Beville v. Curry

• Decision Date: 16 January 2001
• Docket Number: No. 88330.,88330.
• Citation: 2001 OK 1,39 P.3d 754
• Parties: Lee W. BEVILLE, M.D., Plaintiff/Appellant, v. Randy L. CURRY, Comanche County Hospital Authority, d/b/a Comanche County Memorial Hospital, First Health West, a trust, Robert Jones, M.D., Randy Segler, Patti Davis, Charles H. Greene, Jr., Herb Stonehocker, Martha Lou Lawson, Donald S. Bentley, Shon Erwin, and Urbane Skinner, Defendants/Appellees.
• Court: Oklahoma Supreme Court

39 P.3d 754

2001 OK 1

Lee W. BEVILLE, M.D., Plaintiff/Appellant, v. Randy L. CURRY, Comanche County Hospital Authority, d/b/a Comanche County Memorial Hospital, First Health West, a trust, Robert Jones, M.D., Randy Segler, Patti Davis, Charles H. Greene, Jr., Herb Stonehocker, Martha Lou Lawson, Donald S. Bentley, Shon Erwin, and Urbane Skinner, Defendants/Appellees.

No. 88330.

Supreme Court of Oklahoma.

January 16, 2001.

Rehearing Granted in Part October 9, 2001.

As Corrected January 22, 2001.

Frank A. Gregory, Oklahoma City, OK, for Plaintiff/Appellant.

D. Kent Myers, Joseph J. Ferretti, Crowe & Dunlevy, Oklahoma City, OK, A. Scott Johnson, Brent L. Thompson, Johnson, & Hanan, P.C., Oklahoma City, OK, and James William Connor, Jr., Richards & Connor, Tulsa, OK, for Defendants/Appellees.

HARGRAVE, C.J.

¶ 1 Plaintiff, a radiologist in Elk City, brought an antitrust action under 79 O.S. 1991 § 25 for alleged violations of sections 1, 2, 3 and 4 of the Oklahoma Anti-Trust Act¹ against Comanche County Health Authority, d/b/a Comanche County Memorial Hospital (CCMH), its administrator Randy Curry, its trustees, First Health West, a consortium of hospitals in a multi-county area, and its trustees. The defendants will be referred to collectively, for the sake of convenience. The trial judge granted summary judgment to the defendants. The Court of Civil Appeals affirmed in part and reversed in part. We granted certiorari. We affirm the trial court's grant of summary judgment because the plaintiff failed to demonstrate injury to competition, the evidentiary materials fail to support his claim, and he failed to refute the defendants' prima facie showing of lack of market power. Plaintiff's motion for oral argument is denied.

¶ 2 Plaintiff's first claim, asserted against defendants Curry and CCMH, alleged that agreements between the defendants were illegal combinations and conspiracies in restraint of trade and that plaintiff was injured in his business and property by being denied the ability to obtain income that he might have been able to earn otherwise, and the opportunity to pursue his selected profession free of "illegal artificial interference." Plaintiff's second claim, asserted against defendants Curry and CCMH, alleged that the business practices, including the prices charged by CCMH's contract physicians, are under the control of defendants CCMH and Curry and that they are thus a "single seller" as described by laws relating to price discrimination. Plaintiff alleges that the defendants have willfully and illegally discriminated in price between different regions of the state in providing like medical services and engaged in those practices for the specific purpose of injuring and disciplining non-CCMH physicians and preventing competition, and that such illegal discrimination is in violation of 79 O.S.1991 § 2. Plaintiff's third claim, asserted against all the defendants, was that the defendants had formed agreements, combinations and conspiracies that unreasonably restrained trade and competition in the market in violation of 79 O.S. §§ 1 and 3, which actions injured plaintiff in his business and property. The fourth claim, asserted against defendant CCMH, was that CCMH is a public business and is under a duty to provide adequate services to all members of the public, upon reasonable terms and without discrimination and that defendants actions violated 79 O.S.1991 § 4.

¶ 3 Plaintiff alleged that these actions resulted in his losing the opportunity to establish a teleradiology network and also caused him to lose radiology business through reduced referrals and equal access. He sought treble damages, injunctive relief, attorney fees and costs. The trial court dismissed plaintiff's teleradiology claim, on defendants' motion, due to lack of standing, because neither plaintiff nor defendants had a teleradiology network in existence, and plaintiff could not show that he had suffered any damages.

¶ 4 Defendants moved for summary judgment on the grounds that: 1) they lacked the market power required for any monopoly claim; 2) there were no facts to support a claim under 79 O.S. § 2 and § 3; 3) the section 3 claim was baseless in law because no products were involved; 4) the section 4 claim was not viable because defendants are neither a utility nor a utility-like entity.

