Opinion
Case No. 118,470
05-18-2020
Lionel S. LEWIS, Plaintiff/Appellee, v. Anthony CORRENTE, individually and d/b/a Prime Construction Services and d/b/a Prime Construction Group, LLC; and Sherry Corrente, individually and d/b/a Prime Construction Services and d/b/a Prime Construction Group, LLC, Defendants/Appellants.
Jacquelyn L. Dill, GRAFT & WALRAVEN, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee Connie L. Calvert, LAW OFFICES OF CONNIE CALVERT, Oklahoma City, Oklahoma, for Defendants/Appellants
Jacquelyn L. Dill, GRAFT & WALRAVEN, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee
Connie L. Calvert, LAW OFFICES OF CONNIE CALVERT, Oklahoma City, Oklahoma, for Defendants/Appellants
OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Lionel S. Lewis initiated this case by filing a petition asserting five theories of recovery against Anthony and Sherry Corrente, individually and d/b/a Prime Construction Services and d/b/a Prime Construction Group, LLC, (collectively, Defendants) who were hired by Mr. Lewis to undertake a residential kitchen and bath remodel on his property. Defendants responded by filing a motion to dismiss pursuant to the Oklahoma Citizens Participation Act (OCPA), 12 O.S. Supp. 2014 §§ 1430 - 1440. Defendants argue that four of the five theories asserted by Mr. Lewis should be dismissed under the OCPA.
¶2 The trial court denied Defendants' motion, and Defendants now appeal the trial court's order pursuant to 12 O.S. Supp. 2014 § 1437, which provides a specific right to appeal the denial of a motion to dismiss brought pursuant to the OCPA.
See Steidley v. Cmty. Newspaper Holdings, Inc. , 2016 OK CIV APP 63, ¶ 2 & n.3, 383 P.3d 780.
¶3 Based on our review, we affirm the trial court's order denying Defendants' OCPA motion.
BACKGROUND
¶4 Mr. Lewis alleges in his petition that he hired Defendants in December 2018 to undertake a kitchen and bathroom remodel at his home in Yukon, Oklahoma. He alleges that the agreed-upon total price for the project was $34,505, "with one-half, $17,252.50, to be paid as a deposit and the balance to be paid upon completion." However, he asserts Defendants "failed to obtain any required permits from the City for the work performed," and Defendants "completed slightly less than one-half of the work on the project."
¶5 Mr. Lewis further asserts that because he worked irregular hours as a Federal Air Marshal, he called Defendants to discuss the project on one occasion "after normal hours." According to Mr. Lewis's petition, this phone call resulted in Defendant Sherry Corrente subsequently filing a police report against Mr. Lewis "claiming that he ‘has not done anything illegal’ but that he had called her on her cell phone after normal business hours."
¶6 Mr. Lewis, who asserts he merely called the number on Defendants' business card, asserts Ms. Corrente also filed a second police report that same evening "to allege that she was concerned that Mr. Lewis held the office of Air Marshal." Mr. Lewis also alleges that Ms. Corrente proceeded to "then contact[ ] the U.S. Marshals Service and report[ ] that she had filed a police report against Mr. Lewis." Mr. Lewis alleges that his "contract with the U.S. Marshals Service was then terminated ...."
¶7 Mr. Lewis also asserts that after these events, Defendants ceased work on the kitchen and bathroom remodel project and that Mr. Lewis was forced to hire another construction company to complete the project for $19,236. He asserts that Defendants nevertheless proceeded to demand full payment from Mr. Lewis for the total contract price, and that Defendants filed a mechanic's and materialmen's lien against his property in the amount of $17,252.50, "wrongfully clouding and slandering the title to [his] [p]roperty."
¶8 Mr. Lewis has set forth the following theories against Defendants in his petition: (1) breach of the construction contract; (2) cancellation of the mechanic's and materialmen's lien; (3) slander of title; (4) civil conspiracy to slander, encumber and cloud title; and (5) intentional interference with his contract with the U.S. Marshals Service.
¶9 As stated above, Defendants responded by filing a motion to dismiss pursuant to the OCPA. Defendants assert that all of Mr. Lewis's theories should be dismissed under the OCPA except the breach of contract theory.
¶10 The trial court ultimately denied Defendants' motion on the basis that, among other things, "the facts and circumstances of this case are [not] what the statute is intended for," "the legal action was [not] brought to deter or prevent the moving party from exercising constitutional rights," and Mr. Lewis "established by clear and convincing evidence a prima facie case for each essential element of his claims."
