3 Mass. App. Ct. 126 | Mass. App. Ct. | 1975
This is a bill in equity to enforce a restrictive covenant by enjoining the defendant, a physician specializing in neurology, from practicing his specialty in Malden and surrounding communities and in various named hospitals. Both parties have appealed from a final decree, entered on a master’s report, enjoining the defendant from such practice substantially in the words of the covenant.
The master’s subsidiary findings, which are no longer challenged, establish that the plaintiff’s assignor, a nemo-surgeon named Fusillo, engaged in discussions with the defendant in the summer and fall of 1971 which led to an oral understanding that the defendant would associate with Fusillo in the practice of nemology in Malden and vicinity, where Fusillo had been in practice since 1963. The association began on November 6, 1971. About a week later, Fusillo asked the defendant to sign an “employment agreement,” which stated that it represented the entire agreement of the parties and contained the restrictive covenant. The defendant expressed reluctance to sign it but, after consulting with an attorney, did so. The plaintiff corporation, of which Fusillo is president and sole stockholder, was chartered on December 3, 1971, and Fusillo assigned the
During the period of his association with Fusillo, the defendant treated Fusillo’s patients both at Fusillo’s office and in area hospitals. He was recommended by Fusillo for staff privileges at those hospitals. The association had barely commenced, however, when the two men started to disagree about everything from office procedure to patient care. On May 8, 1972, they met and agreed to terminate their association effective at once. Fusillo indicated at that meeting that he intended to hold the defendant to the restrictive covenant.
The terms of the restrictive covenant are set out in the margin.
1. The defendant’s first argument is that the covenant should not be enforced because there was no consideration
2. The defendant’s next contention is that the plaintiff is not entitled to specific performance because it has not lived up to its obligation under the employment agreement to pay the defendant for the sixty-day period following termination of the agreement. We read the provision in question
3. The defendant further contends that the restrictive covenant is unreasonably broad in its territorial coverage. The master’s general finding to the contrary was a conclusion based on his subsidiary findings from which this court may draw its own conclusions. O’Brien v. Dwight, 363 Mass. 256, 281 (1973). Peters v. Wallach, 366 Mass. 622, 626 (1975). Erickson v. Waltham, 2 Mass. App. Ct. 436, 438 (1974). The defendant’s argument is addressed to the inclusion in the restriction of the entire “Malden, Melrose, Wakefield, Everett, Winchester, Stoneham community,” which, according to the defendant’s brief, exceeds 250,000 in population.
4. The duration of the restriction was reasonable. The good will sought to be protected by the restrictive covenant was of long-term significance, relating not only to Fusillo’s patients during the period of employment but also to the medical community from which a neurologist must derive patients by referral. The one-year term of employment and the sixty-day termination provision do not make the longer period of restriction unreasonable. All Stainless, Inc. v. Colby, 364 Mass. 773, 778-779 (1974).
5. Supported by a general finding of the master, the defendant argues that enforcement of the restrictive covenant is not necessary for the economic protection of the plaintiff. The general finding was apparently based on subsidiary findings to the effect that during the half year (roughly) of their association Fusillo and the defendant together averaged nine hospital consultations per week, and during the half year thereafter Fusillo alone averaged five; that during the first period the two doctors together saw an average of eleven new patients per week, and during the second period Fusillo averaged nine and one half; that during the first period the two doctors together saw 688 patients, and in the six and one half month period after the association terminated, Fusillo saw 788; and that during the association gross billings totaled $60,957.68, compared to gross billings by the plaintiff of $48,688.50 during the six and one half months after the defendant left.
The trial judge at the plaintiff’s instance struck the general finding from the master’s report. There was no error. The judge was not bound by the master’s conclusion, for the reasons mentioned in part 3, supra, relative to our review. He could, and evidently did, draw a conclusion contrary to that of the master from the latter’s subsidiary findings.
What has been said disposes of the issues raised by the defendant’s appeals. It follows that the restriction to which the defendant agreed should be enforced.
The plaintiff has agreed that a decision favorable to it on the defendant’s appeals should result in waiver of its appeal, and the plaintiff’s appeal is accordingly deemed waived. The interlocutory decree confirming the master’s report is affirmed. The final decree is to be modified in accordance with the stipulations of the parties in this court, and, as so modified, is affirmed.
So ordered.
The covenant by its terms restricted the defendant for “two (2) years after termination of this Agreement,” and the injunction imposed by the final decree was to have expired on May 8, 1974, before the appeal was heard. The case is not moot, however, because the parties entered into stipulations that the injunction be suspended pending final determination of this appeal and, if the final decree should be affirmed, reinstated for a period of two years from the entry of a final decree after rescript.
“(11) For a period of two (2) years after the termination of this Agreement, the Employee agrees not to solicit business from, nor engage in the practice of medicine, in the specialty of neurology, directly or indirectly, nor read EEG findings in ... [various named hospitals]. The Employee further agrees that for a period of two (2) years from the date of termination- of this Agreement he will not open an office for the practice of medicine in the specialty of neurology, directly or indirectly, nor associate with any physician or professional medical corporation for the purpose of practicing said specialty of neurology, directly or indirectly, in or within a radius of five (5) statute miles from the borders of the City of Malden, Massachusetts.”
“(8) Without cause, the Employer may terminate this Agreement at any time upon sixty (60) days’ written notice to the Employee. In such event, the Employee, if requested by the Employer, shall continue to render his services and shall be paid his regular compensation to the date of termination. Without cause, the Employee may terminate this Agreement upon sixty (60) days’ written notice to the Employer. In such event, the Employee shall continue to render his services and shall be paid his regular compensation to the date of termination, but no severance allowance shall be paid to him.”
No contention is made that the restrictive covenant is overbroad because it extends to areas, such as Cambridge, Somerville, and major sections of Boston, outside the area in which Fusillo apparently practices. Perhaps the defendant does not read the covenant that way, or perhaps he feels that that aspect of the restriction is of no practical concern to him. We confine our consideration to what has been argued. O’Brien v. Dwight, 363 Mass. 256, 282 (1973).