Laurence Kandel v. Urological Treatment and Research , Ralph Benson, Dean Knoll & Institute for Urological Research ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2001 Session
LAURENCE B. KANDEL, M.D.
v.
THE CENTER FOR UROLOGICAL TREATMENT AND RESEARCH,
P.C., RALPH C. BENSON, JR., M.D., L. DEAN KNOLL, M.D., and THE
INSTITUTE FOR UROLOGICAL RESEARCH
An Appeal from the Circuit Court for Davidson County
No. 98C-1987 Barbara N. Haynes, Judge
No. M2000-02128-COA-R3-CV - Filed April 17, 2002
This is a breach of contract case. The plaintiff physician entered into an employment contract with
the defendant physician’s group. The contract provided that the physician would work for the group
for one year, and that the parties would then “negotiate in good faith” to give the employee physician
the opportunity to purchase stock in the group. At the end of the physician’s first year of
employment, the parties negotiated, but reached an impasse. Subsequently, negotiations ceased, and
the physician’s employment was terminated. He filed suit against the group, alleging that the
defendants breached the contract to “negotiate in good faith,” and that the defendants committed
promissory fraud in inducing him into signing the employment agreement. The trial court granted
summary judgment in favor of the defendants on both counts. The physician now appeals. We
affirm. Even if Tennessee recognizes a cause of action for breach of an agreement to negotiate in
good faith, the evidence does not demonstrate such a breach, and does not establish promissory
fraud.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
HOLLY K. LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., and
DAVID R. FARMER , J., joined.
Alfred H. Knight and William R. Willis, Willis & Knight, Nashville, Tennessee, for the appellant
Laurence B. Kandel, M.D.
R. Dale Grimes, Bryan E. Larson, and Andrea Taylor McKellar, Bass, Berry & Sims, Nashville,
Tennessee, for the appellees The Center for Urological Treatment and Research, P.C., Ralph C.
Benson, Jr., M.D., L. Dean Knoll, M.D., and The Institute for Urological Research.
OPINION
This is a breach of contract case. In the spring of 1996, plaintiff/appellant Laurence B.
Kandel, M.D. (“Dr. Kandel”), was engaged in the academic practice of urology in the state of New
York. During that time, Dr. Kandel entered into negotiations with defendant/appellee Ralph Benson,
M.D. (“Dr. Benson”), and defendant/appellee Dean Knoll, M.D. (“Dr. Knoll”), the sole shareholders
in Defendant/Appellee The Center for Urological Treatment and Research, P.C. (“CUTR”),
regarding Dr. Kandel joining CUTR as an employee in the practice of urology.
In July 1996, the parties executed a contract, effective as of September 15, 1996. The
contract contained the following provision:
10. Agreement to Negotiate in Good Faith Toward Purchase of Equity
Ownership. The Employer agrees that in the event Employee remains
continuously employed by Employer for a period of one (1) year and has
achieved Board Certification through the American Board of Urology,
Employer will negotiate in good faith with Employee to allow Employee to
purchase from Employer that number of shares of Employer’s stock which
will permit Employee to own the same number of shares as the stockholder
holding the most shares of Employer’s stock at that time. Employer
anticipates that the purchase price of such stock shall be based on the GAAP
book value of the Employer as of the date of the purchase.
(Emphasis added). Thus, the contract contained a provision requiring the parties to “negotiate in
good faith” the sale to Dr. Kandel of an equal ownership share in CUTR at the expiration of one
year.
Dr. Kandel remained Board certified, as required under his agreement, and completed his first
year of practice at CUTR. Toward the end of his first year, Dr. Kandel raised to Drs. Benson and
Knoll the issue of becoming a partner in CUTR pursuant to the terms of the contract. Dr. Kandel
alleges that Drs. Benson and Knoll initially told him that he would have to wait another year before
he became eligible to buy into the practice. When Dr. Kandel insisted that he had a contractual right
to enter into good faith negotiations for the purchase of CUTR stock, the parties began to negotiate
Dr. Kandel’s buy-in.
