IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-CA-00514-SCT
GULFPORT OB-GYN, P.A.
v.
DUKES, DUKES, KEATING & FANECA, P.A. AND JE’NELL B. BLUM
DATE OF JUDGMENT: 03/28/2018 TRIAL JUDGE: HON. JAMES D. BELL TRIAL COURT ATTORNEYS: DONALD C. DORNAN, JR. PHILIP W. THOMAS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PHILIP W. THOMAS ATTORNEYS FOR APPELLEES: DONALD C. DORNAN, JR. STEPHANIE GEE BEAVER NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: AFFIRMED - 08/29/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
ISHEE, JUSTICE, FOR THE COURT:
¶1. In this legal-malpractice case, Gulfport OB-GYN contends that Dukes, Dukes,
Keating, and Faneca negligently drafted a noncompetition covenant for one of its physicians,
leading to a substantial financial loss when the physician left to start her own practice. The
circuit court granted summary judgment to the defendants after finding Gulfport OB-GYN
had failed to produce sufficient evidence that it would have received a better deal but for the attorneys’ alleged negligence, i.e., Gulfport OB-GYN failed to prove that the alleged
negligence caused it damages. We agree and affirm.
FACTS
¶2. Gulfport OB-GYN is a professional association of physicians specializing in
obstetrical and gynecological care. In 2008, it hired the law firm Dukes, Dukes, Keating &
Faneca, P.A., to assist in negotiating the hiring of Dr. Donielle Daigle and to prepare an
employment agreement for her. The attorney primarily assigned to the matter was Ja’Nell
Blum. The negotiations culminated in Dr. Daigle’s hiring, subject to an employment
agreement prepared by Blum and executed by both principals. The employment agreement
contained a noncompetition covenant with substantially the same language Gulfport OB-
GYN had accepted in previous employment agreements prepared by another law firm. The
noncompetition covenant in Dr. Daigle’s agreement read, in relevant part,
Covenant Not To Compete.
a. Employee agrees that for a period three (3) years following termination of her employment by the Employer, regardless of cause (subject to Section 7(d)), she will not engage in any medical practice or perform any service directly or indirectly in competition with the medical practice of Employer, to include hospital staff positions, or have any interest in any capacity whatsoever in any enterprise that engages in such medical practice within a radius of fifty (50) miles from the Memorial Hospital at Gulfport, without the express written consent of the Employer. Further, during said three (3) year period, even if in compliance with the above fifty (50) mile radius provision, Employee agrees not to directly solicit, which includes, but is not limited to, direct mailings, emails, or telephone calls, either by Employee or any other person or entity acting on Employee’s behalf, any patient who has been served by the Employer within three (3) years prior to the date her employment with Employer ends, whether by termination or resignation, or mutual agreement.
2 The agreement provided that under certain circumstances, enforcement of the noncompetition
covenant could be waived in exchange for $150,000 in liquidated damages to Gulfport OB-
GYN.
¶3. Five years later, Dr. Daigle and another physician left Gulfport OB-GYN to establish
their own practice. They sued Gulfport OB-GYN for unpaid compensation and sought a
declaratory judgment that the noncompetition covenant was unenforceable. The departing
physicians ultimately prevailed, with the chancery court holding the noncompetition covenant
not applicable to Dr. Daigle because she left voluntarily and was not “terminated by the
Employer.” The chancery court decision was initially appealed, but the dispute was later
settled through mediation when Gulfport OB-GYN agreed to pay Dr. Daigle $425,000.
Gulfport OB-GYN then filed this legal-malpractice suit against Blum and her firm.
¶4. Ultimately, the circuit court granted summary judgment to the defendants after finding
that Gulfport OB-GYN had failed to produce evidence Dr. Daigle would have accepted the
employment agreement with a more comprehensive noncompetition covenant. Gulfport OB-
GYN has appealed from that judgment.
STANDARD OF REVIEW
¶5. This Court reviews a grant or denial of summary judgment de novo. Hardy v. Brock,
826 So. 2d 71, 74 (Miss. 2002). “We view the evidence ‘in the light most favorable to the
party against whom the motion has been made.’” Olier v. Bailey, 164 So. 3d 982, 986 (Miss.
