Berry & Gould v. Berry

RODOWSKY, Judge. We granted certiorari in this case to determine if the plaintiff enjoyed a substantive right for which a restitutionary remedy would lie. Due to disability, the plaintiff was required to withdraw from the practice of obstetrics and, accordingly, as a shareholder in his professional services corporation. At issue is whether the corporation and its remaining shareholder were obliged to pay to the plaintiff the value of his share of the goodwill enjoyed by the practice, when there was no express promise to do so.

The material facts relevant to this issue are undisputed and present a question of law. We shall hold that the corporation and the remaining shareholder have not been unjustly enriched and have no obligation to pay the plaintiff, as restitution, the value of his goodwill. The instant action was brought in the Circuit Court for Montgomery County by the respondent, F. Norman Berry, M.D. (Berry), against the petitioners, Jed D. Gould, M.D.

(Gould) and Berry & Gould, P.A., a professional services corporation (the P.A.). The P.A. was incorporated in 1970 with Berry as one of the original shareholders. Over the years shareholders came and went, but, for purposes of the ¹⁴⁵ issues in the instant matter, we may consider that Berry and Gould were fifty percent shareholders at all relevant times. By 1987 Gould had become a shareholder and, that year, the shareholders in the P.A. entered into a corporate stock agreement (the Agreement).

Under ¶ A.1 of the Agreement the P.A. was obligated to redeem a shareholder’s stock upon certain events, including: “f. If any Stockholder voluntarily terminates his or her employment with the Corporation. “g. If any Stockholder becomes ‘disabled’ for more than eighteen (18) months as hereinafter set forth in Paragraph A.5 below.” The purchase price for redeemed stock was its book value, determined on an accrual basis of accounting and as of the last day of the month in which the redemption took place. Book value was to be determined by the then CPA for the P.A., whose determination would be binding on all parties.

Under the disability provisions of the Agreement, the P.A. paid full compensation each month to a disabled shareholder for a period of three consecutive months from the first day of the month following the month in which the disability commenced. Thereafter, for the next twelve months, the P.A. paid to that disabled shareholder the difference, if any, between two-thirds of the disabled shareholder’s annual compensation and the amount paid under a disability policy carried by the P.A. If the disability continued for eighteen months the disabled shareholder agreed to sell and the P.A. agreed to redeem the stock of the disabled shareholder within ninety days of the end of the eighteen month period. Each shareholder of the P.A. also agreed to “devote his or her full time, knowledge, skill and attention to the professional practice of the [P.A.], to the exclusion of any other competitive business and/or professional activities.” Beginning in the fall of 1994 Berry developed arthritic pain in his right elbow which became progressively worse. On one occasion, in the course of a difficult forceps delivery, he dropped the forceps.

He was unable to button his shirt or to ¹⁴⁶ put on a scrub hat. Gould, an employee obstetrician of the P.A., Dr. Gregory C. Tyler (Tyler), or an obstetrician from outside the P.A. had to be available to back up Berry for difficult deliveries. Berry continued to see patients but had to examine them left-handedly. By March 1995 Berry was unable to eat with his right arm.

In a memorandum to Gould dated March 8, 1995, Berry advised, “As of March 15, 1995, I will be leaving on disability.” The memorandum contained some twenty proposals as to how the transition should be effected and contemplated that Tyler would buy Berry’s shares in the P.A. Berry also sought payment for goodwill, saying: “I will be the very first partner ever leaving the practice and not taking his or her patients with them. Dr. Piver was bought out and took his practice with him, Dr. Ladd was bought out for $180,000 and took her patients with her, Dr. Mazer was bought out and he still maintains his practice, and Dr. Tran was bought out and took her patients with her. I will be leaving over 25 years of good will and practice patients that have real value. I think this is essential to the viability of the continuation of the practice.

It has definite worth of approximately $75,000. I will personally correspond or talk to all the patients and urge them to continue care in our offices with the two remaining associates. If this cannot be agreed upon, then I will find a practice to make arrangements for my patients to be bought by them and then I will make full faith efforts to see [that my] patients go to them. “The $75,000 for good will and patients to be left in the practice would be $75,000 to be divided equally, $87,500 by Dr. Gould and Dr. Tyler.” A few days later, on March 12, Berry and Gould met at Berry’s request to discuss Berry’s departure. They reviewed the March 8 memorandum point by point.

Thereafter, Berry drafted a memorandum dated March 19, 1995, in which Berry memorialized the March 12 discussion. In part the memorandum reads: ¹⁴⁷ “That Dr. Berry will be the first and only partner who has ever left the practice and not taken his or her patients/goodwill (26 years) with him or her. That these patients/goodwill are a valued asset and that Dr. Berry will negotiate with Drs. Gould and Tyler to purchase of same.

