Long v. Mount Carmel Health Sys.

[Cite as Long v. Mt. Carmel Health Sys., 2017-Ohio-5522.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Joseph Long, M.D., :

Plaintiff-Appellant, :
No. 16AP-511
v. : (C.P.C. No. 13CV-11737)

Mount Carmel Health System, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on June 27, 2017

On brief: Hammond Law Office, Gary W. Hammond;
Butler Cincione & DiCuccio, and N. Gerald DiCuccio, for
appellant. Argued: Gary W. Hammond.

On brief: Ice Miller LLP, Kris M. Dawley, and Robert J.
Cochran, for appellee. Argued: Kris M. Dawley.

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Joseph Long, M.D., appeals from a judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of
defendant-appellee, Mount Carmel Health System ("Mount Carmel"). For the following
reasons, we affirm.
I. Factual and Procedural History
{¶ 2} Mount Carmel owns and operates multiple hospitals in the Columbus area,
including Mount Carmel West. On February 1, 2012, Mount Carmel contracted with
Consultant Anesthesiologists, Inc. ("CAI"), a medical practice group, to provide
professional anesthesiology services at Mount Carmel West (hereinafter the "Services
Agreement"). The Services Agreement stated that all the anesthesiologists CAI selected to
No. 16AP-511 2

practice at Mount Carmel West would be subject to Mount Carmel's approval, and that
Mount Carmel approved all of the CAI anesthesiologists currently practicing at Mount
Carmel West. Among those approved physicians was Long, an anesthesiologist who CAI
employed under a contract. Long was a member of the Mount Carmel West medical staff
and had privileges at Mount Carmel West. After Mount Carmel and CAI executed the
Services Agreement, Long practiced anesthesiology at Mount Carmel West pursuant to
that contract.
{¶ 3} In early April 2012, Mount Carmel removed Long from the Mount Carmel
West campus. Melissa W. Fleming, assistant general counsel at Mount Carmel, explained
Mount Carmel's reasons for removing Long in an April 5, 2012 letter to Brandi
Kondracke, CAI's chief executive officer. Fleming stated:
Sometime during the month of March 2012, Dr. Long took
photographs on his cell phone of a Mount Carmel nursing
employee, [A.M.],1 in the OR while [A.M.] was bending over a
patient on the OR table. Dr. Long then proceeded to send the
photographs via text messaging to other members of your
practice as well as show other Mount Carmel staff the
photographs on his phone.

In mid-March, * * * [another CAI anesthesiologist] showed
[A.M. and another nurse] another picture of [A.M.] that had
been texted to him by Dr. Long and this photograph showed
[A.M.'s] side exposed as she reached over a patient.

Both physicians were instructed by the Chairman of the
Anesthesia Department as well as the Anesthesia Medical
Director earlier this week to cease the behavior and have no
further communications with [A.M.].

***

In addition, Dr. Long has been reported to have walked into
an OR on April 3rd, and in front of everyone in the room,
stated that he would have had a bad day if he had been
assigned in the next OR because, "that bitch" (referring to
[A.M.]) is in the other room. * * * [T]his retaliation creates an
uncomfortable work environment for all of the staff in the OR
which leads to potential compromise in patient safety;

1 To protect the privacy of the nurse involved, we will refer to her by her initials rather than her name.
No. 16AP-511 3

therefore, Mount Carmel is removing Dr. Long effective
immediately pending further investigation.

