IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
BARRY W. BRASFIELD, ) C/A NO. 03A01-9811-CH-00392
FILED
October 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
)
Plaintiff/Counter- )
Defendant-Appellee, )
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)
)
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v. ) APPEAL AS OF RIGHT FROM THE
) SULLIVAN COUNTY CHANCERY
COURT
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)
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ANESTHESIA SERVICES, P.C., )
)
Defendant/Counter- )
Plaintiff-Appellant. ) HONORABLE RICHARD E. LADD,
) CHANCELLOR
For Appellant For Appellee
THOMAS C. JESSEE EARL R. BOOZE
Jessee & Jessee Herrin, Booze & Rambo
Johnson City, Tennessee Johnson City, Tennessee
OPINION
AFFIRMED AND REMANDED
Susano, J.
Dr. Barry W. Brasfield filed suit to recover damages for
monies allegedly due him under the termination-of-employment provisions of
his written agreement with his former employer, the defendant Anesthesia
Services, P.C. (“Anesthesia”). Following a bench trial, the trial court
awarded Brasfield damages totaling $123,357.52 plus prejudgment interest.
It rejected Anesthesia’s counterclaim for an alleged violation of the
non-competition provisions of the parties’ employment agreement.
Anesthesia appeals, raising issues that present the following questions for
our review:
1. Did the trial court err in refusing to enforce a covenant not to
compete against a physician where the physician himself did not compete
directly with his former employer but his new employer did?
2. Did the trial court err in denying Anesthesia’s Motion to Alter or
Amend the Judgment based on newly discovered evidence?
3. Did the trial court err in awarding Brasfield prejudgment interest?
I. Facts and Procedural History
Brasfield is an anesthesiologist whose practice includes
the sub-specialty of critical care. In January, 1991, he was hired by
Anesthesia, a professional corporation consisting of a number of doctor
2
shareholders. After working 18 months as a salaried employee, Brasfield
became a shareholder of Anesthesia under the terms of an employment
agreement signed by him on July 12, 1993. Brasfield’s employment agreement
provides that, upon termination, he is entitled to remuneration as follows:
The Physician or his estate shall receive his
accounts receivable at a rate not to exceed his regular
salary as set forth in Article IV hereof for a period of
twelve (12) months from the date of his termination.
The purpose of this provision is to fairly compensate
the Physician for his share of the accounts receivable
he has put on the books of the corporation during his
employment hereunder.
The agreement also contains a non-competition provision:
Upon any termination of employment, Physician shall not thereafter
practice medicine in any facility in which the Corporation is
providing services or is negotiating to provide services at the time
of his termination, for a period of two (2) years.
* * *
If the Physician does not comply with [the above-quoted covenant not
to compete], the Physician agrees to pay to the Corporation liquidated
damages, within ninety (90) days of the commencement of employment
within the restricted area, in the amount of $200,000.00.
In February, 1995, Anesthesia entered into an exclusive
agreement with Indian Path Hospital (“Indian Path”) to provide
anesthesiology services at the hospital. By May, 1996, Anesthesia’s four
shareholders had determined that the Indian Path contract was not
sufficiently profitable. The shareholders, including Brasfield,
unanimously agreed to exercise their option to cancel the contract and to
thereafter enter into negotiations with the hospital for a new contract.
On May 17, 1996, Anesthesia informed Indian Path of its decision.
3
According to the cancellation provisions of the contract, it was to
terminate 90 days from the date of notice of cancellation, thus making
Anesthesia’s cancellation effective August 18, 1996. Soon after Anesthesia
gave Indian Path notice of cancellation, a competing group of
anesthesiologists, Anesthesiology and Pain Consultants, P.C., (“the
Competing Group”), learned that the Indian Path contract was available and
initiated its own efforts to win the contract.
On July 1, 1996, Brasfield sent a letter of resignation to
Anesthesia. A few days later, Brasfield contacted the Competing Group to
inquire whether its prior offer of employment -- one that he had previously
rejected -- was still open. It was. On August 16, 1996, Anesthesia
accepted Brasfield’s resignation and agreed that his last day of employment
would be August 18, 1996.
