Dimond v. Samaritan Health Service

Court of Appeals of Arizona

Dimond v. Samaritan Health Service

558 P.2d 710, 27 Ariz. App. 682, 1976 Ariz. App. LEXIS 694

CourtCourt of Appeals of Arizona

DecidedSeptember 23, 1976

Docket1 CA-CIV 3295

StatusPublished

Cited by10 cases

This text of 558 P.2d 710 (Dimond v. Samaritan Health Service) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dimond v. Samaritan Health Service, 558 P.2d 710, 27 Ariz. App. 682, 1976 Ariz. App. LEXIS 694 (Ark. Ct. App. 1976).

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HOWARD, Chief Judge.

Appellant filed an action in the superior court for declaratory relief. The case came on for trial before the court which, after hearing appellant’s evidence, granted appel-lees’ “motions for directed verdict” and entered judgment in their favor.¹

Appellant was a supervisor in the clinical pathology laboratory of Good Samaritan Hospital, a private hospital. When appellant was discharged by the hospital she requested a hearing on her discharge pursuant to the Samaritan Hospital Service poli-gram which contained rules, regulations and procedures relating to employment and termination of employment. At the hearing which was scheduled she was prohibited from being represented by legal counsel and no provision was made for the compulsory attendance of witnesses.

In the trial court it was appellant’s contention that the employee procedures constituted a contract between the hospital and herself. She requested the court to construe the contract and require the hospital to permit the presence of her attorney at the hearing and further permit her to have the power to subpoena witnesses by means of subpoenas and subpoenas duces tecum issued by the clerk of the superior court.

Both counsel joined in a motion to “bifurcate” the issues and first try the issue of whether the poli-gram constituted a contract. This motion was granted with appellant receiving the right to make an offer of proof on the issue of whether she was qualified to represent herself at the employment hearing. An offer of proof was made in which appellant set forth the evidence which she would have adduced on the remaining issues. It concerned the complexity of the hearing and her inability to represent herself. Nowhere in the offer of proof did appellant state that she would show that appellees were acting in any capacity other than as private entities. The court found that the poli-gram did not constitute a contract and therefore entered judgment in appellees’ favor.

On appeal it is appellant’s contention that the poli-gram did in fact constitute a contract. Assuming arguendo that it did, the record shows that the hospital was quite willing to follow the procedures set forth in the poli-gram and give appellant a hearing. It was appellant’s contention that there could not be a “hearing” without allowing her to have her attorney present and without the right to compulsory attendance of witnesses.

We are at a loss to understand why the trial was bifurcated and the contract issue was tried first. Whether the poli-gram constituted a contract is of no consequence. Assuming arguendo that it constituted a contract between the parties, it did not provide for the presence of counsel and compulsory attendance of witnesses. Since appellant had no contractual right, her claim to such hearing rights must rest on a constitutional basis, to-wit; denial of due process. The Fourteenth Amendment [684]*684of the United States Constitution applies only to state action and not to private conduct. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Likewise, Article 2, Sec. 4 of the Arizona Constitution applies only to state action. There is no allegation in appellant’s complaint that the hospital was a public hospital. On appeal, she refers to the hospital as a private hospital.² In her opening trial statement, appellant set forth her theory, never suggesting that appellees were other than private entities. Likewise, her offer of proof failed to show state action.

Whatever reasons the court may have given for entering judgment in appellees’ favor, the result was correct.

Affirmed.

KRUCKER and HATHAWAY, JJ., concur.

NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. Sec. 12-120(E).

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HOWARD, Chief Judge.

Appellant filed an action in the superior court for declaratory relief. The case came on for trial before the court which, after hearing appellant’s evidence, granted appel-lees’ “motions for directed verdict” and entered judgment in their favor.¹

Appellant was a supervisor in the clinical pathology laboratory of Good Samaritan Hospital, a private hospital. When appellant was discharged by the hospital she requested a hearing on her discharge pursuant to the Samaritan Hospital Service poli-gram which contained rules, regulations and procedures relating to employment and termination of employment. At the hearing which was scheduled she was prohibited from being represented by legal counsel and no provision was made for the compulsory attendance of witnesses.

In the trial court it was appellant’s contention that the employee procedures constituted a contract between the hospital and herself. She requested the court to construe the contract and require the hospital to permit the presence of her attorney at the hearing and further permit her to have the power to subpoena witnesses by means of subpoenas and subpoenas duces tecum issued by the clerk of the superior court.

Both counsel joined in a motion to “bifurcate” the issues and first try the issue of whether the poli-gram constituted a contract. This motion was granted with appellant receiving the right to make an offer of proof on the issue of whether she was qualified to represent herself at the employment hearing. An offer of proof was made in which appellant set forth the evidence which she would have adduced on the remaining issues. It concerned the complexity of the hearing and her inability to represent herself. Nowhere in the offer of proof did appellant state that she would show that appellees were acting in any capacity other than as private entities. The court found that the poli-gram did not constitute a contract and therefore entered judgment in appellees’ favor.

On appeal it is appellant’s contention that the poli-gram did in fact constitute a contract. Assuming arguendo that it did, the record shows that the hospital was quite willing to follow the procedures set forth in the poli-gram and give appellant a hearing. It was appellant’s contention that there could not be a “hearing” without allowing her to have her attorney present and without the right to compulsory attendance of witnesses.

We are at a loss to understand why the trial was bifurcated and the contract issue was tried first. Whether the poli-gram constituted a contract is of no consequence. Assuming arguendo that it constituted a contract between the parties, it did not provide for the presence of counsel and compulsory attendance of witnesses. Since appellant had no contractual right, her claim to such hearing rights must rest on a constitutional basis, to-wit; denial of due process. The Fourteenth Amendment [684]*684of the United States Constitution applies only to state action and not to private conduct. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Likewise, Article 2, Sec. 4 of the Arizona Constitution applies only to state action. There is no allegation in appellant’s complaint that the hospital was a public hospital. On appeal, she refers to the hospital as a private hospital.² In her opening trial statement, appellant set forth her theory, never suggesting that appellees were other than private entities. Likewise, her offer of proof failed to show state action.

Whatever reasons the court may have given for entering judgment in appellees’ favor, the result was correct.

Affirmed.

KRUCKER and HATHAWAY, JJ., concur.

NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. Sec. 12-120(E).

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558 P.2d 710, 27 Ariz. App. 682, 1976 Ariz. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimond-v-samaritan-health-service-arizctapp-1976.

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