Date: 06-09-2014

Case Style: Lori Chlouber v. Allie Home Health Services, Inc., Sharon Hulin and Kristi Van Hooser Gavlik

Case Number: CJ-2010-2837

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: R. J. Chandler and Adrienne Barnett

Defendant's Attorney: Nathan Clark

Description: Lori Chlouber v. Allie Home Health Services, Inc., Sharon Hulin and Kristi Van Hooser Gavlik

Issue # 1.
Issue: BREACH OF AGREEMENT - CONTRACT (CONTRACT)
Filed by: CHLOUBER, LORI
Filed Date: 05/03/2010
Party Name: Disposition Information:

Defendant: ALLIED HOME HEALTH SERVICES INC
Disposed: DISMISSED - SETTLED, 06/09/2014. Judge.

Defendant: HOOSER GAVLIK, KRISTI VAN
Disposed: DISMISSED - SETTLED, 06/09/2014. Judge.

Defendant: HULIN, SHARON
Disposed: DISMISSED - SETTLED, 06/09/2014. Judge.

The pre-trial order stated, in part:


In 2004, Plaintiff entered into an agreement with Allied (through its principal Jerry Hulin) and Defendant Gavlick which provided that they would jointly own and operate a branch of Allied which they would work to open in Tulsa. At that time, Allied was owned 50-50 by Mr. Hulin and Andrew Freeman. They also owned Preferred Management, Inc., a company that was involved in the agreement, as well as other businesses in the health care industry. This agreement was reached after discussions about the pros and cons of opening as a technical “branch” of Allied (i.e., utilizing Allied’s existing corporate structure, medicare billing number, and licensure to operate as a home health care within the State of Oklahoma) or creating a new operating entity, and determining that opening a branch of Allied would be the most quick and cost-effective way to proceed. In exchange for operating as a branch, Plaintiff and Defendant Gavlick agreed to pay Allied’s parent company, Preferred Management, certain fees and a percentage of gross revenue. Preferred Management agreed to loan Plaintiff and Defendant Gavlick start-up capital, which they elected to repay by not drawing salaries for their first several months of operation and thereafter only drawing small salaries until the loan was repaid in full. The Tulsa Business was a success due to the hard work and industry of Plaintiff and Defendant Gavlick.

In 2008, Jerry Hulin passed away. Defendant Hulin inherited his ownership interest in Allied and entered into negotiations with Mr. Freeman concerning the division of the interests that he and Mr. Hulin used to own together, since it was determined that Defendant Hulin and Mr. Freeman would not be business partners. During the course of these negotiations, the Tulsa Business was a matter of contention. Mr. Freeman, who had never been pleased with the agreement between Allied, Plaintiff, and Defendant Gavlick, made threats that he would not honor that agreement, taking advantage of the fact that it was not in writing by asserting it to be merely a profit-sharing agreement with employees rather than the joint venture and partnership that it was. Eventually, it was determined that Defendant Hulin would legally own all of Allied. Mr. Freeman received other interests, including a branch office of another home health agency, which he would beneficially “own” without legally owning for several years while attempting the regulatory hassle of creating a new entity. Unfortunately, Defendant Hulin and Defendant Gavlick determined not to honor the same longstanding agreement with regard to the Tulsa Branch. Solely to gain profit, Defendant Hulin and Gavlick ousted Plaintiff from the Tulsa Business in March 2010. They purported to terminate her, treating her as a mere employee. This lawsuit followed.

Defendants’ contentions:

Plaintiff’s employment with Allied Home Health Services, Inc. (“Allied”) was terminated on March 1, 2010. Thereafter, Plaintiff sued Allied and its owner, Sharon Hulin, and former co-employee, Kristi van Hooser Gavlik, claiming, based only on her word, that she was an “owner” rather than an employee of Defendant Allied. Plaintiff alleges that, as an owner, she is entitled to damages equal to half the value of the Tulsa branch.