(Apr. 5, 2012 letter from Fleming to Kondracke, attached to Compl.)
{¶ 4} Fleming also informed Kondracke that Mount Carmel had not yet
completed its investigation into Long's actions. Fleming requested a meeting with
Kondracke to discuss the situation, and she promised to provide Kondracke with the
results of Mount Carmel's investigation prior to the meeting.
{¶ 5} Melissa Stacy-Cull, the director of surgical services at Mount Carmel West,
investigated Long's conduct. Stacy-Cull interviewed A.M., as well as other members of the
nursing staff. Stacy-Cull neither viewed the photographs at issue nor spoke with Long or
the physician who received the photographs from Long. At the conclusion of her
investigation, Stacy-Cull drafted a report, dated April 11, 2012, that generally confirmed
the conduct described in the April 5, 2012 letter. Mount Carmel sent a copy of the report
to Kondracke.
{¶ 6} Mount Carmel representatives met with CAI representatives on April 13,
2012 to discuss Long. Prior to the meeting, Sean McKibben, president and chief
operating officer of Mount Carmel West, and Larry Swanner, vice president of medical
affairs at Mount Carmel West, had decided to permanently bar Long from practicing at
Mount Carmel West. McKibben announced Mount Carmel's decision at the meeting.
Thomas Englehart, CAI's then president, asked the Mount Carmel representatives to
consider giving Long a second chance given the long length and high quality of Long's
service at Mount Carmel West. Mount Carmel declined.
{¶ 7} Pursuant to Long's employment contract with CAI, Long was required to
"devote his * * * full time and attention to the performance of professional services for"
CAI and "be responsible for providing on call coverage." (July 21, 2009 Employment
Agreement at Section 3, attached to the Compl.) Once Mount Carmel removed Long from
Mount Carmel West, he could no longer perform those contractual duties. Consequently,
CAI terminated Long's employment agreement.
{¶ 8} On October 24, 2013, Long filed suit against Mount Carmel, alleging claims
for breach of contract and tortious interference with contract, and seeking a declaratory
judgment. In his complaint and amended complaint, Long asserted that Mount Carmel
No. 16AP-511 4

failed to follow the process set forth in the Services Agreement regarding CAI physicians
with alleged performance or behavior issues. Section 4.2 of the Services Contract
provided:
(i) Should issues of performance or behavior with any of the
Providers arise which, at the reasonable discretion of [Mount
Carmel], affects the immediate safety of patients, staff or
members of the Hospital's Medical Staff, or otherwise gives
rise to a summary suspension action under the Medical Staff
Bylaws, [Mount Carmel] shall immediately remove Provider
from Hospital and provide written notice of such issues to
Contractor and the affected Provider as set forth below in (iii)
within twenty-four (24) hours of the removal (a "Provider
Adverse Act").

***

(iii) If [Mount Carmel] believes a Provider Adverse Act has
occurred, [Mount Carmel] shall provide Contractor and
Provider with a written notice describing Hospitals' concerns
in sufficient enough detail to enable Contractor and Provider
to assess the gravity of the situation (the "Notice"). Such
Notice shall be given within two (2) business days (within 24
hours if the Adverse Act arises under subsection (i)) of the day
when the Hospital learns of the Provider Adverse Act. Within
two (2) business days of the Notice [Mount Carmel],
Contractor and Provider (should Provider desire to do so)
shall meet to review the pertinent information and discuss a
resolution of [Mount Carmel]'s concerns (the "Meeting").
Prior to such Meeting, [Mount Carmel] shall provide
Contractor and Provider with all reasonable information
requested by such parties related to the alleged Provider
Adverse Act. Within 3 business days from the Meeting,
Contractor's President, or his/her designee, a senior executive
of [Mount Carmel] designated by [Mount Carmel] and
Provider shall work to mutually resolve the issues caused by
the Provider Adverse Act. In the event the parties are unable
to resolve the issues to the satisfaction of [Mount Carmel]
within this time period, Contractor shall remove such
Provider from providing the Services during further
investigation which in all events shall be concluded within 30
days of the Meeting. If at the end of the 30 days from the
Meeting the issue is not resolved by mutual agreement,
[Mount Carmel] will issue to Contractor a decision on whether
No. 16AP-511 5