¶11 From the trial court's order denying their OCPA motion, Defendants appeal.
STANDARD OF REVIEW
¶12 Our review of the trial court's rulings under the OCPA requires analysis of issues of statutory interpretation; in addition, "disputed questions of material fact cannot be resolved in an OCPA dismissal proceeding." Krimbill v. Talarico , 2018 OK CIV APP 37, ¶ 21, 417 P.3d 1240. We, therefore, review a district court's determinations under the OCPA de novo, id. ¶ 4, pursuant to which we claim "plenary, independent, and non-deferential authority to reexamine [the] trial court's legal rulings," Martin v. Gray , 2016 OK 114, ¶ 5, 385 P.3d 64 (citation omitted).
ANALYSIS
¶13 As stated above, Defendants seek dismissal under the OCPA of the following theories of recovery asserted by Mr. Lewis: cancellation of the mechanic's and materialmen's lien; slander of title; civil conspiracy to slander, encumber and cloud title; and intentional interference with his contract with the U.S. Marshals Service.
I. With regard to the first three challenged theories, Defendants have failed to meet their initial burden of showing these theories are based on, relate to or are in response to Defendants exercising a constitutional right to petition.
¶14 Mr. Lewis's cancellation of lien theory is based on Defendants' "fil[ing] a Mechanic's and Materialmen's Lien against [his property] on July 3, 2019, in the amount of $17,252.50 ...." Mr. Lewis asserts he "had fully paid [Defendants] in excess of the percentage of work completed under the [contract] and was under no obligation to make further payment under the contract." Thus, he asserts "[t]he Lien was filed without any factual or legal merit" and that he "is entitled to have the Lien canceled." As Defendants acknowledge, Mr. Lewis's slander of title and civil conspiracy theories are also founded upon Defendants' filing of the above-described lien.
This language is found in Mr. Lewis's petition. "The OCPA is clear that a district court ‘shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.’ 12 O.S. Supp. 2014 § 1435.... [T]he Act clearly contemplates that the pleadings may be considered ." Krimbill , 2018 OK CIV APP 37, ¶ 19, 417 P.3d 1240 (footnote omitted) (emphasis in original).
¶15 Under the OCPA, the initial burden is on the Defendants to show that Mr. Lewis's theories "relate[ ] to Defendants engaging in activity protected by the OCPA, i.e., the exercise of the right of free speech; the right to petition; or the right of association." Krimbill , 2018 OK CIV APP 37, ¶ 34, 417 P.3d 1240. The Legislature has defined these protected activities in 12 O.S. Supp. 2014 § 1431 as follows:
2. "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue or defend common interests;
3. "Exercise of the right of free speech" means a communication made in connection with a matter of public concern;
4. "Exercise of the right to petition" means any of the following: ...
As noted by the Krimbill Court, "The definition of ‘exercise of the right to petition’ continues with numerous examples[.]" 2018 OK CIV APP 37, ¶ 34 n.12, 417 P.3d 1240.
¶16 In the present case, Defendants argue that, with regard to the claim of cancellation of the mechanic's and materialmen's lien, the filing of the lien constituted the exercise of the right to petition as defined in the OCPA; in particular, Defendants cite to the examples listed under § 1431(4)(a)(2) and § 1431(4)(a)(5), which provide that the exercise of the right to petition means "a communication in or pertaining to ... (2) an official proceeding, other than a judicial proceeding, to administer the law," and "a communication in or pertaining to ... (5) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity[.]" With regard to the filing of the lien, Defendants assert that their "actions are protected by the OCPA as a lawful right to petition [exists] permitting Defendants' lawful, nondiscretionary act of filing the lien to perfect it."
With regard to the right to petition, § 1431 of the OCPA states in full as follows:
4. "Exercise of the right to petition" means any of the following:
a. a communication in or pertaining to:
(1) a judicial proceeding,
(2) an official proceeding, other than a judicial proceeding, to administer the law,
(3) an executive or other proceeding before a department or agency of the state or federal government or a political subdivision of the state or federal government,
(4) a legislative proceeding, including a proceeding of a legislative committee,
(5) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity,
(6) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue,
(7) a proceeding of the governing body of any political subdivision of this state,
(8) a report of or debate and statements made in a proceeding described by division (3), (4), (5), (6) or (7) of this subparagraph, or
(9) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting,
b. a communication in connection with an issue under consideration or review by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding,
c. a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding,
d. a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding, and
e. any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the Oklahoma Constitution[.]
