United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J. CAUTHRON United States District Judge.
2012, Plaintiff Hopkins AG Supply LLC entered into a contract
with Defendant Turhan's Bay Export & Import Co.
(“Turhan”) for the sale of wheat. Turhan agreed
to purchase Plaintiff's wheat for $269, 001.52. Plaintiff
required a bond to guarantee the purchase price so Turhan
acted independently to hire Defendant Brunswick Companies
(“Brunswick”), a broker, to locate a surety to
supply the guarantee. Brunswick, working with consultant
company Defendant Phenix Services (“Phenix”),
owned by Defendant Larry Wright (“Wright”),
selected Defendant First Mountain Bancorp (“FMB”)
contractually agreed to guarantee payment of the funds due to
Plaintiff, up to $300, 000.00. Although Plaintiff received
$25, 000.00 from Turhan on August 23, 2012, a balance of
$244, 001.52 remains unpaid. FMB subsequently failed to pay
the balance pursuant to the guarantee and Plaintiff brought
this suit, alleging breach of contract, fraud, and conspiracy
to commit fraud.
asserted claims of conspiracy and unjust enrichment against
Wright, Phenix, and Brunswick. Plaintiff also brought breach
of contract and negligence claims against Brunswick. Now
before the Court is Defendants Wright, Phenix, and
Brunswick's (collectively, the “moving
Defendants”) Motion for Summary Judgment (Dkt. No.
203). Plaintiff has responded and the Motion is now at issue.
STANDARD OF REVIEW
standard for summary judgment is well established. Summary
judgment may only be granted if the evidence of record shows
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). The movants bear the initial
burden of demonstrating the absence of material fact
requiring judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A fact is material
if it is essential to the proper disposition of the claim.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If the movants carry this initial burden, the
nonmovant must then set forth specific facts outside the
pleadings and admissible into evidence which would convince a
rational trier of fact to find for the nonmovant.
Fed.R.Civ.P. 56(c). All facts and reasonable inferences
therefrom are construed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
asserted a claim of civil conspiracy to commit fraud against
Wright, Phenix, and Brunswick. Defendants argue for favorable
summary judgment because Plaintiff cannot prove the claim by
clear and convincing evidence. The moving Defendants believed
FMB would honor its guarantee, and therefore they did not
participate in any fraud, if it occurred.
must meet the elements of a civil conspiracy, which is
“a combination of two or more persons to do an unlawful
act, or to do a lawful act by unlawful means.”
Brock v. Thompson, 1997 OK 127, ¶ 39, 948 P.2d
279, 294, as corrected (Apr. 3, 1998) (citation omitted).
Unlike criminal conspiracy, a civil conspiracy itself does
not create liability; the conspiracy's purpose or means
must be independently unlawful. Id.
claims the purpose of the conspiracy was to defraud Plaintiff
of the funds owed pursuant to the guarantee. “Actual
fraud is the intentional misrepresentation or concealment of
a material fact, with an intent to deceive, which
substantially affects another person, ” and
constructive fraud is defined as “a breach of a legal
or equitable duty to the detriment of another, which does not
necessarily involve any moral guilt, intent to deceive, or
actual dishonesty of purpose.” Croslin v. Enerlex,
Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1045-46
(footnote omitted) (citations omitted). Both have the same
legal consequence and are generally questions of fact.
Id. Additionally, “[w]hen fraud is alleged,
every fact or circumstance from which a legal inference of
fraud may be drawn is admissible.” Id. at
¶ 11, 308 P.3d at 1045; Berry v. Stevens, 1934
OK 167, ¶ 16, 31 P.2d 950, 955 (stating the court will
allow a “great latitude of proof” in regard to
argues Brunswick acted as a communication liaison between
Turhan, Phenix, and FMB, isolating Turhan from the
negotiations. Plaintiff shows Turhan paid a $15, 000.00
brokerage fee to Brunswick, who retained $2, 250.00 and
tendered $12, 750.00 to Phenix. Phenix then retained $2,
250.00 and tendered the remaining $10, 500.00 to FMB.
Plaintiff argues the typical rate for similar services is 10%
of the amount of the performance bond or guarantee, but
Brunswick told Phenix the rate was too high and negotiated
the amount to 5%, or $15, 000.00. When Plaintiff notified FMB
of Turhan's nonpayment, FMB provided instructions for
Plaintiff to contact Wright or his business, which was
supposedly a brokerage consultant in this transaction.
also offers as evidence a history of lawsuits brought against
Wright and his businesses. Plaintiff states Brunswick must
have known about the lawsuits and business dissolutions;
therefore, collaboration with Wright must have occurred.
Defendants argue this evidence is inadmissible pursuant to
Rule 56(c)(2). Some of the evidence presented may be
inadmissible, but the Court will make the determination with
full briefs on the issue. See Fed.R.Civ.P. 56(e)(4).
The Court finds there are sufficient facts in dispute to deny
summary judgment on this claim.
asserted an unjust enrichment claim against Wright,
Brunswick, and Phenix, arguing the commission paid by Turhan
should be awarded to Plaintiff on an equitable basis. The
moving Defendants argue such an award would be unjust ...