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Archive for October, 2009

QHG of Springdale, Inc. v. Archer, No. CA07-1115.

Dr. Ernest Archer, an OB/GYN, and his employer, QHG of Springdale (“QHG”), entered into a two-year employment contract in 2000.  In 2002, they entered into a second, five-year contract. Dr. Archer complained that QHG (1) repeatedly denied his requests for vacation and continuing medical education, (2) failed to provide adequate personnel and equipment, and (3) failed to provide rotating call coverage. Specifically, Dr. Archer alleged that, with the exception of a few weeks here and there, he had been on call twenty-four hours a day, seven days a week for more than two years. In January 2004, QHG terminated Dr. Archer’s employment without cause under the 180-day notice option of the contract, and his employment with QHG would end in July 2004. Dr. Archer resigned his medical privileges in May 2004 because he could no longer operate safely given problems with his hands. QHG then terminated Dr. Archer for cause.

Dr. Archer filed a complaint against QHG alleging breach of contract and unjust enrichment regarding QHG’s failure to provide rotating call coverage. The trial court granted QHG’s motion for directed verdict on the unjust enrichment claim. The breach of contract claim went to the jury, which found QHC had violated the 2002 employment contract and awarded Dr. Archer $387,500 in damages. Both parties appealed.

Regarding the unjust enrichment claim, the Arkansas Supreme Court agreed that, in general, Arkansas does not allow an unjust enrichment claim when the parties have a contract. The court noted, however, that this general rule has many exceptions. The court referred to the draft “Performance of Disputed Obligation” section of Restatement (Third) of Restitution and Unjust Enrichment, which provides the following:

If one party to a contract demands from the other a performance that is not in fact due by the terms of their agreement, the party on whom the demand is made may render such performance under protest or with reservation of rights, preserving a claim in restitution to recover the value of the benefit conferred in excess of the recipient’s contractual entitlement.

If the parties have an enforceable contract that fully addresses a subject, they must follow the terms of the contract in resolving any dispute. The contract will not bar an unjust enrichment claim, however, if (1) the contract fails on some basis, (2) the contract does not fully address a subject, or (3) disputed performance is compelled under protest.

Here, the parties’ contract required QHC to provide some call rotation: “[Dr. Archer] shall provide on-call coverage on a rotating basis and shall be on call as shall be determined from time to time by agreement between [QHC] and [Dr. Archer].” The contract did not fully address, however, how much on-call coverage was required of Dr. Archer. Further, any time he was on call, Dr. Archer was required to respond within a reasonable period of time, usually thirty minutes, under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) and QHG guidelines. Failure to comply with EMTALA or the QHG guidelines would have resulted in fines or suspension of medical privileges. The court noted that Dr. Archer overperformed for good reasons and under protest. The court then reversed the directed verdict and remanded the case for trial on the merits.

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After serving fourteen years in prison for a 1988 kidnapping and rape he did not commit time against a six-year-old girl, Leonard McSherry’s name was cleared by forensic evidence and the confession of the actual perpetrator. McSherry filed a civil rights lawsuit against the city of Long Beach, California, its police department, and two officers, alleging police made up the victim’s descriptions of the crime scene, coerced her to identify him as her kidnapper, ignored exculpatory evidence, and arrested him without probable cause. The trial court dismissed the case, noting that defendants were entitled to qualified immunity. On appeal, the Ninth Circuit noted that McSherry could not produce evidence that officers’ fabricated evidence or that leading interview tactics influenced the prosecutor’s decision to file charges against him and pursue a conviction. Because he “failed to raise a genuine issue of material fact as to whether the alleged fabrication or any misconduct by Defendants caused his arrest, prosecution, and conviction,” the court affirmed dismissal. For the full story, click here.

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Following the Second Circuit decision in Connecticut v. AEP–which reinstated federal public nuisance claims of eight states, New York City, and three land trusts against six power companies over carbon dioxide emissions—the Fifth Circuit rejected a lower court’s findings that global-warming disputes are best resolved by the political branches of government. Instead, the court held that Comer v. Murphy Oil Co. did not require it “to address any specific issue that is constitutionally committed to another branch of government.” The court noted that the property owners could proceed with claims for nuisance, trespass, and negligence because those allegations did not clearly fall under the authority of Congress, the president, or federal law. For the full story, click here.

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Burleson High School (“BHS”) adopted a dress code barring students from displaying the Confederate flag in response to more than 50 race-related incidents since 2002. Because of a fight that broke out between BHS students and fans of a predominantly black high school before a basketball game, the Texas high-school athletics governing body considered sanctions against BHS because the school was “identified [as] having a reputation … as being openly hostile to African-Americans; if not simply racist.” In another incident, a BHS student drew a noose and made comments about hanging minorities.

