Friddle v. Raymond

Citation575 So.2d 1038
Parties1991-1 Trade Cases P 69,353, 6 IER Cases 199 David W. FRIDDLE v. George A. RAYMOND. 89-998.
Decision Date11 January 1991
CourtAlabama Supreme Court

John T. Ennis, Sr. and E. Allen Dodd, Jr., Birmingham, for appellant.

K. Edward Sexton II and G. Daniel Evans, Birmingham, for appellee.

STEAGALL, Justice.

In 1983, David W. Friddle and George A. Raymond entered into a partnership for the purpose of practicing veterinary medicine under the name of Alford Avenue Veterinary Hospital, located in Birmingham, Alabama. On May 19, 1988, Friddle and Raymond entered into an agreement for the sale of Raymond's 50 per cent share in the partnership to Friddle. Friddle agreed to pay Raymond $70,481 under specified terms of payment extending over a three-year period, and the agreement was to take effect, retroactively, as of May 1, 1987. The agreement contained a covenant by which Raymond agreed not to compete with Friddle in the veterinary hospital business within six miles of Alford Avenue Veterinary Hospital for a period of three years. The agreement further provided that the future payments due to Raymond would be forfeited as liquidated damages should Raymond violate that covenant.

Friddle made several payments as required by the agreement, but when he learned that Raymond had practiced within the prohibited area after the execution of the agreement, Friddle ceased making payments and filed a suit seeking a judgment declaring the respective rights, responsibilities, and duties of the parties under the agreement. Raymond filed an answer, claiming that the covenant not to compete was void and unenforceable, and he counterclaimed for the past-due amounts pursuant to the agreement. Raymond then made a motion for summary judgment, and the trial court entered a summary judgment for Raymond on his counterclaim and resolved the declaratory judgment claim by ruling that veterinarians are professionals. Friddle then moved to vacate the summary judgment and attempted to amend his complaint to include a count alleging promissory fraud. Raymond then filed a motion to strike Friddle's amended complaint. On March 3, 1990, the trial court issued an order granting Raymond's motion to strike and denying Friddle's motion to vacate the summary judgment. Friddle appeals.

I.

Although Friddle states in his brief that he is appealing from the trial court's order of March 3, 1990, he is actually appealing from the trial court's summary judgment in favor of Raymond. See Curtis v. Bill Byrd Automotive, Inc., [Ms. 89-1581, December 21, 1990] (Ala.1990). Therefore, our review of this case is governed by a familiar standard found in A.R.Civ.P. Rule 56. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Once the moving party has established a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). The trial court is required to view all the evidence offered by the moving party (Raymond) in support of its motion in the light most favorable to the nonmovant (Friddle). Hanners and Bass. With this standard in mind, we now address Friddle's contentions.

Friddle first contends that veterinarians are not "professionals" and are, therefore, not prohibited by § 8-1-1 from entering into restrictive covenants not to compete. Thus, the initial issue before us is whether the status of a "profession" is extended to the practice of veterinary medicine. It is undisputed that both parties to the contract are licensed veterinarians.

In Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (Ala.1980), this Court stated several relevant factors to be considered in resolving the issue as to what constitutes a profession: professional training, skill, and experience required to perform certain services; delicate nature of the services offered; and the ability and need to make instantaneous decisions. In addition, the Court quoted the following excerpt from the late Dean Roscoe Pound's work, The Lawyer From Antiquity To Modern Times:

" 'There is much more in a profession than a traditionally dignified calling.

" 'The term refers to a group of men pursuing a learned art as a common calling in the spirit of a public service--no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art is the purpose. Gaining a livelihood is incidental, whereas, in a business or trade it is the entire purpose. * * * ' "

Odess v. Taylor, 282 Ala. at 396, 211 So.2d at 812. In Odess, the Court held that physicians are professionals. This Court has also held that certified public accountants are professionals. Thompson v. Wiik, Reimer & Sweet, 391 So.2d 1016 (Ala.1980); Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970).

Ala.Code 1975, §§ 34-29-60 through -94, governs the practice of veterinary medicine and provides specific qualifications required of licensed veterinarians, referred to as "professional qualifications." Considering the knowledge, skill, and education required of licensed veterinarians, as well as their duty to promote the public health, safety, and welfare of the State of Alabama, we consider it apparent that the legislature intended that persons licensed to participate in the practice of veterinary medicine be considered...

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11 cases
  • Benchmark Medical Holdings v. Rehab Solutions
    • United States
    • U.S. District Court — Middle District of Alabama
    • March 5, 2004
    ...this Court has stated on numerous occasions that a `professional' cannot fall within these statutory exceptions." Friddle v. Raymond, 575 So.2d 1038, 1040 (Ala.1991) (citing Wyatt Safety Supply, Inc. v. Indus. Safety Prods., Inc., 566 So.2d 728, 730 (Ala.1990); Thompson v. Wiik, Reimer & Sw......
  • Benchmark Medical Holdings, Inc. v. Barnes
    • United States
    • U.S. District Court — Middle District of Alabama
    • July 27, 2004
    ...this Court has stated on numerous occasions that a `professional' cannot fall within these statutory exceptions." Friddle v. Raymond, 575 So.2d 1038, 1040 (Ala.1991) (citing Wyatt Safety Supply, Inc. v. Indus. Safety Prods., Inc., 566 So.2d 728, 730 (Ala.1990); Thompson v. Wiik, Reimer & Sw......
  • JE Hanger, Inc. v. Scussel, Civil Action No. 96-C-901-S.
    • United States
    • U.S. District Court — Middle District of Alabama
    • July 30, 1996
    ...services; (2) the delicate nature of the services offered; and (3) the ability and need to make instantaneous decisions. Friddle v. Raymond, 575 So.2d 1038 (Ala.1991) (citing Odess, supra). As Scussel points out, the Alabama courts have found physicians, veterinarians, and accountants to be......
  • Pinzone v. Papa's Wings Inc.
    • United States
    • Alabama Court of Civil Appeals
    • July 9, 2010
    ...into a covenant not to compete with the Fairhope business. Covenants not to compete are disfavored in Alabama. See Friddle v. Raymond, 575 So.2d 1038, 1040 (Ala.1991). Alabama Code 1975, § 8–1–1, provides, in pertinent part: “(a) Every contract by which anyone is restrained from exercising ......
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1 books & journal articles
  • Alabama. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume I
    • December 9, 2014
    ...enforce that agreement”). 56. See Cen. Bancshares of S., Inc. v. Puckett, 584 So. 2d 829, 831 (Ala. 1991). 57. See Friddle v. Raymond, 575 So. 2d 1038, 1040 (Ala. 1991) (veterinarian held to be a professional). 58. See Clark Substations , 838 So. 2d at 363. 59. See id. 60. See Premier Indus......

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