IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00514-SCT GULFPORT OB-GY

N, P.A.

v. DUKES, DUKES, KEATING & FANECA, P.A. AND JE’NELL B. BLUM

DATE OF JUDGMENT: 03/28/2018 TRIAL JUDGE: HON. JAMES D. BELL TRIAL COURT ATTORNEYS: DONALD C. DORNAN, JR. PHILIP W . THOMAS COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PHILIP W . THOMAS ATTORNEYS FOR APPELLEES: DONALD C. DORNAN, JR. STEPHANIE GEE BEAVER NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: AFFIRMED - 08/29/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. ISHEE, JUSTICE, FOR THE COURT: ¶1. In this legal-m alpract i c e c a s e , G u l f p o r t O B

- G Y N c ontends that Dukes, Dukes, Keating, and Faneca negligently draf ted a noncom

petition covenant f

or one of its phy sicians, leading to a substantial f

i nancial loss w hen the phy s ician l ef t to s tart her own practice. The circuit court granted sum m ary judgm ent to the def endants af

ter f inding G ulf

port O B-GYN had f ailed to produce suf

f i cient e vidence t hat it would have received a b etter deal but f or theattorney s’ alleged negligenc e, i.e., Gulf port OB-GYN f

a iled to prove that the alleged negligence caused it dam ages. W e agree and af f irm

. FACTS ¶2. G u l f

p ort OB-GYN i s a prof essional a ssociatio n o f p h y s i c i a n s s p e c i a l i z i n g i n obstetrical and gy

necological care. In 2008, it hired the law f irm Dukes, Dukes, Keating & Faneca, P .A., to assist in negotiating the hiring o f Dr. D o ni e l le Daigle and to prepare an

em ploy m ent agreem ent f

or her. The attorney prim arily assigned to the m atter was Ja’Nell Blum

. The negotiation s c ulm i nated in D r. Daigle’s hiring, subject to a n em ploy m ent
agreem ent prepared by Blum and executed by both principals. The em ploy m ent agreem ent contained a noncom

petition covenant w i t h s ubstantially the sam e language Gulf port OBGYN h ad accepted in previous e m ploy m e nt agreem ents prepared by another l aw f irm

. The

noncom petition covenant in Dr. Daigle’s agreem ent read, in relevant part,
Covenant Not To Com

pete.

a. Em

ploy ee a grees that f

or a p eriod three (3) y ears f ollowing term ination of her em pl o y me nt by the Em

ploy er, regardless of cause (subject to Section 7(d)), she will not engage in any m edical practice or perf orm any s e r v i c e d irectly or indirectly in com petition with the m edical p r a c t i ce of Em

ploy er, to include hospital staf f positions, o r have any inte r e s t i n any capacity whatsoever in any e nterprise that engages in such m edical practice within a r adius of f if t y ( 50) m iles f

r o m the Mem orial Hospital at Gulf port, without the e xpress written c o nsent of the Em ploy er. Further, during said three ( 3 ) y ear period, even if in com pliance with the above f

if ty ( 50) m ile r adius p rovision, E m ploy ee agrees not to directly solicit, which i ncludes, but is n ot lim i ted to, direct m a ilings, em a i l s , o r telephone calls, either by Em ploy ee or any other person or entity a cting on Em p loy ee’s behalf

, any patient who has been served by t he Em

ploy er within three (3) y ears prior to the d a t e her em ploy m ent with Em

plo y e r e nds, whether by t erm ination or resignation, or m

u tual agreem ent.