¶17 "The fundamental rule of statutory construction is to ascertain ... the Legislature's intention and purpose as expressed in a statute." Strong v. Laubach , 2004 OK 21, ¶ 9, 89 P.3d 1066 (citation omitted).
In the interpretation of statutes, we do not limit our consideration to a single word or phrase. Instead, we construe together the various provisions of relevant enactments, in light of their underlying general purpose and objective, to ascertain legislative intent. Words and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context and they must harmonize with other sections of the act to determine the purpose and intent of the legislature.
State ex rel. Okla. State Dep't of Health v. Robertson , 2006 OK 99, ¶ 7, 152 P.3d 875 (internal quotation marks omitted) (citations omitted).
¶18 The OCPA provides that its "purpose ... is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." § 1430(B) (emphasis added). As explained by the Krimbill Court, although the OCPA, in comparison to similar laws passed in other states, is "broad" and protects a "wide spectrum" of speech, it is nevertheless limited to protecting what can be categorized as "First Amendment speech" or "the valid exercise of the constitutional rights of freedom of speech [or] petition for the redress of grievances," Krimbill , ¶¶ 7-8, rights protected either under the First Amendment of the United States Constitution or under the Oklahoma Constitution. ¶19 Thus, pertinent to the present case, a defendant asserting that a plaintiff's theory is based on that defendant's exercise of the right to petition must make some showing that the communication in question is categorizable as an exercise of a constitutional right to petition. We decline to view the statutory bases forwarded by Defendants — § 1431(4)(a)(2) and § 1431(4)(a)(5) — in complete isolation from the explicit purpose of the OCPA set forth in § 1430 such that any "communication in or pertaining to ... (2) an official proceeding, other than a judicial proceeding, to administer the law," or any "communication in or pertaining to ... (5) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity," would find protection under the OCPA and subject theories of recovery to accelerated dismissal that do not arise from a defendant exercising a relevant constitutional right. Our reading is bolstered by the final example articulated by the Legislature of an exercise of the right to petition: "[A]ny other communication that falls within the protection of the right to petition government under the Constitution of the United States or the Oklahoma Constitution[.]" 12 O.S. § 1431(4)(e). ¶20 The United States Supreme Court has explained as follows:
That is,
Anti-SLAPP acts may be generally characterized as "narrow" or "broad." A narrow act protects only certain speech made in limited circumstances, often when the speech is discussing a political or municipal issue. The acts of Texas, Oklahoma and California are, by comparison, "broad" acts, directed at protecting a wide spectrum of First Amendment speech, with limited exceptions.
Krimbill , ¶ 8 (citation omitted) (footnote omitted).
See n.9, infra . Cf. Jardin v. Marklund , 431 S.W.3d 765, 769 (Tex. App. 2014) ("The constitutional rights enumerated in the [Texas Citizens' Participation Act (TCPA) ]" — an act that is almost identical to the OCPA, see n.6, infra — "are found in the Texas and United States Constitutions.").
As observed by the Krimbill Court, "Texas ... has an almost identical act," 2018 OK CIV APP 37, ¶ 4, 417 P.3d 1240, and a review of recent case law in Texas reveals that at least some Texas jurists and courts have taken a similar view as to whether "the Legislature intended to incorporate this established understanding of this constitutional ‘right to petition’ when defining the ‘exercise of the right to petition,’ as opposed to creating some sort of sui generis innovation." Serafine v. Blunt , 466 S.W.3d 352, 380 (Tex. App. 2015) (Pemberton, J., concurring). The following authorities were noted:
Accord Jardin [v. Marklund ], 431 S.W.3d [765,] 772 (relying on its understanding of First Amendment concept of "right to petition" to guide construction of TCPA's "exercise of the right to petition"); see Cheniere Energy [Inc. v. Lotfi ], 449 S.W.3d [210,] 216 [ (Tex.App. 2014) ] (concluding, with respect to TCPA's "exercise of the right of association," that "the stated purpose of the statute indicates a requirement of some nexus between the communications used to invoke the TCPA and the generally recognized parameters of First Amendment protections"); id. at 217 (Jennings, J., concurring, joined by Sharp, J.) (further emphasizing their view that TCPA must be construed in light of its express purposes to protect only communications that are protected under established understandings of the constitutional freedoms of speech, assembly, and petition). But cf. Neyland [v. Thompson ], 2015 WL 1612155, at *12 & n. 2 (Field, J., concurring) (while agreeing with Cheniere (and, logically, with me) that TCPA's text must be construed in the context of its purposes, concluding, at least with regard to the "exercise of the right of association," that the Act's explicit text departs from the underlying constitutional concept in some respects).
