St. Joseph's Regional Health Ctr. v. Munos

ST. JOSEPH'S REGIONAL HEALTH CENTER; Sisters
of Mercy Health System, St. Louis, Inc.; and
Randall J. Fale v. Dr. Louis R. MUNOS, M.D.

95-1217                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 18, 1996


1.   Motions -- denial of directed-verdict motion -- standard of
     review. -- In reviewing the denial of a motion for a directed
     verdict, the appellate court views the evidence in the light
     most favorable to the party against whom the verdict is sought
     and gives its highest probative value, taking into account all
     reasonable inferences deducible from it; if there is any
     substantial evidence to support the verdict, the appellate
     court must affirm the trial court; applying this standard, the
     supreme court concluded that the trial court erred in denying
     appellants' directed-verdict motions.

2.   Torts -- interference with contract -- issue should not have
     gone to jury. -- The supreme court reversed a jury's verdict
     that found appellant hospital's chief executive officer and
     president directly liable and his corporate employer
     vicariously liable for tortious interference with a contract
     because the evidence adduced at trial failed to show that the
     employee officer was acting in the scope of his agency
     relationship with his corporate employer; the evidence showed
     only that appellant officer took the alleged tortious actions
     with reference to appellee physician's contract in the scope
     of his employment with appellant hospital, which was owned by
     appellant corporate employer; therefore, the issue of
     appellant corporate employer's liability for interference with
     appellee physician's contract should not have gone to the
     jury.

3.   Master & servant -- respondeat superior -- employer's
     vicarious liability. -- Under the doctrine of respondeat
     superior, an employer may be held vicariously liable for the
     tortious conduct of an agent if the evidence shows that such
     conduct was committed within the scope of the agent's
     employment.

4.   Master & servant -- borrowed-servant doctrine discussed. --
     Under the borrowed-servant doctrine, one who is the general
     servant of another may be loaned or hired by his master to
     another for some special service, thus becoming with respect
     to that service the servant of the third party; the test is
     whether, in the particular service that he is engaged to
     perform, the servant continues liable to the direction and
     control of his master or becomes subject to that of the party
     to whom he is loaned or hired.

5.   Master & servant -- status of servant -- when issue is one of
     law. -- Although the question whether the general or special
     employer had the right of control and thus was the employee's
     master ordinarily presents an issue of fact for the jury,
     where all of the evidence is in one direction and there is no
     rational basis for reasonable minds to differ regarding the
     status of the servant, the issue is one of law for the court
     to resolve.

6.   Evidence -- no substantial evidence that appellant officer
     acted on behalf of appellant corporate employer -- verdict
     against appellant corporate employer reversed and dismissed. -
     - Where all the evidence pointed to appellant hospital's
     retaining control over appellant officer, and there was no
     evidence in the record that appellant corporate employer
     directed or controlled appellant officer with respect to
     partnership matters, including those related to the contract
     with appellee physician, the supreme court, viewing the
     evidence in the light most favorable to appellee, held that
     there was no substantial evidence supporting the jury's
     finding that appellant officer acted, with respect to the
     contract between appellee and the partnership, on behalf of
     appellant corporate employer; the court reversed and dismissed
     the verdict against appellant corporate employer.

7.   Torts -- interference with contract -- verdict against
     appellant officer reversed and dismissed -- party to contract
     and agents cannot be held liable to interference with party's
     own contract. --  -- The supreme court reversed and dismissed 
     the verdict against appellant officer because he took the
     actions regarding the contract with appellee physician on
     behalf of appellant hospital, a party to the contract in
     question; a party to a contract and its agents acting in the
     scope of their authority cannot be held liable for interfering
     with the party's own contract.

8.   Master & servant -- employee officer stood in shoes of
     partners and was incapable of interfering with contract --
     entitled to directed verdict. -- Where the contract in the
     case was between the partners and appellee, and where
     appellant officer, acting on behalf of appellant hospital,
     stood in the shoes of one of the partners and therefore was
     incapable of interfering with the contract, appellant officer
     was entitled to a directed verdict.

9.   Partnership -- relationship of trust and confidence. -- A
     partnership is a relationship of trust and confidence;
     partners must observe the utmost good faith toward each other
     in all of their transactions from the time they begin
     negotiations with each other to the complete settlement of the
     partnership affairs.