Despite the flag ban, two students in 2006 carried purses to school bearing large images of the Confederate flag. BHS administrators told them to leave the purses in the office until school was out, but the girls chose to go home rather than comply with the demand. They filed suit, claiming the ban violated their First and 14th Amendment rights. The Fifth Circuit upheld the ban, however, noting that Supreme Court precedent allows for such a ban if there is evidence that a type of speech will likely disrupt school activities.

For the full story, click here.

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Krout v. Goemmer, No. 08-2781.

Facts

At approximately 1:20 a.m., Sarah Lowrey walked into a Russellville gas station and asked the clerk to call the police because the man she was with, Bobby Joe Rylee, was agitated, needed sleep, and had a knife. Lowrey told the clerk Rylee had not threatened her. She returned to the truck Rylee was driving. The clerk called 911. A Russellville Police Department (“RPD”) officer, Lee Goemmer, heard the 911 dispatch, observed a truck matching the description, and signaled for the truck to pull over. Rylee pulled into an Exxon gas station, which was adjacent to a Waffle House.

As Goemmer approached the truck, Rylee began to reverse. Goemmer yelled for him to stop, which he eventually did. Goemmer then told Rylee to exit the vehicle, but he refused. Goemmer attempted to arrest Rylee. When he attempted to gain control of Rylee’s left hand, the men began to scuffle. Another RPD officer, Bobby Stevens, arrived to assist Goemmer in arresting Rylee. When the two officer could not pull Rylee from the truck, Stevens performed a “hip toss” maneuver, causing all three men to fall to the ground. While on the ground, the two officers tried to gain control of Rylee’s hands. At approximately the same time, two more RPD officers, Keith Spears and Terry Cobb, arrived, followed by Arkansas Tech security officer Greg McCuin and RPD officer Todd Winesburg.

Once Rylee was on the ground and no longer resisting arrest, several patrons and employees of Waffle House saw two officers assault him. The two officers repeatedly (1) kneed Rylee in the back, (2) punched him in the back, and (3) punched him in the head area. The witnesses confirmed that Rylee was not moving or resisting arrest. They also noted that several other officers watched the assault and did not attempt to stop it. The altercation lasted approximately five minutes.

Spears and McCuin then transported a limp Rylee to Cobb’s patrol car, and Cobb transported him to the Pope County Detention Center. Once there, Cobb removed Rylee from the patrol car and deposited him face down on the floor of the entryway. Two correctional officers, Chris Ketcherside and Kevin Hill, offered to lift Rylee up, but he told them he could not stand up, his legs were broken, and he could not feel his legs. As they picked Rylee up to move him inside, they noted a cut on his right eye, a bump on his face, and blood in his right ear.

Luke Sawdy, the correctional supervisor at the time, noticed Rylee as he was brought inside and heard him say he could not stand up and his legs were broken. Sawdy believed he was being uncooperative by refusing to stand up. He instructed Ketcherside and Hill to place Rylee in an isolation cell and to check on him every fifteen minutes. They took Rylee to a cell, removed his handcuffs, and left him lying on the floor on his stomach. Rylee stated his back was hurting, but refused a doctor when Ketcherside offered. At fifteen minute intervals, Ketcherside visited Rylee. Although Rylee never moved from his original position, when asked, he told Ketcherside he was fine and his arms were feeling better.

At approximately 3:00 p.m., Spears arrived at the detention facility to photograph Rylee. Spears asked him if he wanted medical treatment or to visit the hospital, and Rylee said no. After photographing Rylee, Spears suggested to Sawdy that Rylee be examined by emergency medical services (“EMS”) personnel who were located nearby. At approximately 4:00 a.m., Rylee was transported by wheelchair to the booking area for EMS observation. He sat slumped in the wheelchair with his head down.

EMS technicians, Richard Haley and Chris Vick, examined Rylee in the booking area and noticed an abrasion and some bruising on his face and a small amount of dried blood in his right ear. Rylee stated his neck hurt, but Haley did not notice anything unusual about Rylee’s neck other than some minor tenderness. He also did not find any abnormalities in his neuromuscular function. Rylee refused offers to take him to the hospital, and Haley and Vick subsequently left the detention center.