Serafine , 466 S.W.3d at 382 (Tex. App. 2015) (Pemberton, J., concurring). We are not persuaded, however, by the reasoning of the Texas court in Watson v. Hardman , 497 S.W.3d 601 (Tex. App. 2016). There the court stated:
The statute provides that a communication is an exercise of the right to petition if it is made in or pertains to "a judicial proceeding." The legislature could have qualified or limited the term "a judicial proceeding" as the [the plaintiffs] propose, but it did not. Because the statute is unambiguous, we give it its plain meaning, presuming that "words not included were purposefully omitted" by the legislature.
497 S.W.3d at 606. Were we to apply similar reasoning to the present case, we would read § 1431(4) in isolation while ignoring the explicit purpose of the OCPA set forth in § 1430(B). Such a reading would be entirely at odds with the method of statutory interpretation set forth above in Robertson . As stated persuasively by the Jardin Court, "While we must construe the TCPA liberally, we likewise cannot ignore the Legislature's express purpose for enacting it." 431 S.W.3d at 771. In addition, in Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647 (Tex. App. 2019), the court cited Jardin with approval, stating, "[W]e cannot examine the words of [the TCPA] in isolation: the words must be informed by the context in which they are used"; thus, "[w]hile we must construe the TCPA liberally, at the same time, we cannot ignore the legislature's purpose for enacting it, particularly when it is expressly included in the statute." 590 S.W.3d at 652 (citations omitted).
The Legislature's use of the phrase "any other" to introduce this subsection implies that a communication that falls within any of the preceding examples under § 1431(4) must also "fall[ ] within the protection of the right to petition government under the Constitution of the United States or the Oklahoma Constitution," an implication that would not exist in the absence of this introductory phrase.
Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives , whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression , although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance .
... A petition conveys the special concerns of its author to the government and, in its usual form, re-quests action by the government to address those concerns.
Borough of Duryea, Pa. v. Guarnieri , 564 U.S. 379, 388-89, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (emphasis added) (citation omitted).
In Jardin , the court stated:
The First Amendment guarantees "the right of the people ... to petition the Government for a redress of grievances." McDonald v. Smith, 472 U.S. 479, 482 [105 S.Ct. 2787, 86 L.Ed.2d 384] (1985) (alteration in original). "The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression." Id. ; see also Puckett v. State , 801 S.W.2d 188, 192 (Tex. [App. 1990] ), cert. denied , 502 U.S. 990 [112 S.Ct. 606, 116 L.Ed.2d 629] (1991). James Madison made clear in the congressional debate on the proposed amendment that people "may communicate their will" through direct petitions to the legislature and government officials. McDonald , 472 U.S. at 482 ... (citing 1 Annals of Cong. 738 (1789)).
... The Petition Clause was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. See United Mine Workers of Am., Dist. 12 v. Ill. Bar Ass'n , 389 U.S. 217, 222 [88 S.Ct. 353, 19 L.Ed.2d 426] (1967).
Jardin , 431 S.W.3d at 772-73 (Tex. App. 2014).
¶21 With regard to the right to petition protected under the Oklahoma Constitution, the Oklahoma Supreme Court has explained as follows:
The right to petition the government for redress of grievances is safeguarded in Art. 2 § 3, Okl. Const. This constitutional guarantee, which embodies the right of the people — collectively — to pursue political ends through group action, is a basic aspect of self government. Legitimate attempts to influence government action are absolutely protected from civil liability by this fundamental guarantee. The clear import of the right-to-petition clause is to protect from litigation those who attempt to induce the passage, repeal or the enforcement of law, or to solicit governmental action, even though the result of such activities may indirectly cause injury to others.
"The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance." Okla. Const. art. 2, § 3. The Thompson Court noted as follows:
Oklahoma's right-to-petition clause is similar to, and was no doubt taken from, Amend. I (cl. 6) of the U.S. Constitution, which provides that "Congress shall make no law ... abridging ... the right of the people ... to petition the government for a redress of grievances. " (Emphasis supplied.) Because there is a paucity of Oklahoma jurisprudence that construes the state petition-for-grievance clause, we look to analogous federal case law only for guidance. As the Court notes in Thomas v. Collins , 323 U.S. 516, 530 [65 S.Ct. 315, 89 L.Ed. 430] (1945), this is a basic freedom in a participatory government, closely related to freedom of speech; together these are the "indispensable democratic freedoms" that cannot be abridged if a government is to continue to reflect the desires of the people.
