Gray v. Marshall County Bd. of Educ.
| Decision Date | 10 March 1988 |
| Docket Number | No. 18136,18136 |
| Citation | 179 W.Va. 282,367 S.E.2d 751 |
| Court | West Virginia Supreme Court |
| Parties | , 1988-1 Trade Cases P 67,963, 46 Ed. Law Rep. 868 A. Wayne GRAY d/b/a Bob Gray Studios v. MARSHALL COUNTY BOARD OF EDUCATION, et al. |
Syllabus by the Court
(1) The officers of a single firm are not separate economic actors pursuing separate economic interests, so agreements among them do not suddenly bring together economic power that was previously pursuing divergent goals; accordingly, officers or employees of the same firm do not provide the plurality of actors imperative for an actionable conspiracy under W.Va.Code, 47-18-3(a) [1978].
(2) The courts of this state are directed by the legislature in W.Va.Code, 47-18-16 [1978] to apply the federal decisional law interpreting the Sherman Act, 15 U.S.C. § 1, to our own parallel antitrust statute, W.Va.Code, 47-18-3(a) [1978].
David R. Gold, Gold, Khourey and Turak, Moundsville, for A. Wayne Gray, d/b/a Bob Gray Studios.
John B. Garden, Bachmann, Hess, Bachmann & Garden, Wheeling, Thomas E. White, P.A., Moundsville, for Marshall CBE and Ronald Trowbridge.
A. Wayne Gray, the plaintiff below, is a professional photographer in Cameron, West Virginia. The defendant below, Ronald Trowbridge, is the principal of Cameron High School. Mr. Gray sued Mr. Trowbridge and the Marshall County Board of Education for conspiring to interfere with his business and a Marshall County Circuit Court jury awarded him $47,000 in actual damages. 1
The case was submitted to the jury on the single issue of whether the actions of the defendants, Mr. Trowbridge and the Marshall County Board of Education, violated W.Va.Code, 47-18-3(a) [1978] which provides:
Every contract, combination in the form of trust or otherwise, or conspiracy in restrain [sic] of trade or commerce in the State shall be unlawful.
Because W.Va.Code, 47-18-9 [1978] provides treble damages in antitrust suits, the circuit court entered judgment for $141,000, or three times the jury's $47,000 award. Thereafter, the defendants moved for a new trial on the grounds that the plaintiff had not proved an actionable conspiracy. The circuit court granted the motion and Mr. Gray appealed. The sole issue before us now is whether at trial Mr. Gray proved a conspiracy in restraint of trade that violated the West Virginia antitrust laws. We find that the plaintiff did not prove such a conspiracy, and we affirm the judgment of the circuit court.
In 1976 Mr. Gray returned to his hometown of Cameron and opened up an independent photography studio. At that time he was advised that Cameron High School was dissatisfied with its photographer and was looking for a replacement. Mr. Gray interviewed for the job and was offered a written contract by the board of education.
Apparently the duties of a school photographer differ from school to school, but the essential elements of the position are that the photographer provides underclass pictures and pictures of school activities for the yearbook for which he receives little or no compensation. In return, however, he is placed in a favorable position to take senior portraits, photographs of individual students who are involved in school activities, and dance pictures--all of which produce handsome profits. If the photographer is operating under an "exclusive" arrangement, other photographers are precluded from competing for the profitable business.
After Mr. Gray embarked upon the performance of his duties as school photographer for Cameron High School he found many of the provisions of his contract burdensome. One provision called for him to "rebate" 25 percent of the price of his pictures to the school. The rebate system was open and aboveboard, and there is no question that the money went to the school. Nonetheless, Mr. Gray found that the profit margin on underclass pictures was so small that he was required to charge considerably more than the pictures were worth in order to break even.
Much to Mr. Gray's credit, he also recognized that many parents in the community could not afford to pay for underclass pictures in light of their high cost--a problem related to the rebate requirement. Consequently, Mr. Gray began to give away underclass pictures to students who were indigent. Furthermore, Mr. Gray decided never again to accept a contract that required a rebate to the school. The decision by Mr. Gray to give pictures away was not to the school's liking because giving pictures away cut into the school's percentage. Consequently, relations between Mr. Gray and the school's new principal, Ronald Trowbridge, began to deteriorate.
