Gulfport Ob-Gyn, P.A. v. Dukes, Dukes, Keating & Faneca, P.A.

283 So. 3d 676 (2019)

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Nature of the Case

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Facts

P is a professional association of physicians specializing in obstetrical and gynecological care. In 2008, P hired D to assist in negotiating the hiring of Dr. Donielle Daigle and to prepare an employment agreement for her. Ja'Nell Blum was assigned by D to create the documents. Dr. Daigle was hired, subject to an employment agreement prepared by Blum and executed by both principals. The employment agreement contained a noncompetition covenant with substantially the same language P had accepted in previous employment agreements prepared by another law firm. It read: a. Employee agrees that for a period of three (3) years following termination of her employment by the Employer, regardless of cause (subject to Section 7(d)), she will not engage in any medical practice or perform any service directly or indirectly in competition with the medical practice of Employer, to include hospital staff positions, or have any interest in any capacity whatsoever in any enterprise that engages in such medical practice within a radius of fifty (50) miles from the Memorial Hospital at Gulfport, without the express written consent of the Employer. Further, during said three (3) year period, even if in compliance with the above fifty (50) mile radius provision, Employee agrees not to directly solicit, which includes, but is not limited to, direct mailings, emails, or telephone calls, either by Employee or any other person or entity acting on Employee's behalf, any patient who has been served by the Employer within three (3) years prior to the date her employment with Employer ends, whether by termination or resignation, or mutual agreement. The agreement provided that under certain circumstances, enforcement of the noncompetition covenant could be waived in exchange for $150,000 in liquidated damages to P. Five years later, Dr. Daigle and another physician left P to establish their own practice. They sued P for unpaid compensation and sought a declaratory judgment that the non-competition covenant was unenforceable. The chancery court held the noncompetition covenant not applicable to Dr. Daigle because she left voluntarily and was not 'terminated by the Employer.' The dispute was eventually settled through mediation when P agreed to pay Dr. Daigle $425,000. P sued D for malpractice. The circuit court granted summary judgment to Ds in that P had failed to produce evidence Dr. Daigle would have accepted the employment agreement with a more comprehensive noncompetition covenant. P appealed.