Whitman v. Goldberg

26 Mass. L. Rptr. 289
CourtMassachusetts Superior Court
DecidedOctober 13, 2009
DocketNo. 081343C
StatusPublished

This text of 26 Mass. L. Rptr. 289 (Whitman v. Goldberg) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitman v. Goldberg, 26 Mass. L. Rptr. 289 (Mass. Ct. App. 2009).

Opinion

Roach, Christine M., J.

Following bench trial on April 17, 2009, and review of all testimony, exhibits, stipulations of the parties and post-trial filings completed May 1,2009, the court finds and rules as follows with respect to the Complaint for Contempt (Contempt Complaint) against Plaintiff Malcolm Whitman, D.M.D. (Dr. Whitman).

FINDINGS OF FACT

All of the below-enumerated Findings of Fact represent findings by the court, including but not limited to determinations of the credibility, weight, and probative value of the evidence adduced at trial and reasonable inferences drawn from that evidence.

Procedural Background

1. From approximately April 2004 to approximately May 2008 the parties engaged in dental practice together. Mrs. Whitman is not a dentist, but she worked in an administrative capacity for the practice for a period of time.

2. Following a series of disputes in 2008, the details of which are not relevant to the Contempt Complaint, an irretrievable breakdown occurred in the professional relationship. The underlying lawsuit here grew out of that breakdown.

3. Plaintiff Dr. Whitman sued in June 2008, inter alia for breach of the parties’ contract agreements. Among those agreements was a Personal Non-Competition and Non-Solicitation Agreement signed by Dr. Whitman on April 2, 2004 (non-compete).

The terms of the non-compete are not disputed in this contempt proceeding. Dr. Whitman admits that when he began working at the Uxbridge Family Dental practice (Uxbridge) in June 2008, he knew that office was within a fifteen (15) mile radius of Dr. Goldberg’s practice. There is no allegation that the parties agreed to modify the non-compete at any time, and there is no allegation for purposes of this contempt proceeding that any other term of the non-compete was violated.

4. As an integral part of the initial legal skirmishing, Dr. Goldberg filed a motion for temporary restraining order/preliminaiy injunction to prevent Dr. Whitman from, among other things, practicing dentistry within a fifteen (15) mile radius of Dr. Goldberg’s Milford office, in violation of the non-compete. The motion was scheduled and heard over a series of dates in July and August 2008, and was ultimately decided in Dr. Goldberg’s favor. The order at issue here was first written and appeared on the docket August 28, 2008. Notice was mailed September 9, 2008. Docket, at Paper 14.1 Dr. Whitman then moved for reconsideration (with respect to a bond question), and also sought a Petition for Relief from Injunction in the Appeals Court.

5. The parties agree Dr. Whitman was put on notice by his counsel of an impending injunction order by no later than September 11, 2008. The parties further agree counsel accepted service of the order on behalf of Dr. Whitman on September 23, 2008. Trial Exhibits 1-4.

6. A court order (Moriarty, J.) dated September 9, 2008 states as follows:

[290]*290The Court finds the geographical restriction contained in section 1(a) of the non competition agreement to be reasonable and accordingly a preliminary injunction shall issue enforcing said provision.

Trial Exhibit 4 (attachment) (the Order).

Compliance with the Order

7. Dr. Whitman was served with a copy of the Order on September 23, 2008. It is undisputed he engaged in certain practices of dentistry in the Uxbridge office after that date. At issue is what that practice consisted of, and why he did so. Also of some dispute between the parties is what communications were had by counsel for the parties between September 11, 2008, when Dr. Whitman was advised by counsel that the court had approved the motion for preliminary injunction, to October 3, 2008 when the Contempt Complaint was filed. Whitman Trial Testimony; Trial Exhibits 2-4.

8. Attorney Roy A. Bourgeois for Dr. Whitman and Attorney David B. Stein for Dr. Goldberg held at least two telephone conversations between September 11, 2008 and September 29, 2008 on the subject of Dr. Whitman’s continuing to practice dentistry for certain patients and certain procedures. Three letters are in evidence before me memorializing those conversations. Trial Exhibits 1, 5 and 6.

9. The first letter, dated September 12, 2008, from Mr. Bourgeois to Mr. Stein states in relevant part; “Confirming our telephone discussion yesterday. I have advised Dr. Whitman that the preliminary injunction was approved by the Court and is expected to issue shortly. I understand that he has some complex procedures under way for some patients which he needs to follow and finish up for professional reasons. Beyond that, he will stop working at his current location shortly.” Trial Exhibit 1.

10. The second letter is dated September 29, 2008 from Mr. Stein to Mr. Bourgeois. That communication states in relevant part: “It appears that Dr. Whitman continues to work at the Uxbridge Dental Practice, despite the court’s Order on Defendant’s Motion for Preliminary Injunction, dated September 9, 2008. It is imperative that this situation be rectified immediately. Please be advised that if Dr. Whitman continues to practice dentistry at the Uxbridge location, I have been instructed to seek any and all appropriate damages and sanctions against Dr. Whitman.” Trial Exhibit 5.

11. The third letter is dated September 29, 2008 from Mr. Bourgeois to Mr. Stein. It states in relevant part: “I have previously informed you that Dr. Whitman was engaged in several complex procedures in the practice at Uxbridge which as a matter of his professional responsibility to the patients, he is required to finish and cannot easily transfer to another doctor. If you feel that this is a matter that we have to go and see Judge Moriarty for clarification on, I will do so. It is my understanding that it relates only to a few patients and he is not seeing patients generally in Uxbridge." Trial Exhibit 6 (emphasis supplied).

12. A fourth letter also sheds light on the communications between the parties during this time period. On October 3, 2008, Mr. Stein provided Mr. Bourgeois, by facsimile and certified mail, a courtesy copy of the Contempt Complaint. Mr. Stein’s cover letter includes the following sentence; “ Clearly, we have been patient over the past several weeks, however, it does not appear that your client understands the magnitude of his continuing violation of the Order.” Trial Exhibit 7 (emphasis supplied).

13. Nonetheless, the parties dispute whether, when, and to what extent Dr. Goldberg acquiesced in, or agreed to, Dr. Whitman’s continuing a limited practice, and if Dr. Goldberg did so agree, for which procedures and over what period of time. Each side sought to present testimony from his respective first chair trial counsel on these issues, to be questioned on the stand by opposing counsel, and then each by his own law partner.

14. Given all of the circumstances on the record of the underlying case, of which I took and continue to take judicial notice, including the extensive and ongoing discovery disputes, and counsels’ various representations to the court during this contempt trial that their relationship was marked by “misunderstandings,” “breakdown,” and “explosion,” the court declined to entertain counsel’s testimony, but accepted the stipulated correspondence offered as admissible.2

15. The parties do agree that, if the operative date of the Order was September 23, 2008, when Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
26 Mass. L. Rptr. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitman-v-goldberg-masssuperct-2009.