10.  Partnership -- fiduciary obligation of partners. -- Under the
     Uniform Partnership Act, every partner must account to the
     partnership for any benefit and hold as trustee for it any
     profits derived by him without the consent of the other
     partners from any transaction connected with the formation,
     conduct, or liquidation of the partnership or from any use by
     him of its property; a breach of this obligation entitles the
     injured partner to an accounting.

11.  Partnership -- fiduciary duty not breached by dismissal of
     partner from independent-contractor position. -- If a partner,
     pursuant to an agreement, may expel another partner from the
     partnership without breaching a fiduciary duty, then he may
     also dismiss a partner, pursuant to an agreement, from an
     independent-contractor position without breaching a fiduciary
     duty.

12.  Partnership -- appellant hospital owed appellee physician no
     fiduciary duty in its contractual relationship -- hospital's
     directed-verdict motion should have been granted. -- The
     supreme court held that appellant hospital owed appellee
     physician no fiduciary duty in its contractual relationship
     with him and that there was no evidence that the fiduciary
     duty owed to him as a partner was violated; therefore,
     appellant hospital's directed-verdict motion should have been
     granted.


     Appeal from Garland Circuit Court; Walter G. Wright, Judge;
reversed and dismissed on appeal; cross-appeal moot.
     Wright, Lindsey & Jennings, by:  Edwin L. Lowther, Claire
Shows Hancock, and Anna Hirai Gibson, for appellants.
     Jess L. Askew III and Grace Ann Weber, for appellee.

