Florida Cardiology, P.A. v. Al-Suleiman (In re Al-Suleiman)

461 B.R. 893
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedNovember 8, 2011
DocketBankruptcy No. 6:10-bk-10879-KSJ; Adversary No. 6:10-ap-00258-KSJ
StatusPublished

This text of 461 B.R. 893 (Florida Cardiology, P.A. v. Al-Suleiman (In re Al-Suleiman)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Cardiology, P.A. v. Al-Suleiman (In re Al-Suleiman), 461 B.R. 893 (Fla. 2011).

Opinion

MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

KAREN S. JENNEMANN, Chief Judge.

Both parties move for summary judgment in this adversary proceeding asserting that a judgment for attorney fees is not dischargeable. Defendant’s Motion for Final Summary Judgment1 is granted. Plaintiffs Cross-motion for Summary Judgment,2 made in conjunction with plaintiffs Opposition to Defendant’s Motion for Summary Judgment, is denied. Al-Suleiman’s liability to Florida Cardiology, P.A. is discharged.

Plaintiff, a cardiology group, employed defendant pursuant to a written employment agreement. The agreement contained a covenant restricting defendant from competing against plaintiff by practicing cardiology within a fifty-mile radius of plaintiffs offices for a period of two years after his employment with plaintiff ended.3

In March 2008, defendant left plaintiffs employ under circumstances that are disputed but irrelevant. Shortly thereafter, defendant established his own medical practice within the restricted geographic area and treated cardiology patients, including some patients who had been patients of plaintiffs practice.

In May 2008, plaintiff sued defendant in Florida state court (“the State Court Action”).4 The complaint in the State Court Action alleged four counts, each of which sounds in contract: Enforcement of Covenant Not to Compete (Count I); Liquidated Damages for Breach of Restrictive Covenant (Count II); Damages for Breach of Employment Contract (Count III); and Temporary Injunction (Count IV). The complaint did not include any tort claims or allegations of larceny.

The state court conducted an evidentiary hearing on plaintiffs request for a temporary injunction against defendant. In the [895]*895context of the temporary injunction litigation, the state court found:

(i) Defendant opened a cardiology practice “within 3 to 5 miles of Florida Cardiology’s office;”
(ii) Defendant did not dispute “that he was competing in business with Florida Cardiology;”
(iii) “When he left [plaintiffs employ], Dr. Al-Suleiman requested the patient list from Florida Cardiology, but his request was denied. He sought and obtained a list of patient names and addresses from South Lake Hospital. Dr. Al-Suleiman had his office assistant contact his former Florida Cardiology patients to advise them that he left the practice. For those they could not contact by telephone, he sent a letter;”
(iv) Defendant violated the restrictive covenant in his employment agreement;
(v) The restrictive covenant was reasonably necessary to protect Florida Cardiology’s legitimate business interests;
(vi) Defendant did not rebut the presumption his violation of the restrictive covenant caused irreparable injury to Florida Cardiology;
(vii) Defendant did not present any legitimate defenses to enforcement of the restrictive covenant; and
(viii) The geographic restriction in the employment agreement (fifty miles from any of plaintiffs offices) was overbroad.5

The state court then entered a temporary injunction barring defendant from practicing cardiology within a twenty-five mile radius of plaintiffs offices for two years.6 The Florida Fifth District Court of Appeal affirmed the injunction in a per curiam decision.7 Defendant obeyed the injunction; he ceased practicing cardiology within twenty-five miles of plaintiffs offices.

In March 2010, the parties finally settled the State Court Action, and the state court entered a consensual Stipulated Final Judgment and Permanent Injunction.8 Defendant was enjoined from practicing cardiology within a twenty-five mile radius of plaintiffs offices through September 22, 2010, and, significantly, plaintiff abandoned “all claims for damages other than attorneys’ fees.”9 The state court retained jurisdiction to determine those fees.

Plaintiff made a Motion for Attorneys’ Fees and Costs in the State Court Action. Defendant did not dispute plaintiffs entitlement to a fee award,10 but he challenged the amount of plaintiffs request. On June 11, 2010, the state court granted plaintiffs motion and ordered defendant to pay plaintiff $227,284.69 (comprised of $196,887.75 in attorneys’ fees and $30,396.94 in costs) (the “Fee Judgment”).11 Two weeks later, on June 21, [896]*8962010, defendant filed his Chapter 7 petition.

In this adversary proceeding, plaintiff seeks a determination that the Fee Judgment is nondisehargeable pursuant to 11 U.S.C. §§ 523(a)(4) and (6) of the Bankruptcy Code.12 Plaintiffs complaint alleges: (i) the debt is nondisehargeable pursuant to § 523(a)(4) because it arises out of defendant’s larceny of plaintiffs patient list; and (2) the debt is nondisehargeable pursuant to § 523(a)(6) because it arises out of defendant’s willful and malicious injury of plaintiffs business.13

Defendant moves for summary judgment on both counts of the complaint, arguing the undisputed facts demonstrate the judgment debt is not “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny,” as required by § 523(a)(4), nor is it “for willful and malicious injury by the debtor to another entity or to the property of another entity,” as required by § 523(a)(6). Instead, defendant contends the debt is for attorneys’ fees and costs incurred by plaintiff in pursuing its contract claims against plaintiff in the State Court Action.

Plaintiff opposes defendant’s motion. Plaintiff also seeks a cross-motion for summary judgment on both counts of the complaint, asserting the state court’s findings establish defendant committed larceny and willfully and maliciously harmed plaintiffs business and, therefore, the debt is nondis-chargeable pursuant to §§ 523(a)(4) and (a)(6).

Under Federal Rule of Civil Procedure 56, made applicable by Federal Rule of Bankruptcy Procedure 7056, a court may grant summary judgment where “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”14 The moving party has the burden of establishing the right to summary judgment.15 Conclusory allegations by either party, without specific supporting facts, have no probative value.16 In determining entitlement to summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”17 “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”18

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Cite This Page — Counsel Stack

Bluebook (online)
461 B.R. 893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-cardiology-pa-v-al-suleiman-in-re-al-suleiman-flmb-2011.