Beginning in September 1997, CUTR made the first of several offers to Dr. Kandel. The
parties agreed on many terms of the buy-in, such as the formula to be used in determining the
amount of Dr. Kandel’s compensation, the formula to be used to calculate the amount of Dr.
Kandel’s buy-in, and the terms of the covenant not to compete. Regarding the amount of Dr.
Kandel’s buy-in, the parties contemplated that Dr. Kandel would buy his stock for an amount equal
to one-third of the group’s net asset value (assets less liabilities). This would total approximately
$141,000, based on a valuation of the group that included over $500,000 in accounts receivable. The
parties disagreed, however, on the method for calculating the stock redemption value. CUTR
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proposed that, upon termination of Dr. Kandel’s employment, he would sell his stock to CUTR for
its book value “provided that no value shall be assigned to accounts receivable.” At the time of the
negotiations, eliminating accounts receivable from the equation would have caused the book value
of the stock to drop to an amount below zero. However, under CUTR’s proposal, if Dr. Kandel were
terminated he would have been entitled to a “severance pay” in an amount equal to 90% of the
accounts receivable attributable to the services rendered by Dr. Kandel.
Dr. Kandel refused CUTR’s proposal, asserting that it was not made in good faith because
it required him to pay $141,000 for stock that would be essentially worthless if he were required to
immediately redeem it. In response, CUTR defended its proposal to Dr. Kandel as it related to the
stock redemption terms. In a letter to Dr. Kandel’s attorney dated November 12, 1997, counsel for
CUTR explained:
[I]t is [ ] true that Dr. Kandel could be fired the day after he buys into CUTR.
However, Dr. Benson’s and Dr. Knoll’s executed Employment and Redemption
Agreements also contain similar “without cause” termination provisions that allow
CUTR to terminate their employment without cause at any time without requirement
of prior notice.
* * *
However, [you] erroneously assume[ ] that Dr. Kandel would receive $0 if
his employment with CUTR was terminated the day after he completed his buy-in
or at any other time. To the contrary, Dr. Kandel would potentially receive two
payments. First, Dr. Kandel, if terminated, is entitled to receive 90% of his accounts
receivable . . . . This payment would result in a large payment to Dr. Kandel.
Specifically, since Dr. Kandel’s accounts receivable at the end of October
approximated $93,000, Dr. Kandel would be entitled to a payment of approximately
$84,000. It is important to note, however, that Dr. Kandel’s current accounts
receivable are significantly deflated solely because he took a considerable amount of
time off during September. A more representative example may be Dr. Benson’s
accounts receivable as of October 31, 1997, which approximated $152,000. Under
a similar provision in Dr. Benson’s Employment and Redemption Agreement, Dr.
Benson, if terminated, would be entitled to a payment of approximately $137,000,
or 90% of his accounts receivable.
Even though this payment may not equal or surpass Dr. Kandel’s buy-in
amount, it represents a fair price of admission to an established and highly regarded
medical practice. It is also important to note that Dr. Kandel is not being asked to
pay any amount for goodwill or name, which direct benefit he will receive
immediately upon becoming a shareholder without any direct cost to him.
(Footnote omitted).
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In a letter dated November 26, 1997, Dr. Kandel made a counter-proposal to CUTR,
proposing, among other things, that the redemption value of his stock be determined according to
the same formula utilized in the purchase of his stock. Significantly, Dr. Kandel’s proposal sought
to recover this stock redemption value in addition to the “severance pay” provision in CUTR’s
proposal. In a letter dated December 4, 1997, CUTR rejected that request, asserting that “[s]uch an
unfair provision would allow Dr. Kandel to double dip into CUTR’s accounts receivable” and would
give Dr. Kandel rights greater than those held by the other stockholders, Dr. Benson and Dr. Knoll.
The December 4 letter stated that it was CUTR’s “final offer” to Dr. Kandel, and was set to expire
on December 8, 1997. In response, Dr. Kandel argued that his proposal was fair in light of the fact
that CUTR could terminate him without cause. Dr. Kandel also expressed regret that CUTR would
not agree to give him a position on the group’s board of directors, nor the right of first refusal to
purchase the group in the event a third party offered to buy it. On December 8, 1997, because Dr.
