U.S. Neurosurgical, Inc. v. Midwest Division-RMC, LLC

THOMAS H. NEWTON, Chief Judge,

dissenting.

USN’s sole theory of damages was premised on breach of a “minimum payment” requirement. Because there was no “minimum payment” guarantee expressed in the contract, I respectfully dissent.

*670Contract interpretation is a question of law. Newco Atlas, Inc. v. Park Range Constr., Inc., 272 S.W.3d 886, 891 (Mo.App. W.D.2008). We read contracts inside established rules of construction. We seek to effectuate the parties’ intent. We consider the agreement as a whole; we harmonize the provisions, give meaning to the terms, and we do so through the plain, ordinary, and express language used in the document. See Midwest Div.-OPRMC, LLC v. Dep’t of Soc. Servs., Div. of Med. Servs., 241 S.W.3d 371, 379 (Mo.App. W.D.2007). That the parties purport to disagree as to the agreement’s meaning does not create ambiguity. Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.App. W.D.2008). Moreover, “[c]ourts are prohibited from creating ambiguities by distorting contractual language that may otherwise be reasonably interpreted.” Id. at 645 (internal quotation marks and citation omitted). Because the contract between USN and RMC may reasonably be interpreted through its express terms, the question of a “minimum payment” should not have been submitted to the jury.

Section 4.01 expressly provides that USN’s “sole compensation” was to be eighty percent of the “actual cash collected by Hospital.” It then provides for the parties’ annual review of the accounting methodology, which is “based on current third party reimbursement mechanisms.” “Sole” is synonymous with “only.” To perform something “solely” is to act “to the exclusion of alternate or competing things.” Webster’s ThiRD New INTERNATIONAL Dictionary 2168 (1993). Compensate means to “recompense, or to pay.” Black’s Law Dictionaey 283 (6th ed.1990). “Actual” means “existing presently in fact; having a valid objective existence ... [something real, in opposition to constructive or speculative.” Id. at 34. Collect means “[t]o receive payment.” Id. at 263.

In section 4.01, by its plain terms, the parties expressly provided for and limited USN’s compensation: its sole payment under the contract was to be eighty percent of RMC’s cash receipts from patients and their insurers. This meaning is further reinforced by section 4.03’s detailed procedures for RMC’s advances to USN of “80% of the estimated reimbursement to Hospital,” its provision of a settlement procedure for the occasion of RMC’s actual collections exceeding estimated collections (RMC would owe USN 80% of the excess), and in particular by the section’s provision for USN’s reimbursing RMC for any shortfall if the collections did not reach the estimate for the preceding month. The parties obviously anticipated the eventualities that an insurer’s expected or actual reimbursement for the procedure might be less than $12,500 and agreed that the actual sum received would be split 80/20 between the parties.

In section 2.11 the parties first set forth a preapproval requirement: before a procedure is performed, the patient’s “third party payor” must preapprove the procedure or RMC must be satisfied the patient has the ability to pay for the procedure herself. The section next provides that: “If the available third party payor reimbursement for any neuroradiosurgery procedure is less than Twelve Thousand Five Hundred Dollars ($12,500), then both Hospital and U.S. Neuro have to concur before the procedure may be performed.” “Concur” means “[t]o agree; accord; act together; consent.” Black’s Law DictionaRY 291 (6th ed.1990). Consequently, the plain language of section 2.11 provides that the parties must agree before performing the procedure if the expected third-party reimbursement is less than the stipulated amount. This language of concurrence is repeated within section 4.01’s parenthetical reference to “[sjection 2.11 which ... requires concurrence for performance.”

*671When we interpret contracts, we give meaning to every clause. Mathews v. Modern Woodmen of Am., 236 Mo. 326, 139 S.W. 151, 155 (1911). Equally as fundamental is that “[sjeeming contradictions must be harmonized away if that course be reasonably possible.” Id. Reading the contract in accord with our established rules, section 4.01 and section 2.11 create two distinct promises. Section 4.01 promises compensation: it provides that USN is to be given eighty percent of the actual cash collected from patients and their insurers. Section 2.11 promises concurrence: it provides that the parties will agree prior to the procedure being performed where the expected reimbursement is less than $12,500.

Neither provision sets forth a minimum payment guarantee. The words “minimum” and “guarantee” do not appear in the document. Conversely, the terms of the “sole payment” are clearly expressed. Section 4.01 expressly limits “compensation” to “actual cash collected.” Section 4.03 provides for advances to be returned to RMC when there is a shortfall in collections. Section 2.11 expressly promises “concurrence,” not “payment.”9

Because there is no “minimum payment” expressed, USN’s theory requires implying a promise not stated in the agreement. We do not favor implied promises: “we presume that the instrument contains the entire contract, and we will not imply additional provisions unless necessary to effectuate the parties clear intentions.” Giessow Rests., Inc. v. Richmond Rests., Inc., 232 S.W.3d 576, 579 (Mo.App. E.D.2007). This is particularly the case where, as here, the contract was between two sophisticated parties fully capable of expressly stating their intent. More critically, USN’s belated theory requires implying a promise that contradicts the agreement’s express terms: sole compensation. It is axiomatic that “[n]o implied provision can be inserted as against the express terms of the contract.” Conservative Fed. Sav. & Loan Ass’n v. Warnecke, 324 S.W.2d 471, 478-79 (Mo.App.1959). Ambiguity requires at least two reasonable interpretations of the agreement’s plain meaning. See Frieberger v. Lawyers Title Co. of Missouri, 831 S.W.2d 731, 734 (Mo.App. E.D.1992); Jackson v. Christian Salvesen Holdings, Inc., 978 S.W.2d 377, 383 (Mo.App. E.D.1998). Because USN’s reading runs afoul of our established rules of construction, its theory cannot support a finding of ambiguity.

