Odom v. Lee, No. S-7547.

CourtSupreme Court of Alaska (US)
Writing for the CourtCOMPTON, Chief Justice.
Citation999 P.2d 755
PartiesDavid M. ODOM, M.D., Appellant, v. Hoi P. LEE, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Appellees.
Decision Date17 March 2000
Docket NumberNo. S-7547.

999 P.2d 755

David M. ODOM, M.D., Appellant,
v.
Hoi P. LEE, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Appellees

No. S-7547.

Supreme Court of Alaska.

March 17, 2000.


999 P.2d 756
David M. Odom, M.D., pro se, Fairbanks

Ronald L. Bliss, Bliss & Wilkens, Anchorage, for Appellees.

Before COMPTON, Chief Justice, MATTHEWS, FABE, and BRYNER, Justices.

OPINION

COMPTON, Chief Justice.

I. INTRODUCTION

Dr. David M. Odom and four other doctors (Defendant doctors) were parties to a contract for sharing an anesthesiology practice at Fairbanks Memorial Hospital. Following a dispute with the Defendant doctors, Dr. Odom filed suit alleging damages for breach of contract, tortious interference with a contract right, conspiracy to restrain trade, and unfair trade practices. Dr. Odom appeals pro se from the denial of his motions for continuance and to amend pleadings, and from the grant of summary judgment in favor of the Defendant doctors on all issues. We reverse the summary judgment and remand for a jury trial.1

II. FACTS AND PROCEEDINGS

The parties to this litigation are all licensed physicians specializing in anesthesiology. They hold staff privileges at Fairbanks Memorial Hospital (FMH). They2 began sharing the anesthesia practice at FMH in 1989.3

999 P.2d 757
The doctors had a contract among themselves, titled "Anesthesia Coverage Rules and Regulations" (Rotation Agreement). This contract stated each doctor's responsibility to the others in fulfilling their agreement with FMH. The agreement between the doctors collectively and FMH was titled "Fairbanks Memorial Hospital Anesthesiologist Agreement." In it the doctors are denominated the Anesthesia Staff. This agreement incorporated the terms of the Rotation Agreement. Under this agreement, "[a]dditional anesthesia services added or staffing requirement changes due to increased rooms, services, etc. shall be by Joint Collaboration with the anesthesia staff." Additionally, FMH agreed that it would "not solicit or recruit for the provision of anesthesia services during the period of this Agreement without first notifying the Anesthesia Staff." The five doctors would provide twenty-four-hour-a-day anesthesia coverage to FMH. Each doctor also had a separate contract with FMH that allowed the doctor to practice medicine at FMH

Two of the doctors, Hoi P. Lee and Randall K. McGregor, had practiced anesthesiology in Fairbanks before the formation of the Rotation Agreement with the other doctors. They owned Anesthesia Associates, Inc. This corporation employed a staff of Certified Registered Nurse Anesthetists (CRNAs), who assisted the doctors in the operating room.

The Rotation Agreement set up a detailed rotation schedule among the doctors and among the CRNAs, and provided for modification of the schedule. It also provided that if the doctors could not agree on a modification, the doctor wanting unscheduled time off was responsible for providing coverage during his absence. The doctors followed this procedure for approximately five years.

The rotation schedule required the doctor in the "number one" position to supervise two operating rooms, each staffed by a CRNA. The second, third, and fourth doctors in the rotation each worked in one operating room with no CRNA, and the fifth doctor was off-duty.

This controversy had its genesis in CRNA Kay Wilson's refusal to follow Dr. Odom's instructions during a certain type of procedure.4 After the third incident with CRNA Wilson, Dr. Odom approached Dr. Lee about the problem. He got no definitive response from Dr. Lee.

The specific precipitating event occurred on October 4, 1993, when Dr. Odom was choosing rooms for the following day. He realized he would be in the number one position on the rotation. He intended to use the procedure CRNA Wilson had refused to help with in the past; CRNA Wilson was assigned to work with Dr. Odom that day. Dr. Odom advised the surgical secretary that he would take only one operating room the following day, and that the second room and the CRNAs should be assigned to the number two doctor.

Following this incident, the Defendant doctors sent a memo to the FMH Chief of Staff about the incident involving Dr. Odom. The same day, the FMH Chief of Staff suspended Dr. Odom's staff privileges for twenty-four hours. The Defendant doctors also met and decided to revoke their contract with Dr. Odom. They notified Dr. Odom that they would exclude him from their new contract. After FMH reinstated his staff privileges the following day, Dr. Odom could perform services at FMH only at the request of a patient or a particular physician. He no longer received a share of the general anesthesiology practice at FMH.

