Floyd Memorial Hospital and Health Services v. Harrison County Hospital (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                      FILED
    regarded as precedent or cited before any                             Aug 20 2018, 8:57 am
    court except for the purpose of establishing                               CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                   Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
    Rodney L. Scott                                          Brian F. Haara
    Tricia Kirkby Hofmann                                    Tachau Meek PLC
    Waters, Tyler, Hofmann & Scott, LLC                      Louisville, Kentucky
    New Albany, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Floyd Memorial Hospital and                              August 20, 2018
    Health Services,                                         Court of Appeals Case No.
    Appellant-Defendant                                      18A-PL-46
    Interlocutory Appeal from the
    v.                                               Harrison Circuit Court
    The Honorable Frank Newkirk,
    Harrison County Hospital,                                Jr., Special Judge
    Appellee-Plaintiff.                                      Trial Court Cause No.
    31C01-1301-PL-01
    Bradford, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018                  Page 1 of 13
    Case Summary
    [1]   In 2004, Harrison County Hospital (“HCH”) and Floyd Memorial Hospital &
    Health Services (“Floyd”) entered into a joint venture, Harrison-Floyd Health
    Services LLC (the “LLC”), to rent space for different practices in Harrison
    County, Indiana. The operating agreement (the “Operating Agreement”) also
    provided that Floyd would offer HCH a right of first refusal before expanding
    its health services into Harrison County and further provided that Floyd would
    refrain from duplicating services already provided in Harrison County by HCH.
    In 2011, HCH filed a complaint alleging that Floyd breached the terms of the
    Operating Agreement when it acquired Harrison Family Medicine (“HFM”).
    In response, Floyd asserted several affirmative defenses which included
    abandonment, waiver, and equitable estoppel. Later, Floyd also raised issues
    regarding causation and damages.
    [2]   After a series of summary judgment motions and hearings, the trial court
    granted summary judgment in favor of HCH on the issue of breach. The trial
    court also denied Floyd’s summary judgment motion on the issue of causation
    and damages and found that there were no genuine issues of material fact
    relating to Floyd’s affirmative defenses. Instead of proceeding to a jury trial in
    2018, Floyd sought discretionary interlocutory appellate review of several
    restated issues: (1) whether the trial court erroneously rejected, as a matter of
    law, the affirmative defenses of waiver, estoppel, and abandonment; (2)
    whether the trial court erroneously concluded that the right of first refusal
    clause in the Operating Agreement was enforceable under Indiana law; and (3)
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 2 of 13
    whether the trial court properly denied Floyd’s motion for summary judgment
    on the issue of damages Floyd’s actions may have caused to HCH.
    [3]   Because there are genuine issues of material fact, we reverse and remand the
    trial court’s judgment on the affirmative defenses of abandonment and waiver.
    The trial court’s rulings on the equitable estoppel affirmative defense, the
    enforceability of the Operating agreement, and the issue of damages are
    affirmed.
    Facts and Procedural History
    [4]   In 2003, HCH and Floyd1 were both county hospitals in southern Indiana.
    That year, the two hospitals agreed to enter into a joint venture to provide
    medical services in Harrison County. As a result of their shared desire for a
    partnership, HCH and Floyd drafted and signed the Operating Agreement for
    the LLC on February 23, 2004. HCH and Floyd agreed to jointly lease a space
    in Corydon where HCH would provide urgent care services and Floyd would
    provide occupational health services. In addition, Floyd agreed to give HCH a
    “right of first refusal” to join with Floyd in any further expansion by Floyd into
    Harrison County:
    Section 10.1. [Floyd] Covenant. [Floyd] agrees, on behalf of itself
    and its Affiliates, not to market its occupational health services to
    any business entity in Harrison County which utilizes a member
    1
    Floyd has since been purchased by Louisville-based Baptist Health Systems.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018    Page 3 of 13
    of the HCH medical staff as its company physician, unless
    otherwise agreed to by HCH. Furthermore, in the event [Floyd]
    opts to expand any other health services in Harrison County,
    [Floyd] will provide HCH with a right of first refusal to
    participate in such expanded health services by means of a 50/50
    joint venture between [Floyd] and HCH. With respect to the
    expansion of health services in Harrison County, Floyd agrees,
    on behalf of itself and its Affiliates, to use its good faith efforts to
    avoid duplication of services currently provided by HCH.
    Appellant’s App. Vol. II p. 47.
