ASHER v$.$ PARSONS ELECTRIC L$.$L$.$C$.$

$2020$ OK CIV APP $13$

$460$ P$\mathrm{.}3$d $1006$

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

Cite as: $2020$ OK CIV APP $13,460$ P$\mathrm{.}3$d $1006$

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$.$

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 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.

Kenneth L$.$ Buettner, Judge:

$1$ 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$-2014-164($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 provi