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Gulfport OB-GYN, P.A. v. Dukes, Dukes, Keating & Faneca, P.A.

Supreme Court of Mississippi, En Banc

August 29, 2019

GULFPORT OB-GYN, P.A.
v.
DUKES, DUKES, KEATING & FANECA, P.A. AND JE'NELL B. BLUM

          DATE OF JUDGMENT: 03/28/2018

          HARRISON COUNTY CIRCUIT COURT HON. ROGER T. CLARK JUDGE

          TRIAL COURT ATTORNEYS: IAN LAWRENCE BAKER ROBERT CHARLES STEWART JOEL SMITH

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH

          DISTRICT ATTORNEY: JOEL SMITH

         ON WRIT OF CERTIORARI

          ISHEE, JUSTICE

         ¶1. In this legal-malpractice case, Gulfport OB-GYN contends that Dukes, Dukes, Keating, and Faneca negligently drafted a noncompetition covenant for one of its physicians, leading to a substantial financial loss when the physician left to start her own practice. The circuit court granted summary judgment to the defendants after finding Gulfport OB-GYN had failed to produce sufficient evidence that it would have received a better deal but for the attorneys' alleged negligence, i.e., Gulfport OB-GYN failed to prove that the alleged negligence caused it damages. We agree and affirm.

         FACTS

         ¶2. Gulfport OB-GYN is a professional association of physicians specializing in obstetrical and gynecological care. In 2008, it hired the law firm Dukes, Dukes, Keating & Faneca, P.A., to assist in negotiating the hiring of Dr. Donielle Daigle and to prepare an employment agreement for her. The attorney primarily assigned to the matter was Ja'Nell Blum. The negotiations culminated in Dr. Daigle's hiring, 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 Gulfport OB-GYN had accepted in previous employment agreements prepared by another law firm. The noncompetition covenant in Dr. Daigle's agreement read, in relevant part,

Covenant Not To Compete.
a. Employee agrees that for a period 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 Gulfport OB-GYN.

         ¶3. Five years later, Dr. Daigle and another physician left Gulfport OB-GYN to establish their own practice. They sued Gulfport OB-GYN for unpaid compensation and sought a declaratory judgment that the noncompetition covenant was unenforceable. The departing physicians ultimately prevailed, with the chancery court holding the noncompetition covenant not applicable to Dr. Daigle because she left voluntarily and was not "terminated by the Employer." The chancery court decision was initially appealed, but the dispute was later settled through mediation when Gulfport OB-GYN agreed to pay Dr. Daigle $425, 000. Gulfport OB-GYN then filed this legal-malpractice suit against Blum and her firm.

         ¶4. Ultimately, the circuit court granted summary judgment to the defendants after finding that Gulfport OB-GYN had failed to produce evidence Dr. Daigle would have accepted the employment agreement with a more comprehensive noncompetition covenant. Gulfport OB-GYN has appealed from that judgment.

         STANDARD OF REVIEW

         ¶5. This Court reviews a grant or denial of summary judgment de novo. Hardy v. Brock, 826 So.2d 71, 74 (Miss. 2002). "We view the evidence 'in the light most favorable to the party against whom the motion has been made.'" Olier v. Bailey, 164 So.3d 982, 986 (Miss. 2015) (quoting Double Quick, Inc. v. Moore, 73 So.3d 1162, 1165 (Miss. 2011)). On the other hand, the duty of care owed by Blum and her firm to their client ...


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