2015) (quoting Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1165 (Miss. 2011)). On the
3 other hand, the duty of care owed by Blum and her firm to their client is one of law, which
this Court reviews de novo. Donald v. Amoco Prod. Co., 735 So. 2d 161, 174 (Miss. 1999).
DISCUSSION
¶6. The legal malpractice claim here alleges negligence and sounds in tort. The four
elements of a tort claim are “duty, breach of duty, causation between the breach of the duty
and the injury, and actual damage.” Bullard v. Guardian Life Ins. Co of Am., 941 So. 2d
812, 815 (Miss. 2006). The dispute in today’s case is over causation. Under Mississippi law,
causation has two aspects: the alleged negligent conduct must be shown to have caused the
injury, in fact, and it must be shown to be the injury’s legal or proximate cause. Norman v.
Anderson Reg’l Med. Ctr., 262 So. 3d 520, 529 (Miss. 2019). Both must be shown to
recover on a claim of negligence. Id.
¶7. In a legal-malpractice action for a breach of the duty of care, the plaintiff “must
establish proximate cause by the so-called ‘trial-within-a-trial’ test.” Crist v. Loyacono, 65
So. 3d 837, 842 (Miss. 2011). The plaintiff must show that but for her attorney’s negligence,
she would have been successful in the underlying action. Id. (citing Wilbourn v. Stennett,
Wilkinson & Ward, 687 So. 2d 1205, 1215 (Miss. 1996)). Proof of causation is always
required when professional negligence is alleged. Id. In the transactional context, there may
not be a trial or “case,” but the same principles apply: causation “turns on whether the
attorney’s conduct was the but-for cause of the failure to obtain a more favorable result rather
than success or failure in litigation.” Frederick v. Wallerich, 907 N.W.2d 167, 173 (Minn.
2018) (emphasis omitted); see also George S. Mahaffey, Jr., Cause-In-Fact and the
4 Plaintiff’s Burden of Proof with Regard to Causation and Damages in Transactional Legal
Malpractice Matters: The Necessity of Demonstrating the Better Deal, 37 Suffolk U.L. Rev.
393, 436-37 (2004). Thus, “[i]f the alleged error is the failure to obtain or advise of a
provision, concession or benefit, the client must prove that the other party would have
agreed.” 3 Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice § 24.5 (updated
2019), Westlaw.
¶8. Commentators have noted that this rule is followed by a substantial majority of courts.
See John M. Palmeri, Franz Hardy, Nicole Salamander Irby, Better Deal or No Deal:
Causation in Transactional Malpractice Cases, 42 Colo. Law. 51, 51 (December 2013)
(citing, “for example,” Viner v. Sweet, 70 P.3d 1046 (Cal. 2003); Serafin v. Seith, 672
N.E.2d 302 (Ill. Ct. App. 1996); Blackhawk Building Systems, Ltd. v. Aspelmeier, Fisch,
Power, Warner and Engberg, 428 N.W.2d 288 (Iowa 1988); Jerry’s Enters., Inc. v. Larkin,
Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006); Froom v. Perel, 872 A.2d
1067 (N.J. Super. Ct. App. Div. 2005); Hazel and Thomas, P.C. v. Yavari, 465 S.E.2d 812
(Va. 1996); Cannata v. Wiener, 789 A.2d 936 (Vt. 2001)).
¶9. On appeal, Gulfport OB-GYN attempts to couch its cause of action as a separate
species of professional malpractice, negligent draftsmanship, which it asserts is different
from a transactional malpractice claim in that mere drafting does not have a “negotiation
element,” and thus there is no requirement that the other party would have agreed to the
different terms the plaintiff now says should have been included in the contract. For this
proposition, it mostly relies on O’Brien v. Alfonso, 240 So. 3d 471, 481 (Miss. Ct. App.
5 2018), and Kushner v. McLarty, 300 S.E.2d 531 (Ga. Ct. App. 1983). Both of these cases
are distinguishable from this case in a critical respect: they involved the allegation of
negligence in the preparation of an instrument to effect a separate agreement between the
parties. In O’Brien, the attorney was hired to prepare a deed to effect a sale of real property
the parties had already agreed to, but used the wrong legal description of the property.