     David Newbern, Justice.
     Sisters of Mercy Health System, St. Louis, Inc. ("Sisters"),
is a Missouri corporation that operates twelve hospitals, one of
which is St. Joseph's Regional Health Center ("St. Joseph's") in
Hot Springs.  St. Joseph's is described as a "member" of the
Sisters hospital system.  We do not know all the details of the
relationship between Sisters and St. Joseph's, but we understand
from pleadings and from oral argument that St. Joseph's is an
Arkansas non-profit corporation owned by Sisters.  Sisters employs
Mr. Randall J. Fale to act as chief executive officer and president
of St. Joseph's.  
     In 1989, St. Joseph's formed a partnership with Dr. Louis R.
Munos and four other physicians.  The purpose of the partnership
was to provide magnetic resonance imaging services at a facility
operated by the partnership and known as the Hot Springs MRI
Center.  St. Joseph's owns 51 percent of the partnership, and it
appointed Mr. Fale, along with two others, to represent it in the
partnership.  Dr. Munos owns 19.8 percent of the partnership, and
the other four physician partners own varying lesser amounts.
     On March 8, 1989, the partnership entered a ten-year agreement
with Dr. Munos to manage the MRI Center.  The partnership
terminated the contract in 1993.  Dr. Munos sued the partnership
for breach of the contract, Sisters and Mr. Fale for tortious
interference with the contract, and St. Joseph's and Mr. Fale for
breach of the fiduciary duty between partners.  The alleged
liability of Sisters and St. Joseph's was derivative, based upon
the conduct of Mr. Fale.
     The jury returned a verdict upon interrogatories and found
that the partnership did not breach the contract but that Mr. Fale
and Sisters interfered with the contract and that St. Joseph's and
Mr. Fale violated their fiduciary duty to Dr. Munos.  The three
defendants were held jointly and severally liable for damages of
$100,000.
     We agree with the argument of Sisters and Mr. Fale that the
acts of Mr. Fale resulting in the termination of the contract were
taken on behalf of St. Joseph's rather than Sisters.  Sisters'
motion for directed verdict should have been granted on this point
because St. Joseph's, through its membership in the partnership,
was a party to the contract in question and could not have
interfered with its own contract.  We also agree with the argument
of Mr. Fale and St. Joseph's that the evidence produced at trial
failed to show a breach of the fiduciary duty owed by one partner
to another.  The directed-verdict motion of St. Joseph's and Mr.
Fale on the latter point also should have been granted.
     As we reverse and dismiss the two parts of the judgment upon
which the liability was based, we need not consider Dr. Munos's
cross-appeal, which concerns only the amount of damages.
     The contract between the partnership and Dr. Munos provided
that Dr. Munos, as an independent contractor, would "provide
professional radiology and administrative services to the [MRI]
Center and ... manage the provision of MRI services at the Center." 
Dr. Munos agreed to "protect the confidentiality of patient
records" and to "comply with all applicable federal, state and
local laws and regulations relating to such records."  Although the
contract was for a term of ten years, the parties agreed that it
could be terminated immediately in a "duly called meeting" of St.
Joseph's and two of the four physician partners.  This termination
clause required that Dr. Munos receive notice of the termination,
but it did not confer on him the right to be present at the "duly
called meeting."
     At some point after the partnership was created, St. Joseph's
and two of the individual physician partners became involved in
medical malpractice litigation.  In late 1992 and early 1993, the
partners began to question whether Dr. Munos was protecting the
confidentiality of patient records at the MRI Center.  They
suspected information was being "leaked" from patients' records for
which there had been no release authorizations.  The partners
investigated the record-keeping practices of various departments
within the St. Joseph's system, and they focused on the MRI Center.
     Gary Sammons, an attorney who represented plaintiffs in the
medical malpractice actions, was a personal friend of Dr. Munos. 
He also rented office space from Dr. Munos in a building adjacent
to the MRI Center.  The partners feared that Mr. Sammons might have
ascertained the identities of potential plaintiffs by reviewing
information from patient records at the MRI Center.  The allegation
that emerged against Dr. Munos was that he had allowed Mr. Sammons
into the non-public areas of the MRI Center and had possibly
permitted him to view patients' medical records without
authorization.
     Evidence presented at the trial showed that Mr. Fale met with
Dr. Munos on February 9, 1993, and raised these concerns.  Mr. Fale
stressed the need for patient confidentiality and instructed Dr.
Munos to confine to the public reception area anyone (especially
Mr. Sammons) who was not a patient or employee and to release
patient information only if the particular patient authorized the
release.  Dr. Munos relayed Mr. Fale's instructions to other
members of the MRI Center staff.
     Nonetheless, the partners' anxieties persisted, and Mr. Fale
continued to hear allegations that the MRI Center was improperly
releasing confidential information.  On April 28, 1993, Mr. Fale
notified Dr. Munos and the other partners that they would have the
opportunity to support or refute the allegations at a meeting
scheduled for May 12.  In the notice, Mr. Fale stated that the
allegations had not been verified.
     On May 5, 1993, Dr. Munos wrote a letter denying that he or
anyone else had improperly disclosed confidential information.  Dr.
Munos also requested, and later received, a list of some forty MRI
Center patients whose records were allegedly released without
authorization in connection with the malpractice litigation.  Dr.
Munos testified that he and other MRI Center employees reviewed
those patients' files to determine if any records had been "checked
out" to plaintiffs' attorneys.  Dr. Munos claimed that his
investigation revealed that records of some of the listed patients
had not been released and that records of others had been released
but with authorization.
     The May 12 partnership meeting was postponed so that the
partners could continue to investigate the matter.  According to
Mr. Fale, none of the partners produced any evidence concerning Dr.
Munos or the MRI Center, and "[n]othing happened for another couple
of months."  In June 1993, however, Mr. Fale learned from Cindy
Godwin, an MRI Center employee, that Mr. Sammons had been seen in
private areas of the MRI Center.  Around June 18, Mr. Fale sought
the advice of attorney Edwin Lowther, who interviewed Ms. Godwin
and Terri Cooper, another MRI Center employee, and prepared
affidavits for them to sign regarding their observations of Mr.
Sammons in the Center's private areas.
     The evidence concerning Mr. Sammons's visits to the Center was
disputed.  The affidavits of Ms. Godwin and Ms. Cooper, and
testimony they gave later at the trial of this matter, made it seem
that Dr. Munos was involved in clandestine activities with Mr.
Sammons at the MRI Center.  To the contrary, Dr. Munos's testimony
characterized the one, and perhaps two, instances in which Mr.
Sammons had been in the break room or kitchen of the MRI Center
after the issue of the propriety of his visits had arisen as
"chance encounters" that were totally innocent.
     The upshot of the affidavits was that an "emergency meeting"
of the MRI Center partners was convened by Mr. Fale to consider the
concerns of the partners with respect to their suspicions about Dr.
Munos.  When confronted about the allegations that Mr. Sammons had
twice visited the MRI Center after the warning, Dr. Munos told the
partners he knew of only one visit and explained it had to do with
the matter of an unpaid electric bill of an office rented by Mr.
Sammons from Dr. Munos.  Dr. Munos was asked to leave the meeting
and did so without protest.  The affidavits were presented, and the
partners voted to terminate Dr. Munos's contract without giving Dr.
Munos an opportunity to present the results of his own
investigation.  There was no attempt to dissolve the partnership or
to oust Dr. Munos as a partner or to affect in any way his interest
in the partnership.

