NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-1239

AUGUST 29, 2001

MICHAEL MCGUIRE AN APPEAL FROM THE GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CIV 98-247-I]

v.

BAPTIST MEDICAL CENTER HON. JOHN HOMER WRIGHT,

ARKADELPHIA and YVON BRYAN CIRCUIT JUDGE

APPELLEES

AFFIRMED

Appellant, Michael McGuire, appeals from an order of the Garland County Circuit

Court granting summary judgment in favor of appellees, Baptist Medical Center Arkadelphia (BMCA) and Dr. Yvon Bryan. On appeal, appellant argues that the trial court erred in finding that the appellant failed to make a prima facie showing of 1) deceit, 2) civil conspiracy, and/or 3) tortious interference with a contractual relationship or business expectancy. We affirm.

The appellant and Jerry Lazerus, both certified nurse anesthetists, were co-owners of Arkadelphia Anesthesia Associates (AAA). On February 28, 1990, AAA contracted with BMCA to provide anesthesia services for BMCA. The term of the contract was initially twenty-four months and to continue from year-to-year thereafter. The contractprovided that either party could terminate the contract at any time by giving 120 days notice in writing to the other party.

In March of 1995, Jerry Lazerus tested positive on a drug screen performed by BMCA, and his hospital privileges were thereafter terminated. On April 17, 1995, appellees notified AAA by letter that, pursuant to the terms of the February 28, 1990, agreement, they were terminating the agreement effective 120 days from the date of the letter.

In April 1995, Dan Gathright, hospital administrator for BMCA, informed appellant that BMCA was interested in contracting with an anesthesiologist to provide anesthesia services in the future. Mr. Gathright suggested that appellant contact Dr. Bryan, an anesthesiologist with whom BMCA had been in contact, to explore forming a new anesthesiology group for the purpose of contracting with BMCA. Soon after, Dr. Bryan traveled to Arkadelphia and had dinner with the appellant. During Dr. Bryan's visit, appellant disclosed financial information to Dr. Bryan concerning AAA's billings and collections.

On May 22, 1995, Dan Gathright sent a letter to Dr. Bryan stating his intent on behalf of BMCA to enter into a contract with Dr. Bryan for anesthesia services, should Dr. Bryan relocate to Arkadelphia. In his letter, Mr. Gathright stated that it was his understanding that Dr. Bryan and appellant were "negotiating an agreement to have an association whereby a new group could be formed that would make an offer to provide anesthesia services to [BMCA]." He then stated that in the event a final agreementbetween Dr. Bryan and appellant was not formed, BMCA intended to contract with Dr. Bryan for its anesthesia services. Finally, Mr. Gathright stated that he hoped the letter of intent gave Dr. Bryan "the information [Dr. Bryan] need[ed] to continue negotiations with [appellant] and pursuing [sic] Arkadelphia as a practice location." Dr. Bryan began working at BMCA on or about July 23, 1995, approximately one month prior to the termination date of BMCA's contract with AAA, August 14, 1995. During this time period, appellant and Dr. Bryan were unable to negotiate a new business agreement. On August 14, 1995, AAA's contract terminated, and BMCA entered into an exclusive contract with Dr. Bryan to provide anesthesia services for the hospital.

Appellant later sued BMCA and Dr. Bryan for deceit, civil conspiracy, breach of contract, and interference with a contractual relationship or business expectancy. Appellant filed an amended complaint eliminating his breach of contract and tortious interference with a contractual relationship claims, but maintained his tortious interference with a business expectancy claim. In his amended complaint, appellant based his claims on the following alleged facts:

At all relevant times, Plaintiff McGuire was an owner of and did business as AAA. In February 1990, AAA contracted with BMCA to provide anesthesia services at BMCA. Several years later, BMCA suspended the hospital privileges of Jerry Lazerus, a co-owner of AAA. Following Lazerus's suspension, BMCA began making efforts to execute an exclusive contract with a medical doctor to provide anesthesiology service at BMCA. To this end, BMCA's administrator, Dan Gathright, communicated with Yvon Bryan on or about April 6, 1995. On April 7, 1997, Bryan forwarded a letter and resume to Gathright. Later that same month, on April 17, 1995, BMCA through Dan Gathright provided AAA with notification of its intention to terminate the anesthesia services agreement between AAA andBMCA. Said termination became effective one hundred twenty days from the date of the notification.

