Charles Rollison D O v. Joseph a Kingsbury D O

STATE OF MICHIGAN
COURT OF APPEALS
CHARLES ROLLISON, D.O., UNPUBLISHED
July 16, 2015
Plaintiff-Appellee,
v No. 320599
Genesee Circuit Court
JOSEPH A. KINGSBURY, D.O., and JOSEPH A. LC No. 11-096709-CZ
KINGSBURY D.O., P.C.,
Defendants-Appellants,
and
GENESYS REGIONAL MEDICAL CENTER,
Defendant.
Before: JANSEN, P.J., and SAWYER and FORT HOOD, JJ.
PER CURIAM.
Defendants appeal by leave granted from the trial court’s denial of defendants’ motion
for summary disposition, which would have dismissed the two remaining counts of plaintiff’s
five-count complaint. We reverse and remand.
Plaintiff was employed at Genesys Regional Medical Center as the Obstetrics and
Gynecology Residency Program Director from 2006 until 2011. His most recent contract,
covered the time period from 2009 until June 30, 2011. It provided for successive one-year
renewals upon mutual agreement of the parties. In October 2010, he was notified by Dr. Linda
Hotchkiss, Genesys’s Chief Learning Officer, that his contract was not going to be renewed.
Thereafter, on January 15, 2011, plaintiff was informed that he was relieved of his duties and
was not to return to the hospital, although he would be paid until the end-date of the contract.
Meanwhile, after learning in October 2010 that his contract with the hospital would not
be renewed, plaintiff began preparing to open his own private practice. He began the process to
lease office space from Genesys on the first floor, referred to as Suite 1805. But, shortly after
being relieved of his hospital responsibilities in January 2011, he was informed that Genesys
could not lease that particular space to him because that area of the building had been financed
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by a public bond issue and could only be used for hospital purposes, not leased to a private
practitioner.
Plaintiff commenced this action, filing a five-count complaint. But only Counts II and III
remain relevant to this appeal. Count II alleges tortious interference with contract and Count III
alleges tortious interference with a business relationship. Turning first to Count II, while the trial
court is correct that there is a great deal of facts presented by both sides, often contradictory, and
that this is a very fact-intensive case, it is nevertheless easily resolved. As this Court stated in
Health Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich. App. 83, 89-90;
706 NW2d 843 (2005), the “elements of tortious interference with a contract are (1) the existence
of a contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the
defendant.” As defendants point out in their brief, this claim must fail because there was no
breach of the contract. Although plaintiff was relieved of his responsibilities at the hospital
before the end of the contract, he was continued to be paid under the contract. That is, plaintiff
points to no benefit that was due him under the contract that he did not receive. His only claim
of tortious interference was in the non-renewal of the contract.
As this Court observed in Health Call, 268 Mich. App. at 91 n 3, a claim of tortious
interference with a contract requires a breach of the contract:
To the extent that plaintiff claims tortious interference with a contract, as
opposed to interference with a business relationship or expectancy, against
Atrium and Borner as it relates solely and directly to the home nursing contract,
the claim cannot survive because there is no assertion that Williams breached the
home nursing contract.
Thus, even accepting that plaintiff in this case can establish that defendant1 acted wrongfully in
preventing the renewal of plaintiff’s contract with Genesys, there was no breach of the contract.
Thus, at most, such conduct by defendant could potentially support a claim for tortious
interference with a business relationship or expectancy, but not with tortious interference with a
contract. Accordingly, the trial court should have granted summary disposition as to Count II.
Thus, we must turn to Count III and plaintiff’s claim of tortious interference with a
business relationship or expectancy. Health Call, 268 Mich. App. at 90, sets forth the
requirements to establish this claim:
The elements of tortious interference with a business relationship or
expectancy are (1) the existence of a valid business relationship or expectancy
that is not necessarily predicated on an enforceable contract, (2) knowledge of the
relationship or expectancy on the part of the defendant interferer, (3) an
intentional interference by the defendant inducing or causing a breach or
1
For ease of reference, defendant in the singular will refer to defendant Kingsbury in his
individual capacity.
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termination of the relationship or expectancy, and (4) resulting damage to the
party whose relationship or expectancy was disrupted.
With respect to this claim, plaintiff only pled tortious interference with his seeking to rent Suite
1805 as well as not receiving “staff call” work. He made no allegations under this count with
respect to the non-renewal of the employment contract. Therefore, we will examine only
whether summary disposition was appropriate with respect to the rental of Suite 1805 and the
staff call work.
And in this regard, plaintiff points to no evidence that establishes such a claim. Plaintiff
offers a motive, that the office space was directly across the hall from defendant’s own practice
and would not want the competition from plaintiff, but little else. Plaintiff points to no evidence
to establish that defendant even knew about plaintiff’s efforts to rent Suite 1805, much less any
evidence to establish that defendant took action to prevent it. But, contrary to plaintiff’s
argument, a motive alone does not establish circumstantial evidence from which a jury could
reasonably conclude that defendants tortiously interfered with plaintiff’s attempts to rent Suite
1805. Indeed, even if we accept plaintiff’s argument that Genesys’s stated reason for being
unable to rent the space to him, because of the public financing of the space, was untrue, one
could also make the argument that perhaps Genesys, having terminated its employment
relationship with plaintiff, simply did not want to establish his practice on the premises.
Similarly, with respect to not receiving “staff call” work, plaintiff points to no evidence
regarding defendant’s role in denying any staff call work. Indeed, defendants allege that plaintiff
never actually made a request to take staff call work.
Accordingly, the trial court should have dismissed Count III as well.
For the above reasons, we conclude that the trial court erred in denying defendants
summary disposition on Counts II and III. We reverse the trial court and remand the matter for
entry of summary disposition in favor of defendants. We do not retain jurisdiction. Defendants
may tax costs.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
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Court of Appeals, State of Michigan
ORDER
Kathleen Jansen
Charles Rolli son D 0 v Joseph A Kingsbury D 0 Presiding Judge
Docket No. 320599 Da vid H. Sawyer
LC No. 11 -096709-CZ Karen M. Fort Hood
Judges
The Court orders that the motion for clarification is GRANTED.
On the Court 's own motion, the Court' s opini on issued on June ~. 20 15, is V/\CJ\ TED
and a new opinion is issued wi th this order.
J\ true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
JUL 16 2015 -~t{J.'?~
Date Chie~