Kandel would not accept CUTR’s “final offer,” his employment was terminated.
On July 20, 1998, Dr. Kandel sued CUTR, Dr. Benson, Dr. Knoll, and The Institute for
Urological Research (“IUR”), a non-profit corporation in which Drs. Benson and Knoll have an
interest. In count one of the complaint, Dr. Kandel alleged that CUTR, Dr. Benson, and Dr. Knoll
breached their contract to negotiate in good faith with Dr. Kandel to allow him to purchase stock in
the group. In count two, Dr. Kandel alleged that CUTR breached its obligation under his
employment contract to pay him certain bonuses described in the agreement. Finally, in count three,
Dr. Kandel asserted a claim for promissory fraud alleging that the Defendants induced him into
signing the employment contract by promising that he could become a shareholder in IUR at the end
of his first year of employment. Dr. Kandel asserted that Drs. Benson and Knoll “knew said
promises were false when they made them.” Dr. Kandel sought compensatory damages including,
but not limited to, lost salary, lost profits, lost bonuses, and the loss on the sale of his New York
residence.
In response, the defendants filed a motion for summary judgment. On January 15, 1999, the
trial court held a hearing on the motion. On February 4, 1999, the trial court granted summary
judgment to the defendants on count one (breach of contract) and count three (promissory fraud) of
the complaint, but denied summary judgment with respect to count two (employment bonus). On
August 23, 2000, the trial court entered an order noting that the claim in count two had been settled
and making the February 4 order final and appealable. Dr. Kandel now appeals the order entered
on February 4, 1999.
Dr. Kandel argues on appeal that the trial court erred in granting summary judgment in favor
of the defendants. He claims that a contract to “negotiate in good faith” is enforceable in Tennessee,
and that the facts of this case would support a finding that the defendants breached their duty under
his employment agreement to negotiate in good faith. Dr. Kandel further argues that the facts of this
case would support his claim for damages under a theory of promissory estoppel.
We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997) (quoting Bain v. Wells,
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936 S.W.2d 618, 622 (Tenn. 1997)). Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.03. We must view the evidence in a light most
favorable to the nonmoving party, giving that party the benefit of all reasonable inferences. Warren,
954 S.W.2d at 723.
Dr. Kandel first argues that a contract to “negotiate in good faith,” such as the provision in
his employment contract, is enforceable in Tennessee.1 He notes that, even where a contract does
not contain a specific provision to that effect, every contract is subject to an implied covenant of
reasonable and good faith performance. See Covington v. Robinson, 723 S.W.2d 643, 645-46
(Tenn. Ct. App. 1986) (concluding that the purchaser’s refusal to perform in good faith constituted
a default of their contractual obligations); see also Safeco Ins. Co. of Am. v. City of White House,
36 F.3d 540, 548 (6th Cir. 1994) (relying on the proposition that, according to Tennessee law,
“standards of good faith and fair dealing [are] implied in every contract,” quoting Misco, Inc. v.
United States Steel Corp., 784 F.2d 198, 203 (6th Cir. 1986)).
Dr. Kandel also cites two cases in which marital dissolution agreements requiring the parties
to “negotiate in good faith” potential modifications relating to child support, alimony, and property
allocation were enforced. Bruce v. Bruce, 801 S.W.2d 102, 103-04 (Tenn. Ct. App. 1990);
Threadgill v. Threadgill, 740 S.W.2d 419, 424 (Tenn. Ct. App. 1987). In Bruce, the husband
argued that the agreement to negotiate was an invalid “agreement to agree.” This argument was
rejected because the marital dissolution agreement “is not an agreement to agree in the future. A
‘contract may provide for modification, and contracts which provide for subsequent changes therein
are not unusual.’ ” Bruce, 801 S.W.2d at 106. In Threadgill, as in Bruce, the parties’ duty to
negotiate modifications in the original marital dissolution agreement arose if the parties experienced
a change in circumstances warranting such a modification. The appellate court determined that the
parties’ circumstances had not changed so as to trigger any obligation to negotiate. Threadgill, 740
S.W.2d at 424. Consequently, the Threadgill court did not reach the issue of whether the provision
to “negotiate in good faith” was enforceable.
