Oakridge Invsestments, Inc. v. Southern Energy Homes, Inc.
719 P.2d 848
Okla. Civ. App.
1986
Check Treatment

*1 question in arguably Loyd. to be considered that verbal with Loyd were allege not have to The fact that Saffa made this admission to he would still of a broker summary judgment thus a di- of a license and be obtain does not possession recovering destroy evidentiary his finder’s fee minish or its status as prohibited from undisputed contrary compensation an fact. On the Saffa because he does not seek listing, buying, estopped deny in is to now the admitted fact. services rendered for renting, leasing, exchanging selling, of is, however, There a material issue recovery He seeks any real estate. concerning plaintiff pur “found” whether willing finding person a to of a fee for regard chaser In this there is evi Chew. purchase land. Saffa’s indeed, dence in the the trial court record— granting erred in defend- Loyd The trial court implicitly that did indeed “found” summary judgment. meaning ant a “find” within the intent and Chew agreement. im of the admitted oral It is Ill acquainted material whether Saffa was Chew, him, with how well he knew or how Finally this cause must be remand- since long him. The he had known issue proceedings and because of ed for further Loyd performed the whether contractual history, lengthy litigation we will ad- put parties role of a “middle-man” and “the respect the case to dress the status of with position they” in a where could and did what, any, if issues of fact exist. material harmony in make their own deal. This is argument defendant advised During oral by with the law of the case articulated (1) deny he intended to that the court that appeals disposing first court of agreed pay plaintiff a finder’s orally he appeal. This issue awaits a trial. fee, (2) purchas- plaintiff that “found” er Chew. IV regard to the first matter With summary judgment appealed is va- found that admits the trial court “Saffa di- cated and the cause is remanded with that he entered into a verbal proceed jury trial. rections to with a Loyd pay Loyd compensa certain with Loyd's tion for services connection with STUBBLEFIELD, JJ., RAPP and concur. transaction.” True the tri Saffa-Chew that made the al court also observed Saffa purpose

factual admission of his “[f]or Summary Judgment only,”

Motion for but evidentiary

that does not detract from the

validity of the admission interest. a fact for the One cannot admit material INVESTMENTS, INC., OAKRIDGE purpose obtaining judgment of a and later Oakridge Mobile d/b/a prevent by disclaiming its use as evidence Homes, Appellant, ground repudiating it on the it was v. contingent really a admission and he did HOMES, undisputed an fact. not mean that it was SOUTHERN ENERGY obtaining summary judg a INC., The test for Appellee. quite from the test em ment is different No. 63881.

ployed party’s a alle to determine whether gations a of are sufficient to state cause granting or defense. The test for action a Oklahoma, Appeals of Court there is an is whether 2. Division absence of material issues of fact which 6,May 1986.

need to resolved a trial. Here Saffa be did, find, as it induced the trial court to Loyd acted in the sale of as “broker” property by admitting

Saffa’s he made the *2 Gladd, Gibbon,

John A. Gladd & Associ- ates, Tulsa, appellant. for Feldman, Hall,

Stephen Stapleton, C. Franden, Farris, Tulsa, ap- & for Woodard pellee.

MEANS, Judge. appeals

Plaintiff from the trial court’s sustaining order Defendant’s motion for summary judgment. Having reviewed the law, applicable record and we affirm. Oakridge Plaintiff is a mobile home deal- ership Henryetta. in In the summer of 1983, Oakridge expand wanted to its sales of double wide homes. It contacted de- Energy Homes in Ala- fendant Southern purchased a wide office bama and double Oakridge Henryetta to use at its lot. sale, given percent rebate on the five dealers. customarily reserved for discount months, Oakridge few or- Over the next from more double wide homes dered two for either em- Both orders were Southern. ployees or their relatives. from Oak-