Dr. Odom filed suit alleging damages for breach of contract, tortious interference with a contract right, conspiracy to restrain trade, and unfair trade practices. The Defendant doctors accepted Dr. Odom back into the rotation approximately two months after the incident with CRNA Wilson, after he filed suit.

After Dr. Odom's reinstatement in the rotation schedule, FMH began administrative proceedings to revoke his hospital privileges.

999 P.2d 758
Dr. Odom's original attorney, Joseph Sheehan, had limited his representation of Dr. Odom to the suit against the Defendant doctors. Mr. Sheehan specifically did not want to sue FMH or expand the suit to issues beyond the breach of the Rotation Agreement. Because of this, Dr. Odom retained a different lawyer to represent him in the administrative proceeding before FMH during the first part of 1994. In June 1994, following the administrative proceeding, FMH revoked Dr. Odom's hospital privileges

Trial was set for April 1995. In October 1994 Dr. Odom sought a continuance of the trial date because he needed additional discovery for his case against the Defendant doctors. This was at a time when Dr. Odom already knew of his potential claims against FMH and its parent corporation, based on revocation of his privileges in June of that year. The superior court granted his unopposed motion for continuance; a new trial date was set for January 1996. The deadline for amending pleadings was September 1995.

In July 1995 Mr. Sheehan formally informed Dr. Odom that he was withdrawing as Odom's counsel. Dr. Odom attempted to find other counsel, but initially was unsuccessful. In August the Defendant doctors filed a motion for summary judgment. On September 19 the superior court granted Mr. Sheehan's motion to withdraw. Dr. Odom sought and received a two-week extension of the deadline for his response to the summary judgment motion. On October 2 he filed a pro se cross-motion for summary judgment.

On October 20, Ray Brown, a partner in the law firm of Dillon & Findley, appeared for Dr. Odom. He filed a motion to vacate the trial date and for a continuance. At oral argument, Mr. Brown told the superior court that, if it granted the motion, his firm would represent Dr. Odom and be ready for trial in nine months. The superior court denied the motion. On October 7, Mr. Brown filed a motion to supplement his summary judgment briefing, and for a Rule 56(f) continuance. The trial court denied this motion on November 15. After the November 15 ruling Brown declined to represent Dr. Odom further.

Following oral argument, in which Dr. Odom appeared pro se, the superior court granted summary judgment to the Defendant doctors on three of the four claims. The court took the claim of tortious interference with contract under advisement, and considered two additional arguments that Dr. Odom had failed to raise. The superior court then granted summary judgment to the Defendant doctors on this claim as well. Dr. Odom appeals pro se the denial of the continuance and the summary judgment.5

III. DISCUSSION

A. Breach of Contract

The superior court granted summary judgment to the Defendant doctors on all of Dr. Odom's breach of contract claims. We review the superior court's decision de novo. See Farmer v. State, 788 P.2d 43, 46 n. 8 (Alaska 1990). Dr. Odom is entitled to have the record reviewed in the light most favorable to him, and to have all reasonable inferences drawn in his favor. See Metcalfe Invs., Inc. v. Garrison, 919 P.2d 1356, 1360 (Alaska 1996).

There are three issues of material fact which the superior court should not have decided on summary judgment: (1) who committed the first material breach; (2) whether the Defendant doctors violated the covenant of good faith and fair dealing; and (3) whether the Defendant doctors had modified the contract, through course of dealing, to permit Dr. Odom's conduct.

1. Materiality of the breach

Dr. Odom argues the superior court erred in holding that he breached the Rotation

999 P.2d 759
Agreement on October 4, 1993, by refusing to cover the second operating room staffed by CRNA Wilson. Dr. Odom argues that the Defendant doctors breached the agreement first by requiring him to work with an inadequate CRNA and by ignoring his requests to resolve the situation that had developed with CRNA Wilson. The superior court concluded that because the parties' responsibility to follow the rotation schedule was the foundation of the contract, Dr. Odom's breach was sufficient to excuse performance by the Defendant doctors.

The contract between the doctors specifically provided that each doctor had the responsibility for providing locum tenens coverage for his own absences. Had Dr. Odom been on vacation and failed to arrange for coverage in his absence, the superior court would have been correct that Dr. Odom's breach was the first material breach. The superior court concluded that because Dr. Odom was not excused from performance because of an emergency, and because he knew of his problem with CRNA Wilson, he could have provided locum tenens coverage during his absence. However, this conclusion does not address the issue of fact raised by Dr. Odom, which is...