    [5]   Despite the fact that the parties did not follow the terms of the Operating
    Agreement for meetings, assessments, and the appointment of officers, the
    parties continued to abide by its terms in various ways. Both hospitals
    continued to pay rent for the space that they leased together in Corydon.2 HCH
    also included the LLC in its audited financial statements submitted to the
    Indiana State Board of Accounts.3
    [6]   In 2009, Floyd acquired a physical therapy clinic in Corydon called PT Works.
    HCH did not object or assert any rights to participate in the expansion under
    the Operating Agreement. In 2010, Floyd made plans to expand its services in
    Harrison County through the purchase of a family practice group, Harrison
    Family Medicine (“HFM”). At that same time, HCH also explored the
    2
    Floyd references a lease guaranty in its brief, but there is no evidence in the record that shows a guaranty
    was ever signed by either party.
    3
    HCH continued to recognize the LLC in its statements until 2012.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018                      Page 4 of 13
    possibility of purchasing HFM. HCH, however, was not under the same
    contractual duty to offer a right of first refusal as Floyd. Floyd proceeded with
    its plans to purchase without ever offering HCH a right of first refusal. HFM
    was fully acquired by Floyd in September of 2011.
    [7]   On December 10, 2012, Floyd provided written notice of its desire to dissolve
    the LLC.4 On January 2, 2013, HCH filed its lawsuit against Floyd alleging
    breach of contract, breach of fiduciary duty, unjust enrichment, and promissory
    estoppel. The following month, the LLC was officially dissolved when Floyd
    filed Articles of Dissolution with the Indiana Secretary of State.
    [8]   On December 22, 2014, Harrison filed a motion for partial summary judgment,
    asking that the trial court find as a matter of law that Floyd breached the
    Operating Agreement. After some discovery, Floyd filed its response on
    February 25, 2016. Floyd also filed a cross-motion for summary judgment. In
    May of 2016, the trial court entered an order granting HCH’s motion for partial
    summary judgment and ruling that the undisputed evidence established as a
    matter of law that Floyd breached the parties’ Operating Agreement. The trial
    court also denied Floyd’s motion for summary judgment in which it argued
    legal defenses to the enforcement of the Operating Agreement.
    4
    At all times since its formation, Harrison-Floyd Health Services, LLC remained an active in-good-standing
    company under Indiana law. However, either party could have unilaterally dissolved the company at any
    time.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018                   Page 5 of 13
    [9]    On June 17, 2016, Floyd filed a motion to reconsider the order granting HCH’s
    motion for partial summary judgment. Floyd then filed a second motion for
    summary judgment in July of 2016, arguing that HCH could not establish
    causation or damages as a result of Floyd’s breach. In September of 2017, the
    trial court held a hearing on both Floyd’s motion to reconsider and its second
    motion for summary judgment. On October 19, 2017, the trial court entered an
    order reaffirming its prior order of May 2016 granting HCH partial summary
    judgment. The trial court also denied Floyd’s second motion for summary
    judgment on the question of breach.
    [10]   Instead of proceeding to the jury trial which was schedule to begin in May of
    2018, Floyd sought discretionary interlocutory appellate review of several
    restated issues: (1) whether the trial court erroneously rejected, as a matter of
    law, the affirmative defenses of waiver, estoppel, and abandonment; (2)
    whether the trial court erroneously concluded that the right of first refusal
    clause in the Operating Agreement was enforceable under Indiana law; and (3)
    whether the trial court properly denied Floyd’s motion for summary judgment
    on the issue of damages Floyd’s actions may have caused to HCH.
    Discussion and Decision
    [11]   We review summary judgment using the same standard as the trial court. Quirk
    v. Delaware Cty, 
    91 N.E. 3d 1008
     (Ind. Ct. App. 2018). The fact that a party has
    filed a cross-motion does not alter our standard of review. Floyd Cty v. City of
    New Albany, 
    1 N.E.3d 207
     (Ind. Ct. App. 2014). Summary judgment is only
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 6 of 13
    appropriate where the designated evidence shows that there is no genuine issue
    of material fact and the moving party is entitled to judgment as a matter of law.
    
    Id.
     All facts and inferences are construed in favor of the non-moving party.
    City of Beech Grove v. Beloat, 
    50 N.E.3d 135
    , 137 (Ind. 2016). When the
    challenge to summary judgment raises questions of law, we review them de
    novo. Rogers v. Martin, 
    63 N.E.3d 316
    , 320 (Ind. 2016). The party opposing the
    grant of summary judgment has the burden of persuading this court that the
    trial court’s ruling was improper. City of Lawrenceburg v. Milestone Contractors,
    
    809 N.E.2d 879
    , 882–83 (Ind. Ct. App. 2004).