Allied Home Health Services, Inc. is an S corporation that provides home health care. ft has offices in Wagoner, Oklahoma (“Allied Wagoner”) and Tulsa, Oklahoma (“Tulsa branch”). In 2004, the decision was made to open the Tulsa branch of Allied. Plaintiff and Ms. Gavlik were to manage the Tulsa branch. However, Allied Wagoner professionally controlled the Tulsa branch. Allied Wagoner had the authority to shut down the Tulsa branch, and the operation of the Tulsa branch would end. Allied Wagoner is the parent entity, and the Tulsa office is no more than a branch that bills from Allied Wagoner’s Medicare number. In opening the Tulsa branch, Preferred Management, the parent company of Allied, provided the start-up capital. Plaintiff provided no start-up capital money for the Tulsa branch, and Plaintiff did not enter into a contract to reimburse Preferred Management for the start-up capital if the branch failed.
The Tulsa branch was merely an extension of Allied, and it could not be independently owned by Plaintiff. As a result, Plaintiff cannot prove any legal ownership of Allied. Plaintiff did not own stock in Allied. Plaintiff admitted that she did not have title in any specific thing relating to the Tulsa branch. Plaintiff could not convey her alleged interest as Plaintiff could not sell the Tulsa branch. When Allied was eventually sold to Sharon Hulin, Plaintiff never requested that she be compensated for her alleged interest in the Tulsa branch.

Instead, Plaintiff’s conduct demonstrated that she was an employee of Allied. Plaintiff filled out an employment application for Allied. Plaintiff received a paycheck and health insurance as an employee of Allied only. Allied also paid the employer portion of taxes on behalf of Plaintiff. Further, Plaintiff received a W-2 while at Allied, and she never reported to the Internal Revenue Service that she was an owner of Allied. Specifically, Plaintiff never reported K-i income as an owner of Allied. Plaintiff did not have a written contract with Allied for a specified term, and as a result, it is presumed that Plaintiff was an at-will employee. Allied was allowed to terminate Plaintiff at any time, and Allied properly did so.

C. Plaintiff’s Contentions:

1. List All Theories of Recovery and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.
Breach of Contract Common law
(Against Allied and Gavlick)
Breach of Fiduciary Duty Common law
(Against Allied and Gavlik)
Tortious interference Common law
(Against Hulin)
Conversion Common law
(Against all defendants)
Unjust enrichment Common law
(Against all defendants)
Breach of Partnership Agreement Common law, Partnership
(Against Gavlick and Allied) code
Accounting
(Against Allied and Hulin) Common law

2. List Damages or Relief Sought.
½ the value of the Tulsa Business in actual damages plus punitive damages pursuant to Oklahoma law

D. Defendant’s Contentions:

List All Theories of Defense and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

1. Plaintiff fails to state a claim against Defendants. Common Law

2. Doctrines of Estoppel and/or Laches. Common Law

3. Doctrine of Accord and Satisfaction. Common Law

4. General denial of negligence. Common Law

5. Comparative Negligence. Common Law

6. Plaintiff’s damages were caused by the actions Common Law
of third parties over whom these Defendants
have no control.

7. Denial that a contract existed with the Plaintiff Common Law
other than an at-will employment relationship.

8. Plaintiff’s contract-based claims Common Law
fail due to a lack of privity.

9. Defendants were not unjustly enriched Common Law
through the employment of the Plaintiff.

10. Unclean hands. Common Law

11. Plaintiff’s claims violate the Statute of Frauds. Common Law

12. General denial of damages. Common Law

13. Contribution, credit and/or indemnity 12 O.S. § 832
as provided by applicable law and statutes. Common Law

Outcome: 06-10-2014 CTFREE - 90305456 Jun 10 2014 9:51:57:100AM - $ 0.00

CANTRELL, DAMAN: PARTIES CALLED AND CASE HAD BEEN SETTLED. JURY TRIAL SET FOR 6-9-14 IS STRICKEN AND DISMISSAL TO BE FILED WITHIN 60 DAYS.

Plaintiff's Experts: Lou Ann Gibson with Hogan and Taylor, Tulsa, OK on damages

Defendant's Experts:

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