CUTR argues that the current jurisprudence indicates an unwillingness to enforce an
agreement to “negotiate in good faith.”2 In support, CUTR cites EnGenius Entm’t, Inc. v.
Herenton, 971 S.W.2d 12 (Tenn. Ct. App. 1997). In EnGenius, the plaintiff developer was selected
by the defendants City of Memphis and Shelby County to develop leasehold space in The Pyramid,
a public arena in downtown Memphis. The defendants’ written Request for Proposals (“RFP”)
provided that, upon the selection of a developer, the specific rent structure would be negotiated
between the parties. The defendants later demanded a $50,000 non-refundable fee from the
1
The trial cou rt’s ord er did not indicate the basis for its dismissal of Dr. Kand el’s claim. In light of the court’s
dispo sition o f the m atter, the parties both address the issue of enfo rceab ility on appeal.
2
The argum ents of CU TR apply to all d efendan ts exce pt where otherwise indicated.
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developer for the right to negotiate a lease with the defendants. EnGenius, 971 S.W.2d at 15-16.
The plaintiff developer refused to pay the fee, so the defendants terminated further negotiations and
told the plaintiff that it would not be used as the contractor on the project. Id. The plaintiff
developer filed a lawsuit alleging breach of contract, claiming, among other things, that the
defendants breached their “obligation to deal with [plaintiff] fairly and in good faith to proceed with
the development of the Leasehold Space of the Pyramid.” Id. at 17.
The trial court dismissed the complaint. On appeal, the appellate court held that the RFP
requiring the parties to negotiate was not an enforceable agreement. Id. at 17-18. The court
reasoned that when parties agree to prepare and execute a final written agreement, “it is necessary
that agreement shall have been expressed on all essential terms that are to be incorporated in the
document. . . . The so-called ‘contract to make a contract’ is not a contract at all.” Id. (quoting 1
Arthur L. Corbin, et al., Corbin on Contracts § 2.8, at 133-34 (Rev. ed. 1993) (footnotes omitted)).
Because the parties had not previously agreed on the essential terms of the rent structure, the court
held that “no agreement existed between the parties regarding EnGenius’s development and lease
of The Pyramid space. . . . At most, the documents evinced an agreement between the parties to
negotiate in good faith to reach a final lease agreement.” Id. at 18 (emphasis added).
The EnGenius court then cited cases holding that agreements to “negotiate in good faith”
are enforceable under certain circumstances. See, for example, Arcadian Phosphates, Inc. v.
Arcadian Corp., 884 F.2d 69 (2d Cir. 1989) (under New York law). In Arcadian Phosphates, the
Second Circuit Court of Appeals, interpreting New York law, described two types of preliminary
agreements. In the first type, the parties agree to later formalize a contract about which there has
been complete agreement on all of the essential issues. In the second type, the parties have
committed themselves to some of the major terms, but other essential terms remain to be negotiated.
Arcadian Phosphates, 884 F.2d at 72. Under New York law, the existence of open terms in the
second type of preliminary agreement is not fatal to its enforcement. See Teachers Ins. & Annuity
Ass’n v. Tribune Co., 670 F. Supp. 491, 498 (S.D.N.Y. 1987). This is because the parties are bound
to their ultimate contractual objective. Id. In the second type of preliminary agreement, the parties
are bound “in the sense that they accept a mutual commitment to negotiate together in good faith in
an effort to reach a final agreement within the scope that has been settled in the preliminary
agreement.” Id., quoted in Arcadian Phosphates, 884 F.2d at 72.
In the instant case, CUTR asserts that EnGenius stands for the proposition that an agreement
to negotiate is enforceable only if it is the first type of preliminary agreement, i.e. only if the
essential terms of the contemplated agreement have already been determined. Indeed, some courts
adhere to this general rule. See, e.g., Mohrenweiser v. Blomer, 573 N.W.2d 704, 706-07 (Minn. Ct.