That it makes excellent business sense and is extremely important that these patients and goodwill remain with the practice to ensure continuity and long-term success of the practice. If this option to purchase Dr. Berry’s patients/goodwill is not agreed upon, then Dr. Berry will take his patients/goodwill and negotiate for their purchase with other physicians.” Berry scheduled another meeting with Gould at which Berry asked Gould to sign this “Memorandum of Understanding.” Gould refused to sign and indicated instead that he wished to have his attorney review the memoranda and the Agreement. In a letter to Gould, dated April 25, 1995, Gould’s attorney, after describing the payments that the Agreement required the P.A. to make “if a stockholder becomes disabled,” opined that “[i]t is absolutely clear that all patients belong to the corporation, subject only to the desires of the patient. This was obviously made a part of the agreement so that the corporation would be able to make continued salary payments to the disabled person.” (Emphasis added).

The letter from counsel further stated as follows: “Furthermore, the corporation will thereafter acquire the stock of the disabled stockholder.... At this point, the corporation becomes the owner of all of the assets.... This, of course, includes ‘goodwill’ and it is difficult to see how, under this agreement, or any similar agreement that does not make a specific provision for the same, that [Berry] can claim that he is entitled to any additional payment for turning over patients to the corporation. Again, these patients are an asset of the corporation and belong to the corporation.... ¹⁴⁸ “Any disabled stockholder who, in any way, interferes with the corporation’s rights to the patients is guilty of a breach of contract which will cause severe financial loss to the corporation.

Any attempt ... to contact patients in a manner that would encourage them to leave the practice would be in violation of the agreement. This damage involves not only the loss of the fee for a particular professional service but also loss of future anticipated fees. In my opinion, this would involve the loss of thousands of dollars per patient and the corporation could bring an immediate suit for the total anticipated loss. “From the foregoing you can see that it is my opinion that this is a typical buy-sell agreement whereby the corporation acquires all of the assets of a disabled stockholder in the corporation. The three months of salary, disability payments and book value of the corporation include any goodwill factor and the terminating stockholder has no rights thereafter in any corporation asset.” (Emphasis added).

Gould gave Berry a copy of this letter. Berry then obtained counsel. On June 15, 1995, Berry advised Gould and the P.A. that Berry was not electing a disability retirement; rather, he took the position that he was voluntarily retiring from the P.A., thereby triggering the P.A.’s obligation to redeem Berry’s stock as of June 30, 1995. 1 In response, Gould took the position that Berry, once having elected a disability retirement, could not thereafter elect a voluntary retirement. Tyler never purchased Berry’s stock, and Tyler left the practice in December 1995.

Through counsel, the parties continued to negotiate for some time. Berry never attempted to market his patient list to some other obstetrical practice. Berry testified that he thought it was best for all concerned that he continue to negotiate with Gould and Tyler to have his patients, with his help, stay with their practice. Secondly, ¹⁴⁹ Berry said, “I was under a threat of litigation and if I would go out and try and make an arrangement with anyone else, I’d have to morally and honestly tell them that there is a potential litigation out there, and I felt that very few people would want to be involved in any litigation.” Thirdly, Berry said that he and his attorney believed that there would be some area of agreement with Gould.

No agreement, however, was ever reached. Gould and the PA. paid nothing to Berry, who in March 1996 instituted the action that is before us. It was tried non-jury. From Berry’s multi-count complaint those counts seeking a declaratory judgment and a recovery for unjust enrichment are pertinent to our review.

Preliminarily, the circuit court ruled under the declaratory judgment count that the Agreement did not make Berry’s election of disability retirement irrevocable and that Berry could voluntarily terminate his employment with the P.A., even though Berry was disabled. This ruling is not challenged in this Court. The circuit court also ruled that the Agreement did not impose an obligation on the P.A. to pay for goodwill, a ruling that, likewise, is not challenged in this Court. The circuit court, however, deferred for trial whether Berry could recover for goodwill, absent any express provision for payment in the Agreement.

After trial the circuit court netted out a number of debits against and credits to the defendants resulting in judgment in favor of Berry against Gould and the P.A. for $101,700. Included within the judgment were awards of $50,000 for the book value of the P.A. stock, $19,600 for unpaid management fees to Berry, and $12,500, representing the principal amount of a loan made by Berry to the P.A. that remained unpaid. These items, totaling $82,100, were made subject to prejudgment interest running from June 30, 1995. Credits to the defendants included $17,000 in fees paid by the P.A. to an obstetrician from another practice who helped cover for Berry during the latter’s pre-termination disability.

The $101,700 judgment in favor of Berry also included $37,500 for goodwill. That portion of the judgment is the only ¹⁵⁰ issue in the matter before us. The circuit court found that goodwill was, in fact, an asset of the practice. The court further found that in the negotiations “Gould’s question was not so much whether he had to pay for [goodwill]”; rather, “Gould thought that there was goodwill, and it was just a question that he did not think it should be that much,” referring to Berry’s valuation of $75,000 for his half of the goodwill for which Berry had proposed that Gould and Tyler each pay $37,500.