Thompson , 1998 OK 30, ¶ 24 n.52, 958 P.2d 128. See also Okla. Const. art. 2, § 22 ("Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.").
"The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance." Okla. Const. art. 2, § 3. The Thompson Court noted as follows:
Oklahoma's right-to-petition clause is similar to, and was no doubt taken from, Amend. I (cl. 6) of the U.S. Constitution, which provides that "Congress shall make no law ... abridging ... the right of the people ... to petition the government for a redress of grievances. " (Emphasis supplied.) Because there is a paucity of Oklahoma jurisprudence that construes the state petition-for-grievance clause, we look to analogous federal case law only for guidance. As the Court notes in Thomas v. Collins , 323 U.S. 516, 530 [65 S.Ct. 315, 89 L.Ed. 430] (1945), this is a basic freedom in a participatory government, closely related to freedom of speech; together these are the "indispensable democratic freedoms" that cannot be abridged if a government is to continue to reflect the desires of the people.
Thompson , 1998 OK 30, ¶ 24 n.52, 958 P.2d 128. See also Okla. Const. art. 2, § 22 ("Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.").
Gaylord Entm't Co. v. Thompson , 1998 OK 30, ¶ 24, 958 P.2d 128.
¶22 Here, Defendants make no effort to show that the filing of their lien was an exercise of the "constitutional right[ ] ... to petition, speak freely, associate freely [or] otherwise participate in government." § 1430(B). They make no effort to show that the filing of their lien should be viewed as a valid exercise of the constitutional right to petition that would be protected under either the First Amendment right to petition or the Oklahoma Constitution's guarantee of "the right ... to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance." Okla. Const. art. 2, § 3. Indeed, Defendants merely assert that "[m]echanic's liens are a statutory right" or remedy, but do not assert their filing of a mechanic's lien constitutes the exercise of a constitutional right. Thus, we conclude Defendants have failed to meet the initial burden placed on them to show that Mr. Lewis's theories of cancellation of the mechanic's and materialmen's lien, slander of title, or civil conspiracy "relate[ ] to Defendants engaging in activity protected by the OCPA[.]" Krimbill , ¶ 34. Consequently, we conclude the trial court properly denied this portion of Defendants' OCPA motion.
Our review of the OCPA has also revealed the existence of an exemption potentially applicable to the present case. Section 1439 of the OCPA provides, in pertinent part, as follows:
The [OCPA] shall not apply to:
...;
2. A legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct the action is based upon arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer[.]
As explained by the Texas Supreme Court, however, this "exemption, of course, is wholly unnecessary unless the TCPA applies. And the TCPA only applies when the claim is based on the defendant's exercise of the right of free speech, association, or to petition." Castleman v. Internet Money Ltd. , 546 S.W.3d 684, 688 (Tex. 2018). Thus, in the present case, we have turned first to the issue of whether Mr. Lewis's theories are based on Defendants' exercise of the right to petition and, because we conclude they (i.e., the three theories addressed in this portion of our analysis) are not, we need not reach a determination as to the applicability of the exemption, an issue that, moreover, is not addressed by the parties or by the trial court in its order.
II. Material facts remain in dispute regarding the theory of interference with contract, thus rendering dismissal under the OCPA improper.
¶23 The elements of the tort of interference with contract are set forth in the Oklahoma Uniform Jury Instructions (OUJI) as follows:
In order to win on the claim of intentional interference with a contract, [Plaintiff] must show by the weight of the evidence that:
1. [Plaintiff] had a contract with [Third Party];
2. [Defendant] knew [or under the circumstances reasonably should have known] about the contract;
3. [Defendant] interfered with the contract [or induced the Third Party to breach the contract, or made it impossible for the contract to be performed];
4. [Defendant]'s conduct was intentional;
5. [Defendant] used improper or unfair means; and
6. [Plaintiff] suffered damages as a direct result of [Defendant]'s actions.
An interference with contract theory requires interference with a contract between the plaintiff and a third party, as opposed to breach of a contract between the plaintiff and the defendant. Voiles v. Santa Fe Minerals, Inc. , 1996 OK 13, ¶ 18, 911 P.2d 1205.
An interference with contract theory requires interference with a contract between the plaintiff and a third party, as opposed to breach of a contract between the plaintiff and the defendant. Voiles v. Santa Fe Minerals, Inc. , 1996 OK 13, ¶ 18, 911 P.2d 1205.