App. 1998) (holding that an agreement to “negotiate in good faith,” like a letter of intent and any
other type of agreement to negotiate in the future, is unenforceable). Other courts conclude that
such a provision is unenforceable because of the vagueness of such a contract. See, e.g., Ohio
Calculating, Inc. v. CPT Corp., 846 F.2d 497, 501 (8th Cir. 1988) (under Minnesota law,
determining that a contract to negotiate is unenforceable because it is vague and uncertain as to the
intent of the parties). Still other courts refuse to enforce a contract to “negotiate in good faith”
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because of the difficulty in ascertaining an appropriate remedy for the breach of such a clause. See,
e.g., Jenks v. Jenks, 385 S.W.2d 370, 376 (Mo. Ct. App. 1964) (holding that “equity will not
indulge the futility of ordering the parties to ‘meet together’ to ‘discuss in good faith’ the very
problem on which they have demonstrated their inability to agree”).
The instant case involves the second type of preliminary agreement, an agreement to
“negotiate in good faith” where some essential terms are left to negotiation. The parties agreed that
Dr. Kandel would be eligible to buy-in after one year of employment, that he would be entitled to
purchase one third of the group’s stock, and that the stock price would be determined according to
the GAAP book value as of the date of purchase. However, the stock redemption value, among other
items, had not been negotiated prior to the signing of the original employment agreement.
I n this case, we need not determine whether such a preliminary agreement would be
enforceable under Tennessee law.3 Even if Tennessee courts would recognize a cause of action
based on such a provision, our review of the record indicates that no reasonable trier of fact could
find that the defendants breached their duty under the circumstances.
Dr. Kandel maintains that the defendants breached their duty to bargain in good faith because
they insisted on terms that were unreasonable on their face. “[A] party might breach its obligation
to bargain in good faith by unreasonably insisting on a condition outside the scope of the parties’
preliminary agreement.” A/S Apothekernes Laboratorium v. I.M.C. Chemical Group, Inc., 873
F.2d 155,158 (7th Cir. 1989). In his pleadings, Dr. Kandel asserts that, although the defendants
adopted minor terms that he requested, their “proposals always contained terms and conditions
which allowed CUTR to terminate Dr. Kandel without cause at any time thereby causing him to
forfeit more than $141,000 and thereby precluding him from competing with the Defendants in the
middle-Tennessee area for one year.” Thus, Dr. Kandel describes the “worst-case scenario,” arguing
that he could buy into the company for approximately $141,000, be fired without cause the very next
day, be required to forfeit the $141,000 paid for his stock, and be prevented from practicing urology
within a 50-mile radius for one year.
However, a number of significant factors are omitted from Dr. Kandel’s analysis. First,
under his own “worst-case scenario,” though he would not receive compensation for his stock, he
would be entitled to receive compensation under the “severance pay” provision of the agreement,
which he acknowledges is a substantial amount. Second, under the terms proposed by CUTR, if Dr.
Kandel remained with the group over any length of time, he would likely receive an amount for his
stock in addition to the severance pay. In addition, although Dr. Kandel notes CUTR’s proposed
3
As we discussed above, Dr. K and el cites au thority indicating that the duty to bargain in go od faith is im plicit
in all con tracts und er Ten nessee law . The duty imp osed by a contractual agreem ent to “neg otiate in goo d faith,”
how ever, is distinguishable from the co mm on-law du ty to bargain in goo d faith. See Channel Hom e Centers v.
Grossman, 795 F.2d 291, 299 n.8 (3d Cir. 1986); Ven ture A ssocs. Corp. v. Zenith Data Sys. Corp., 887 F. Supp. 1014,
1017 (N.D . Ill. 1995). Thus, the au thority on which Dr. Kandel relies does not support the position that Tennessee
courts would enforce agreements to “negotiate in good faith.”
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contract would prevent him from competing with the defendants within a 50-mile radius for a period
of one year from termination, that non-compete provision was actually negotiated by Dr. Kandel
and included at his request.4 Under Dr. Kandel’s proposal, his stock redemption value would be
calculated in the same manner as the stock purchase price. Under this proposal, Dr. Kandel would
be entitled, upon termination, to receive his stock value ($141,000) in addition to the severance pay,
which would result in a substantial windfall to Dr. Kandel. It must also be noted that the contract
first proposed by CUTR to Dr. Kandel was essentially the same in all pertinent respects as the
agreements signed by Drs. Benson and Knoll. Dr. Kandel requested several minor changes that were
adopted by the defendants, including adding a provision for a specific level of salary, allowing Dr.
