Opinion
Case No. 82,201
June 7, 1994 NOT FOR PUBLICATION
APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, OKLAHOMA, HONORABLE WILLIAM H. BLISS, JUDGE.
AFFIRMED.
Donn F. Baker, Jerry S. Moore, Tahlequah, Oklahoma, for Appellant.
Kevin A. Schoeppel, Tulsa, Oklahoma, for Appellee.
MEMORANDUM OPINION
Appellant, Vi Spencer, seeks review of the trial court's order which sustained Appellee's motion for summary judgment. Appellee, Gibson Public Adjusting, brought this action for breach of contract, alleging Appellant failed to pay it in excess of $10,000.00 for services rendered by Appellee in settling Appellant's insurance claim on a fire loss. The trial court rendered judgment in favor of Appellee for $10,586.11. We affirm.
On appeal, Appellant maintains there are disputed material fact issues which require a trial. Specifically, she argues Appellee failed to perform under the contract and is therefore precluded from recovering the percentage of compensation provided for in the contract. The one-page, two-paragraph contract provides in pertinent part:
As the owner/s of the property: Rt. 1, Box 142, Holbert, OK damaged by Fire on 8/16/91, I authorize Gibson Public Adjusting, Inc. to assist in the preparation, presentation and the adjustment of my loss for which I agree to pay Gibson Public Adjusting, Inc. a sum of money equal to 10% of the settlement arrived at regardless of whomsoever negotiated. It is further understood that Gibson Public Adjusting, Inc. is entitled to 10% of the insureds actual damages in the event of a trial and judgment is rendered in favor of the insured.
Other than a copy of the contract, the only evidentiary material submitted with the motion for summary judgment and response is Appellant's Response to Interrogatories and Requests for Admission. This, coupled with her answer, shows Appellant admits entering into the contract with Appellee; she agreed to the contract terms; she received in excess of $105,000 from her insurance company on her fire loss; Appellee did do some work on her behalf; she has paid no money to Appellee under the contract; and, that she owes Appellee some amount of money for services. Appellant, however, denies Appellee's services were "satisfactory" and claims Appellee represented that it would handle "completely, all investigation, collection of information, and negotiation" to recover the insurance monies in question and that same was not done. On appeal, Appellant maintains a disputed fact issue remains regarding whether Appellee performed under the contract.
Summary judgment is appropriate if there are no disputed material facts. Hargrave v. Canadian Valley Electric Co-operative, Inc., 792 P.2d 50, 55 (Okla. 1990). In determining whether any issue remains for jury determination, the trial court may consider evidence outside the pleadings, including admissions and answers to interrogatories. 12 O.S. 1991, Ch. 2, App., Rule 13. Summary judgment is improper if reasonable people could reach different conclusions from the facts as established by the evidence. Hargrave, at 55.
In Oklahoma, when a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone. 15 O.S. 1991, § 155; Altshuler v. Malloy, 388 P.2d 1, (Okla. 1963). Unless fraud or mistake is involved, pre-contract negotiations and oral discussions are merged into, and superseded by the terms of the executed written agreement. Mercury Investment Company v. F.W. Woolworth, 706 P.2d 523 (Okla. 1985). The contract provides Gibson was to "assist" in the "preparation, presentation and the adjustment" of Appellant's loss. The contract provides compensation to Gibson at 10% of the settlement, regardless of who negotiated the settlement. These terms are not ambiguous. Appellant admits Gibson rendered some services to her regarding settling her insurance claim and that she owes it some money. Appellant may not now vary the terms of the contract by alleging Gibson agreed to a performance which is materially different from the written contract. Nor has she alleged fraud or mistake, which would authorize the examination of parol evidence.
Appellant has failed to demonstrate with competent evidence, the existence of a material fact question which necessitates a trial. Accordingly, the judgment of the trial court is AFFIRMED.
JONES, P.J. AND ADAMS, J., CONCUR.