     In reviewing the denial of a motion for a directed verdict, we
     must view the evidence in the light most favorable to the
     party against whom the verdict is sought and give its highest
     probative value, taking into account all reasonable inferences
     deducible from it.  If there is any substantial evidence to
     support the verdict, we must affirm the trial court.

Arkansas Kraft v. Cottrell, 313 Ark. 465, 470, 855 S.W.2d 333
(1993) (citations omitted).  Applying this standard, we agree that
the Trial Court erred in denying the motions for directed verdict.

            1. Tortious interference with a contract
     Dr. Munos alleged that Mr. Fale, acting in the course and
scope of his employment with Sisters, influenced the partners to
terminate wrongfully the contract between Dr. Munos and the
partnership.  Dr. Munos claimed the following actions taken by Mr.
Fale constituted improper "interference" with the contract:  (1)
asking Mr. Lowther to draft the affidavits of Ms. Godwin and Ms.
Cooper; (2) concealing the existence of the affidavits from Dr.
Munos; (3) calling the partnership meeting on June 22 and revealing
the affidavits to the other partners; and (4) requesting Dr. Munos
to leave the portion of the meeting in which the partners reviewed
the affidavits and voted to terminate the contract.  As we said
above, the jury found Mr. Fale directly liable, and Sisters
vicariously liable, for interfering with the contract between Dr.
Munos and the partnership.
     While we have serious doubt as to whether the actions taken by
Mr. Fale rise to the level of "tortious interference" in any event,
we must reverse the jury's verdict because the evidence adduced at
trial fails to show that Mr. Fale was acting in the scope of his
agency relationship with Sisters.  In our view, the evidence shows
only that Mr. Fale took the actions described above in the scope of
his employment with St. Joseph's; therefore, the issue of Sisters'
liability for interference with the contract should not have gone
to the jury.
     Under the doctrine of respondeat superior, an employer may be
held vicariously liable for the tortious conduct of an agent if the
evidence shows that such conduct was committed within the scope of
the agent's employment.  National Bank of Commerce v. HCA Health
Servs. of Midwest, Inc., 304 Ark. 55, 58, 800 S.W.2d 694 (1990). 
Although it is true that Sisters hired Mr. Fale and paid his
salary, Mr. Fale's employment with Sisters was solely to serve as
chief executive officer and president of St. Joseph's.  Thus, while
Mr. Fale was an agent of Sisters, he also was a "loaned employee,"
or "borrowed servant," of St. Joseph's.  The critical question is
whether Mr. Fale, in taking the actions described above, was acting
in the scope of his agency with Sisters or his agency with St.
Joseph's.
     We have recognized the borrowed-servant doctrine in numerous
cases.  As we have said,

     one who is the general servant of another may be lent or hired
     by his master to another for some special service, so as to
     become as to that service the servant of such third party. 
     The test is whether, in the particular service which he is
     engaged to perform, he continues liable to the direction and
     control of his master or becomes subject to that of the party
     to whom he is lent or hired.

Arkansas Nat. Gas Co. v. Miller, 105 Ark. 477, 482, 152 S.W. 147
(1912) (citation omitted).  See Barton-Mansfield Co. v. Bogey, 201
Ark. 860, 147 S.W.2d 977 (1941).  See also Cash v. Carter, 312 Ark.
41, 46, 847 S.W.2d 18 (1993)("The most significant question
regarding a loaned employee is which company has direction and
control of the employee."); George's, Inc. v. Otwell, 282 Ark. 152,
154, 666 S.W.2d 406 (1984)("In a series of cases we have held that
the most significant question regarding a loaned employee is which
company has direction and control of the employee.").   
     The Restatement provides additional guidance on this point:

     Since the question of liability is always raised because of
     some specific act done, the important question is not whether
     or not he remains the servant of the general employer as to
     matters generally, but whether or not, as to the act in
     question, he is acting in the business of and under the
     direction of one or the other.  It is not conclusive that in
     practice he would be likely to obey the directions of the
     general employer in case of conflict of orders.  The question
     is whether it is understood between him and his employers that
     he is to remain in the allegiance of the first as to a
     specific act, or is to be employed in the business of and
     subject to the direction of the temporary employer as to the
     details of such act.  This is a question of fact in each case.