After the initial communications between BMCA and Bryan but before BMCA provided AAA with the termination notification, Gathright requested that McGuire contact Bryan and arrange for Bryan to make a trip to Arkadelphia, Arkansas, to visit BMCA. Before agreeing to Gathright's request, McGuire specifically asked Gathright whether BMCA intended to replace McGuire with Bryan or some other anesthesiologist. Gathright unequivocally informed McGuire that BMCA would not replace McGuire with Bryan, nor did it have any intention of so doing. Gathright further informed McGuire that as long as Gathright remained at BMCA, McGuire would continue to provide anesthesia services to BMCA. In reliance upon these representations, and at Gathright's request, McGuire agreed to and did contact Bryan and arranged for Bryan to visit BMCA.

Bryan visited BMCA during the weeks of May 8 and May 15, 1995. At Gathright's request McGuire made all accommodations for Bryan and his wife, took Bryan and his wife to dinner on two occasions, paid for the dinners, and openly disclosed financial and other confidential information concerning AAA to Bryan. But for the material representations of fact which Gathright made to McGuire, McGuire would not have contacted Bryan, arranged for his visit to BMCA, paid for his meals, nor disclosed AAA's financial information to

Bryan.

On May 22, 1995, Gathright forwarded a letter of intent to Bryan. The letter of intent confirmed that BMCA intended to contract with Bryan for the provision of anesthesia services regardless of whether McGuire and Bryan agreed to work together. At that time, Gathright knew that BMCA would enter into an exclusive anesthesia services contract with Bryan.

Following Bryan's visit to BMCA, Gathright again reassured McGuire that his work with BMCA was secure and that he appreciated McGuire's many years of service at the hospital. Gathright reiterated on several occasions, including one in the presence of Mrs. McGuire, that as long as Gathright was administrator of BMCA, McGuire would continue providing anesthesia services to BMCA. Gathright further stated that he did not plan to leave BMCA in the near future.

In their answer to the amended complaint, appellees denied that BMCA had begun making efforts to execute an exclusive contract with a medical doctor after Lazerus was suspended, and stated that Dan Gathright did not solicit Dr. Bryan or any other physician. Appellees admitted sending the notice of termination letter to AAA on April 17, 1995, but denied that the termination notice was related to any conversation between Mr. Gathright and Dr. Bryan. Appellees admitted that Mr. Gathright agreed that appellant should contact Dr. Bryan to work out a business relationship to provide anesthesia services to BMCA, but denied that appellant made accommodations for Dr. Bryan at Mr. Gathright's or BMCA's request. Appellees stated that the alleged financial disclosures and confidential information made by appellant to Dr. Bryan was in furtherance of appellant's own interest in forming a partnership or other relationship with Dr. Bryan. Appellees further stated that appellant assured Mr. Gathright that he would be able "to work out an arrangement with Bryan to provide anesthesia services for BMCA." Appellees denied all allegations forming the basis for appellant's causes of action.

Appellant responded to appellees' motion for summary judgment by noting that appellees' motion was actually a partial motion because it did not address his claim against Dr. Bryan for tortious interference with a business expectancy. Appellees filed a reply to appellant's response to the motion addressing that issue. In their reply, appellees stated that appellant's claim for tortious interference with business expectancy was nothing more than a restatement of his claim for tortious interference with a contractual relationship, and that they were entitled to summary judgment on the appellant's businessexpectancy claim.

Appellant responded that it was improper for appellees to move for summary judgment on a new issue in its reply to the response to the motion for summary judgment, and that his claim of tortious interference with a business expectancy was not properly before the trial court. The trial court granted the motion for summary judgment and dismissed all claims against appellees.

Standard of Review

Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Kelley v. Nat'l Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Rankin v. City, 337 Ark. 599, 990 S.W.2d 535 (1999). When a movant makes a prima facie case showing entitlement, the respondent must meet proof with proof by showing that a genuine issue exists as to a material fact. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997).