or not the Provider may return to Hospital(s) to provide
Services.
(Feb. 1, 2012 Agreement for Anesthesia Services, attached to Mount Carmel's Mot. for
Summ. Jgmt.) Long alleged that Mount Carmel breached Section 4.2 when it failed to:
(1) provide him with any notice, (2) include him in the April 13 meeting, and (3) work with
him to mutually resolve the issues caused by his alleged misconduct.
{¶ 9} Long also asserted in his complaint that Mount Carmel's actions breached
the Medical Staff Bylaws, which are the rules, policies, and procedures governing the
medical staff of Mount Carmel West. Long alleged that the Medical Staff Bylaws entitled
him to certain protections, including notice and a hearing, which Mount Carmel denied
him. Finally, with regard to his claim for tortious interference with contract, Long
claimed that Mount Carmel's refusal to allow him to practice at Mount Carmel West
improperly interfered with his employment contract with CAI. Long contended that, due
to Mount Carmel's decision to bar him from Mount Carmel West, he could not perform
his duties under the employment contract and CAI terminated the contract.
{¶ 10} After conducting discovery, both parties moved for summary judgment. In
a judgment dated June 17, 2016, the trial court granted Mount Carmel's motion and
denied Long's motion. Long timely appeals.
II. Assignments of Error
{¶ 11} Long assigns the following errors for our review:
[1.] The trial court erred in finding Dr. Long was not an
intended third-party beneficiary of the Agreement for
Anesthesia Services between CAI and [Mount Carmel].

[2.] The trial court erred in finding [Mount Carmel] did not
breach the services agreement between CAI and [Mount
Carmel].

[3.] The trial court erred in finding [Mount Carmel] did not
violate Dr. Long's rights under the Bylaws (Ex[.] 9) by
violating his rights under Ex[.] 2 (contract) and Ex[.] 10-5, HR
procedures.

[4.] The trial court erred in finding [Mount Carmel] is entitled
to Summary Judgment on Plaintiff's tortious interference with
contract claim and in denying Plaintiff's Motion for Summary
Judgment.
No. 16AP-511 6

[5.] The trial court erred in finding [Mount Carmel] is entitled
to Summary Judgment on Dr. Long's due process and equal
protection claims.

[6.] The trial court erred in finding Dr. Long is not entitled to
Declaratory Judgment.

[7.] The trial court erred in finding [Mount Carmel] is entitled
to Summary Judgment on Plaintiff's malice and punitive
damages claims.

III. Discussion
{¶ 12} Each of Long's assignments of error challenge the trial court's ruling on the
parties' motions for summary judgment. A trial court must grant summary judgment
under Civ.R. 56 when the moving party demonstrates that (1) there is no genuine issue of
material fact; (2) the moving party is entitled to judgment as a matter of law; and
(3) reasonable minds can come to but one conclusion when viewing the evidence most
strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving
party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v.
Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial
court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This
means that an appellate court conducts an independent review, without deference to the
trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521,
2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-
4490, ¶ 6 (10th Dist.).
{¶ 13} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden
under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Id. If the moving party meets its burden, then the nonmoving party
has a reciprocal burden to set forth specific facts showing that there is a genuine issue for
No. 16AP-511 7

trial. Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond,
summary judgment, if appropriate, shall be entered against the nonmoving party.
Dresher at 293.
A. First Assignment of Error – Third-Party Beneficiary
{¶ 14} By his first assignment of error, Long argues that the trial court erred in
finding that he was not an intended third-party beneficiary to the Services Agreement
between CAI and Mount Carmel. We disagree.
{¶ 15} Generally, "only an intended beneficiary may exert rights to a contract of
which he is not party." TRINOVA Corp. v. Pilkington Bros., P.L.C., 70 Ohio St.3d 271, 277
(1994); accord Grant Thorton v. Windsor House, Inc., 57 Ohio St.3d 158, 161 (1991)
("Only a party to a contract or an intended third-party beneficiary of a contract may bring
an action on a contract in Ohio."). Here, Long seeks to sue Mount Carmel for breach of
the Services Agreement. Because Long is not a party to that contract, his ability to pursue
such an action hinges on whether he is an intended third-party beneficiary to the contract.
{¶ 16} To determine whether a party is an intended third-party beneficiary, Ohio
courts apply Section 302 of the Restatement (Second) of Contracts, which reads:
(1) Unless otherwise agreed between promisor and promisee,
a beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and
either

(a) the performance of the promise will satisfy an obligation
of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to
give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an
intended beneficiary.