After one year as official school photographer, Mr. Gray was replaced by Gruber Studios. Gruber Studios had an exclusive contract that precluded Mr. Gray from taking pictures on school premises or pictures related to school activities, even though students or faculty might request him to do so. However, Mr. Gray's overwhelming popularity with the students required Mr. Trowbridge to go beyond simple denial of access to school property if Gruber Studios' "exclusive" contract was to be of any value to Gruber Studios. Accordingly, Mr. Trowbridge threatened to expel students from school activities if they patronized Mr. Gray's studio while wearing a school activity uniform. 2 Mr. Trowbridge informed the students that they would be excluded from senior dances if Mr. Gray photographed them either before or after a school dance. Thus, Mr. Trowbridge's efforts to give meaning to the exclusivity clause of Gruber Studios' contract denied Mr. Gray three lucrative photographic opportunities: (1) school activity pictures, (2) athletic pictures, and (3) dance pictures.
In addition to specific policies denying Mr. Gray direct access to school business, Mr. Trowbridge also engaged in general harassment. Yearbooks that Mr. Gray had lent the school mysteriously disappeared; darkroom equipment that Mr. Gray had lent to the school was not readily returned; and, an article appeared in the Cameron High School yearbook indicating that Mr. Gray's pictures were twice as expensive as they actually were.
Eventually, there was even an effort to change a longstanding policy allowing any senior portrait that met the specifications of the yearbook advisor to be included in the Cameron High School yearbook. In 1984 Mr. Gray's only child was a senior at Cameron High School and, by that time, the appellant was so popular that he took approximately 80 percent of all the senior portraits. That year, however, Mr. Trowbridge and the yearbook advisor began to require that all high school senior portraits be taken by the official school photographer.
In summary, then, the jury could have concluded from the evidence at trial that there was a personal vendetta on the part of Mr. Trowbridge against Mr. Gray. Furthermore, there is ample evidence that as a result of Mr. Trowbridge's actions Mr. Gray lost substantial money.
There is little question that the plaintiff proved to the jury's satisfaction that he was unfairly treated by Mr. Trowbridge. However, Mr. Gray did not demonstrate the existence of a conspiracy between Mr. Trowbridge and the Marshall County Board of Education to injure Mr. Gray in his trade or business that would be actionable under the antitrust laws. This failure of proof involves two distinct aspects: First, the evidence in the record, including an admission requested by Mr. Gray, demonstrates that Mr. Trowbridge's policies with regard to Mr. Gray were not approved, condoned, or encouraged by the superintendent of schools or his direct subordinates. Second, the West Virginia antitrust laws prohibit conspiracies between separate economic actors. Mr. Trowbridge was an employee and agent of the Marshall County Board of Education; thus, to the extent that there was malicious conduct directed against Mr. Gray, it was the action of one entity--namely the board of education--and not the action of two entities conspiring with one another.
The explicit disapproval of Mr. Trowbridge's conduct by the superintendent's office is exemplified by the facts surrounding attempts to prevent seniors from using Mr. Gray's pictures in the yearbook. Attempts to change the "open yearbook" policy regarding senior pictures first occurred in the 1979-1980 school year. One day Mr. Gray was called by a school coach to come to the school to take a team picture. Mr. Trowbridge, however, barred Mr. Gray's access to the school. Coincidentally, Mr. Robert Eaton, assistant superintendent of schools, happened to be at Cameron High School the day Mr. Gray was barred from the premises and the incident provided an opportunity for Mr. Gray to discuss his overall predicament with the assistant superintendent.
Mr. Gray explained to Mr. Eaton that the yearbook would no longer accept pictures taken by him, and asked why his senior pictures were excluded from the Cameron High School yearbook although they were included in the John Marshall High School yearbook. After Mr. Eaton spoke with the principal of John Marshall High School and confirmed that the appellant's photographs were, in fact, appearing in other school yearbooks within the county, the superintendent's office changed the Cameron High School policy to allow the appellant's photographs to appear in the Cameron High School yearbook.
Following this reinstatement of the old "open yearbook" policy, the appellant was again permitted to compete for senior pictures, and captured approximately 80 percent of the senior picture market at Cameron High School. The "open yearbook" policy ran smoothly from 1979 until 1983 when Mr. Trowbridge made another effort to change it.
Immediately before the summer recess of 1983, Mr. Trowbridge met with the junior class and yearbook advisor to distribute the specifications for senior pictures and to discuss other matters involving the class of 1984. Mr. Trowbridge advised the students that...
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