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6 practice notes
  • Alakayak v. British Columbia Packers, Ltd., No. S-9259
    • United States
    • Supreme Court of Alaska (US)
    • May 31, 2002
    ...40. See Gossman v. Greatland Directional Drilling, Inc., 973 P.2d 93, 95 (Alaska 1999). 41. See 15 U.S.C. § 1 (2000). 42. See Odom v. Lee, 999 P.2d 755, 761 (Alaska 43. See id. at 762; Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1349 (Alaska 1987). 44. See Odom, 999 P.2d at 762. 45. See......
  • Cornelison v. TIG Ins., Supreme Court No. S–15647
    • United States
    • Supreme Court of Alaska (US)
    • August 12, 2016
    ...of a prospective business relationship).31 K & K Recycling, Inc. v. Alaska Gold Co. , 80 P.3d 702, 716 (Alaska 2003) (citing Odom v. Lee , 999 P.2d 755, 761 (Alaska 2000) ).32 We recognize, as the Cornelisons note, that TIG could not simply controvert Floyd's benefits and unilaterally cease......
  • Alcan Forest Prods., LP v. A-1 Timber Consultants, Inc., Case No. 5:11–cv–00001–SLG.
    • United States
    • U.S. District Court — District of Alaska
    • November 13, 2013
    ...A–1 “fail[ed] to perform any part of th[e] contract ... to be performed promptly and in the manner ... specified....” See Odom v. Lee, 999 P.2d 755 (Alaska 2000) (whether breach is material is question of fact). 167. Docket 66–1 ¶ 113 (3/25/13 Nichols Decl.). 168. Docket 58 at 19, 20 (A–1 M......
  • Sisters of Providence v. AA Pain Clinic, No. S-10390
    • United States
    • Supreme Court of Alaska (US)
    • December 19, 2003
    ...of the anesthesia department. 14. Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 n. 8 (Alaska 2002). 15. AS 45.50.562; Odom v. Lee, 999 P.2d 755, 761 (Alaska 16. Lee, 999 P.2d at 761; see also West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 14 n. 6 (Alaska 1981). 17. Lee, 999 P.2d at 76......
  • Request a trial to view additional results
6 cases
  • Alakayak v. British Columbia Packers, Ltd., No. S-9259
    • United States
    • Supreme Court of Alaska (US)
    • May 31, 2002
    ...40. See Gossman v. Greatland Directional Drilling, Inc., 973 P.2d 93, 95 (Alaska 1999). 41. See 15 U.S.C. § 1 (2000). 42. See Odom v. Lee, 999 P.2d 755, 761 (Alaska 43. See id. at 762; Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1349 (Alaska 1987). 44. See Odom, 999 P.2d at 762. 45. See......
  • Cornelison v. TIG Ins., Supreme Court No. S–15647
    • United States
    • Supreme Court of Alaska (US)
    • August 12, 2016
    ...of a prospective business relationship).31 K & K Recycling, Inc. v. Alaska Gold Co. , 80 P.3d 702, 716 (Alaska 2003) (citing Odom v. Lee , 999 P.2d 755, 761 (Alaska 2000) ).32 We recognize, as the Cornelisons note, that TIG could not simply controvert Floyd's benefits and unilaterally cease......
  • Alcan Forest Prods., LP v. A-1 Timber Consultants, Inc., Case No. 5:11–cv–00001–SLG.
    • United States
    • U.S. District Court — District of Alaska
    • November 13, 2013
    ...A–1 “fail[ed] to perform any part of th[e] contract ... to be performed promptly and in the manner ... specified....” See Odom v. Lee, 999 P.2d 755 (Alaska 2000) (whether breach is material is question of fact). 167. Docket 66–1 ¶ 113 (3/25/13 Nichols Decl.). 168. Docket 58 at 19, 20 (A–1 M......
  • Sisters of Providence v. AA Pain Clinic, No. S-10390
    • United States
    • Supreme Court of Alaska (US)
    • December 19, 2003
    ...of the anesthesia department. 14. Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 n. 8 (Alaska 2002). 15. AS 45.50.562; Odom v. Lee, 999 P.2d 755, 761 (Alaska 16. Lee, 999 P.2d at 761; see also West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 14 n. 6 (Alaska 1981). 17. Lee, 999 P.2d at 76......
  • Request a trial to view additional results

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