Restatement of the Law 2d, Contracts, Section 302 (1981). See Hill v. Sonitrol of
Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40 (1988) (adopting Section 302). Thus, for a
third party to acquire intended beneficiary status, it must present evidence that the
promisee intended to directly benefit the third party. Huff v. FirstEnergy Corp., 130 Ohio
St.3d 196, 2011-Ohio-5083, ¶ 11; TRINOVA Corp. at 277-78; Hill at 40. A third party who
No. 16AP-511 8

receives a mere happenstance benefit from the promisee's performance of a contract is
only an incidental beneficiary, to whom the promisee owes no duty. Hill at 40.
{¶ 17} By beginning with the clause "unless otherwise agreed between promisor
and promisee," Section 302 recognizes the contracting parties' right to come to a different
agreement regarding who qualifies as an intended third-party beneficiary. Contracting
parties may further limit who may sue under their contract by expressly "otherwise
agree[ing]" to exclude all third parties from acquiring or invoking any rights under a
contract. Pennsylvania State Emps. Credit Union v. Fifth Third Bank, 398 F.Supp.2d
317, 324 (M.D.Pa.2005), rev'd on other grounds, sub nom. Sovereign Bank v. BJ's
Wholesale Club, Inc., 533 F.3d 162 (3d Cir.2008). "This limitation on third-party-
beneficiary rights makes sense because contracting parties should be able to control who
may sue on the contract." Id. at 325. Thus, courts applying Section 302 honor
contractual provisions that explicitly disclaim the creation of any third-party beneficiaries.
See LHPT Columbus The, LLC v. Capitol City Cardiology, Inc., 10th Dist. No. 14AP-264,
2014-Ohio-5247, ¶ 26; Maghie & Savage, Inc. v. P.J. Dick Inc., 10th Dist. No. 08AP-487,
2009-Ohio-2164, ¶ 44, 46; DVCC, Inc. v. Medical College, 10th Dist. No. 05AP-237,
2006-Ohio-945, ¶ 52; CMC Elec. Co., Inc. v. J.D. Williamson Constr. Co., Inc., 11th Dist.
No. 98-A-0076 (Nov. 5, 1999); Matheny v. Ohio Bancorp, 11th Dist. No. 94-T-5022
(Dec. 30, 1994); accord Inhabitants of Saco v. Gen. Elec. Co., 779 F.Supp. 186, 194
(D.Me.1991) ("Since [the contracting parties] unambiguously agreed that there would not
be third-party beneficiaries to their contracts, the Restatement requires that the Court not
undertake to find another contrary intent."); RPC Liquidation v. Iowa Dept. of Transp.,
717 N.W.2d 317, 320 (Iowa 2006) ("When a contract expressly negates the creation of
third party beneficiaries, we have rejected the claim that such status exists."); Riscorp,
Inc. v. Norman, 915 So.2d 1142, 1150 (Ala.2005) ("If two contracting parties expressly
provide that some third party who will be benefitted by performance shall have no legally
enforceable right, the courts should effectuate the express intent by denying the third
party any direct remedy.") (Emphasis sic.) (Internal quotes omitted.)
{¶ 18} In the case at bar, Section 9.13 of the Services Contract states:
No Third Party Beneficiaries. Nothing herein expressed or
implied is intended or shall be construed to confer upon or
No. 16AP-511 9

give any person other than the parties hereto, and their
permitted successors and assigns, any rights or remedies
under or by reason of this Agreement.

