Harrison v. Williams Dental Group, P.C.

• Decision Date: 09 August 2004
• Docket Number: No. 05-03-00862-CV.,05-03-00862-CV.
• Citation: 140 S.W.3d 912
• Parties: Jana HARRISON, DDS and William Henson, DDS, Appellants v. WILLIAMS DENTAL GROUP, P.C., Williams Dental Associates, P.C., and Charles I. Williams, Sr., DDS, Appellees.
• Court: Texas Court of Appeals

140 S.W.3d 912

Jana HARRISON, DDS and William Henson, DDS, Appellants v. WILLIAMS DENTAL GROUP, P.C., Williams Dental Associates, P.C., and Charles I. Williams, Sr., DDS, Appellees.

No. 05-03-00862-CV.

Court of Appeals of Texas, Dallas.

August 9, 2004.

Appeal from the 193rd Judicial District Court, Dallas County, David Evans, J Gregory P. Standerfer, Moseley & Standerfer, Southlake, Mary K. Ludwick, Ludwick & Associates, Dallas, TX, for Appellant.

A. Robert Gloyna, Iriving, Mark D. Perdue, Storm & Hemingway, LLP, Frank E. McLain, Frank E. McLain, P.C., Dallas, for Appellee.

Before Justices FITZGERALD, RICHTER, and LANG.

OPINION

Opinion by Justice FITZGERALD.

Jana Harrison, DDS and William Henson, DDS appeal the trial court's judgment, rendered on a jury verdict in favor of appellees Williams Dental Group, P.C., Williams Dental Associates, P.C., and Charles I. Williams, Sr., DDS ("Dr.Williams"), (collectively "Williams"). Appellants bring nine points of error, challenging the legal and factual sufficiency of the evidence supporting the jury's verdict. For the reasons that follow, we affirm in part and reverse and render in part.

BACKGROUND

This appeal centers on the nature and extent of the final employment agreement between Harrison, a dentist, and Williams. Harrison had been an employee under contract with Williams for more than four years, working primarily in Williams's offices in Red Oak and Ferris. Her contract expired sometime in 1998. That same year, Williams opened a new office in Plano and offered Harrison a position there. Harrison was the primary dentist in the new office, and it opened successfully under her supervision.

In February 1999, Harrison requested a meeting with Dr. Williams to discuss the office's status and to ask for a raise. The precise discussions at this meeting were addressed by both parties at trial, and their testimony will be discussed below. However, certain facts are undisputed. Harrison was earning $120,000 yearly at that time. She asked for an increase to $150,000, but Dr. Williams stated that he could not afford the requested increase. Harrison did not want an arrangement that was based solely on a percentage of her collections. The parties agreed to a compromise arrangement, whereby Harrison would receive a base salary of $120,000, plus a monthly bonus based on a percentage of her collections, minus certain expenses of her employment that were paid by Williams. Following the meeting, Dr. Williams had a contract drawn up and forwarded to Harrison. She contacted him and asked if the compensation arrangement could be made retroactive to the beginning of 1999; Dr. Williams agreed. Harrison did not sign or return the contract. Harrison worked for Williams at the Plano office until August 2001, when she was terminated.

At least twice between February 1999 and spring 2001, disputes arose concerning payment of the bonus; the record indicates the disputes were resolved by the parties. Harrison began having concerns about deductions from her bonus, and in mid-2000, Williams began having concerns about inflation of the collections attributed to Harrison by a newly hired office manager. By some time in 2000, Harrison had begun looking at office space with an eye toward opening her own practice. In April 2001, at Dr. Williams's request, Harrison and her attorney met with him to discuss issues related to the attribution of income to Harrison for bonus purposes. In May 2001, Harrison signed a lease for new office space, and the office manager printed out Williams's patient list for Harrison around this same time. Finally, in June 2001, Harrison's attorney sent a complaint in writing to Williams concerning bonus calculation concerns, and, late that month, Harrison filed this lawsuit against Williams, alleging breach of oral contract, fraud, and conversion of her wages. During this general time frame, Williams learned that appellant William Henson — Harrison's husband and also a dentist — was seeing patients at the Plano facility without Williams's consent. Based on this information, Williams terminated Harrison's employment in August 2001.

