Buser v. Promedco Management

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 2004
• Docket: 03-11148
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATE COURT OF APPEALS June 30, 2004 FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-11148 Summary Calendar

In the Matter of: PROMEDCO OF LAS CRUCES, INC.; ET AL.,

Debtors. -------------------------------

DAVID P. BUSER,

Appellant-Cross Appellee,

versus

PROMEDCO MANAGEMENT COMPANY; PROMEDCO OF SOUTHWEST FLORIDA, INC.,

Appellees-Cross Appellants.

Appeal from the United States District Court for the Northern District of Texas (4:03-CV-633-A)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Dr. David Buser was employed by the Naples Medical Center

(NMC) under a five-year employment contract (the Second Employment

Agreement, SEA). He also had a Split Dollar Agreement (SDA), under

which ProMedCo of Southwest Florida agreed to pay the premiums on

a split-dollar insurance policy (premiums split between term life

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. insurance and an investment vehicle). Dr. Buser ceased his

employment prior to the SEA’s expiration. The two issues are:

whether ProMedCo is entitled to surrender the policy to the insurer

in exchange for its cash value; and whether Dr. Buser is liable

for prejudgment interest. AFFIRMED.

I.

Dr. Buser began his NMC employment in 1996. In a series of

related transactions in 1997, ProMedCo Managment Company and

ProMedCo of Southwest Florida (jointly, ProMedCo) acquired NMC’s

assets; ProMedCo contracted to manage NMC’s medical practice;

physicians from Naples Obstetrics and Gynecology (NOG) were

incorporated into NMC; ProMedCo entered into SDA’s with NMC

physicians, including Dr. Buser; and Dr. Buser signed the SEA with

NMC.

Dr. Buser’s SDA provided: in the event of his termination of

the SEA, ProMedCo would have the right to “surrender the Policy and

receive the cash surrender value thereof and any remaining balance

of the Premium Escrow”. The bankruptcy court held: the SDA and SEA

jointly provided that, if NMC breached the SEA by terminating Dr.

Buser without cause, Dr. Buser could retain the policy.

A series of events arising from a dispute between Dr. Buser

and NOG physicians led to the end of Dr. Buser’s employment under

the SEA. The bankruptcy court found: the employment relationship

ended in early November 1997, six months into its five-year term.

2 The ProMedCo entities are debtors in a bankruptcy filed in

April 2001 by ProMedCo of Las Cruces and its affiliates. That May,

NMC filed an adversary proceeding against ProMedCo. In turn,

ProMedCo filed claims against NMC and numerous doctors, including

Dr. Buser. Relevant to Dr. Buser, ProMedCo sought a judgment that

it was entitled to the cash surrender value of the policies on the

basis of physicians’ terminations of their employment agreements;

it further sought declaratory relief on the basis of noncompete

provisions found in some, but not all, SDA’s.

In answer to the claim, Dr. Buser asserted, inter alia, that

ProMedCo “is in breach of its agreements with ... Buser and cannot

enforce such agreements against ... Buser”. In the joint pretrial

order, however, the defense was stated differently: “Buser [was]

terminated without cause and [is] therefore not liable under the

forfeiture provisions of the split dollar agreements”.

The bankruptcy court found: Dr. Buser had not agreed to a

noncompete provision; therefore, ProMedCo would not receive relief

on that basis. However, the bankruptcy court also found: Dr. Buser

had been neither actually nor constructively discharged; instead,

he voluntarily terminated his employment and therefore ProMedCo

could surrender the policy for its cash value under the forfeiture

provision, quoted supra. In addition, the bankruptcy court found

that ProMedCo was entitled to prejudgment interest.

3 Dr. Buser filed a motion to amend the judgment with respect

to, inter alia, the prejudgment interest. The motion did not

address ProMedCo’s entitlement to relief under the forfeiture

provision. The bankruptcy court denied the motion.

On appeal, the district court affirmed ProMedCo’s being

entitled to surrender the policy but vacated the prejudgment

interest.

II.

Dr. Buser challenges ProMedCo’s being entitled to surrender

the policy; ProMedCo challenges denial of prejudgment interest.

“We review the bankruptcy court's findings of fact for clear error

and conclusions of law de novo.” Williams v. Int’l Brotherhood of

Electrical Workers Local 520 (In re Williams), 337 F.3d 504, 508

(5th Cir. 2003). “The constructive discharge issue, being a

question of fact, is subject to the clearly erroneous standard of

review.” Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155

(11th Cir. 2002); see also Webb v. Florida Health Care Management

Corp., 804 So.2d 422, 424 (Fla. Dist. Ct. App. 2001) (Florida court

looking to Eleventh Circuit law on constructive discharge).

A.

Dr. Buser makes two contentions about the relief awarded

ProMedCo. Although both involve claims of breach, they are two

different defenses: ProMedCo cannot enforce the SDA because of

4 breaches of the SEA; and breaches of the SEA establish that he was

constructively discharged.

1.

Although the claim that ProMedCo cannot enforce the SDA was

raised in Dr. Buser’s answer, the argument in bankruptcy court

solely concerned the issue of constructive discharge as a claim

that, under the SDA, Dr. Buser rightfully owned the policy.

Restated, the argument before the bankruptcy judge did not raise

the issue of breach as an affirmative defense which would prevent

ProMedCo from enforcing its rights under the SDA. An issue is

adequately raised if it is “raised to such a degree that the trial

court may rule on it”. Butler Aviation Int’l, Inc. v. Whyte (In re

Fairchild Aircraft Corp.), 6 F.3d 1119, 1128 (5th Cir. 1993).

It is not necessary, however, to consider whether the breach

defense was properly raised in bankruptcy court. On appeal, Dr.

Buser has failed to address why NMC’s purported breach of the SEA

would prevent ProMedCo from enforcing the SDA. The issue is

inadequately briefed and, therefore, waived.

2.

As stated, Dr. Buser contends also that the bankruptcy court

erred in finding that he had not been constructively discharged.

Essentially for the reasons stated by the bankruptcy court and

district court, we find no clear error.

5 B.

ProMedCo contends that the district court erred in vacating

the bankruptcy court’s awarding prejudgment interest on the cash

surrender value of the policy.

The district court based its decision on the fact that the

final judgment did not award monetary damages, on which prejudgment

interest could be calculated. Instead, the bankruptcy court’s

judgment simply declared the existence of ProMedCo’s, and the

absence of Dr. Buser’s, rights in the policy. Essentially for the

reasons stated by the district court, prejudgment interest was not

proper.

III.

For the foregoing reasons, the judgment is

AFFIRMED.