A. Tort of Deceit

Appellant argues that the essential elements of an action for fraud or deceit are as follows: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3)intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and, (5) damage suffered as a result of the reliance. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999).

In appellant's amended complaint, his claim for deceit included the following factual allegations: (1) Gathright unequivocally informed him that BMCA would not replace him with Dr. Bryan; (2) Gathright informed him that as long as Gathright remained at BMCA, he would continue to provide anesthesia services to BMCA; and, (3) following Dr. Bryan's visit to BMCA, Gathright again reassured him that his work with BMCA was secure and that his many years of service at the hospital were appreciated.

According to appellant, Dan Gathright would have made these statements before BMCA had given AAA its termination notification on April 17, 1995, and after Dr. Bryan's visit to Arkadelphia, which occurred during the weeks of May 8 and May 15, 1998. However, Dan Gathright stated in his deposition that when he sent the termination notice to AAA in April 1995, the notice did not mean that "[he] wanted to get rid of Mike McGuire." Dan Gathright further stated in his May 22, 1995, letter of intent to Dr. Bryan, which followed Dr. Bryan's visit to BMCA, that he hoped the information contained within the letter would allow Dr. Bryan to "continue negotiations with Michael McGuire." Gathright gave deposition testimony that he didn't learn that Dr. Bryan and appellant had not reached a business agreement until Dr. Bryan entered into an exclusive contract with BMCA on August 14, 1995. Appellant has not shown that Gathright's statements were false or known to be false at the time they were made.

Appellant has also failed to show that he justifiably relied to his detriment upon the alleged statements made by Gathright. Appellant admitted that BMCA could terminate its contract with AAA at any time with 120 days notice, and that Gathright and BMCA could contract with as many or few anesthesiologists or certified nurse anesthetists as it wanted. Because appellant has not proven the elements necessary to establish a prima facie claim of deceit, we cannot say that the trial court erred in granting summary judgment on this issue.

B. Civil Conspiracy

Civil conspiracy has been defined as a combination of two or more persons to accomplish a purpose that is unlawful, or oppressive, or to accomplish some purpose, not in itself unlawful, by unlawful, oppressive, or immoral means. Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996).

In this case, the trial court found that appellant failed to state a cause of action for civil conspiracy because there was no proof that Dr. Bryan and BMCA conspired to commit an unlawful act. The trial court found that "entering into an exclusive contract for services with another person is not illegal or unlawful." We agree. As stated previously, appellant was aware of the fact that AAA's contract with BMCA was not exclusive, meaning BMCA could lawfully contract with anyone and BMCA could terminate AAA after giving appellant 120 days notice. Appellant further admitted in his deposition testimony that, "[BMCA] could've brought Dr. Bryan in themselves and had him visit without my involvement." Given the fact that AAA's contract with BMCA wasnot exclusive and that BMCA could terminate the contact and enter into a new contractual relationship with someone else, the trial court correctly found that summary judgment should be granted on this issue.

C. Tortious Interference with a Business Expectancy

To establish a claim of tortious interference, the elements that must be proved are (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997).

Appellant alleged in his original complaint that Dr. Bryan induced or caused the termination of his contract with BMCA because "[Dr. Bryan] insisted on an exclusive contract which would not allow [AAA] to provide coverage at the same time." However, the undisputed evidence shows that BMCA terminated AAA's contract before the decision was made to contract with Dr. Bryan. Appellee, BMCA, notified AAA of its intent to terminate AAA's contract on April 17, 1995, and Mr. Gathright stated that he did not make his final decision to enter into an exclusive contract for anesthesia services until May 22, 1995, the date he wrote the letter of intent to Dr. Bryan. Furthermore, Dr. Bryan stated in his deposition testimony that "[he] did not know of any specific arrangement that Michael McGuire had or the previous group had, other than they had terminated their contract in April [1995]."

Because there was no proof that a valid contract existed between BMCA and appellant at the time Dr. Bryan contracted with BMCA, and that Dr. Bryan had any knowledge of any business expectancy on the part of appellant, we cannot say that summary judgment was not proper on this point.

The trial court's grant of summary judgment is affirmed as to each count.

Affirmed.

Hart and Vaught, JJ., agree.