Restatement (Second) of Agency  227 cmt. a (1958).
     We agree that, "[o]rdinarily the question whether the general
or special employer had the right of control and thus was the
employee's master, presents an issue of fact for the jury." 
Watland v. Walton, 410 F.2d 1, 3-4 (8th Cir. 1969).  However,
"where all of the evidence is in one direction and there is no
rational basis for reasonable minds to differ as to the status of
the servant the issue is one of law for the court to resolve."  Id.
     Mr. Fale testified he reported occasionally to his superior
with Sisters in St. Louis.  He also testified, however, that he
responded to the St. Joseph's Board of Directors. In this case, the
evidence is "in one direction" that St. Joseph's directed and
controlled Mr. Fale in the narrow arena of partnership affairs.  It
is clear that Mr. Fale did not participate in matters affecting the
partnership by virtue of his employment with Sisters.  Rather, Mr.
Fale was chosen by St. Joseph's to represent its interest in the
partnership, and he was able to take the actions leading to Dr.
Munos's termination because St. Joseph's had placed him in a
position to do so.  All the evidence points to St. Joseph's
retaining control over Mr. Fale in this instance, and there simply
is no evidence in the record that Sisters directed or controlled
Mr. Fale with respect to partnership matters, including those
related to the contract with Dr. Munos.
     Thus, viewing the evidence in the light most favorable to Dr.
Munos, we hold there was no substantial evidence supporting the
jury's finding that Mr. Fale acted, with respect to the contract
between Dr. Munos and the partnership, on behalf of Sisters.  We
therefore reverse and dismiss the verdict against Sisters.
     We also reverse and dismiss the verdict against Mr. Fale.  We
do so because he took the actions described above on behalf of St.
Joseph's, a party to the contract in question.  It is well settled
that a party to a contract, and its agents acting in the scope of
their authority, cannot be held liable for interfering with the
party's own contract.  See Fisher v. Jones, 311 Ark. 450, 457, 844 S.W.2d 954 (1993); Harrell v. Reynolds Metals Co., 495 So. 2d 1381,
1387-1388 (Ala. 1986).  See also Abruzzo v. Haller, 603 So. 2d 1338,
1340 (Fla. App. 1 Dist. 1992), in which it was said that "An agent
of a corporate party to a contract, acting within his capacity and
scope as an agent, cannot be considered to be a separate entity
outside of the contractual relationship which can tortiously
interfere with that relationship."  In Hicks v. Haight, 171 Misc.
151, 11 N.Y.S.2d 912, 917 (N.Y. Sup. Ct. 1939), the Court said, "It
would be anomalous indeed to hold an agent liable for tort
committed within the scope of his authority, when liability does
not attach to the principal for the same tort committed on his
behalf and presumably for his benefit."  
     The contract in this case was between the partners and Dr.
Munos.  Mr. Fale, acting on behalf of St. Joseph's, stood in the
shoes of one of the partners and therefore was incapable of
interfering in the contract.  Mr. Fale was thus entitled to a
directed verdict.


                   2. Breach of fiduciary duty
     Dr. Munos alleged that St. Joseph's, as a partner, and Mr.
Fale, as an officer of St. Joseph's, owed and breached a fiduciary
duty of loyalty and utmost good faith and fair dealing.  Dr. Munos
claimed the following actions taken by St. Joseph's and Mr. Fale
constituted a breach of this asserted duty: (1) terminating the
contract; (2) scheming to terminate the contract in order to blame
Dr. Munos for the malpractice litigation, oust him from the
partnership, and increase their share of partnership profits; and
(3) refusing to review evidence that supposedly rebutted the
allegations against Dr. Munos.  As stated previously, the jury
found Mr. Fale and St. Joseph's liable on this claim.
     We agree with St. Joseph's and Mr. Fale that the evidence
adduced at trial fails to show a breach of fiduciary duty.  The
issue of St. Joseph's and Mr. Fale's liability on this claim should
not have gone to the jury.
     Our cases have established that a partner owes a fellow
partner certain fiduciary duties.  "A partnership," as we said in
Boswell v. Gillet, 226 Ark. 935, 944, 295 S.W.2d 758 (1956), "is a
relationship of trust and confidence and partners must observe the
utmost good faith toward each other in all of their transactions
from the time they begin negotiations with each other to the
complete settlement of the partnership affairs."  
     Not only does our common law recognize a fiduciary duty
between partners, but the General Assembly, in adopting the Uniform
Partnership Act, has imposed on partners the following fiduciary
obligation:

     Every partner must account to the partnership for any benefit
     and hold as trustee for it any profits derived by him without
     the consent of the other partners from any transaction
     connected with the formation, conduct, or liquidation of the
     partnership or from any use by him of its property.

