Spectrum Emergency Care, Inc. v. St. Joseph's Hospital & Health Center

VANDE WALLE, Justice,

concurring specially.

The trial court found “there was no evidence that the Hospital solicited or encouraged Drs. Cusic and Swenson to decide not to renew their agreement with Spectrum, and there was no evidence that the physicians solicited or encouraged the Hospital to decide not to renew its agreement with Spectrum.” Notwithstanding the majority’s dismissal of that finding as “interesting, but ... not crucial to our disposition of this case,” that finding is the basis upon which I concur in the result reached by the majority opinion.

I am concerned that the majority opinion may be construed to hold that section 9-08-06, NDCC, absolves employees of any loyalty to their employer. There are other provisions which are of equal import in the employer-employee relationship. Chapter 34-02, NDCC, sets forth the obligations of employer and employee. Employers assume certain obligations as a result of the relationship. So do employees. For example, section 34-02-07 requires that one who is employed at his own request to do that which is more for his own advantage than for that of his employer must use great care and diligence to protect the interests of the employer; and section 34-02-14 requires that an employee who has any business to transact on his own account similar to that entrusted to him by his employer must always give the employer the preference. I construe those sections to require loyalty to the employer and to require that the employee not impair the employer’s business for the benefit of the employee.

*854I agree that this court’s decision in Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33 (N.D.1981) is distinguishable, not because section 9-08-06 was not discussed in that opinion as footnote 3 of the majority appears to hold,1 but because the facts and the issue framed from those facts was substantially different than that with which we are here faced. As the majority opinion notes Coutts was a case “involving equitable protection against unfair competition.” Thus, in Coutts, we framed the issue as “Did Coutts owe any obligation to the firm not to solicit its clients while he was employed by the firm and did he, in violation of that obligation, attempt to gain something, i.e., the clients of the firm?” Coutts, supra, at 35. Relying in part on section 3-04-05-012 of the North Dakota Administrative Code, the accountants Code of Professional Ethics, we concluded that the accounting firm “had a right to expect that [Coutts] would not solicit clients of the firm for himself while he was employed by the firm.” Coutts, supra, at 36.

Here the trial court found there was no solicitation to not renew the contract with Spectrum by either the physicians or the hospital and no contract negotiations between the hospital and the physicians until after the physicians determined to leave Spectrum’s employment at the end of their contract period.

Insofar as the contract prohibits negotiations for future employment after the physicians determined not to renew the contract, I agree it violates section 9-08-06, NDCC. We need not and should not decide any issues other than those found by the findings of the trial court.

. I do not believe the lack of reference to a given statute or judicial decision in an opinion requires a conclusion that such an opinion lacks precedent in a future case in which such a statute or decision is raised or discussed. To conclude otherwise makes judicial precedent unduly fragile.

. Chapter 3-04-05, North Dakota Administrative Code, was repealed effective November 1, 1982.