2The agreem ent provided that under certain c i r c u m s t a n c e s , e n fo r c e m e n t o f t

h e n o n c o m

p e t i t ion

covenant could be waived in exchange f or $150,000 in liquidated dam ages t o Gulf port OBGYN. ¶3. Five y ears later, Dr. Daigle and another p hy sician lef t Gulf port O B-GYN t o establish the i r o w n p ractice. They sued Gulf port OB-GYN f

or unpaid com

pensation and sought a declaratory

judgm ent that the n o ncom petition c o venant was u nenf orceable. The departing
p h y s i c i a n s u l t i m a t e l y p r e v a i led, with the chancery court holding the noncom peti t i o n c o v e n a

n t
not applicable t o D r. D aigle because she lef t voluntarily and was not “term i nated by the
Em ploy e r.” T he c hancery court decision was initially appe a l e d , b u t the d ispute was later settled through m ediation when Gulf port OB- G Y N a g r e e d to pay Dr. Daigle $425,000. Gulf port OB-GYN then f

iled this legal-m alpractice suit against Blum and her f irm

. ¶4. U l t i m a t e l y , the circuit court granted sum m ary judgm ent to the def endants a f te r fi n d i n g that Gulf port OB-GYN h ad f

ailed to produce evidence Dr. Daigle would h ave accepted the

em ploy m ent agreem ent with a m ore com prehe n s i v e n o n c o m

petition covenant. Gulf

port OBGYN has appealed f

rom that judgm ent.

STANDARD OF REVIEW ¶5. This Court reviews a g r ant or denial of sum m ary judgm ent de novo. Hardy v. Brock , 826 So. 2d 71, 74 (Miss. 2002). “W e view the evidence ‘in the light m ost f avorable to the party against whom the m otion has been m ade.’” Olier v. Bailey , 164 So. 3d 982, 986 (Miss. 2015) (quoting Double Quick, Inc. v. Moore , 73 So. 3d 1162, 1 165 (Miss. 2011)). On the

3other hand, the duty of care owed by

Blum and her f i rm t o their client i s o ne of law, which this Court reviews de novo. Donald v. Am oco P rod. Co. , 735 So. 2 d 161, 174 (Miss. 1999).
DISCUSSION ¶6. The l egal m alpractice claim here alleges n eg l i g e n c e a n d sounds in tort. The f our elem ents of a tort claim are “duty , breach o f duty , causation between t he breach o f the duty and the injury , and actual dam age.” Bullard v. Guardian Life Ins. Co of A m . , 941 So. 2d 812, 815 (Miss. 2 0 06). The dispute in today ’s case is o ver causation. Under Mississippi law, causation has two aspects: the alleged negligent conduct m ust b e s hown to have caused the injury , in f

act, and i t m

ust be shown to be the injury ’s l egal or proxim ate cause. Norm an v. A n d e r s o n Reg’l Med. Ctr. , 2 62 So. 3d 520, 529 (Miss. 2019). Both m ust be shown t o recover on a claim

of negligence. Id. ¶7. In a legal-m alpractice action f or a breach o f the d u t y o f c a r e , t he plaintif f “m ust establish p roxim ate cause by the so-called ‘trial-within-a-trial’ test.” Crist v. Loyacono , 65 So. 3d 837, 842 ( Miss. 2011). The plaintif f m ust show that but f

or her attorney ’s n egligence, she w ould have been successf ul in the underly ing action. Id. (citing Wilbourn v. Stennett,
Wilkinson & W

ard , 6 8 7 S o . 2d 1205, 1215 (Miss. 1996)). P roof o f causation is alway s required w hen prof

essional negligence i s alleged. Id. I n the transactional context, there m ay
not be a trial or “ca s e , ” b u t the sam e principles apply : causation “ turns on w hether the attorney ’s conduct was t he but-f or cause of the f

ailure to obtain a m ore f

a vorable r esult rather than success o r f

ailure in l itigation.” Frederick v. Wallerich , 907 N.W .2d 167, 173 (Minn. 2018) (em

phasis om itte d ) ; s e e also George S. Mahaf f ey , Jr., Cause-In-Fact and the

4Plaintiff’s Burden of Proof with Regard to Causation and Damages in Transactional Legal

Malpractice Matters: The N ecessity of

Demonstrating the Better Deal , 37 Suf f olk U.L. Rev. 393, 436-37 ( 20 0 4 )