Moreover, the majority implicitly finds that the contract is ambiguous, and was thus properly before the jury, because the agreement does not specify a remedy for breach of section 2.11’s concurrence provision. However, the general rule is that “ ‘[t]he proper measure of damages is a question of law for the trial court’s determination,’ ” not a factual question to be put to a jury for decision. Forney v. Mo. Bridge & Concrete, Inc., 112 S.W.3d 471, 474 (Mo.App. W.D.2003); see also, e.g. Cornejo v. Crawford County, 153 S.W.3d 898, 902 (MoApp. S.D.2005). The fact that section 2.11 specifies a contractual obligation, without specifying a remedy for breach of that obligation, does not create an ambiguity or render the concurrence obligation illusory. “Common law elements of a breach of contract action do not *672require, to the extent a contract is in writing, that the writing must specify the availability of a claim for money damages in the event of a breach.” Coventry Manor Phase II Assocs., L.P. v. Hainen, 904 S.W.2d 279, 281-82 (Mo.App. W.D.1995) (holding that claim for compensatory damages for breach of partnership agreement was available despite agreement’s failure to explicitly authorize it).

Consequently, contrary to the majority’s opinion, the agreement’s failure to specify damages for breach of the concurrence provision neither creates ambiguity nor leaves USN holding a “right without a remedy.” If RMC breached section 2.11 through failing to obtain USN’s concurrence, USN is free to seek damages. However, the only damages theory USN presented at trial was breach of a “minimum payment” requirement, not breach of a concurrence provision. As RMC points out, the reason behind USN’s theory is obvious: it has no damages from breach of a promise to concur because it presented no evidence that it incurred any incremental costs for the performance of individual procedures when the Gamma Knife would otherwise be sitting idle, while it obviously received additional money from each procedure. There is no evidence that, for example, higher-paying patients were turned away because the procedure was performed on lower-paying patients, or that RMC did not diligently, and in good faith, collect the full amount that patients and third-party payors were willing and able to pay. Moreover, the only evidence offered as to what USN might have done if RMC had sought concurrence is the testimony of Alan Gold that it was his full expectation that USN would have been able to negotiate something. As the majority notes, we have previously rejected such testimony as too speculative to support a damages award. See Mprove v. KLT Telecom, 135 S.W.3d 481, 491 (Mo.App. W.D.2004) (finding testimony as to what negotiations “probably” would have occurred insufficient to show any loss). “[A] damage award must be based on evidence more tangible than a gossamer web of shimmering speculation and finely-spun theory.” Id. (internal quotation marks and citation omitted).

Regardless of whether RMC complied with section 2.11 by seeking pre-procedure concurrence, it does not logically follow that we imply into the contract some liquidated damages provision requiring RMC to pay USN $10,000 for each procedure where there was not concurrence. The law does not award parties contract benefits they did not bargain for. See, e.g., Smith ex rel. Stephan v. AF & L Ins. Co., 147 S.W.3d 767, 780 (Mo.App. E.D.2004). Nor may the law “elevate the non-breaching party to a better position than she would have enjoyed had the contract been completed on both sides.” Guidry v. Charter Commc’ns., Inc., 269 S.W.3d 520, 533 (Mo.App. E.D.2008).

We do not interpret agreements so as to render sections of them “useless and inexplicable.” Midwest Div.-OPRMC, LLC, 241 S.W.3d at 380. USN’s reading of the agreement disharmonizes the contract, requires ignoring the plain language of section 2.11, renders the language of sections 4.01 and 4.03 useless, and negates the very meaning of the phrases “sole payment” and “actual cash collected.” It further inserts a promise that was not bargained for by the parties, was not expressed by the parties, and was not the parties’ course of performance for over eleven years. It thus bestows a windfall on USN for sitting on its hands and belatedly inventing a new and self-serving interpretation of the agreement. Because the agreement cannot reasonably be read to contain a “minimum payment” requirement, this issue should not have been submitted to the jury.

*673Consequently, I would grant RMC’s first point and reverse the judgment.

. The fact that the agreement requires concurrence before performance of the procedure, and at a time when reimbursement is only an expectancy, also belies the notion that section 2.11 creates a minimum payment guarantee. Despite RMC’s good-faith, pre-procedure expectation of reimbursement at or above $12,500, there remains every possibility that post-procedure collection would fall short of that amount. Yet on USN's theory, it would be entitled to $10,000 even in cases where RMC expected yet failed to collect $12,500 and the pre-procedure concurrence obligation was not even triggered.