Brasfield began his employment with the Competing Group as
a salaried employee around September 1, 1996. Even though Anesthesia’s
contract with Indian Path had expired on August 18, 1996, Anesthesia
continued to negotiate with and provide services to the hospital through
the middle of October. The Competing Group commenced the delivery of
services at Indian Path sometime in mid-September and eventually won the
exclusive contract. Thus, subsequent to Brasfield’s acceptance of
employment with the Competing Group, both groups provided services to
Indian Path for a short period of time. However, Brasfield did not work at
Indian Path after becoming an employee of the new group and did not
participate in negotiations with Indian Path on behalf of the Competing
Group.
4
Brasfield filed suit soon after Anesthesia informed him
that it did not intend to pay him pursuant to the accounts receivable
language of the employment agreement. Anesthesia took the position that
any receivables due Brasfield would be offset by the $200,000 liquidated
damages due Anesthesia for the former’s alleged breach of the covenant not
to compete.
The trial court found that the covenant not to compete was
reasonable; but the court concluded that Brasfield had not breached it.
Construing the covenant strictly, the court determined that it prohibited
Brasfield from practicing at a facility where Anesthesia was performing
services or negotiating to provide services. However, the court determined
that the covenant did not extend to the practice of the other employees of
the Competing Group. Because Brasfield had not practiced at Indian Path,
the trial court reasoned that he had not violated the covenant not to
compete.
Having determined that Brasfield was entitled to an award
of his accounts receivable, the court reserved ruling on the amount of the
award. The trial court indicated that it would refer the matter to a
special master if the parties were unable to agree on the amount of the
judgment within five days. The court also reserved ruling on Brasfield’s
request for prejudgment interest.
The parties did not reach an agreement within the five-day
period specified by the trial court; however, before the matter could be
referred to a special master, Anesthesia filed a Motion to Alter or Amend
the Judgment. In the motion, Anesthesia claims newly discovered evidence
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showing that Brasfield had provided the Competing Group with Anesthesia’s
records during the Indian Path negotiations and that Brasfield and one of
his witnesses had testified falsely at trial regarding this matter.
The trial judge denied Anesthesia’s motion, finding that
the motion was not properly supported with factual material. The trial
court also found that the motion was deficient in that it failed to
demonstrate that the “new” evidence, even if properly before the court, was
such that it could not have been ascertained with due diligence prior to
trial.
At the final hearing, the parties agreed that the
appropriate award of accounts receivable was $119,857,52. In addition, the
court awarded Brasfield $3,500 for his stock in Anesthesia. Finally, the
court awarded Brasfield prejudgment interest. Anesthesia appeals the
accounts receivable award, the prejudgment interest award, and the refusal
of the trial court to consider its newly discovered evidence.
II. Standard of Review
In this non-jury case, our review is de novo upon the
record, with a presumption of correctness as to the trial court’s factual
determinations, unless the evidence preponderates otherwise. Rule 13(d),
T.R.A.P.; Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The
trial court’s conclusions of law, however, are accorded no such
presumption. Campbell v. Florida Steel, 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). Interpretation of a
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contract, being a matter of law, is thus subject to de novo review with no
presumption of correctness. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95
(Tenn. 1999); Campbell, 919 S.W.2d at 35; Presley, 860 S.W.2d at 859.
III. Analysis
A. Covenant Not to Compete
Anesthesia’s first issue is whether the trial court erred
in determining that Brasfield had not violated the non-competition
provisions of the employment agreement. Brasfield does not challenge the
validity of the covenant; 1 rather, he contends that he did not violate its
terms.
The goal of contract interpretation is to ascertain the
intent of the parties according to the usual, natural, and ordinary meaning
of the words used by the parties. Guiliano, 995 S.W.2d at 95. In
Tennessee, covenants not to compete are not favored “because they are in
restraint of trade,” see Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 472
(Tenn. 1984); for this reason, they are strictly construed in favor of the
employee.
The covenant not to compete signed by Brasfield provides
that
upon any termination of employment, Physician
shall not thereafter practice medicine in any facility
in which the Corporation is providing services or is
negotiating to provide services at the time of his
termination.
