DAVID S. ELDRIDGE, Plaintiff/Appellant,
KAVON, LLC, Defendant/Appellee.
Mandate Issued: 08/07/2019
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA,
HONORABLE THOMAS E. PRINCE, JUDGE.
S. Eldridge, Oklahoma City, Oklahoma, Pro Se.
Todd Ward, Brion B. Hitt, FENTON, FENTON, SMITH, RENEAU &
MOON, Oklahoma City, Oklahoma, for Defendant/Appellee.
Kenneth L. Buettner, Judge.
Plaintiff David Eldridge (Eldridge) appeals from the trial
court's grant of summary judgment in favor of Defendant
Kavon LLC (Kavon). Eldridge brought claims of breach of
contract and violation of the Oklahoma Consumer Protection
Act for Kavon's refusal to serve Eldridge at a
Chick-Fil-A restaurant at which Eldridge had purchased a
"Cow Calendar" containing coupons for the purchase
of food. Kavon moved for summary judgment, alleging Eldridge
had prevented performance of the contract and had not
demonstrated damages as a result of the breach. The trial
court granted Kavon's motion. Eldridge appeals. We
Eldridge purchased an $8 Cow Calendar at a Chick-fil-A
restaurant in Oklahoma City operated and franchised by Kavon.
The Cow Calendar included an offer for the registration of a
"Cow Calendar Card," which gives users access to
special offers each month, the total benefit of which is $96
for the calendar year. The Card may be used at any
participating Chick-fil-A restaurant across the country.
There are approximately thirteen Chick-fil-A restaurants in
the Oklahoma City metro area.
Eldridge often frequented the Chick-fil-A location operated
by Kavon, allegedly for hours at a time. Kavon alleges that
Eldridge became inappropriate in his interactions with guests
and restaurant staff, resulting in Kavon requesting that
Eldridge not return to that particular Chick-fil-A location.
When Eldridge did return, Kavon again requested that he
leave. Eldridge filed suit against Kavon, alleging breach of
contract and violation of consumer protection laws.
At trial, Kavon moved for summary judgment, arguing it was
entitled to judgment as a matter of law because (1) Eldridge
prevented Kavon's performance of the contract by behaving
in an inappropriate manner; and (2) Eldridge could not
demonstrate damages because he was not restricted from using
his Cow Calendar Card at other Chick-fil-A locations. The
trial court granted Kavon's motion. Eldridge appeals.
On appeal, Eldridge asserts that the trial court erred by
granting summary judgment on his breach of contract and
consumer protection claims.  A trial court should
grant summary judgment where there is no dispute as to a
material fact and the moving party is entitled to judgment as
a matter of law. Wood v. Mercedes-Benz of Okla.
City, 2014 OK 68, ¶ 4, 336 P.3d 457. The trial
court should view all facts and inferences in the light most
favorable to the non-moving party. Id. Summary
judgment is not appropriate where reasonable persons might
reach different conclusions based upon the undisputed
evidence. Id. "In attempting to show the
existence of a question that must be tried, the party may not
rely on bald contentions that facts exist to defeat the
motion." Okla. Dep't of Sec. ex rel. Faught v.
Wilcox, 2011 OK 82, ¶ 19, 267 P.3d 106 (citing
Roberson v. Waltner, 2005 OK CIV APP 15 ¶ 8,
108 P.3d 567). The standard of review for a grant of summary
judgment is de novo. Carmichael v. Beller,
1996 OK 48, ¶ 2, 914 P.2d 1051. "Under the de novo
standard, this Court is afforded 'plenary, independent,
and non-deferential authority to examine the issues
presented.'" Wood, 2014 OK 68, ¶ 4,
336 P.3d 457 (citing Harmon v. Cradduck, 2012 OK 80,
¶ 10, 286 P.3d 643).
In this case, the parties do not dispute the existence of a
contract based upon Kavon's sale of a Cow Calendar to
Eldridge and his subsequent registration for a Cow Calendar
Card, nor do they dispute that Kavon refused service to
Eldridge. Instead, the important legal determinations to be
made are whether Kavon was excused from performance and
whether Eldridge suffered damages. In order to maintain a
breach of contract action, a party must demonstrate (1) the
existence of a contract, (2) failure of a party to perform
its contractual duty, and (3) damages suffered as a result of
the breach. Dig. Design Grp., Inc. v. Info. Builders,
Inc., 2001 OK 21, ¶ 33, 24 P.3d 834. Performance of
a contract may be excused where one party prevents the other
party's performance. Allen v. State ex rel. Bd. of
Trs. of Okla. Unif. Ret. Syst. For Justices &
Judges, 1988 OK 99, ¶ 14, 769 P.2d 1302.
Kavon alleges it was prevented from performing its duty of
offering Eldridge the Cow Calendar Card special offers
because Eldridge behaved in an inappropriate manner at the
restaurant, resulting in his exclusion from that particular
Chick-fil-A location. In so arguing, Kavon cites to
Chilton v. Oklahoma Tire & Supply Co., 1937 OK
168, 67 P.2d 27, in which the defendant, a refrigerator
servicer, was prevented from performing his contractual
duties as a result of the plaintiff, a refrigerator salesman,
complaining to the state refrigerator distributor and causing
the plaintiff to no longer be a designated servicer. There,
the Supreme Court excused defendant's nonperformance
because he had been prevented from performing his contractual
duties by plaintiff's own actions. Id.
It is generally true that the owner of real property has
"the right to exclude other members of society from any
present occupation of the land." 3 C.J.S. Property
§ 45. Except as prohibited by anti-discrimination laws,
business owners in most states have the common law right to
refuse business for any reason or no reason. See, e.g.,
Feldt v. Marriott Corp., 322 A.2d 913, 915 (D.C. 1974)
("[A] restaurant owner had the right to arbitrarily
refuse service to any guest."). Logically, one reason a
business owner might refuse service to a customer would be
that customer's disruption of the business environment.
Here, Kavon alleges that Eldridge behaved in a manner that
was offensive to restaurant employees and patrons. Thus,
Eldridge's exclusion from the restaurant was
self-inflicted as a result of his continued inappropriate
behavior. Where it would be unreasonable to require Kavon to
allow Eldridge to remain on restaurant premises while
Eldridge persisted in his disruptive behavior, we conclude
that Kavon was rendered unable to honor Eldridge's
requests to benefit from the Cow Calendar Card coupons
because of Eldridge's own behavior. A breach of contract
is excused where the breaching party was prevented from
performing as a result of the other party's conduct.
Therefore, Kavon's breach by failing to continue to honor
Eldridge's requests to benefit from the Cow Calendar
discounts is excused.
As an alternate defense theory, Kavon also argued that
Eldridge could not demonstrate damages resulting from the
breach of contract because Eldridge was free to use his Cow
Calendar Card at any of the other thirteen Chick-fil-A
restaurants in the Oklahoma City metro area. In response,
Eldridge alleged he was unable to visit the other locations
because he did not own a vehicle. We agree with Kavon and
note that the availability of public transportation in
Oklahoma City--including buses, taxis, and ride sharing
programs--renders Eldridge's argument regarding lack of
transportation ineffective.  Eldridge otherwise fails
to demonstrate what damages he incurred as a result of
Kavon's refusal of ...