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ASHER v$.$ PARSONS ELECTRIC P$1(2018)$

Court of Civil Appeals of Oklahoma, Division No$.1.$

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$.$; P$1$ Group, Inc.; and Whiting$-$Turner Contracting Company, Defendants$/$Appellees$.$

Case No$.117,203$

Decided: December $21,2018$

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 P$1$ 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.

$1$ This appeal arises from claims asserted by fifty electrical workers $($Plaintiffs$)$ against Parsons Electric, LLC $($Parsons$),$ P$1$ Group, Inc. $($P$1$ Group$),$ and Whiting$-$Turner Contracting Company $($WT$).$ Plaintiffs brought claims for blacklisting against Parsons, P$1$ Group, and WT$,$ and claims for breach of contract against Parsons and P$1$ Group. The trial court held $(1)$ Parsons and P$1$ 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 P$1$ 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 P$1$ 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, P$1$ 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, P$1$ Group, WT$,$ and other defendants, Kendrick, et$.$ al$.$ v$.$ Allison$-$Smith Co$.,$ LLC$.,$ et al$.,$ No$.$ CJ$-2014-164,2014$ WL $11128190($Mayes County filed Sept. $11,2014)($the Kendrick case$).$ On February $13,2015,$ Parsons and P$1$ 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, P$1$ Group, and WT$.$ Plaintiffs also brought a claim for breach of contract against Parsons and P$1$ Group. Plaintiffs' claims in this case stemmed from a July $23,2015$ email from a P$1$ Group employee to a Parsons employee regarding a list of names generated from P$1$ 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.

$5$ P$1$ Group filed its motion for summary judgment November $13,2017.$ P$1$ Group asserted that summary judgment should be granted because $(1)$ only six of the fifty Plaintiffs were included on the List, $(2)$ P$1$ Group had never employed thirty$-$one of Plaintiffs, $(3)$ the email between the P$1$ 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. P$1$ 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 P$1$ 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