At approximately 5:30 a.m., Rylee asked for assistance lifting his head, and a correctional officer helped Rylee reposition his neck three times so that he could breathe more easily. Rylee again refused medical assistance. At approximately 7:15 a.m., Sawdy noticed Rylee was having difficulty breathing and asked Ketcherside to help reposition Rylee in the wheelchair to prop his head up. At approximately 8:00 a.m., Sawdy, Ketcherside, and several other officers observed that Rylee was breathing.

Just after 8:30 a.m., another correctional officer noticed that Rylee was not breathing and called for someone to call 911. Chris Johnston, who was also on duty at the time, called EMS. The EMS dispatcher offered to lead someone in performing CPR, but both officers refused. When EMS technicians Haley and Pam Logan arrived, they began CPR. Rylee had no pulse and was in the last stages of cardiopulmonary arrest. They restored Rylee’s pulse and transported him to the hospital. Rylee never regained consciousness and died five days later. The cause of death was multiple blunt force injuries with complications. The principal factor was a neck fracture and spinal cord injury.

Procedural History

Sandy Krout, individually and as administratrix of Rylee’s estate, filed a 42 USC § 1983 against Goemmer, Stevens, Cobb, Winesburg, Sawdy, Hill, Ketcherside, and Johnston. She alleged that the police officers used excessive force against Rylee or allowed others to use excessive force against him in violation of the Fourth Amendment. She also alleged that the correctional officers deprived Rylee of adequate medical care when they knew or should have known that he was in critical condition at the detention center in violation of the Eighth Amendment.

All of the defendants filed motions for summary judgment, arguing that, among other things, they were entitled to qualified immunity. The trial court denied all of the motions.

Appeal

Because the motions dealt with denial of qualified immunity, the Eighth Circuit of Appeals had limited authority to review the trial court’s decision under the collateral order doctrine. In order to prove qualified immunity, each of the defendant officers must establish that (1) he did not violate any of Rylee’s constitutional or statutory rights and/or (2) a reasonable officer would not have known his actions were unlawful.

Goemmer and Stevens argued on appeal that Rylee’s death was caused by the hip thrust, which was an objectively reasonable use of force under the Fourth Amendment. The court noted it had no jurisdiction to review an appeal related to causation and dismissed their appeals.

Spears, Cobb, and Winesburg, however, argued only that there was no evidence to suggest they had ever administered any force against Rylee. The court pointed out that Krout had also asserted that they had a duty to intervene to stop the allegedly unconstitutional use of force they witnessed. The court reaffirmed it’s previous holdings that

one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.

The court noted there was sufficient evidence to suggest Spears, Cobb, and Winesburg witnessed other officers’ use of excessive force. Accordingly, the court affirmed the trial court’s denial of summary judgment.

As to Sawdy, Hill, Ketcherside, and Johnston, they argued that there was no evidence to suggest that they had violated any of Rylee’s constitutional or statutory rights because they never showed deliberate indifference to his medical needs. To establish deliberate indifference, the court noted Krout would need to show that the officers (1) recognized that a substantial risk of harm existed and (2) knew that their conduct was inappropriate in light of that risk. The court noted that there was sufficient evidence in the record to support a finding that the officers recognized that a substantial risk of harm existed. Nevertheless, by monitoring Rylee’s condition, offering him medical attention, and having him assessed by EMS personnel, Sawdy, Hill, Ketcherside, and Johnston responded appropriately. Consequently, the court reversed the trial court’s denial of summary judgment as to qualified immunity.

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Bayird v. Floyd, No. 08-1099.

John Bayird, as administrator for the estate of his deceased mother, Mamie Elliott, filed a complaint against William Floyd and several Beverly entities related to Elliott’s care and treatment while she was a resident of a nursing home in Monticello. Floyd was the chief executive officer of Beverly during the relevant time period. He moved to dismiss the complaint against him for failure to state facts to establish his individual liability. The trial court considered information outside of the complaint and granted summary judgment to Floyd. The trial court then granted Rule 54(b) certification so that an appeal could be taken, even though the summary judgment was not a final order.

On appeal, Bayird argued that Floyd should be help personally liable because he enacted the corporate philosophy of emphasizing profits over care. The Arkansas Supreme Court noted that, under Arkansas law, an individual employed by the corporation can be liable only if it can be shown that the individual was personally involved in the events surrounding the injury. Bayird did not dispute that Floyd was not involved in any way with Elliott’s care and was not involved with the Monticello facility. Because Bayird’s allegation was only that Floyd was responsible for the overall corporate philosophy causing deficient staffing and supplied that resulted in harm to Elliott, the court upheld the grant of summary judgment.

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Howard v. Adams, No. CA08-1190.