¶ 5 The trial court granted defendants' motions for summary judgment, without specifying the reasons for the ruling. From the record, it is evident that the defendants' lack of market power was deemed to be the controlling issue in the case. The Court of Civil Appeals affirmed the finding of defendants' lack of market power, but reversed in part, believing that the plaintiff may have had a conspiracy claim, and reversed the trial court's ruling on dismissal of the teleradiology claim. We granted certiorari.

¶ 6 The following facts are taken from plaintiff's deposition, which was listed as an exhibit to plaintiff's brief in opposition to defendants' motion for summary judgment. Plaintiff was considering establishing a medical practice in southwestern Oklahoma and he began to research the possibilities there. He concluded that the area might be ripe for a teleradiology² network and for mobile radiology because it appeared that there were no facilities outside of Lawton. In March 1993, plaintiff interviewed with a radiology group in Lawton. During that interview, he was introduced to some of the other doctors practicing at Comanche County Memorial Hospital (CCMH) and met with the hospital's administrator, Mr. Randy Curry. Although he did not mention his hopes about the teleradiology network and mobile radiology to the radiology group with whom he was interviewing, during his visit with Mr. Curry, he saw a teleradiology map on the wall and mentioned to Mr. Curry his desire to create a network and to provide mobile services. The plaintiff was not hired by the radiology group in Lawton, and believes that Randy Curry "told them not to" hire him. Although plaintiff was offered a contract to provide radiology services and set up a teleradiology network at another Lawton hospital, he did not accept it.

¶ 7 The plaintiff took a job in Muskogee from September 1993 to June 1994. While living in Muskogee, plaintiff explored the possibility of establishing a teleradiology network in eastern Oklahoma, but learned that the State of Oklahoma was planning to establish a statewide teleradiology network. The plaintiff took over a practice in Elk City, Oklahoma in June 1994 and began to provide radiology services to the hospital there through his solely-owned corporation, Southwest Imaging Services. At that point, neither the State of Oklahoma network nor the CCMH teleradiology network was in existence, nor was there one at the time of plaintiff's deposition. Plaintiff contacted some of the administrators of other area hospitals about obtaining radiology business for himself. This search revealed that many of the towns already were being provided with radiology services, and that some of them had their own equipment, which would not make them a candidate for mobile radiology. At least two cities, Hollis and Frederick, were being served by existing teleradiology services and others, such as Cheyenne and Mangum, intended to join the State of Oklahoma network, which would be free to them for the first two years. Elkview Hospital in Hobart told plaintiff that they were a member of First Health West and were going to use their teleradiology system. Doctors in Clinton were prepared to set up a teleradiolgy system with Baptist Hospital in Oklahoma City, and plaintiff was unsure whether that was a part of the State of Oklahoma teleradiology network (OTN). The two radiologists who were providing full services to the hospital in Altus did not feel that they needed teleradiology for their practice. Southwest Hospital in Lawton already had a working teleradiology system.

¶ 8 Plaintiff did not have a mobile radiology program or a teleradiology network to offer at the time his lawsuit was filed. He had made no written proposals to anyone about establishing a mobile radiology or teleradiology network. The trial court dismissed plaintiff's teleradiology claim based on lack of standing because he did not have a teleradiology network that had been harmed by defendants. Although the trial court dismissed the claim on the basis that the plaintiff lacked standing, it is clear that the trial court believed that plaintiff could not establish harm to a non-existent teleradiology network, particularly since the defendants did not have a teleradiology network either.³

¶ 9 It has been held that a trial court properly granted summary judgment where plaintiff could not recover on a claim that defendants' action prevented him from purchasing a bakery facility where plaintiff failed to show sufficient preparedness to enter a baking business and failed to demonstrate his own ability to secure financing that would have been necessary to purchase the facility. Curtis v. Campbell-Taggart, Inc., 687 F.2d 336 (10th Cir.1982), cert. den. 459 U.S. 1090, 103 S.Ct. 576, 74 L.Ed.2d 937; reh. den. 459 U.S. 1229, 103 S.Ct. 1240, 75 L.Ed.2d 472. The plaintiff in Campbell-Taggart had not shown the consummation of contracts toward purchase of the business and the court said, "[A]lthough Mr. Curtis certainly has manifested an intention to enter the baking business, we agree with the district court that he has failed to show sufficient preparedness to raise a genuine issue of fact under these standards." See also, Paddington Corp. v. Major Brands, Inc., 359 F.Supp. 1244 (W.D.Okla.1973) (plaintiff had never attempted to purchase scotch whisky from distiller or from importer and did not have standing to complain of distiller's alleged refusal to deal with others than importer). In the case at bar, neither the plaintiff nor the defendants had a teleradiology business. We affirm the trial court's...