Corbitt v. Andersen, 83-2047

Decision Date11 December 1985
Docket NumberNo. 83-2047,83-2047
Citation778 F.2d 1471
PartiesRay CORBITT, Plaintiff-Appellee, v. Brent ANDERSEN, in his official capacity and individually, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Lawrence G. Orr (Ethelyn Boak Orr & Guy, Williams, White & Argeris, with him on brief), Cheyenne, Wyo., for defendant-appellant.

Charles E. Graves of Graves & Associates, Cheyenne, Wyo., for plaintiff-appellee.

Before LOGAN and McWILLIAMS, Circuit Judges, and BOHANON, District Judge. *

McWILLIAMS, Circuit Judge.

This civil rights action arises out of interaction between two practicing psychologists residing in Rock Springs, Wyoming. Dr. Ray Corbitt, who has a doctorate degree in psychology from the University of Wyoming, brought suit under 42 U.S.C. Sec. 1983 in the United States District Court for the District of Wyoming against Dr. Brent Andersen, who has a doctorate degree in psychology from Utah State University. A co-defendant was Southwest Counseling Service, a non-profit Wyoming corporation and a political subdivision of Sweetwater County, Wyoming.

Joined with the Sec. 1983 claim was a pendant claim based on Wyoming law relating to tortious interference with a contractual relationship. Corbitt sought actual damages and punitive damages. Trial by jury resulted in a verdict in favor of Corbitt and against Andersen only in a total amount of $111,843, i.e., $68,309 on Corbitt's civil rights claim and $43,534 on his pendant state claim. Judgment was entered, and Andersen now appeals therefrom.

From the complaint we learn that Corbitt was employed in 1977 by School District Number One, Sweetwater County, Wyoming as a school psychologist. From that date to the date when the complaint was filed, Corbitt, with the knowledge and permission of his employer, the school district, rendered professional services during out-of-school hours to private parties for compensation. In this regard, in addition to individual private clients, Corbitt entered into numerous contracts for private treatment of clients within his field of professional expertise with the Department of Public Assistance and Social Services (DPASS) in Sweetwater County, and with the Department of Vocational Rehabilitation (DVR) of the State of Wyoming.

As above stated, the Southwest Counseling service was also a named defendant in the present proceeding, but the jury, by its answers to certain special interrogatories, found for Southwest. Southwest, a non-profit Wyoming corporation funded by state and county funds, was a "competitor" of Corbitt's in the sense that it, too, sought "referrals" from DPASS and DVR. Andersen, the defendant, became the director of Southwest in July, 1979, and the gravamen of the complaint is that immediately thereafter Andersen embarked on a continuing campaign to discredit Corbitt's professional standing and that, as a result thereof, Corbitt was defamed and his private practice of psychology suffered, particularly when DPASS and DVR ceased making referrals to him and began making referrals, which he might have ordinarily expected, to Southwest.

By answer, Andersen generally denied liability, and, at trial, his theory of defense was that under the psychologists' code of professional responsibility he had the duty to "speak out" when he felt that Corbitt was rendering professional services in cases outside or beyond his particular area of expertise. Andersen also argued that although he had relayed to DPASS and DVR, and others, his concerns regarding Corbitt, any cessation, or slowing down, of referrals to Corbitt by DPASS or DVR was not the result of his actions, but resulted from a change of policy within DPASS and DVR.

Trial of this matter took some ten days, during the course of which Corbitt called some fourteen witnesses, and Andersen himself called seven witnesses. The case was then submitted to the jury with a series of special interrogatories. The interrogatories as they related to Andersen were as follows:

1. Do you find, by a preponderance of the evidence, that the Plaintiff, Ray Corbitt, on or after June 24, 1980, had a liberty interest of which he was deprived by any action taken by the Defendant Brent Andersen?

2. If you have found that the Plaintiff was deprived of a liberty interest as a result of Defendant Andersen's actions, and if you further find by a preponderance of the evidence that notice and a hearing would have accorded the Plaintiff due process of law, do you find by a preponderance of the evidence that the Plaintiff was given such notice and a hearing as to constitute due process?

3. Do you find by a preponderance of the evidence that the Defendant Andersen was acting under color of state law with regard to the actions complained of by the Plaintiff?

