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«ROGER BRECHEEN, M.D., individually and as successor to ROGER BRECHEEN, P.C., a Wyoming corporation; JACKSON HOLE OB-GYN P.C., a Wyoming corporation; ...»

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United States Court of Appeals

Tenth Circuit


May 21, 2014

TENTH CIRCUIT Elisabeth A. Shumaker

Clerk of Court

ROGER BRECHEEN, M.D., individually

and as successor to ROGER BRECHEEN,

P.C., a Wyoming corporation; JACKSON

HOLE OB-GYN P.C., a Wyoming

corporation; KATHY WATKINS-



No. 13-8059

v. (D.C. No. 1:10-CV-00263-SWS) (D. Wyo.) MAURA LOFARO, M.D. - Doctor of Medicine, individually and acting through MAURA J. LOFARO, M.D., P.C., a Wyoming corporation; SHANNON ROBERTS, M.D., Defendants-Appellees.


Before BRISCOE, Chief Judge, BALDOCK and MATHESON, Circuit Judges.

Plaintiffs Roger Brecheen, M.D., his wife, Kathy Watkins-Brecheen, and Jackson Hole Ob-Gyn, P.C., a professional corporation formed by Brecheen, filed this action * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

asserting a host of federal and state claims arising out of Brecheen’s eviction from an office building in Jackson, Wyoming. Among those were two claims asserted under 42 U.S.C. § 1983, one for deprivation of Brecheen’s property interests and another for deprivation of Brecheen’s liberty interests, against defendant Maura Lofaro, M.D., a former partner of Brecheen’s. The district court granted summary judgment in favor of Lofaro on those claims. Plaintiffs now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I Factual background

a) The parties and their employment Plaintiff Roger Brecheen, M.D. (Brecheen), is a board-certified obstetrician and gynecologist licensed to practice medicine in the State of Wyoming. Brecheen’s wife, plaintiff Kathy Watkins-Brecheen (Watkins-Brecheen), is a certified nurse midwife licensed to practice in the State of Wyoming.

In 1993, Brecheen and his wife moved to Jackson, Wyoming, where Brecheen established a solo practice in obstetrics and gynecology. Watkins-Brecheen began working for Brecheen shortly thereafter. In June 1994, Brecheen formed Jackson Hole Ob-Gyn, P.C. (JHOG), a professional corporation through which he provided obstetric and gynecologic care to his patients.

In July 1997, defendant Maura Lofaro, M.D. (Lofaro), began working for JHOG as a board-certified obstetrician and gynecologist. Lofaro also served as a sponsoring

–  –  –

and Lofaro entered into a Stock Purchase and Transfer Agreement pursuant to which each of them became a 50% shareholder of JHOG.

In 2002, defendant Shannon Roberts, M.D. (Roberts), began working for JHOG as an obstetrician and gynecologist. She also, as an employee of JHOG, served as a sponsoring physician for Watkins-Brecheen in her work as a midwife. Roberts was subsequently offered the opportunity to buy into the JHOG partnership, but she declined and continued to work as an employee of JHOG.

–  –  –

On June 1, 1994, Zadie, Inc. (Zadie), a corporation owned and operated by Brecheen, entered into a “Hospital ‘Campus’ Lease Agreement” (Lease Agreement) with the Teton County Hospital District d/b/a St. John’s Medical Center (SJMC), to lease Suite 201 of the St. John’s Professional Office Building. Aplt. App. at 1151. The intended purpose of the Lease Agreement was to allow JHOG to utilize Suite 201 in the St. John’s Professional Office Building for its medical practice.

Paragraph 1.2 of the Lease Agreement outlined the lease term:

1.2 Lease Term. The lease term shall be a period commencing on June 1, 1994 and terminating on May 30, 1995, unless extended or terminated in accordance with this Agreement.

The Lessee shall have the option to extend this lease for a period of five additional years to be included as part of the lease term. Any such extension shall be automatic without any further action unless the Lessee gives written notice of non-extension to Lessor by certified mail at least 60 days prior to the end of the original lease term. Any extension term will be

–  –  –

Aplee. App. at 185.

Paragraph 2.3 of the Lease addressed the subject of modifications to the lease


2.3 Entire Agreement. All representations made by the parties in negotiations of this Agreement have been incorporated herein; there are no verbal agreements between the parties or implied duties to modify the terms and conditions thereof, and any further modification of this Agreement must be in writing and signed on behalf of the Lessee and Lessor.

