(dissenting).
I respectfully dissent. I simply cannot accept the argument that there was lack of consideration for Dr. Freeman to sign the non-competition clause in his contract.
One must look at the unique services that The Duluth Clinic provides, not only for the City of Duluth, but for the entire region of Northern Minnesota, Wisconsin, and Michigan, to determine the existence of consideration. A tremendous expenditure of capital is necessary to recruit doctors to come into a distressed economic area with its unique climate. The clinic must then provide equipment and buildings and encourage hospital construction to meet the standards required by the doctors.
Eighty percent of the doctors in the Duluth Clinic signed the non-competition provision. There was thus a mutuality of promises, which has always been held to be an adequate consideration in contract cases. Moreover, there was a dramatic increase in Dr. Freeman’s compensation following his signing of the agreement. How is it possible to argue that the clinic as a whole was not strengthened by the covenant? The vast majority of the staff knew that, after they signed the non-competition clause, their colleagues would be there to share both in the expense and the income from the expenditures of capital necessary to maintain the clinic. Their colleagues thereafter could not simply come into the clinic, become familiar with it, build a patient load, and then leave to go out and build a private practice at The Duluth Clinic’s expense. After Dr. Freeman signed the new contract with the non-competition clause, the clinic committed itself to expend more money in expanding the medical equipment Dr. Freeman expressed a desire to have.
Significantly, the arbitrators found consideration. We weaken the whole scheme of arbitration by interfering and making our own findings of fact when arbitrators have decided otherwise. Furthermore, we held in the Atcas v. Credit Clearing Corp. of America, 292 Minn. 334, 197 N.W.2d 448 (1972), that, to avoid arbitration, one must void the contract. Here, Dr. Freeman affirmed the contract four times in his complaint and earlier had sought arbitration himself.
I thus would affirm the trial court in upholding the findings of the three arbitrators, but would remand for imposition of the damages the panel sought to impose. If the district court upheld the findings of the arbitrators, certainly it was compelled to uphold the award of damages as well.