O’Brien, 240 So. 3d at 480. It is not clear whether there actually was a preexisting
agreement in Kushner, but that was how the Georgia Court of Appeals described the cause
of action: “Although he is not an insurer of the documents he drafts, the attorney may breach
his duty towards his client when, after undertaking to accomplish a specific result, . . . he
then fails to comply with prescribed statutory formalities or to effectuate the intent of the
parties.” Kushner, 300 S.E.2d at 532-33 (internal quotation marks omitted) (quoting
Berman v. Rubin, 227 S.E.2d 802, 805 (1976)). And the only issue before the Kushner
court was whether the client’s having read and executed the negligently drafted instrument
precluded a cause of action. Id. at 533-34. Thus, in both O’Brien and Kushner there was
no dispute the other party to the transaction would have accepted different terms than those
in the written instrument—because they already had. So this dispute about the legal standard
is illusory; to be a “negligent drafting case,” as Gulfport OB-GYN styles it, Dr. Daigle would
have had to have already agreed to a more comprehensive noncompetition covenant than the
one she actually executed. Gulfport OB-GYN does argue this, but, as we shall explain, the
record does not support its claim. Instead, the record shows that the contract prepared by the
defendant law firm was the only agreement between the parties.
6 ¶10. The evidence must be viewed in the light most favorable to Gulfport OB-GYN as the
nonmoving party to a summary judgment motion, and Gulfport OB-GYN is entitled to the
benefit of reasonable inferences from the evidence. Buckel v. Chaney, 47 So. 3d 148, 156
(Miss. 2010). But the evidence here falls short even under that lenient standard. Gulfport
OB-GYN relies on an affidavit attorney Blum submitted in the chancery case between Dr.
Daigle and Gulfport OB-GYN.1 Blum’s affidavit described the employment negotiations
with Conrad Meyer, Dr. Daigle’s attorney. It stated that “Meyer requested that the covenant
not to compete be eliminated,” but that “[r]emoval of the covenant was not agreed upon,
although revisions were made.” The affidavit then goes on to note that, in an email2 to
Meyer, Blum expressed her understanding of the noncompetition covenant while discussing
a related clause:
The other shareholders do not have such an indemnification clause, and therefore they will not agree to this. This indemnification by Dr. Daigle is strictly in the event she ceases employment and pays the liquidated damages. . . . All of the physicians have this clause, and it only relates to an event of termination/resignation followed by payment of liquidated damages in lieu of noncompetition.
Blum further stated in the affidavit, “Based upon my email of October 14, 2008, to Mr.
Meyer, I believe the intent was that the covenant not to compete be effective in the event of
termination or resignation, and that the statement of ‘regardless of cause’ in Paragraph 15(a)
is evidence thereof.”
1 The chancery court ultimately found the noncompetition covenant inapplicable to Dr. Daigle’s voluntary exit. 2 The email itself is not in the record, but part of it is quoted in Blum’s affidavit.
7 ¶11. Gulfport OB-GYN argues that because neither Dr. Daigle nor her attorney, Meyer,
disavowed Blum’s representations about the contract, they must have agreed with Blum’s
interpretation. This argument is unconvincing; Meyer, as an attorney, surely knew the words
used in the contract itself controlled, not a tangential recitation of the drafter’s understanding.
See, e.g., Clark v. Neese, 262 So. 3d 1117, 1126 (Miss. 2019).
¶12. Blum’s affidavit fails to establish what Gulfport OB-GYN claims it does, that there
was an agreement between the parties to execute a noncompetition covenant on terms other
than those used in the contract. In fact, the record affirmatively suggests the opposite, that
the proposed employment contract was tendered to Dr. Daigle’s attorney early in the
negotiations and that it, in actual fact, constituted the agreement between the parties. Every
iteration of the noncompetition covenant contained the “following termination of her
employment by the Employer” language Gulfport OB-GYN complains was negligently
drafted.
¶13. Gulfport OB-GYN also asserts it would not have hired Dr. Daigle had she refused a
more comprehensive noncompetition covenant. While it is true this would have allowed
Gulfport OB-GYN to “avoid[] its damages because it would have never employed Daigle and
litigated against her,” as Gulfport OB-GYN argues, Gulfport OB-GYN also received the
benefit of Dr. Daigle’s services. There has been no showing this alleged loss of position
caused damages to Gulfport OB-GYN.
¶14. Finally, Gulfport OB-GYN cites Temple Hoyne Buell Foundation v. Holland &
Hart, 851 P.2d 192, 198-99 (Colo. App. 1992), and First Interstate Bank of Denver, N.A.
8 v. Berenbaum, 872 P.2d 1297, 1300 (Colo. App. 1993), in which panels of the Colorado
Court of Appeals held that a claim of legal malpractice could arise when an attorney drafts
a document with ambiguous language if “reasonably prudent attorneys should have foreseen
that the likely result of its inclusion would be litigation.” We are aware of no parallel
holding in Mississippi law, and Gulfport OB-GYN offers no compelling argument in favor
of this minority view that would essentially require attorneys to prepare litigation-proof
documents. Indeed, Mallen and Smith’s treatise on legal malpractice devotes an entire
section to cautioning against adopting such a rule, which, in those scholars’ view, would
excessively burden attorneys and lead to excessive caution and worse, not better, legal
services for clients. See 1 Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice § 8:23
(updated 2019) (specifically discussing Berenbaum, 872 P.2d at 1300), Westlaw. We
decline to adopt such a rule.
CONCLUSION
¶15. Causation in a negligence-based legal-malpractice claim for a breach of the duty of
care requires proof that, but for the attorney’s negligence, a more favorable result would have
been obtained. Thus, when the complaint is that the attorney should have proposed different
or additional terms to a transaction, the malpractice plaintiff must show that such terms
would have been accepted by the other party or that the client would not have entered into
the deal and would have been better off for doing so. Absent such proof there exists no
genuine issue of material fact as to causation of damages, and summary judgment is
appropriate.
9 ¶16. AFFIRMED.
RANDOLPH, C.J., KING, P.J., MAXWELL AND BEAM, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., COLEMAN AND CHAMBERLIN, JJ.
GRIFFIS, JUSTICE, DISSENTING:
¶17. Because a genuine issue of material fact exists as to causation, the circuit court erred
in granting summary judgment against Gulfport OB-GYN. Therefore, I respectfully dissent.
¶18. Gulfport OB-GYN hired Dukes, Dukes, Keating & Faneca, P.A., to prepare an
employment agreement, including a noncompetition covenant, regarding Dr. Donielle Daigle.
The noncompetition covenant in Dr. Daigle’s employment agreement stated as follows:
a. Employee agrees that for a period three (3) years following termination of her employment by the Employer, regardless of cause (subject to Section 7(d)), she will not engage in any medical practice or perform any service directly or indirectly in competition with the medical practice of Employer, to include hospital staff positions, or have any interest in any capacity whatsoever in any enterprise that engages in such medical practice within a radius of fifty (50) miles from the Memorial Hospital at Gulfport, without the express written consent of the Employer. Further, during said three (3) year period, even if in compliance with the above fifty (50) mile radius provision, Employee agrees not to directly solicit, which includes, but is not limited to, direct mailing, emails, or telephone calls, either by Employee or any other person or entity acting on Employee’s behalf, any patient who has been served by the Employer within three (3) years prior to the date her employment with Employer ends, whether by termination or resignation, or mutual agreement.
(Emphasis added.)
¶19. Gulfport OB-GYN contends that Dukes, Dukes, Keating & Faneca and attorney
Je’Nell Blum negligently drafted the noncompetition covenant. Gulfport OB-GYN argues
10 that Blum’s inclusion of the phrase “termination of [Dr. Daigle’s] employment by the
Employer” was negligent in that it allowed Dr. Daigle to compete with the clinic in the event
of her resignation.
¶20. To recover for legal malpractice, a plaintiff must prove four elements: (1) the
existence of an attorney-client relationship, (2) acts constituting negligence, (3) that the
negligent acts proximately caused the injury, and (4) damages. Lane v. Oustalet, 873 So. 2d
92, 98-99 (Miss. 2004). It is undisputed that an attorney-client relationship existed between
Dukes, Dukes, Keating & Faneca, Blum, and Gulfport OB-GYN. Additionally, Gulfport
OB-GYN’s expert witness opined as follows:
[T]he applicable standard of care required . . . Blum to draft the noncompete provision . . . to apply irrespective of the circumstances of Dr. Daigle’s separation from employment at Gulfport OB-GYN . . . . It is my opinion that . . . Blum breached the applicable standard of care by drafting [the noncompete provision] to apply only upon “termination of [Dr. Daigle’s] employment by the Employer.” This poorly drafted language excluded coverage when Gulfport OB-GYN most expected it - upon Dr. Daigle’s voluntary termination.
¶21. “In order for an act of negligence to proximately cause the damage, the . . . negligence
[must be] both the cause in fact and [the] legal cause of the damage.” Glover ex rel. Glover
v. Jackson State University, 968 So. 2d 1267, 1277 (Miss. 2007) (citing Dan B. Dobbs, The
Law of Torts § 180 (2000)). “A defendant’s negligence is the cause in fact of a plaintiff’s
damage where the fact finder concludes that, but for the defendant’s negligence, the injury
would not have occurred.” Id. (footnote omitted). In a negligence-based malpractice action,
a plaintiff must show proximate cause by the “so-called ‘trial-within-a-trial’ test.” Crist v.
Loyacono, 65 So. 3d 837, 842 (Miss. 2011). In other words, “the client ‘must show that, but
11 for [his] attorney’s negligence, he would have been successful in the prosecution or defense
of the underlying action.’” Id. (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.
2d 1205, 1215 (Miss. 1996)). Legal cause means that “the damages must . . . [be] a
reasonably foreseeable consequence of the defendant’s negligence.” Glover, 968 So. 2d at
1277.
¶22. In granting summary judgment, the circuit court found that it was “necessary to hear
that but for [Blum’s drafting] error there would have been an enforceable covenant not to
compete.” The circuit court reasoned that, “[a]bsent that necessary element . . . , [Gulfport
OB-GYN] [could not] go forward . . . .” But this case differs from a traditional trial-within-
a-trial case in which a plaintiff must show that but for his attorney’s negligence, the
underlying case would have been successful.
¶23. In a traditional legal-malpractice case, the attorney’s negligence is not a factor in the
underlying dispute. Here, Blum’s negligence was a factor in the underlying dispute. Indeed,
Blum’s negligent drafting allowed Dr. Daigle to sue Gulfport OB-GYN and to argue that the
covenant not to compete did not apply to her resignation and was therefore unenforceable.
¶24. In Crist, “[s]ixteen former clients sued two lawyers who had represented them in
mass-tort litigation, claiming the lawyers had breached their fiduciary duty by prematurely
settling their cases in order to maximize attorney fees.” Crist, 65 So. 3d at 840. This Court
noted that “we have never required a legal-malpractice plaintiff alleging breach of fiduciary
duty to establish that, but for the breach, the plaintiff would have won the underlying case.”
Id. at 842. The Court stated,
12 Because attorneys are afforded a degree of professional autonomy, proof of success in the underlying case is an appropriate test for proximate cause in a negligence-based action because it ensures that attorneys are only held professionally liable where their failures to adhere to the standard of care actually impacted the plaintiff’s interests in the case. But an attorney’s breach of his fiduciary duties to his client may cause injury to the client entirely separate from the merits of the underlying case.
....
The fiduciary-duty claims . . . survive, even absent a showing that the plaintiffs would have won the underlying . . . lawsuit . . . .
Id. at 843.
¶25. Although Gulfport OB-GYN did not allege a breach of fiduciary duty, it did allege
that Blum’s breach, i.e., her negligent drafting, “cause[d] injury to the client entirely separate
from the merits of the underlying case.” Id. Gulfport OB-GYN sued for damages caused
by Dr. Daigle’s lawsuit against it. Gulfport OB-GYN’s attorneys’ fees resulted from its
litigation with Dr. Daigle. Dr. James Gaddy, with Gulfport OB-GYN, testified that Gulfport
OB-GYN would not have had to defend the lawsuit filed by Dr. Daigle or had a judgment
entered against it if Blum had properly drafted the agreement. Gulfport OB-GYN’s expert
witness agreed. Thus, it appears that the traditional trial-within-a-trial analysis does not
apply to this negligent-drafting legal-malpractice case. In other words, because Gulfport OB-
GYN presented evidence of injury entirely separate from the merits of the underlying case,
its claims should survive, even absent a showing that it would have won the underlying
lawsuit.
¶26. However, even if the trial-within-a-trial analysis does apply, Gulfport OB-GYN has
presented sufficient evidence to show that, but for Blum’s error, there would have been an
13 enforceable covenant not to compete. Dukes, Dukes, Keating & Faneca and Blum assert that
in order to show cause in fact and meet the but for test for proximate causation, Gulfport OB-
GYN must show that Dr. Daigle would have accepted the noncompetition covenant without
the negligent language at issue. In other words, Gulfport OB-GYN must show that Dr.
Daigle would have accepted the noncompetition covenant without the inclusion of the phrase
“following termination of her employment by the Employer.” I respectfully disagree.
¶27. In support of their argument, Dukes, Dukes, Keating & Faneca and Blum rely on
Harrison v. Taft, Stettinius & Hollister, L.L.P., 381 F. Appx. 432 (5th Cir. 2010). In
Harrison, the court found that “[w]here . . . legal malpractice is alleged in connection with
a negotiation of contractual terms, a plaintiff must establish that the counter-party would
have agreed to the additional or changed term(s) in the contract and that the inclusion of the
term(s) would have put the plaintiff in a better position.” Id. at 435. But Harrison is
distinguishable from this case.
¶28. First, Harrison is an unpublished decision with no precedential value. Id. at 433 fn
**. Additionally, Harrison applied Texas law. Id. at 434. Moreover, Harrison did not
involve negligent draftsmanship, nor was there any evidence that the purchase agreement was
contrary to the parties’ intent. Indeed, the plaintiffs did not allege that their lawyers
negligently drafted the purchase agreement. Instead, in Harrison, the plaintiffs alleged that
their attorneys should have negotiated a better deal. Id. at 435-36. Plaintiffs’ expert witness,
“on several occasions . . . , unequivocally disclaimed opining on any issues of proximate
causation.” Id. at 435.
14 ¶29. Unlike in Harrison, this case does not involve legal malpractice in connection with
a negotiation of contractual terms. The parties’ negotiation of the terms of Dr. Daigle’s
employment agreement is not at issue. Instead, this case involves legal malpractice in
connection with negligent draftsmanship. Gulfport OB-GYN alleges that Blum negligently
drafted the employment agreement and failed to adequately include her client’s intent
regarding the negotiated terms of Dr. Daigle’s employment. Gulfport OB-GYN’s expert
opined that Blum’s negligence proximately caused damages to the clinic. Harrison is simply
inapplicable.
¶30. Dukes, Dukes, Keating & Faneca and Blum assert that “without evidence of [Dr.
Daigle’s] agreement to the alternate language, a jury is left to speculate on causation.” But
they are asking this Court to speculate on what Dr. Daigle would have done. This is not the
standard. We do not know what Dr. Daigle would have done had the noncompetition
covenant been properly drafted to require her resignation as well as her termination from
employment. But what we do know is that Dr. Daigle signed the employment agreement and
accepted the noncompetition covenant as negligently drafted by Blum. It is this signed and
accepted agreement that we must consider. Considering that signed agreement, it is apparent
that, but for Blum’s drafting error, i.e., the inclusion of the phrase “by the Employer,” the
noncompetition covenant would have applied to both Dr. Daigle’s resignation or termination.
Thus, but for Blum’s negligent drafting, the signed and accepted noncompetition covenant
would have been enforceable against Dr. Daigle.
15 ¶31. Had Blum properly drafted the covenant not to compete, one of two things would have
occurred: (1) Dr. Daigle would have refused to sign the agreement, in which case Gulfport
OB-GYN would have avoided its damages because it would not have employed Dr. Daigle,3
or (2) Dr. Daigle would have signed the agreement, in which case she would be unable to
argue that she could compete with Gulfport OB-GYN upon her resignation. Either way,
Gulfport OB-GYN’s damages were foreseeable and avoidable. In my opinion, this satisfies
the causation element of negligence.
¶32. I do not find that this case falls within the traditional trial-within-a-trial analysis for
purposes of proving cause in fact. Nevertheless, the record shows that sufficient evidence
was presented that “but for [Blum’s drafting] error there would have been an enforceable
covenant not to compete.” As a result, I would reverse the circuit court’s entry of summary
judgment and remand this matter for trial.
KITCHENS, P.J., COLEMAN AND CHAMBERLIN, JJ., JOIN THIS OPINION.
3 Had Gulfport OB-GYN not employed Dr. Daigle, Dr. Daigle would not have resigned and sued Gulfport OB-GYN based on the covenant not to compete, and Gulfport OB-GYN would not have had to pay $425,000 to settle her claim nor would it have incurred more than $115,000 in attorneys’ fees defending the case.