(Emphasis added). We agree with the trial court that, when this contract
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provision is construed in accordance with the ordinary meaning of its
language and strictly in favor of the employee, the covenant merely
prohibits Brasfield from personally practicing medicine in competition with
Anesthesia. To find in favor of Anesthesia, we would have to broaden the
language of the contract to include a provision stipulating that a
terminating employee is not permitted to join a group of doctors who
practice at a facility of the type described in the contract. We are
without authority to add a new term to the parties’ contract; on the
contrary, our obligation is to enforce the parties’ bargain as made by
them. Because Brasfield himself did not practice medicine at Indian Path,
we hold that he did not violate the non-competition provisions of the
employment agreement.
It may be true, as Anesthesia contends, that Brasfield, as
a shareholder of that group and one with decision-making authority,
possessed certain proprietary information that would have been useful to
the Competing Group in its negotiations with Indian Path. However, there
is no evidence that Brasfield shared any such information with the
Competing Group. Hence, we can find no violation of the employment
agreement in the simple fact that Brasfield terminated his employment with
Anesthesia and joined the Competing Group at a time when the quantum of his
knowledge included data proprietary to Anesthesia. There is simply no
proof that he used this information in a manner inconsistent with his
employment relationship with Anesthesia.
For the foregoing reasons, we hold that the trial court did
not err in its determination that Brasfield had not violated the
non-competition covenant.
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B. Newly Discovered Evidence
Anesthesia’s second issue is whether the trial court erred
in denying its motion to alter or amend the judgment based on newly
discovered evidence.
Anesthesia states in its motion that after the trial court
entered judgment on May 13, 1998, it learned that Brasfield had provided
the Competing Group with records belonging to Anesthesia and that Brasfield
and one of his witnesses had misrepresented this matter at trial.
Anesthesia moved the court to consider this evidence, apparently contending
that proof of such an act would be a breach of the covenant not to compete
or a breach of fiduciary duty. The trial court denied the motion stating
as a basis for its decision that Anesthesia failed to properly support its
motion and that it failed to indicate why the evidence sought to be
proffered could not have been ascertained at an earlier time and before
trial.
A party moving to alter or amend a judgment based on newly
discovered evidence must demonstrate that the new evidence was not known or
ascertainable prior to trial through the exercise of reasonable diligence.
Collins v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn.App. 1995). The
facts constituting due diligence must be stated with particularity. Seay
v. City of Knoxville, 654 S.W.2d 397, 399 (Tenn.App. 1983). Such a motion “
should only be granted when it is evident an injustice has been done and a
new trial will change the result.” Leeper v. Cook, 688 S.W.2d 94, 96
(Tenn.App. 1985). The decision to grant or deny a motion based on newly
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discovered evidence is within the sound discretion of the trial court. Seay
, 654 S.W.2d at 400-01.
We find no abuse of discretion in the trial court’s
decision to deny Anesthesia’s motion. The motion was filed without
supporting documentation. 2 A mere assertion by a party that he or she has
acquired new evidence is not enough. Even if supported with proper
affidavits or discovery material, the motion must reflect that the new
evidence could not have been ascertained prior to the end of trial through
the exercise of due diligence. At the hearing on the motion, Anesthesia’s
counsel argued that the evidence was not ascertainable prior to trial
because the depositions of Brasfield and a member of the Competing Group
indicated that no Anesthesia records had been delivered to the Competing
Group. Hence, counsel argued, he had no reason to believe otherwise or to
search further for information to the contrary. We are of the opinion that
these circumstances do not demonstrate that the contrary information was
not ascertainable. Rather, these circumstances merely reflect why counsel
chose not to inquire further regarding this matter. In point of fact,
counsel could have questioned other physicians belonging to the Competing
Group but chose not to do so. While the claimed new evidence is not before
us and was not before the trial court, Anesthesia’s brief indicates that it
came from other members of the Competing Group. The source of this
information demonstrates to us that it was in fact ascertainable prior to
trial. Certainly, the identity of the members of the Competing Group was
known prior to trial.
C. Prejudgment Interest
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The last issue that Anesthesia raises on appeal concerns
the trial court’s award of prejudgment interest. At trial, Brasfield
asserted that his share of the accounts receivable was $230,000 while
Anesthesia contended that he was only due $119,857.52. The trial court
rendered an opinion the same day finding that Brasfield was entitled to a
money judgment but reserving a ruling on the specific amount of the
accounts receivable award. Thereafter, the parties failed to agree on an
amount; but before the matter was referred to a special master, Anesthesia
filed its Motion to Alter or Amend the Judgment.