Ark. Code Ann.  4-42-404(1) (Repl. 1996).  A breach of this
obligation entitles the injured partner to an accounting.  Ark.
Code Ann.  4-42-405 (Repl. 1996).
     We do not question the existence of a fiduciary duty between
partners, and we agree that St. Joseph's owed such a duty to Dr.
Munos.  However, we believe that Dr. Munos has failed to show that
St. Joseph's or Mr. Fale has breached any fiduciary obligation. 
     The proof showed only that Dr. Munos, a partner in the MRI
Center, acquired by contract the additional status of an
independent contractor who was responsible for managing the Center
and providing certain services.  The terms of the contract
conferring this status on Dr. Munos provided that St. Joseph's,
with the consent of only two other partners, could terminate the
contract.  St. Joseph's and the other partners exercised this
option provided by the contract and dismissed Dr. Munos from his
management position upon credible evidence that he had failed to
maintain a confidential atmosphere at the MRI Center.  Moreover, we
are mindful that some or all of the partners might not have
considered Dr. Munos's rebuttal evidence in reaching their
decision, but we point out that the contract did not require the
partners to take such evidence into account before voting to
terminate the contract.  
     Finally, there was absolutely no proof that St. Joseph's or
Mr. Fale acted out of a desire to expel Dr. Munos from the
partnership or otherwise affect his status as a partner, his
partnership interest, or his monthly partnership income.  As the
testimony established, Dr. Munos remains a partner in the MRI
Center and continues to receive a monthly income based on his 19.8
percent share.  Nothing in the evidence presented by either side
showed a breach of the fiduciary relationship.
     We have found no case in which a partner who was also an
independent contractor employed by the partnership has claimed a
breach of the fiduciary relationship among partners arising out of
his or her treatment with respect to the employment contract.  We
have, however, found support for our conclusion in analogous cases
from other jurisdictions.  
     We have placed particular reliance on a line of cases
considering whether partners violate their fiduciary duty when they
expel another partner from the partnership in accordance with a
partnership agreement.  As noted by the Texas Court of Appeals,
several jurisdictions have concluded "that expulsion of a partner
from a partnership cannot be in bad faith even where the
partnership agreement allows for expulsion without cause and even,
at times, without notice."  Bohatch v. Butler & Binion, 905 S.W.2d 597, 602 (Tex.App.--Houston [14 Dist.] 1995).  Such a rule is
appropriate, courts have found, because "at the heart of the
partnership concept is the principle that partners may choose with
whom they wish to be associated."  Gelder Medical Group v. Webber,
363 N.E.2d 573, 577 (N.Y. 1977).
     As a result, if the partners have "the right to expel [a
fellow partner] without stating reason or cause pursuant to the
partnership agreement, there [is] no breach of any fiduciary duty"
on the part of the partners when they exercise that right.  Holman
v. Coie, 522 P.2d 515, 524 (Wash. App. 1974).  See Leigh v.
Crescent Square, Ltd., 608 N.E.2d 1166, 1170 (Ohio Ct. App. 1992). 
     The analogy to those cases is useful here.  If a partner,
pursuant to an agreement, may expel another partner from the
partnership without breaching a fiduciary duty, then he may also
dismiss a partner, pursuant to an agreement, from an independent
contractor position without breaching a fiduciary duty.  See Day v.
Sidley & Austin, 394 F. Supp. 986, 992 (D.C. 1975), in which it was
said that, "Generally, common law and statutory standards
concerning relationships between partners can be overridden by an
agreement reached by the parties themselves." 
     Finally, we find an apt analogy in the suggestion made by the
New York Court of Appeals that it is necessary "to appreciate and
keep distinct the duty a corporation owes to a minority shareholder
as a shareholder from any duty it might owe him as an employee." 
Ingle v. Glamore Motor Sales, Inc., 535 N.E.2d 1311, 1313 (N.Y.
1989).  In that case, a shareholder in a closed corporation was
terminated as an at-will employee and claimed that his fellow
shareholders breached their fiduciary duty by firing him.  The
Court of Appeals rejected the claim.  The Court noted that the
employment agreement allowed for his termination for any reason,
and it refused to find that the shareholder was "entitled by reason
of his minority shareholder status to a fiduciary-rooted protection
against being fired."  Id. at 1313.
     St. Joseph's owed Dr. Munos no fiduciary duty in its
contractual relationship with him, and there was no evidence that
the fiduciary duty owed to him as a partner was violated.
Therefore, the directed-verdict motion should have been granted.
     Reversed and dismissed on appeal; cross-appeal moot. 
     Brown, J., not participating.