OUJI-Civ. 24.1.
¶24 Mr. Lewis alleges in his petition that he "had a Contract with the United States Marshals Service, Justice Prisoner & Alien Transportation System," that Ms. Corrente knew about Mr. Lewis's employment relationship with the United States Marshals Service and intentionally interfered with his contract "through improper and unfair means," and that his contract with the United States Marshals Service was terminated as a result of Ms. Corrente's actions. More particularly, as set forth above, Mr. Lewis alleges that because he merely called the number on Defendants' business card "after normal hours," Ms. Corrente filed two police report against him stating he "has not done anything illegal" but that he "called her on her cell phone after normal business hours" and that she was "concerned [he holds] the office of Air Marshal." Mr. Lewis alleges Ms. Corrente then proceeded to "contact[ ] the U.S. Marshals Service and report[ ] that she had filed a police report against Mr. Lewis." Mr. Lewis alleges that his "contract with the U.S. Marshals Service was then terminated ...." ¶25 Defendants assert, however, that the police reports and the phone call to Mr. Lewis's employer constitute the exercise of the right of free speech under the OCPA. As pointed out by Defendants, the OCPA provides, as quoted above, that the " ‘[e]xercise of the right of free speech’ means a communication made in connection with a matter of public concern[.]" 12 O.S. Supp. 2014 § 1431(3). A matter of public concern is defined under the OCPA as "an issue related to: a. health or safety, b. environmental, economic or community well-being, c. the government, d. a public official or public figure, or e. a good, product or service in the marketplace[.]" 12 O.S. § 1431(7). Defendants assert, "[Mr. Lewis] was a U.S. Air Marshal and the police report involved matters of public concern."
¶26 Although Mr. Lewis disagrees with Defendants' argument, Mr. Lewis acknowledges that the communications underlying his interference with contract theory, at least when compared with the communications underlying his other theories, may possibly invoke the OCPA. Thus, he argues, in effect, that regardless of whether Defendants have met the initial burden of showing that the interference with contract theory is based on, relates to or is in response to Defendants "exercis[ing] the right of free speech," questions of material fact remain in dispute regarding his interference with contract theory; thus, dismissal of the interference with contract theory cannot be awarded under the OCPA. We agree.
For example, he asserts: "[T]he theories advanced [in the petition] do not invoke the [OCPA]," "[w]ith the possible exception of [the] claim for Intentional Interference with Contract[.]"
¶27 As quoted above, the OCPA provides that its "purpose ... is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury ." § 1430(B) (emphasis added). As explained persuasively and at length by the Krimbill Court, it follows "that disputed questions of material fact cannot be resolved in an OCPA dismissal proceeding." 2018 OK CIV APP 37, ¶ 21, 417 P.3d 1240.
¶28 We conclude that not only has Mr. Lewis articulated allegations in his petition sufficient to support an interference with contract theory, he has also attached evidentiary materials in support of those allegations. Therefore, we conclude the trial court also properly denied this portion of Defendants' OCPA motion.
In Mr. Lewis's affidavit, for example, he asserts that as a result of his irregular hours he made the above-described phone call "in the evening to discuss the Project," that "Mr. Corrente called me back and was irate and demanded that I stop calling," that "[l]ater that evening, Mrs. Corrente filed a ‘harassing phone call report’ " as well as a second police report, and that she then contacted "the U.S. Marshals Service and reported that she had filed a police report against me," after which Mr. Lewis's employment was terminated. At least one dispute of material facts exists: whether improper or unfair means were used to interfere with Mr. Lewis's contract. Indeed, one inference from the allegations and evidence presented by Mr. Lewis is that the police reports were maliciously entered and baseless, rendering improper or unfair the call to Mr. Lewis's employer stating that Defendants had filed a police report against Mr. Lewis. Regardless of the conflicting factual assertions of Defendants at this stage of the proceedings, a dispute of material fact exists rendering dismissal under the OCPA improper. Krimbill , ¶ 21.
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CONCLUSION
¶29 With regard to the theories of cancellation of the mechanic's and materialmen's lien, slander of title, and civil conspiracy, we conclude Defendants have failed to meet the initial burden of showing these theories are based on, relate to or are in response to Defendants exercising a constitutional right to petition. With regard to the theory of interference with contract, we conclude material facts remain in dispute, thus rendering dismissal under the OCPA improper. Consequently, we affirm the trial court's order denying Defendants' OCPA motion.
¶30 AFFIRMED .
RAPP, J., and FISCHER, J., concur.