(Feb. 1, 2012 Agreement for Anesthesia Services, attached to Mount Carmel's Mot. for
Summ. Jgmt.) Given the plainly expressed intent of this section, we conclude that the
Services Agreement did not create any intended third-party beneficiaries. Long,
therefore, has no right to sue under the Services Agreement.2 Accordingly, we overrule
Long's first assignment of error.
B. Second Assignment of Error – Services Agreement
{¶ 19} In his second assignment of error Long argues that the trial court erred in
finding that Mount Carmel did not breach the Services Agreement. Our conclusion that
Long cannot sue for breach of the Services Agreement renders moot the question of
whether Mount Carmel committed a breach of that contract. Consequently, we find
Long's second assignment of error moot.
C. Third Assignment of Error – Bylaws
{¶ 20} In his third assignment of error, Long argues that the trial court erred in
finding that Mount Carmel did not violate Long's rights under the Medical Staff Bylaws.
We disagree.
{¶ 21} As we stated above, the Bylaws are the rules, policies, and procedures
governing the medical staff of Mount Carmel West. The Bylaws specify the process for
taking corrective action against, suspending, or terminating a medical staff member's
appointment and/or privileges. Additionally, pursuant to the Bylaws, the medical
executive committee may adopt, with the approval of Mount Carmel's board, policies to
implement the general principals set forth in the Bylaws and for proper conduct of the
medical staff. Long argues that Mount Carmel violated his rights under the Bylaws when
it did not follow one such policy, entitled "Disruptive Behavior," when responding to his
alleged misconduct. Long also argues that Mount Carmel violated his rights under the
Bylaws when it failed to comply with the process set forth in Section 4.2 of the Services
Agreement.

2We do not find persuasive Long's argument that he may sue under the Services Agreement because he is
CAI's assignee. Long points to no evidence supporting his alleged assignee status.
No. 16AP-511 10

{¶ 22} On appeal, Long focuses on establishing that the alleged Bylaws violations
actually occurred. Long, however, fails to point to any law that transforms the provisions
of the Bylaws into legally protectable rights. If Mount Carmel owes Long no legal
obligation to comply with the Bylaws, then Long cannot recover in a court of law for their
violation. See Alley v. Wendy's Internatl., Inc., 107 Ohio App.3d 810, 816 (1st Dist.1995)
(holding that "it is * * * imbedded in civil law as administered in Ohio" that a party cannot
recover for loss or damage without the violation of a legal right).
{¶ 23} Arguably, the Bylaws could form a contract between Mount Carmel and the
medical staff, thus giving Long contractual rights and the ability to recover for violation of
those rights via a claim for breach of contract. The Bylaws, however, provide:
Not a Contract: These Bylaws are not intended to and
shall not create any contractual rights between the Hospital
and any Practitioner. Any and all contracts of association or
employment shall control contractual and financial
relationships between the Hospital and such Practitioners.

(Mount Carmel East/West Medical Staff Bylaws, attached to the Compl.) Consequently,
the Bylaws expressly preclude Long from acquiring or asserting any contractual rights by
virtue of its provisions. See Moore v. Rubin, 11th Dist. No. 2001-T-0150, 2004-Ohio-
5013, ¶ 33 (upholding the grant of summary judgment on a physician's claim for breach of
contract because the defendant medical system's bylaws disavowed any intent to create a
binding contract between the physician and the medical system and, thus, did not do so);
see also Shepard v. Griffin Servs., Inc., 2d Dist. No. 19032, 2002-Ohio-2283, ¶ 62
(holding that provisions in an employee handbook disclaiming an intent to create a
contract "negate any inference of contractual obligations between the parties" based on
the handbook provisions).
{¶ 24} Consequently, we conclude that the trial court did not err in finding that
Mount Carmel did not violate Long's rights under the Bylaws, and we overrule Long's
third assignment of error.
D. Fourth Assignment of Error – Tortious Interference with Contract
{¶ 25} By his fourth assignment of error, Long argues that the trial court erred in:
(1) granting Mount Carmel summary judgment on his claim for tortious interference with
No. 16AP-511 11