Facts Relating to Bill Watkins

In the latter part of 1998, Odis and Mabel Howard visited attorney Bill Watkins to obtain estate-planning services. Watkins drafted (1) a revocable trust to hold all of Otis’s and Mabel’s property and (2) a deed transferring Odis’s forty-six-acre tract of land to the trust. The trust named Mabel as trustee and provided that the trust assets would pass to Gary Howard, Odis’s only child and Mabel’s stepson, upon the death of both settlors. The trust also provided that either settlor could revoke or amend the trust.

Otis never signed the deed or trust. By June 2000, he was suffering from Alzheimer’s disease. Gary asked Watkins to petition the court for temporary guardianship of Otis. The court granted the petition, and Gary was Otis’s legal guardian from June 19, 2000, until September 19, 2000.

After the temporary guardianship had expired, Otis’s family believed his death was imminent. Gary, Mabel, and Samantha (Gary’s daughter) met with Watkins, who advised Gary to sign the trust and deed as Otis’s guardian. Gary followed Watkins’s instructions and signed the documents, back-dating them to September 6, 2000, when he was still legal guardian for Otis. 

During this meeting, Gary, Mabel, and Samantha agreed to become co-trustees with equal authority, and Watkins agreed to revise the trust to reflect the co-trusteeship. Watkins, however, never advised Gary that, in the absence of the trust and deed, he stood to inherit all of Otis’s property by intestate succession, limited only by Mabel’s dower interest. Watkins also failed to advise Gary that his and Mabel’s interests were in conflict in regard to Otis’s property or that the trust gave Mabel the right to revoke or amend the trust.

Odis died on January 16, 2001, and Mabel subsequently amended the trust (1) to remove Gary as a co-trustee and (2) to limit his share to one-third of the trust’s assets with the remainder going to Samantha.

Facts Relating to Lauren Adams

Thereafter, Gary sought advice from attorney Lauren Adams, who entered into an oral agreement with Gary (1) to probate Otis’s estate, (2) to revoke the trust, and (3) to collect her attorney’s fees from Watkins’s malpractice carrier.

At a later date, Adams presented Gary with a written contract reflecting a 33% contingency fee for “all amounts covered” and assured him that the sole purpose of the contract was to present to Watkins’s malpractice carrier. Gary asked Adams to write the terms of their oral contract on the back of the written contract. She complied and noted, “will see malpractice insurance to re-pay attny fees & loses (probate & taxes); Bill [Watkins] has $1m in coverage and CNA has been notified; in ins. is insufficient to cover cost of litigation we agree to pro-rata reduction of fees.”

Adams successfully had the deed transferring Otis’s primary asset to the trust and probated Otis’s estate with the appointment of Gary as administrator. When Gary asked her about filing a malpractice suit against Watkins, Adams told him to seek other counsel for that issue.

Procedural History

Gary sought advice from several other attorneys and learned that the statute of limitations for a malpractice claim against Watkins had expired. Gary then hired attorney Harry McDermott to assist with finalization of Otis’s estate. Gary terminated Adam’s services with a demand that she relinquish any claim for fees. Adams responded by filing an attorney-fee lien in the probate estate for $613,333, approximately one-third of the value of the land Adams had removed from the trust. Gary countered with a suit against Adams, on behalf of himself and the estate, for (1) breach of contract, (2) fraud, and (3) malpractice for failing to timely file a malpractice action against Watkins.

Adams filed a motion for summary judgment, arguing, among other things, that Gary had no case against Watkins because of lack of privity. The trial court found that all of Gary’s dealings with Watkins had been on behalf of Otis and Mabel. Accordingly, the trial court granted most of Adams’s motion for summary judgment, leaving only Gary’s individual claim of fraud in tact.

Appeal

On appeal, the Arkansas Court of Appeals explained that, for Gary’s malpractice action against Adams to be successful, he must be able to prove that his malpractice claim against Watkins would have been successful. In addition, Gary must have had direct privity with Watkins for Gary to hold Watkins responsible for any type of legal negligence. After setting out this framework, the court explained that the trial court had erred in granting summary judgment because there was a genuine issue of material fact concerning whether Watkins had ever represented Gary individually.

Specifically, the court pointed to Gary’s guardianship petition that included the signature of “Bill Watkins, His Attorney” and Gary’s testimony that he sought advice from Watkins regarding his rights to Otis’s estate. The court reasoned that, because Gary had offered evidence that Watkins (1) advised him on legal matters and/or (2) contracted to provide him with legal services, the privity issue must be decided by a jury. As such, the court reversed the trial court’s grant of partial summary judgment and remanded the case for further proceedings.

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