4. Do you find, by a preponderance of the evidence, that the Defendant Andersen is entitled to immunity from liability for damages arising out of a violation of Plaintiff's civil rights?

5. If you have found that any actions of the Defendant Brent Andersen deprived the Plaintiff of a liberty interest, do you find, by a preponderance of the evidence, that the actions of Defendant Andersen were a proximate cause of any damages suffered by the Plaintiff?

6. Do you find, by a preponderance of the evidence, that the Defendant Brent Andersen, on or after March 29, 1980, intentionally and improperly interfered with any contractual relations involving the Plaintiff and any third parties, which caused any third party to breach a contract with the Plaintiff?

7. If you have found that the Defendant Andersen intentionally and improperly interfered with contracts involving the Plaintiff, do you find, by a preponderance of the evidence, that the Defendant Andersen was acting within the scope of his employment at the time he committed such action or actions?

The jury answered "yes" to interrogatories numbered 1, 3, 5, and 6, and answered "no" to interrogatories numbered 2, 4, and 7. It then assessed Corbitt's damages at $111,843.00. On appeal, Andersen argues, inter alia, that there is insufficient evidence to support any of the jury's answers to any of the interrogatories, and further that, in reality, the district judge should have ruled in his favor on each of the interrogatories, as a matter of law. Such is not our reading of the record. We believe the record supports the jury's answers to all the special interrogatories. In a case of this sort, evidence pertaining to ultimate facts is frequently circumstantial in nature, involving the drawing of inferences. Such is the prerogative of the fact finder, not an appellate court.

Initially, Andersen argues that Corbitt's civil rights claim is time-barred by Wyoming's two-year statute of limitations. W.S. Sec. 1-3-115. Spiegel v. School District No. 1, Laramie County, Wyoming, 600 F.2d 264 (10th Cir.1979). The complaint in the instant case was filed on June 24, 1982. Andersen became director of Southwest in July, 1979, and, according to Corbitt's theory of the case, shortly thereafter embarked on a campaign to destroy his professional standing. It is Corbitt's position, however, that this was a series of actions on the part of Andersen which continued on after June 24, 1980, which would bring the claim within the two-year period. See, e.g., Page v. United States, 729 F.2d 818, 821-22 (D.C.Cir.1984); Taylor v. Meirick, 712 F.2d 1112, 1118-19 (7th Cir.1983). The jury was properly instructed on this matter, and the record supports Corbitt's position that Andersen's contacts with others regarding Corbitt's lack of professional expertise and ethics continued after June 24, 1980, and that Corbitt's legal injury, or at least a part thereof, did not occur until after June 24, 1980. We find no error in this regard. **

The central issue in this case is whether Corbitt made out a prima facie case that a liberty interest had been violated by Andersen's actions. The district judge ruled that Corbitt had failed to establish, prima facie, any violation of a property interest, but that the question of a liberty interest should go to the jury. We find no error. In this regard, Andersen relies heavily on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1975). In that case, the Supreme Court held that a damaged reputation "alone, apart from some more tangible interests such as employment," is neither liberty nor property "by itself sufficient to invoke the procedural protection of the Due Process Clause." Id. at 701, 96 S.Ct. at 1160. Under Corbitt's theory of the case, we are dealing with something more than a damaged reputation. The right to pursue one's chosen profession unfettered by state action which does not comport with the 14th Amendment, is referred to in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752 1 L.Ed.2d 796 (1957). Further, under Corbitt's theory of the case, Andersen interfered with his right to contract with DPASS and DVR. In other words, Andersen not only defamed Corbitt, but created a stigma that "foreclosed his freedom to take advantage of other employment opportunities." Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). We reject the suggestion that this is, at best, only a garden-variety state libel case masquerading as a civil rights case. The jury heard sufficient evidence regarding the initial health and worth of Corbitt's private practice and could reasonably conclude that Andersen's actions weakened and devalued it.

The record, in our view, also amply supports the jury's conclusion that Andersen was acting under color of state law when he went "behind Corbitt's back," as counsel frames it, to DPASS, DVR, the state board of examiners, and others to suggest that Corbitt was not professionally qualified to handle cases. Andersen testified himself that he considered the contacts he made to be part of his job. A former DVR official testified that Andersen's contacts were especially disturbing because of...

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