    I. Affirmative Defenses
    [12]   Floyd argues that the trial court erred by ruling that there were no genuine
    issues of material facts relating to the affirmative defenses.
    A. Abandonment
    [13]   The first affirmative defense raised by Floyd was abandonment.
    The abandonment of a contract is a matter of intention to be
    ascertained from the facts and circumstances surrounding the
    transaction from which the abandonment is claimed to have
    resulted. An abandonment of a contract need not be express but
    may be inferred from the conduct of the parties and attendant
    circumstances. A contract will be treated as abandoned when the
    acts of one party, inconsistent with the existence of the contract,
    are acquiesced in by the other party. Abandonment of a contract
    is a mixed question of law and fact; what constitutes an
    abandonment is a question of law; and whether there has been an
    abandonment is a question of fact.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 7 of 13
    DiMaggio v. Rosario, 
    52 N.E.2d 896
    , 906 (Ind. Ct. App. 2016).
    [14]   In support of Floyd’s claim that the Operating Agreement was abandoned, the
    designated evidence shows that HCH knowingly “decided just to sort of let it
    pass” when it heard that Floyd had purchased PT Works in 2009. Appellant’s
    App. Vol. III p. 37. Further, in answering a questions about the origin of the
    current lawsuit, the HCH CFO testified in a deposition that “We discussed our
    options of – of doing nothing, basically just like we had with the PT Works
    acquisition . . . .” Appellant’s App. Vol. III p. 38 (emphases added).
    [15]   Meanwhile, in support of its claim that the Operating Agreement was not
    abandoned, HCH points to, among other things, the fact that it continued to file
    reports with the Secretary of State’s office and file tax returns on behalf of the
    LLC. HCH also highlights the fact that Floyd disclosed its interest in the LLC
    in the audited financial statement that it filed as a matter of public record with
    the State Board of Accounts. Based upon the abovementioned evidence and
    arguments, each party presented designated evidence supporting their respective
    positions on the abandonment of the Operating Agreement. Consequently, the
    trial court erred when it concluded that there were no genuine issues of material
    fact as to the abandonment affirmative defense.
    B.      Waiver
    [16]   The second affirmative defense that Floyd raised was waiver. Waiver is the
    intentional relinquishment of a known right involving both knowledge of the
    existence of the right and the intention to relinquish it. Rogier v. Am. Testing and
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 8 of 13
    Eng’g Corp., 
    734 N.E.2d 606
    , 620 (Ind. Ct. App. 2000). Whether there has been
    waiver of a contract provision is ordinarily a question of fact. van de Leuv v.
    Methodist Hosp. of Ind., Inc., 
    642 N.E.2d 531
    , 533 (Ind. Ct. App. 1994).
    [17]   Floyd argues that HCH waived its rights to enforce the contractual right of first
    refusal when HCH knowingly acquiesced to Floyd’s purchase of PT Works in
    2009 and it failed to object to Floyd’s purchase of HFM for at least eighteen
    months. This argument is supported by the excerpts of HCH’s CFO’s
    deposition in which he admitted HCH “let it pass” when Floyd purchased PT
    Works. Appellant’s App. Vol. III p. 37. The CFO further said “That was my
    thought on it. I didn’t really think it was of a lot of consequence” and that
    HCH debated doing nothing when HFM was purchased. 
    Id.
     at 37–38.
    Conversely, HCH argues that it did not waive its right and that it did not have a
    duty to raise the issue of a possible breach when Floyd purchased PT Works in
    2009. Based upon these disputed facts, the trial court erred when it found that
    there was no genuine issue of material fact as to waiver.
    C. Equitable Estoppel
    [18]   Finally, Floyd raised equitable estoppel as an affirmative defense.
    [E]quitable estoppel requires a false representation or
    concealment of material facts; it must have been made with
    knowledge, actual or constructive, of the facts; the party to whom
    it was made must have been without knowledge or the means of
    knowledge of the real facts; it must have been made with the
    intention that it should be acted on; and the party to whom it was
    made must have relied on or acted on it to his prejudice.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 9 of 13
    Equitable estoppel may arise from silence or acquiescence as well
    as from positive conduct. However, silence will not form the
    basis of an estoppel unless the silent party has a duty to speak.
    City of New Albany v. Cotner, 
    919 N.E.2d 125
    , 133–34 (Ind. Ct. App. 2009)
    (internal citations and quotations omitted).