Id. at 189.

On May 30, 2000, the final day of the automatic five-year extension period under the Lease Agreement, SJMC’s Assistant Administrator Virgil Boss reviewed and added the following handwritten notations to Paragraph 1.2 of the Lease Agreement (which, as noted, addressed the lease term): “Monthly Rent. $2874.13 + NNM @ 3.50 = $793 mo” and “Month to Month 5/30/00.” Id. at 185. Boss then met with Brecheen and reviewed the Lease Agreement and Boss’s handwritten notations. Neither Boss nor Brecheen initialed or signed the handwritten notations.

c) Dissolution of JHOG and the separation of Drs. Brecheen and Lofaro Brecheen and Lofaro continued their practice as equal partners in JHOG until early

2007. At that time, they began discussing the possibility of Lofaro purchasing Brecheen’s shares in JHOG. The two were unable, however, to agree on a price for Brecheen’s share of JHOG. Id.

In the fall of 2007, Lofaro invited Brecheen to attend a mediation on October 19,

–  –  –

as were Brecheen and his wife. The mediation ended with no formal written agreement having been signed and executed by Lofaro and Brecheen. But Lofaro believed that she and Brecheen had agreed on several matters relevant to the dissolution, and Brecheen conceded that they “theoretically reached an agreement to dissolve” JHOG, Aplee. App.

at 419, with “some details pending [his] leaving [Suite 201]... to be worked out,” id. at 420.

Shortly after the mediation session ended, Lofaro contacted Boss and told him, in pertinent part, that: she and Brecheen had dissolved JHOG; she and her staff would remain in Suite 201; Brecheen and his staff would need new space or an alternative space for eighteen months opposite Suite 201; she and Brecheen would be splitting JHOG’s accounts receivable and she would be taking JHOG’s furniture; and Brecheen had signed an Arbitration Agreement.

On October 26, 2007, James Schuessler, SJMC’s CEO, sent a letter to Lofaro “acknowledging [her] verbal notice... that J[HOG] w[ould] be dissolving effective November 30, 2007, pending final legal documents.” Aplee. App. at 205. The letter further informed Lofaro: “As Lessee of Suites 201 and 203 in the Professional Office building, you will be required to have [SJMC] approval for any new business entity transfer or assignment on December 1, 2007.” Id. Schuessler sent a copy of his letter to Brecheen and, on November 15, 2007, Brecheen sent a letter to Schuessler acknowledging receipt of Schuessler’s October 26, 2007 letter. In his letter of November

–  –  –

completed by November 30th, [but that] this separation of a long-standing medical practice w[ould] occur soon,” and that he “w[ould] be moving [his] medical practice off the campus of SJMC.” Id. at 207.

Following the mediation, Brecheen vacillated openly, in a series of emails exchanged with Lofaro, regarding whether to keep his practice in Suite 201 or to move it elsewhere. For example, in an email sent to Lofaro on October 30, 2007, Brecheen stated, in pertinent part: “Relax about the dissolution. I have no problem with that and the sooner the better. All that is left undecided about any of this in my mind is where I will do what my plans involve. You have the ability to decide/influence that... your choice.” Id. at 375. And, on or around October 30, 2007, Brecheen indicated to Lofaro that he intended to vacate Suite 201 and leave Lofaro responsible for the employees of JHOG.

At or about that time, Brecheen was apparently exploring options that included joining a medical practice in Wilson, Wyoming, or becoming chief of obstetrics/gynecology at a hospital in Afton, Wyoming.

Lofaro proceeded to move forward with the intention of keeping her post-JHOG practice in Suite 201. On October 31, 2007, Boss prepared a new lease agreement for Suite 201. The tenant was Gros Ventre OB-GYN, LLP, an entity formed by Lofaro and Roberts. Lofaro executed this lease agreement on or about November 2, 2007.

According to its express terms, this lease agreement became effective on December 1, 2007.

–  –  –

email to Brecheen’s attorney, Scott Klosterman, stating in pertinent part that “[i]n case the office space bec[ame] an issue for Dr. Brecheen,” Lofaro was “still amicable to having Dr. Brecheen use the Teton Laser Center space [also located in the SJMC Professional Building] at no cost to Dr. Brecheen.” Aplee. App. at 382. Three days later, on November 8, 2007, Geittmann sent an email to Klosterman stating, in pertinent part, that Lofaro “w[ould] be ready to go with the 12/1 transition date.” Id. at 383.