In the fall of customers Economy Housing in Tulsa. ridge visited Branscom, owner, Economy and its Joe Homes in top sellers Southern were than two mil- the United with more yearly. The customers lion dollars sales display units on Econ- viewed the Southern salespeo- informed the omy’s Tulsa lot and get cheaper homes ple they could re- these facts were Henryetta. When Branscom, and ported to he called Southern they sell to basically that could told them Oakridge me.” “either seller, top wanting to offend its Not order respond to the next did not Southern otherwise, conspiracy it received from in restraint of later informed lost trade or sale. commerce within this state is any not fill that it would more hereby against public poli- declared to be customers, orders for retail but that those cy illegal. buy from customers would have either Oakridge’s cause of action South- Housing dealership or a in Yu- Economy contingent upon being ern there a con- *3 kon. spiracy in restraint of trade and commerce Oakridge brought this action in violation of section 1. Its basic conten- Southern, Economy Housing, and Joe conspiracy tion is that a existed between Branscom, alleging violations of the Okla- Economy Housing Southern and to cancel homa antitrust statutes and tortious inter- Oakridge’s distributorship and to refuse to relationships. ference with contractual Oakridge allow to sell Southern homes. Southern’s demurrer to the tortious inter- ference count was sustained. Southern stated, As the Teleco court “It has summary asserting judgment, moved for long recognized every agreement been actions, law, that its as a matter of did not trade, concerning every regulation of violate the antitrust The statutes. motion trade, restrains trade to some extent.” 587 granted appealed. was has very P.2d at 1362. The any essence of appeal agreement trade

This concerns the motion for is to bind or restrain. States, as to Southern. None Board Trade v. United 246 U.S. of 231, 238, 242, 244, of the other defendants are involved. On 38 S.Ct. 62 L.Ed. 683 appeal, Oakridge attempts (1918). to raise Although numer- reading a literal of sec ous it fact issues which claims are dis- 1 tion of both the federal and Oklahoma pute. accepting Oakridge’s Even state- antitrust statutes would seem to outlaw facts, ment if Southern’s actions do every conceivable concerning contract laws, summary not violate the antitrust the trade, the courts have refused such an in judgment proper. See, terpretation. e.g., Standard Oil Co. 1, 502, 221 v. United U.S. 31 S.Ct. brief, Oakridge places great In its em- (1911). 55 L.Ed. 619 Courts have read sec phasis on whether had an unwrit- 1, reason,” implying tion a “rule of under agreement ten with its dealers not to dis- acts, contracts, agree which those product through tribute its other dealers ments, or prejudice combinations which within 75 to 100 miles. claims public by unduly restricting interests com that it was never told of such an petition, unduly obstructing or the due type and that this of violates trade, course of or injuriously which re pointed the antitrust statutes. out As trade, strain are unlawful. United States Southern in summary judg- its motion for Co., v. E.l. du Pont de Nemours & 351 appeal, presence ment and on of this 377, 994, 76 U.S. S.Ct. 100 L.Ed. 1264 disputed agreement is not determinative of (1956). also, Regents See Board v. Na antitrust violations. Association, Collegiate tional Athletic The Oklahoma antitrust statutes are sim- 499, (Okla.1977). Thus, 561 P.2d 505-6 Thus, legislation. ilar to federal antitrust only those restraints of trade which are interpretation legislation of the federal unreasonable are outlawed. Crown Paint “provides interpret- valuable assistance Bankston, (Okla.1981), v. 640 P.2d 948 Co. ing provisions of the Oklahoma stat- cert, denied, 946, 1444, 455 U.S. 102 S.Ct. Teleco, Industries, utes.” Inc. v. Ford (1982). 71 L.Ed.2d 659 Inc., 1360, (Okla.1978)(foot- 587 P.2d 1362 omitted). 1, note Title 79 O.S.1981 In Ry. § Northern v. United Pacific nearly (1982), 1 identical to 15 U.S.C. and States, 1, 5, 514, 518, § 356 78 2 U.S. S.Ct. provides: (1958), recognized L.Ed.2d 545 the Court act, Every contract, agreements, agreement, that certain “because of their trusts, competition combination in pernicious the form of effect on and lack of redeeming any conclusively pre- virtue are submarket. The reasonableness of a re- illegal. sumed to unreasonable” and be upon straint the market cannot be deter- commonly agreements These most involve mined unless market has been reason- compete competitors not to between at the ably Teleco, defined. 587 P.2d at 1364. level, same market such as manufacturer Oakridge did not attempt even to define and manufacturer or dealer and dealer. the relevant submarket or show the ex- agreements Such are referred to as “hori- tent of Southern’s allegedly unlawful re- zontal restraints.” See United States v. strictions on this submarket. Associates, Inc., Topco 596, 405 U.S. further failed show that Southern has (1972). 1126, S.Ct. 31 L.Ed.2d 515 either “power prices to control or to per Court generally applied has se rule to competition.” Pont, exclude du 351 U.S. restraints, horizontal them finding “naked at Although 76 S.Ct. at 1005. South- purpose except restraints of trade with no ern asserts that it product distributes competition.” stifling of Motor White Co. *4 through dealers, two Oklahoma it is 253, 263, v. United 372 U.S. 83 undisputed that Southern makes no at- 702, 696, (1963). S.Ct. 9 L.Ed.2d 738 tempt to the prices control retail set by the contrast, By a “vertical restraint” dealers. agreement of trade to compete is an not In support of its summary motion for parties operating between two on different judgment, Southern established that there levels, market such as an be were several other brands of double wide tween a manufacturer and distributor or mobile homes available on the market. Paint, dealer. Crown 640 P.2d at 950-51. Southern’s evidence showed Economy that While vertical restrictions have market im sold Emergy Southern Homes customers pact potential of their because for simulta from a area in wide northeastern Okla- competition neous reduction of intrabrand homa. Southern also showed that in states competition, and stimulation interbrand involving populations, similar such as Ar- subject these restrictions are to the rule of kansas, through it sold double wide homes T.V., reason. Inc. Continental v. GTE dealerships. two Inc., Sylvania, 36, 2549, 433 U.S. 97 S.Ct. (1977), 53 overruling L.Ed.2d 568 United Oakridge did not contend that Southern’s Arnold, Co., States v. Schwinn 388 U.S. & product unique. was While as- 365, 1856, (1967). 87 S.Ct. 18 L.Ed.2d 1249 serted that Energy Southern Homes were high quality preferred by and some custom- case, In Oakridge’s complaint the instant ers, Oakridge admitted were that there sev- is that an Southern established exclusive eral other manufacturers who distributed dealership Economy, with which resulted in products. similar The shows record that Economy another dealer in Yukon hav- salable lines of other double wide mobile ing monopoly respect a with to Southern homes, comparable price and features to homes. a restriction a Such involves verti- Homes, Energy fully Southern avail- restraint, were analyzed cal under the rule of Furthermore, Oakridge’s able to customers. reason. this exclu- asserted sive dealership geographic involves restric- Although attempts to attack opposed product tions as restrictions. territory the as exclusive restriction unrea- sonable, prove

