Salisbury v. Semple

Decision Date29 June 1990
Parties1990-2 Trade Cases P 69,157 Charles R. SALISBURY v. H. Charles SEMPLE. 89-281.
CourtAlabama Supreme Court

Davis Carr and Stephen L. McDavid, Mobile, for appellant.

Vincent F. Kilborn and M. Lloyd Roebuck, Mobile, for appellee.

SHORES, Justice.

This appeal involves a declaratory judgment action seeking to set aside a contract between two ophthalmologists. Each party filed a motion for summary judgment; the trial court granted the defendant's motion, and held that the contract was enforceable. From that order, the plaintiff has appealed. We affirm.

The defendant, Dr. H. Charles Semple, is an ophthalmologist who began practicing in Mobile, Alabama, in 1962. In 1984, the plaintiff, Dr. Charles R. Salisbury, joined the defendant's practice as an associate ophthalmologist. In 1985, the defendant decided to retire from the practice of medicine. The defendant agreed to sell his medical practice, including the equipment, goodwill, and an optical business, to the plaintiff. The parties entered into a written purchase/sale agreement on July 24, 1985. The agreement provided that the maximum purchase price would be $900,000, payable over an 11-year period. The payments were to be made in monthly installments; part of the payment was a fixed amount and part of the payment was a percentage of the plaintiff's gross income. Paragraph 7 of the agreement provided:

"Seller and Purchaser hereby agree that thirty (30%) per cent of the payments made by Purchaser to Seller hereunder shall be considered as and for Good Will or such other term as may be applied or considered by the Internal Revenue Service to be long term capital gains."

Paragraph 13 of the agreement provided:

"Seller, in consideration of payments hereunder other than for Good Will, hereby covenants and agrees with the Purchaser not to engage in the practice of Ophthalmology or the retail optical business, or in any manner in competition with Purchaser, for a period of eleven (11) years from the date hereof and within a radius of one hundred (100) miles of the business address of Purchaser last known to Seller in Mobile County, Alabama, and further agrees not to actively solicit, in any manner or respect, former patients of Seller or Purchaser; nor do anything in prejudice of said Purchaser's medical practice or optical business."

The plaintiff made monthly payments pursuant to the contract until 1989; when he ceased making payments, the plaintiff had paid a total of $374,778 to the defendant. On September 12, 1989, the plaintiff filed this action, seeking a declaration that the purchase agreement was void and unenforceable because it contained a covenant not to compete. The plaintiff does not allege that the defendant violated the covenant not to compete. In the complaint, the plaintiff further alleged that the defendant owed him $143,444 because that amount was overpaid by mistake under the agreement.

The plaintiff filed a motion for summary judgment on October 5, 1989. In support of his motion, the plaintiff later filed the affidavit of Terry Buck, his accountant. Buck stated in the affidavit that, for the purpose of setting up bases for tax preparation on the assets purchased from the defendant in 1985, he made the following calculations: He reduced the projected payout under the contract to a net present value of $485,336; he valued the goodwill of the business at $145,751 (30% of present value); he valued furniture and fixtures at $10,000; he valued equipment at $59,583; he valued the leasehold improvements at $12,000; and he valued the non-competition clause at $258,502. These valuations were not set out in the purchase agreement, but only in Buck's affidavit, which was filed November 3, 1989.

On October 19, 1989, the defendant filed a counterclaim alleging breach of contract, fraudulent deceit, and misrepresentation. He demanded a judgment in the amount of the entire balance under the contract. On November 6, 1989, the defendant filed a motion for summary judgment on both the declaratory judgment action and on the breach of contract count of his counterclaim. In support of his motion, the defendant filed his sworn affidavit. In the affidavit, the defendant stated that he retired from the practice of medicine due to his own declining health. The defendant stated that although the plaintiff was aware that he could no longer continue to practice, the plaintiff suggested that a covenant not to compete be inserted into the purchase agreement. The defendant testified further in his affidavit that he agreed to the plaintiff's suggestion, but that his agreement to that covenant was not substantial consideration for the purchase price because the plaintiff knew that the defendant could not compete with the plaintiff for health reasons. According to the affidavit, the defendant suspected that he was not receiving from the plaintiff the amount of money he was actually owed, so he requested an examination of the records as provided for in the purchase agreement. Thereafter, the...

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7 cases
  • Pitney Bowes, Inc. v. Berney Office Solutions
    • United States
    • Supreme Court of Alabama
    • 21 Diciembre 2001
    ...accountants, and veterinarians, fall outside of its scope. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Salisbury v. Semple, 565 So.2d 234 (Ala.1990); Cherry, Bekaert & Holland, supra; and Anniston Urologic Assocs., P.C. v. Kline, 689 So.2d 54 (Ala. 1997). By the same reasoning, § 8......
  • In re Salisbury, Misc. Civ. No. 90-0123-AH-M
    • United States
    • U.S. District Court — Southern District of Alabama
    • 4 Diciembre 1990
    ...with the Alabama Supreme Court on November 22, 1989. The Supreme Court affirmed the decision of the Circuit Court on June 29, 1990. 565 So.2d 234. 4. In addition to filing a notice of appeal, the debtor requested that the Circuit Court refrain from trying Semple's counterclaims pending the ......
  • Hightower Holding, LLC v. Gibson
    • United States
    • Court of Chancery of Delaware
    • 9 Febrero 2023
    ...... (same). . . [ 70 ] Oddess , 211 So.2d at. 811-12. . . [ 71 ] See Salisbury v. Semple ,. 565 So.2d 234, 236 (Ala. 1990). . . [ 72 ] Benchmark , 328 F.Supp.2d at. 1250-56. . . [ ......
  • Anniston Urologic Associates, P.C. v. Kline
    • United States
    • Supreme Court of Alabama
    • 7 Marzo 1997
    ...(Ala.1996); Friddle v. Raymond, 575 So.2d 1038 (Ala.1991); Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991); Salisbury v. Semple, 565 So.2d 234 (Ala.1990). In Associated Surgeons, P.A. v. Watwood, 295 Ala. 229, 231-32, 326 So.2d 721, 722-23 (1976), this Court held unenforceable ......
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