, 682; Seymour v. Swart, 1985 OK 9, ¶ 8-9, 695 P.2d 509, 512-513.
¶ 25 On certiorari granted upon the plaintiff's petition, the Court of Civil Appeals' opinion is vacated; the trial court's summary judgment is reversed and the cause remanded for further proceedings to be consistent with today's pronouncement.
¶ 26 OPALA, KAUGER, WATT, JJ., and LUMPKIN, JOHNSON, S.JJ., concur;
¶ 27 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES and LAVENDER, JJ., dissent.