contract, and (2) denying him summary judgment on that claim. This assignment of error
lacks merit.
{¶ 26} The tort of intentional interference with contract occurs "when a person,
without a privilege to do so, induces or otherwise purposely causes a third person * * * not
to perform a contract with another." A & B-Abell Elevator Co. v. Columbus/Cent. Ohio
Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14 (1995). To prove a claim of tortious
interference with contract, a plaintiff must establish (1) the existence of a contract, (2) the
wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of
the contract's breach, (4) lack of justification, and (5) resulting damages. Fred Siegel Co.,
L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171 (1999), paragraph one of the syllabus.
"Establishment of the fourth element of the tort of tortious interference with contract,
lack of justification, requires proof that the defendant's interference with another's
contract was improper." Id. at paragraph two of the syllabus. The Supreme Court of Ohio
has directed courts that are determining whether interference was "improper" to consider
the factors set forth in Restatement of the Law 2d, Torts, Section 767 (1979).3 Fred Siegel
Co. at paragraph three of the syllabus.
{¶ 27} Under this framework, Ohio law places the burden on the plaintiff to
demonstrate improper conduct in order to prevail on a claim of tortious interference with
a contract instead of requiring a defendant to assert and prove privilege in defense of such
a claim. Columbia Dev. Corp. v. Krohn, 1st Dist. No. C1300842, 2014-Ohio-5607, ¶ 25
("Ohio law places the burden of proving a lack of privilege or justification upon the
plaintiff.").
{¶ 28} Here, the trial court, citing Walter v. ADT Sec. Sys., Inc., 10th Dist. No.
06AP-115, 2007-Ohio-3324, determined that because Mount Carmel's act of excluding
Long from its campus was within the context of its business relationship with CAI, it is
entitled to a qualified privilege. The trial court then analyzed whether Long can
demonstrate clear and convincing evidence of "actual malice" to overcome the existence of

3 Those factors are: "(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the
other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e)
the social interests in protecting the freedom of action of the actor and the contractual interests of the
other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations
between the parties."
No. 16AP-511 12

the qualified privilege of the alleged tortfeasor. See Gentile v. Turkoly, 7th Dist. No. 16
MA 0071, 2017-Ohio-1018, ¶ 25 (plaintiff asserting tortious interference with contract
must show actual malice to defeat qualified privilege). In effect, the trial court
determined that Mount Carmel's conduct could not be found as improper unless it was
malicious. Finding no evidence of actual malice, the trial court determined Mount Carmel
is entitled to judgment as a matter of law as to Long's tortious interference with contract
claim.
{¶ 29} Long presents no argument directly challenging the trial court's
determination that Mount Carmel cannot be liable for the interference in the absence of
evidence that Mount Carmel acted with actual malice in interfering with Long's contract
with CAI. In tortious interference cases involving qualified privilege, "actual malice" has
been defined as acting with knowledge that the statements are false or acting with reckless
disregard as to their truth or falsity. Miller v. J.B. Hunt Transp., Inc., 10th Dist. No.
13AP-162, 2013-Ohio-3892, ¶ 27, citing A & B-Abell Elevator Co., Inc. at 11-12. In this
context, it has also been stated that "[i]nherent in the concept of actual malice is the
notion that a wrongful act has been done without any plausible legal justification."
(Citation omitted.) Ament v. Reassure Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-
Ohio-36, ¶ 63 (8th Dist.). Although Long argues he has presented evidence that Mount
Carmel acted maliciously and therefore should be held liable for its interference with his
contract with CAI, he does not challenge the underlying facts that indisputably formed the
basis of Mount Carmel excluding him from its campus. Furthermore, considering Long
derived no legal rights under Mount Carmel's contract with CAI, we are unpersuaded by
his assertion that Mount Carmel acted maliciously by not providing him notice and a
hearing under that contract before reaching its final decision to exclude him from Mount
Carmel West. Because Long cannot demonstrate that Mount Carmel acted maliciously,
the trial court did not err in its disposition of his tortious interference with contract claim.
{¶ 30} Accordingly, we overrule Long's fourth assignment of error.
E. Sixth Assignment of Error – Declaratory Judgment
{¶ 31} We next turn to Long's sixth assignment of error, by which he argues that
the trial court erred in denying him a declaratory judgment that Mount Carmel violated
his contractual rights under the Services Agreement and the Medical Staff Bylaws. As we
No. 16AP-511 13