Kandel a minimum of four weeks paid vacation, and allowing Dr. Kandel to participate in CUTR’s
employer-sponsored group insurance plans and any group-sponsored qualified retirement plan.
Under these circumstances, we must conclude that no trier of fact could reasonably find that the
defendants negotiated in bad faith. Thus, we affirm the trial court’s grant of summary judgment in
favor of the defendants on count one of the complaint.
Dr. Kandel next argues on appeal that the trial court erred in granting the defendants
summary judgment on count three of his complaint, purportedly based on the theory of promissory
estoppel. A “claim of promissory estoppel is not dependent upon the existence of an express
contract between the parties.” EnGenius, 971 S.W.2d at 19. Under that theory of recovery, a
plaintiff can recover if, by the promises of another, he is induced into changing his situation. “This
theory of recovery is sometimes referred to as ‘detrimental reliance’ because, in addition to showing
that the defendant made a promise upon which the plaintiff reasonably relied, the plaintiff must show
that this reliance resulted in detriment to the plaintiff.” Id. at 19-20 (footnote omitted). Dr. Kandel
argues that the defendants are liable to him under this theory because they made oral promises to him
which induced him to move his family from New York to Tennessee and to incur substantial
expenses related to his relocation.
In reviewing Dr. Kandel’s complaint, however, he alleges that the defendants are liable to
him on a theory of promissory fraud, rather than promissory estoppel. In count three of the
complaint, Dr. Kandel asserts that the defendants induced him into signing the employment contract
with CUTR by promising him that he could become a shareholder in IUR at the end of his first year
of employment. Dr. Kandel states in his complaint that Drs. Benson and Knoll “knew said promises
were false when they made them.” In other words, Dr. Kandel asserts a claim for “fraud in the
inducement.”
The Tennessee Supreme Court “has not adopted the doctrine of promissory fraud in
Tennessee, but has merely indicated a willingness to consider adopting the rule ‘in a proper case
where justice demands.’” Farmers & Merchant’s Bank v. Petty, 664 S.W.2d 77, 80 (Tenn. Ct. App.
1983) (quoting Fowler v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn. 1978)). To
4
The non-co mp ete ag reem ent in Dr. B enso n and Dr. Kn oll’s co ntracts, and the one proposed to Dr. Kande l,
provides that the phy sicians cann ot comp ete w ithin three years fro m th e time they purchase their stock.
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establish a claim for promissory fraud, a claimant must show that, at the time the promise was made,
the person making the promise had no intention to perform. Fowler, 575 S.W.2d at 499. The party
alleging promissory fraud bears the burden of proving that the defendants who made the promise had
no present intent to perform at the time the promise made. Brungard v. Caprice Records, Inc., 608
S.W.2d 585, 590 (Tenn. Ct. App. 1980). The Tennessee Supreme Court is unwilling to apply the
doctrine “except in those cases where there is direct proof of a misrepresentation of actual present
intention.” Farmers & Merchant’s Bank, 664 S.W.2d at 82.
In this case, the record contains no evidence to support Dr. Kandel’s claim that the
defendants fraudulently induced him into signing his employment agreement. There is no evidence
to show that the defendants either made any misrepresentation with respect to IUR, or that any such
misrepresentations were known to be false. In fact, the employment agreement signed by Dr. Kandel
indicates that the parties would agree, after a year, to negotiate in good faith “to purchase from
Employer that number of shares of Employer’s stock which will permit Employee to own the same
number of shares as the stockholder holding the most shares of Employer’s stock at that time.”
Under the contract, “Employer” was CUTR, with no reference made to IUR. Therefore, the trial
court did not err in granting summary judgment to the defendants on Dr. Kandel’s claim for relief
based on promissory fraud.
The decision of the trial court is affirmed. Costs are to be taxed to the appellant, Laurence
B. Kandel, M.D., and his surety, for which execution may issue if necessary.
___________________________________
HOLLY K. LILLARD, JUDGE
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