At the hearing on Brasfield’s Motion to Finalize the
Judgment and Determine Prejudgment Interest, held on October 14, 1998,
Brasfield agreed to Anesthesia’s lower calculation of the accounts
receivable award. The trial court thus awarded Brasfield $119,857.52 for
his accounts receivable and $3,500 pursuant to the parties’ stock purchase
agreement. Additionally, the court awarded Brasfield prejudgment interest,
an award which consisted of two time periods and two interest rates.
First, the court awarded prejudgment interest of six percent for the period
between August 19, 1997, being one year after Brasfield left the Group, and
April 28, 1998, the date of trial. Second, the court awarded prejudgment
interest of ten percent for the period between the date of trial and the
final hearing date of October 14, 1998. Anesthesia argues on appeal that
since Brasfield asserted his entitlement to a higher figure at the time of
trial, but ultimately accepted Anesthesia’s lower figure, he was
responsible for the delay, and thus was not entitled to prejudgment
interest for the period between April 28, 1998, and October 14, 1998.
T.C.A. § 47-14-123 provides that “[p]rejudment interest,
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i.e., interest as an element of, or in the nature of, damages,...may be
awarded by courts or juries in accordance with the principles of equity at
any rate not in excess of a maximum effective rate of ten percent (10%) per
annum”.
In making an award of prejudgment interest, trial courts
are to follow several principles. First, and foremost, the award must be
equitable under the circumstances. Myint v. Allstate Insurance Company,
970 S.W.2d 920, 927 (Tenn. 1998); T.C.A. § 47-14-123. The award must be
designed to compensate the injured party rather than punish the other
party. 970 S.W.2d at 927.
“[I]f the existence or amount of an obligation is certain,
this fact will help support an award of prejudgment interest as a matter of
equity.” Id. at 928. For the amount of an obligation to be “certain”, it
need not be a fixed amount agreed to by the parties. It merely needs to be
“ascertainable by computation or by any recognized standard of valuation.”
Id. If the obligation meets this test, it is not an impediment to an award
that the parties or their experts disagree as to the amount. Id.
The decision to award prejudgment interest is within the
sound discretion of the trial court and will not be disturbed by an
appellate court absent a “manifest and palpable abuse of discretion.” Id.
at 927 (quoting Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938, 944
(Tenn. 1994)).
In the instant case, it is clear, beyond any doubt, that
Brasfield was entitled to compensation under the accounts receivable
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provision of the employment agreement. That paragraph of the agreement
provides that termination of the employee’s employment, whether voluntary
-- as was the case here -- or involuntary, triggers the application of its
terms. That is what the agreement says; hence, the obligation was certain,
even if the amount of that obligation was still to be determined.
Anesthesia essentially acknowledges the certainty of the obligation; it
simply contends that it is entitled to damages under the covenant not to
compete provisions of the agreement and that its damages exceed those of
Brasfield’s.
We find that the trial court did not abuse its discretion
in its award of prejudgment interest for the full period from August 19,
1997, to October 14, 1998. Though the parties did not initially agree on
the amount of the award, the amount due Brasfield was ascertainable by
computation. It matters not that Brasfield initially claimed that he was
entitled to a larger award than that to which he ultimately agreed. The
significant fact is that Anesthesia had the use of these funds -- the final
award of $119,857.52 -- during the entire period of August 19, 1997, to
October 14, 1998, to the exclusion of Brasfield, the individual to whom the
funds were due under the holding of the trial court. For this reason, it
is equitable that he be awarded prejudgment interest for the entirety of
this relevant period. Therefore, we find no abuse of discretion with
respect to the amount of the award of prejudgment interest.
IV. Conclusion
The judgment of the trial court is affirmed. Costs on
appeal are taxed to the appellant. This case is remanded to the trial
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court for enforcement of the judgment and collection of costs assessed
below, all pursuant to applicable law.
_____________________________
Charles D. Susano, Jr. J.
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CONCUR:
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Houston M. Goddard, P.J.
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William H. Inman, Sr.J.
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Barry W. Brasfield v. Anesthesia Services, P.C.
Combined Opinion