In both Paint and Teleco de- order to that the Crown restraint unreasonable, Oakridge is termined that a manufacturer who sold his must show what is, product through exclusively then one relevant market whether dealer an unreasonable restraint exists not in violation of the within statutes. that stated: “An market. United States v. Grinnell Crown Paint court 1698, Corp., 384 86 16 between a manufacturer and customer allo- U.S. S.Ct. (1966). territory cating specific L.Ed.2d limited exclusive- To overcome the mo customer, prod- summary judgment, Oakridge ly competitive tion for to the with others, has invari- readily must establish the of a definite ucts available to existence REIF, re- concurs. ably permitted as reasonable been (footnote 649 P.2d at 951 straint of trade.” BACON, P.J., specially. concurs omitted). Thus, had a 75 or Southern whether BACON, Presiding Judge, specially con- area of exclusiveness geographic 100 mile curring. immaterial when under dealers is for its I concur in the result reached jurisdiction, this the case law of majority. petition alleges in Plaintiff’s through product one could distribute one, trade, count restraint of and in count the entire state. In dealer for exclusive two, tortious interference with contractual showing some that South the absence of plead plaintiff relations. The does not or demand, great product unique ern’s contract, pleads only argue breach of but anti not demonstrated an has restraint of trade and tortious interference. merely it is not al trust violation because my opinion, correctly In the trial court sus- Energy Homes. lowed to sell Southern tained on two attempt to estab Oakridge did not alleged. breach of contract counts Since or the lish the existence of the submarket argued, agree I pleaded was never impact restriction on that market. trial court should be affirmed. may have breached its Although Southern Oakridge by refusing alleged contract with orders, give does not rise to an

to fill order

antitrust violation. The trial court’s *5 summary judgment for Southern

granting violations was

on the issue of antitrust of law and is af

appropriate as a matter Paint authority

firmed under the Crown

and Teleco.