have explained above, Long has no contractual rights under the Services Agreement or the
Bylaws. Accordingly, we conclude that the trial court did not err in denying him a
declaratory judgment stating the opposite, and thus, we overrule Long's sixth assignment
of error.
F. Fifth and Seventh Assignments of Error
{¶ 32} As a final matter, we must address Long's fifth and seventh assignments of
error, which he did not argue separately in his brief. On appeal, the party asserting error
bears the burden of affirmatively demonstrating that such error exists. Deutsche Bank
Natl. Trust Co. v. Sopp, 10th Dist. No. 14AP-343, 2016-Ohio-1402, ¶ 6. The appellant,
therefore, has the duty to construct legal arguments supporting the assignments of error.
Id.; Cook v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966,
¶ 40. If an appellant fails to fulfill its duty, the appellate court may disregard the
unsupported assignment of error. App.R. 12(A)(2). Here, because Long did not
separately argue his fifth or seventh assignments of error, we will not review those
assignments of error. Rather, we simply overrule them.
IV. Disposition
{¶ 33} For the foregoing reasons, we overrule Long's first, third, fourth, fifth, sixth,
and seventh assignments of error. Our decision to overrule Long's first assignment of
error renders moot Long's second assignment of error. Accordingly, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.

HORTON, J., concurs.
KLATT, J., concurs in part and dissents in part.

KLATT, J., concurring in part and dissenting in part.
{¶ 34} I concur with all sections of the majority decision except for the section
addressing Long's claim for intentional interference with contract. I respectfully dissent
from that section because I believe the majority's analysis contravenes binding precedent
from the Supreme Court of Ohio.
{¶ 35} Traditionally, to prove tortious interference with contract, a plaintiff merely
had to establish intentional interference. 3 Dobbs, Hayden, & Bublick, The Law of Torts,
No. 16AP-511 14

Section 620, at 510 (2d Ed.2011). The defendant, then, "could escape liability only by
showing a privilege and shouldering the burden of justifying the interference." Id.; accord
Juhasz v. Quik Shops, Inc., 55 Ohio App.2d 51, 56-58 (9th Dist.1977). When recognizing
the tort of intentional interference with contract, the Supreme Court of Ohio structured
the tort differently. The court allocated to the plaintiff the burden to prove "lack of
justification," thus removing from the defendant the burden to plead or prove a privilege
in order to avoid liability. Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415
(1995), paragraph two of the syllabus. Later, in expanding upon Kenty, the Supreme
Court clarified that, to show a lack of justification, the plaintiff had to prove that the
defendant's interference was improper. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85
Ohio St.3d 171 (1999), paragraph two of the syllabus. Determining whether a defendant
has acted improperly requires consideration of the factors set forth in Section 767 of the
Restatement (Second) of Torts. Id. at 178. Those factors are:
(a) the nature of the actor's conduct,

(b) the actor's motive,

(c) the interests of the other with which the actor's conduct
interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of
the actor and the contractual interests of the other,

(f) the proximity or remoteness of the actor's conduct to the
interference and

(g) the relations between the parties.

Restatement of the Law 2d, Torts, Section 767 (1979).
{¶ 36} Importantly, the factors now used to determine whether a defendant has
engaged in improper conduct largely mirror those considerations previously used to
decide whether a defendant's conduct was privileged. Compare Restatement of the Law,
Torts, Factors in Determining Privilege, Section 767 to Restatement of the Law 2d, Torts,
Factors in Determining Whether Interference Is Improper, Section 767. This is logical, as
No. 16AP-511 15