On December 3, 2007, Andrea Richard, another attorney representing Lofaro, sent

a letter to Klosterman stating, in pertinent part:

Our firm has been asked to assist Dr. Maura Lofaro, MD in connection with the separation of Dr. Lofaro’s practice from Dr. Brecheen’s practice and the dissolution of [JHOG].

*** Despite the parties’ agreement on the date for a completed transition, we understand that Dr. Brecheen is planning to see patients in the office this week. We are willing to accommodate his need to see patients in the office this week. As you and Dr. Brecheen know, the existing office space is being leased by Dr. Lofaro’s new practice effective December 1, 2007. It is only fair to both Dr. Brecheen and Dr. Lofaro that the overdue transition between the parties be completed. Thus, Dr. Brecheen’s use of and access to the office will end on Monday, December 10th, 2007 at 5:00 p.m. * * * With respect to the legal aspects of the dissolution, those must also be accomplished as soon as possible and without any further delay. As we understand it, the parties participated in a mediation on Friday, October 19,

2007. Mark Gifford served as the mediator and the parties were successful in reaching an agreement. The agreement the parties reached included the specific terms for the dissolution of [JHOG]....

Id. at 363-64.

–  –  –

Roger - Shannon [Roberts] and I heard that you are moving to an office in Wilson and perhaps that space is not ready for occupancy. We would like to speak with you in person to try and figure out a reasonable solution so that you do not have to move twice in the next month. * * * We would like to get a timeline from you, work out a solution so that I can get Andrea Richard off of your back, and we can finish JHOG dissolution/collections/ allocation of equipment in a humane professional manner.

Id. at 367.

On December 6, 2007, Lofaro asked Boss to have the locks on the doors of Suite 201 changed. Lofaro also asked Boss about having Brecheen’s name removed from the signage.

On Monday, December 10, 2007, Brecheen arrived for work at Suite 201 to see his scheduled patients. At the end of that day, Lofaro approached Brecheen and “asked him not to continue to show up to see patients.” Aplt. App. at 1165. Brecheen stated in response that he would leave Suite 201 when his new office space in Wilson, Wyoming, was ready.

On that same day, December 10, 2007, Richard (Lofaro’s attorney) sent a letter to

Brecheen’s attorney stating, in pertinent part:

As you know on December 3, 2007, we forwarded a letter concerning the various deadlines that Dr. Brecheen and Dr. Lofaro agreed to during their mediation and later memorialized in their Separation and Dissolution agreement. As we advised in our December 3, 2007, letter, Dr. Brecheen’s use of and access to the former [JHOG] office will end on Monday, December 10th, 2007 at 5:00 p.m. Dr. Lofaro had a discussion with Dr.

Brecheen today confirming the same again.

–  –  –

Aplee. App. at 366.

At approximately 9:00 a.m. on December 11, 2007, Sergeant Alan John of the Jackson Police Department, accompanied by another officer, arrived in uniform at the Professional Office Building in which Suite 201 was housed. Lofaro had purportedly requested their presence. Sergeant John was met by Boss and Jim Schuessler, who informed him that Brecheen needed to be evicted from Suite 201. When Brecheen arrived at Suite 201 shortly after 9:00 a.m. that morning, he was met by Sergeant John.

Sergeant John escorted Brecheen inside one of the offices in Suite 201 and informed him:

“I was here to keep the peace, but that I was told that he was being evicted and that I was asking him to act like a gentleman and allow me to keep the peace.” Aplt. App. at 1166.

Sergeant John then escorted Brecheen out to the parking lot. After speaking briefly, Brecheen asked Sergeant John if he could go back inside to get his coat and make arrangements to have an inventory of everything in the office. Sergeant John agreed, and the two men walked back towards Suite 201. In a hallway outside of Suite 201, Brecheen and Sergeant John spoke with Boss and Schuessler. Schuessler and Boss confirmed that they had terminated JHOG’s lease for Suite 201.

–  –  –

following the events of December 11, 2007. In particular, Brecheen continued to practice at SJMC through early 2009, when he voluntarily resigned his privileges. Since that time, Brecheen has been employed by Star Valley Medical Center in Afton, Wyoming, and Powell Valley Hospital in Powell, Wyoming.

–  –  –

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