The circuit court said that Gould had asked for the letter from counsel because Gould was “having trouble over this whole thing” and that Gould “did not disavow that he was going to sue if [Berry] did something different.” The value of the total goodwill was found to be one-half of what Berry’s initial demand had been, and the court’s award of $37,500 to Berry represented fifty percent of goodwill of the practice which the court valued at $75,000. In this Court the sole basis advanced by Berry to sustain the $37,500 award for goodwill is that the petitioners were unjustly enriched. The petitioners appealed to the Court of Special Appeals which, in an unreported opinion, affirmed. On the issue before us the Court of Special Appeals stated that the trial judge, “as the trier of fact, was in the best position to evaluate the totality of the evidence on the subject of goodwill and to determine whether the parties intended for goodwill to be a marketable asset.” We granted the petition for certiorari filed by Gould and the P.A. Reflecting Berry’s exclusive reliance on unjust enrichment to support the judgment, the petitioners present the following questions: 1.

Did the Agreement, which provided that a withdrawing shareholder was to receive only the “book value” for stock, preclude Berry from recovering for goodwill? and 2. Even if not precluded by the express language of the Agreement, was Berry properly awarded compensation for goodwill under the theory of quantum meruit/unjust enrichment? ¹⁵¹ Because we shall answer the second question “no,” and find that Berry cannot recover for goodwill under a theory of unjust enrichment, we need not address the first question of whether the Agreement itself would otherwise preclude recovery for goodwill. In this Court Berry contends that the threat of suit contained in the letter of April 25, 1995, written to Gould by his attorney, was wrongful conduct on the part of the petitioners which prevented Berry’s sale of his goodwill and that, by this wrongful conduct, the P.A. and Gould are unjustly enriched to the extent of the value of Berry’s goodwill. In opposition, the petitioners argue that the residual benefit to the P.A. and to Gould of the goodwill from Berry’s practice was incidental to Berry’s having participated in practice through the P.A. for many years, for which Berry was paid, so that there is no unjust enrichment.

I Restatement (Second) of Restitution § 1 (Tentative Draft No. 1, 1983) (Tent. Restatement) states the general principle of unjust enrichment to be: “A person who receives a benefit by reason of an infringement of another person’s interest, or of loss suffered by the other, owes restitution to him in the manner and amount necessary to prevent unjust enrichment.” Id. at 8-9. This Court has defined unjust enrichment as constituting three elements: “1. A benefit conferred upon the defendant by the plaintiff; “ ‘2.

An appreciation or knowledge by the defendant of the benefit; and “ ‘3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value.’ ” ¹⁵² County Comm’rs v. J. Roland Dashiell & Sons, Inc., 358 Md. 83 , 95 n. 7, 747 A.2d 600 , 607 n. 7 (2000) (quoting Everhart v. Miles, 47 Md.App. 131, 136 , 422 A.2d 28, 31 (1980)). As one commentator has said: “The concept of unjust enrichment is notoriously difficult to define. It has on occasion been regarded as too indefinite and vague to be recognized as a general legal principle, with concern expressed that its adoption might undermine legal stability, confuse legal thinking, and jeopardize clear, systematic organization of the law.” D. Friedmann, Restitution of Benefits Obtained Through the Appropriation of Property or the Commission of a Wrong, 80 Colum.

L.Rev. 504, 504-05 (1980). The Tent. Restatement, recognizing that “[t]he situations that generate rights to restitution cannot be enumerated exhaustively,” identifies three characteristic circumstances. Id. § 1 cmt. c, at 10.

These are “(i) a voluntary transaction between the parties, not fully effective; (ii) wrongdoing directed against an interest of the claimant; and (iii) mistake.” Id. The work cautions, however, that “[i]n other situations restitution is required although none of these elements is present.” Id. at 10-11. Here, the tort that bears some resemblance to Berry’s theory of wrongdoing is “maliciously or wrongfully interfering with economic relationships in the absence of a breach of contract.” Natural Design, Inc. v. Rouse Co., 302 Md. 47, 69 , 485 A.2d 663, 674 (1984). The elements of the tort are “(1) intentional and wilful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting.” Id. at 71 , 485 A.2d at 675 (internal quotations and attribution omitted). “[Wjrongful or malicious interference with economic relations is interference by conduct that is independently wrongful or unlawful, quite apart from its effect on the ¹⁵³ plaintiffs business relationships.” Alexander & Alexander Inc. v. B. Dixon Evander & Assocs., Inc., 336 Md. 635, 657 , 650 A.2d 260, 271 (1994).

See also Macklin v. Robert Logan Assocs., 334 Md. 287, 307-08 , 639 A.2d 112, 122 (1994). To illustrate the types of wrongful or unlawful acts that could form the basis for malicious interference with