. T h u s , “[ i]f the alleged error is the f ailure to obtain or advise of a provision, concession or benef it, the client m

ust prove that the other p a r ty would have agreed.” 3 Ronald E. Mallen a nd Jef f rey M. S m ith, Legal Ma l p r a c t i c e § 24.5 (updated 2019), W e stlaw. ¶8. Com m entators have noted that this rule is f ollowed by a substantial m ajority of courts. See John M. Palm e r i , F ranz Hardy , Nicole Salam ander Irby , Better Deal or No Deal:
Causation in Transactional Malpractice Cases , 42 Colo. Law. 51, 51 (Dec e mb e r 2 013) (citing, “f or exam ple,” V iner v. Sweet , 7 0 P

. 3 d 1 0 46 (Cal. 2003); Serafin v. Seith , 672 N.E.2d 3 02 (Ill. Ct. App. 1996); Blackhawk Building System s, Ltd. v. Aspelm eier, Fisch, Power, W arner and Engberg , 428 N.W .2d 288 (Iowa 1988); Jerry’s Enters., Inc. v. Larkin, Hoffm an, Daly & Lindgren, Ltd. , 711 N.W .2d 811 ( Minn. 2006); Froom v. Perel , 872 A.2d
1067 (N.J. Super. Ct. App. Div. 2005); Hazel and Thom as, P .C. v. Y avari , 465 S.E.2d 812 (Va. 1996); Cannata v. Wiener , 789 A.2d 936 (Vt. 2001)). ¶9. O n a p p eal, G ulf

port OB-GYN attem

pts to c ouch its cause o f action as a sep a r a t e species o f prof

essional m a lpra c t i c e , n egligent draf tsm a n ship, which it asserts is dif f erent f rom a transactional m alpractice claim in that me r e d raf ting does n ot have a “negotiation elem ent,” and t h u s t h e re is no requirem ent that the other party would have agreed to the dif f erent term s the plaintif

f now say s should have b een i ncluded i n th e c o n tract. For this proposition, it m ostly relies on O’Brien v. Alfonso , 240 So. 3d 471, 481 (Miss. Ct. A pp .

52018), and Kushner v. McLarty , 300 S.E.2d 531 (Ga. Ct. App. 1983). Both of these cases

are d istinguishable f

rom t his case in a critic a l r e s p e c t : t hey involved the a llegation of negligence in the preparation of an i n s trum ent to ef f ect a separate agreem ent between the parties. In O’Brien , the attorney was hired to prepare a deed to e f f ect a sale of real property the parties had already a greed to, but u s ed the wrong legal description of the property

. O’Brien , 240 So. 3d at 480. It i s n o t c l ear whether there actually was a preexisting
agreem ent in Kushner , but that was how the Georgia Court of A ppeals described the cause of action: “Although he i s not an insurer of the docum ents he d raf ts, the a ttorney m a y breach his d u t y t o w a rds h is client w hen, af ter undertaking to a ccom plish a specif

ic r esult,

. . . he then f ails to com

ply with prescribed statutory f o rm a lities o r to effectua t e the intent of the
p a r t i es .” Kushner , 300 S.E.2d at 532-33 (internal quotation m arks om itted) (quotin g Ber m a n v

. R u b i n , 227 S.E.2d 802, 805 (1976)). And the only issue b ef ore the Kushner

court was whether the client’s having read and e x ecuted t he negligently draf ted instrum ent precluded a cause of

action. Id. a t 533-34. Thus, in both O’Brien and Kushner there was

no dispute the other party to the transaction would have accepted dif f erent term s than those in the written instrum e nt—because they already had. So this dispute about t he l egal standard is illusory ; to be a “ negligent draf ting case,” as Gulf

port OB-GYN sty les it, Dr. Daigle would have h ad to h ave a lready agreed to a m ore com prehensive noncom

petition covenant than the

one she actually executed. