M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A.

932 So. 2d 459, 2006 Fla. App. LEXIS 8557
CourtDistrict Court of Appeal of Florida
DecidedMay 31, 2006
DocketNo. 4D05-2142
StatusPublished
Cited by6 cases

This text of 932 So. 2d 459 (M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 932 So. 2d 459, 2006 Fla. App. LEXIS 8557 (Fla. Ct. App. 2006).

Opinion

SHAHOOD, J.

This is an appeal by appellants, M.A. Hajianpour, M.D., P.A., M.A. Hajianpour, M.D. (collectively, Hajianpour), and Zoya Physical Therapy and Rehabilitation Center, Inc. (Zoya), from the Final Judgment for Damages Upon Counterclaim in favor of appellees, Khosrow Maleki, P.A., and Khosrow Maleki, M.D. (collectively, Ma-leki). We reverse and remand with directions to the trial court to enter an amended final judgment in favor of appellants, Hajianpour and Zoya.

This action was instituted by Hajianp-our’s filing of an action for declaratory relief seeking a determination of the parties’ respective rights under an employment agreement between Hajianpour and Maleki. Maleki filed a counterclaim for anticipatory breach of contract, fraud, declaratory judgment, and breach of contract. The trial court granted summary judgment in favor of Hajianpour on all issues. On review, this court reversed, directing the trial court to enter judgment in favor of Maleki. See Khosrow Maleki, P.A v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000).

Pursuant to the mandate, the trial court entered summary judgment in favor of Maleki on all liability issues. The determination of damages was set for trial, with the issue of damages for fraud being severed from the issue of damages based on breach of contract, anticipatory breach of contract, and declaratory judgment.

The jury found that Maleki’s damages as a result of Hajianpour’s breach of contract were $1,850,000 as of September 1, 1992. In accordance with the verdict, the trial court entered a Partial Judgment for Damages Upon Counterclaim in favor of Maleki in the amount of $1,850,000, with prejudgment interest in the amount of $2,188,408.47. Thereafter, Maleki voluntarily dismissed his fraud claim. Final Judgment was entered in favor of Maleki in the total amount of $4,037,858.47.

The decisive issue at trial and in this appeal was the value of Hajianpour’s medical practice. Each doctor in this case presented a different theory supporting its valuation of the practice. Appellants urge that the trial court erred in allowing valuation testimony that was incompetent and relied upon speculation and unfounded assumption.

Maleki’s expert was James E. McNulty, Ph.D. (McNulty). He is a professor of finance at Florida Atlantic University and holds various degrees in corporate finance and economics. Valuation of stocks and companies is a subject he regularly teaches. When Maleki sought to have McNulty qualified as an expert witness, Hajianpour objected on the basis that he had once been found incompetent to testify in a federal court. After McNulty testified that the issue in the federal case referred to by Hajianpour related to student loans and had nothing to do with the issues in this case, the court declared him to be an expert.

Of the two or three methods of determining the value of closely held stock, the principal one, and the one utilized by McNulty in this case, is the discounted cash flow method. McNulty was engaged by Maleki in 1997 and asked to calculate the “hypothetical value of the stock, assuming that the breach of contract had not occurred.” In performing this task, McNulty reviewed the financial statements of the practice, Medical ECONOMICS, statements of Hajianpour, financial statements of Zoya, information data from the Bureau of Labor Statistics, interest rate information from the Federal Reserve database, Hajianpour’s deposition, Maleki’s deposition, the agreement between the parties, [462]*462and information gathered from a phone conversation with Maleki in 1997.

Because the contract assumed an ongoing relationship between Maleki and Ha-jianpour, McNulty’s valuation was based on that assumption even though “it’s a hypothetical because the contract was breached.” The discount rate which McNulty used was fifteen percent, higher than the bond rate of seven and a half percent because of the greater risk inherent in investing in stocks. Based on labor information, McNulty calculated a twelve percent growth rate in the company.

McNulty assumed that these two physicians would continue in practice for twenty years, despite the fact that neither one of them had a long term employment agreement or a non-compete agreement with the P.A. He was unable to explain any factual basis for his assumption that they would practice together for twenty years. By assuming a rapid increase in their practice, he calculated that in the year 2012, which was twenty years after the breach of contract, these two physicians would be together grossing $18.7 million, and they would each be earning $5 million a year after taxes. He then discounted their earnings to somehow find that the value of all of the stock of the P.A. as of September 1, 1992, was $12 million. He then testified that one-half of the stock, which plaintiff was entitled under the agreement to purchase for $50,000, had a value of $6 million. He refused to consider the fact that from 1992, until the trial in 2004, neither of these physicians had ever earned more than $600,000 in one year.

On cross-examination, McNulty admitted that he assumed in his valuation an ongoing business even though he knew there was not one because the litigation began in July 1992. He assumed no breach and did not consider whether a buyer would buy a business in litigation. McNulty did not consider the present or future impact of competing practices.

Hajianpour’s attorney questioned McNulty as to how he could conclude that Hajianpour, who obtained his medical license in 1988 and borrowed $100,000 to start his practice, could turn that into an $8,000,000 business in only three years. McNulty responded that the valuation included the efforts of both of the doctors and, in part, took into consideration the various HMO contracts the doctors had obtained. McNulty did not, however, review any of the contracts to determine their value. Any information gathered about the contracts was given to him by Maleki; it was his understanding that Ha-jianpour did not produce the documents.

McNulty rejected counsel’s suggestions that the doctors could have sold the business for $8,000,000 if, as he says, there was a market for it. McNulty explained that that figure was the value of the business as an ongoing business with those two doctors. It was not necessarily the price a buyer would pay to buy the practice without those doctors. He stated that the figures he came up with were not out of line with the national income average for orthopedic surgeons according to data from Medical Eoonomics.

McNulty agreed that valuation is “an art rather than a science” and that ten different experts might have ten different opinions. McNulty had no personal knowledge of an orthopedic practice ever selling at the price he estimated for this one. In addition, prior to this case, he had never valued a professional association provider of medical services.

Hajianpour argues that it was error to allow Maleki’s expert to use a valuation method that was based on conjecture and speculation. We agree.

[463]*463In Thompson v. Thompson, 576 So.2d 267, 268 (Fla.1991), the supreme court addressed the following certified question: “In marriage dissolution proceedings to which an owner of a professional association is a party, may the value of the professional association’s goodwill be factored in in determining the professional association’s value?” The court answered the question with a “qualified affirmative.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wayne C. Doty v. State of Florida
170 So. 3d 731 (Supreme Court of Florida, 2015)
Fidelity Warranty Services, Inc. v. Firstate Insurance Holdings, Inc.
74 So. 3d 506 (District Court of Appeal of Florida, 2011)
Parc Royale East Development, Inc. v. U.S. Project Management, Inc.
38 So. 3d 865 (District Court of Appeal of Florida, 2010)
Daniels v. State
4 So. 3d 745 (District Court of Appeal of Florida, 2009)
MA HAJIANPOUR, MD v. Khosrow Maleki
975 So. 2d 1288 (District Court of Appeal of Florida, 2008)
Whitby v. Infinity Radio Inc.
951 So. 2d 890 (District Court of Appeal of Florida, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
932 So. 2d 459, 2006 Fla. App. LEXIS 8557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ma-hajianpour-md-pa-v-khosrow-maleki-pa-fladistctapp-2006.