contemporary law has merely switched the burden of pleading and proving justification
from the defendant, who once had the burden of establishing a privilege, to the plaintiff,
who now has the burden of showing improper conduct. Although the burden shifted, the
considerations underlying it remain the same.
{¶ 37} In shaping the tort of intentional interference with contract, the Supreme
Court did not ignore the specific, established qualified privileges, such a fair competition,
that developed under the traditional construction of the tort. Rather, the Supreme Court
accommodated and continued certain former qualified privileges, which are set out in
Sections 768 to 773 of the Restatement (Second) of Torts. Where a defendant's conduct
falls within the one of the special situations dealt with in Sections 768 to 773, a factfinder
need not balance the factors set forth in Section 767 to determine if the conduct is
improper. Fred Siegel at 179. Instead, "[t]he specific applications in [Sections 768 to 773]
[ ] supplant the generalization expressed in [Section 767]." Restatement, Section 767,
Comment a.4
{¶ 38} Unfortunately, in Ohio, the evolution of the tort of intentional interference
with contract has not proceeded smoothly. In Kenty and Fred Siegel, the Supreme Court
endorsed the modern construction of the tort, which makes consideration of justification
(or the lack thereof) a prima facie element. However, in the period between the issuance
of Kenty and Fred Siegel, the Supreme Court of Ohio appeared to revert to the traditional
privilege formulation of the tort. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg.
& Constr. Trades Council, 73 Ohio St.3d 1, 14 (1995) (stating that the tort of interference
with contract occurs "when a person, without a privilege to do so, induces or otherwise
purposely causes a third person * * * not to perform a contract with another").
Confusingly, A & B-Abell did not mention, much less overrule, Kenty. When the Supreme
Court subsequently decided Fred Siegel, it affirmed and followed Kenty without
distinguishing or overruling A & B-Abell.
{¶ 39} As the most recent Supreme Court decision addressing the tort of
intentional interference with contract, Fred Siegel remains the prevailing law in Ohio

4 None of these sections are relevant to this case because no party has claimed that any of the sections

apply. The qualified privilege that Mount Carmel asserts does not fit within any of the specific
applications set forth in Sections 768 to 773.
No. 16AP-511 16

today. See State v. Thomas, 8th Dist. No. 103406, 2016-Ohio-8326, ¶ 12 ("[W]hen
Supreme Court cases are in apparent conflict, the court of appeals is bound by the
Supreme Court's most recent decision, regardless of its previous decision."). The majority
decision, however, applies the formulation of the tort laid out in A & B-Abell. Under that
formulation, to avoid liability, the defendant must raise a qualified privilege, which the
plaintiff may overcome by showing that the defendant acted with actual malice. A & B-
Abell at 14. "Actual malice" is defined as "an unjustified or improper interference."5
Walter v. ADT Sec. Sys, Inc., 10th Dist. No. 06AP-115, 2007-Ohio-3324, ¶ 33 (defining
"actual malice" in the context of a claim for intentional interference with a business
relationship). Thus, in the majority decision, justification is not a prima facie element of
the tort, but rather, part of the privilege analysis. Application of this formulation of the
tort contravenes Fred Siegel.
{¶ 40} I would sustain Long's fourth assignment of error and reverse the trial
court's decision because the trial court failed to apply the tort as Fred Siegel has
formulated it. The trial court concluded that Mount Carmel's actions were not improper
without acknowledging, much less considering, the necessary factors. A determination of
whether the alleged interference is improper requires "an appraisal of the several factors
and an evaluation of their comparative weight." Restatement, Section 767, Comment a.
Thus, a trial court errs if it grants summary judgment without considering each of the
factors set forth in Section 767.6 Paramount Farms Internatl., LLC v. Ventilex B.V., 12th
Dist. No. CA2015-02-029, 2016-Ohio-1150, ¶ 40. For this reason, I respectfully concur in
part and dissent in part.

5 In A & B-Abell, the Supreme Court defined "actual malice" as "knowledge of falsity or reckless disregard

for the truth." Id. at 15. This definition makes sense only where the interference at issue consists of
allegedly defamatory words, as was the case in A & B-Abell. When the interference consists of actions, not
words, the definition set forth above applies.
6 There is an exception to this rule: where a defendant's conduct falls within one of the special situations

dealt with in Sections 768 to 773 of the Restatement, a trial court need not balance the factors set forth in
Section 767 when deciding whether to grant summary judgment. Fred Siegel Co. at 179; Restatement,
Section 767, Comment a. This exception is not relevant to this case because, as I stated above, no party
has asserted that any of the more specific sections apply.