    [19]   The heart of Floyd’s equitable estoppel claim is that HCH had a duty to tell
    Floyd that it had breached the Operating Agreement when it acquired PT
    Works and it was at risk of breaching the Operating Agreement again if it were
    to acquire HFM. Floyd does not cite to any provision of the Operating
    Agreement or other authority to show that HCH had a duty to inform Floyd
    that Floyd had breached the Operating Agreement. Thus, the judgment of the
    trial court concerning the equitable estoppel affirmative defense is affirmed.
    The case is reversed and remanded to the trial court for a determination of the
    affirmative defenses of abandonment and waiver on the merits.
    II. Right of First Refusal
    [20]   Floyd argues that the parties’ contractual right of first refusal is a restrictive
    covenant that is unenforceable and against public policy. The provision at issue
    here provided that
    in the event [Floyd] opts to expand any other health services in
    Harrison County, [Floyd] will provide HCH with a right of first
    refusal to participate in such expanded health services by means
    of a 50/50 joint venture between [Floyd] and HCH. With
    respect to the expansion of health services in Harrison County,
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 10 of 13
    [Floyd] agrees, on behalf of itself and its Affiliates, to use its good
    faith efforts to avoid duplication of services currently provided by
    HCH.
    Appellant’s App. Vol. II p. 47. This section of the Operating Agreement is
    titled “Restrictive Covenants.” Appellant’s App. Vol. II p. 47. However, this
    title does not properly characterize the content in the section. Black’s Law
    Dictionary defines a restrictive covenant as “a written agreement that limits the
    use of property for specific purposes and regulates the structures that may be
    built on it.” Restrictive Covenant, BLACK’S FREE ONLINE LAW DICTIONARY,
    https://thelawdictionary.org/restrictive-covenant/ (last visited July 26, 2018).
    Furthermore, this provision is not a “covenant not to compete.” Appellant’s
    Br. p. 38. Black’s Law Dictionary defines a covenant not to compete as “the
    type of agreement where a party agrees not to compete against another business
    of a similar kind.” Covenant Not to Compete, BLACK’S FREE ONLINE LAW
    DICTIONARY, https://thelawdictionary.org/covenant-not-to-compete/ (last
    visited July 26, 2018). Based on the definitions in Black’s Law Dictionary,
    Floyd and HCH’s “restrictive covenant” is neither a restrictive covenant nor a
    non-compete. It is merely a right of first refusal provision. See Hyperbaric
    Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. Wayne, Inc., 
    683 N.E.2d 243
    , 249 (Ind. Ct. App. 1997) (stating that the subject matter of a contractual
    “right of first refusal” may be anything which parties may make the subject of
    contracts). Moreover, according to the terms of the Operating Agreement,
    Floyd could have unilaterally dissolved the LLC at any time, thereby
    eliminating any restrictions. The parties do not cite to any cases where an
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 11 of 13
    Indiana court has voided a right of first refusal provision in a contract between
    two private parties. The trial court did not err when it found that the right of
    first refusal provision in the Operating Agreement was enforceable.
    III. Damages from the Breach
    [21]   In its second summary judgment motion, Floyd asked the court to find as a
    matter of law that HCH sustained no damages from Floyd’s breach.
    Specifically, Floyd argued that HCH “cannot show that its non-participation
    actually caused any damages.” Appellant’s Br. p. 45. “The elements of a
    breach of contract claim are the existence of a contract, the defendant’s breach,
    and damages to the plaintiff.” WESCO Distribution, Inc. v. ArcelorMittal Ind.
    Harbor LLC, 
    23 N.E.3d 682
    , 696 (Ind. Ct. App. 2014). In addition to the
    breach, the defendant must be the cause in fact of the plaintiff’s loss. 
    Id.
     “[T]he
    test of causation is not whether the breach was the only cause, or whether other
    causes may have contributed, but whether the breach was a substantial factor in
    bringing about the harm.” 
    Id.
    [22]   Based on our disposition of Issue I, liability has not yet been determined.
    Without a determination on liability, there can be no ruling on damages. If
    there is ultimately a determination that Floyd is liable, then the issue of
    damages can be addressed. We, therefore, affirm the trial court’s denial of
    Floyd’s motion for summary judgment on the issue of damages.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 12 of 13
    [23]   Affirmed in part, reversed in part, and remanded for proceedings not
    inconsistent with this opinion.
    Bailey, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-PL-46 | August 20, 2018   Page 13 of 13