Harrison opened up an office some 100 feet from the Williams Plano office, hired a significant number of Williams's staff members, and proceeded to contact the patients on Williams's patient list. At this point, Williams counterclaimed against Harrison for conversion of Williams's office, supplies, materials, and personnel, for breach of the non-competition provisions of her contract and for fraud. Williams also filed third-party claims against Henson for conversion of Williams's office, supplies, material, and personnel, and against the office manager and Henson for conspiracy with Harrison to commit fraud.

The jury found no fraud, and it entered a take-nothing verdict against Harrison on her claim for unpaid bonus sums. The jury found for Williams on the breach and conversion claims and awarded attorney's fees to Williams. The trial court rendered judgment on the jury's verdict, and Harrison and Henson appealed.

STANDARDS OF REVIEW

When reviewing legal sufficiency points on an issue in which the appellant did not have the burden of proof at trial, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). We consider the evidence in the light most favorable to the verdict. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Id. When determining the factual sufficiency of the evidence in this situation, we consider and weigh all the evidence, and we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

When a party attacks the legal sufficiency of an adverse finding on an issue on which she had the burden of proof at trial, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). And when a party attacks the factual sufficiency of an adverse finding on an issue on which she had the burden of proof, we consider and weigh all of the evidence, and we set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

BREACH OF NON-COMPETITION PROVISIONS

Appellants' first point of error avers there was legally and factually insufficient evidence to support the jury's answer to Jury Question No. 9 and the judgment thereon. Question No. 9 required the jury to determine whether or not Harrison and Williams Dental Associates, P.C. agreed that any of five specific provisions of the unsigned written contract were included in Harrison's employment agreement. The terms at issue read:

(1) All patients seen by Harrison were patients of Williams Dental Associates, all case records, charts and personal files concerning patients, shall belong to and remain the property of Williams, Harrison shall not be entitled to keep or reproduce such records, charts, or files relating to any patient unless the patient specifically requests that his/her records be transferred to Harrison. Such copying shall only be done with the permission of Dr. Charles I. Williams, Sr.

(2) Harrison also recognizes and acknowledges that the lists of Williams' patients are valuable and unique assets of the business, and trade secrets of Williams. Harrison agrees that he/she will not during or after the term of the agreement, copy, generate a list, or disclose any said list to any person, firm, corporation, or entity for any reason whatsoever, not make any claim or right of ownership.

(3) Harrison further agrees during the term of this Agreement and after its termination, for any reason, that Harrison will not solicit, directly or indirectly, any patient of Williams.

(4) In the course of Harrison's employment with Williams, Williams will be introducing Harrison to and making available certain contacts. As a consideration for Williams employing Harrison, Harrison agrees that he/she shall not engage in the practice of dentistry as an employee, associate, partner or otherwise within [a] six (6) mile radius of Plano, Highland Park, Preston Center or Southlake facilities for a period of two (2) years from and after date of termination of this Agreement, for any reason.

(5) Harrison specifically agrees that if, after termination of the Agreement that he/she engages in the practice of dentistry as indicated herein that Harrison shall pay to Williams a sum of Fifty Two Thousand Dollars ($52,000.00) as liquidated damages. The parties agree that they cannot fix the exact damages that may occur upon such violation of this restriction, but that $52,000.00 is an amount reasonably related to the injury that would result.

These terms are derived from paragraphs 8.2 through 9.3 of the unsigned written contract. The jury answered "yes" to each term, finding that each was a term of Harrison's employment agreement.¹

Harrison's position throughout this litigation was that she rejected the proposed contract offered by Williams, and that the unsigned written contract did not represent her agreement with Williams. She stated the unsigned written contract included a number of items she and Dr. Williams never discussed, and the Question No. 9 issues relating to competition were among those issues never discussed.² Our review of the record confirms that what we will call the "non-competition provisions" were not discussed by Harrison and Dr. Williams at their ...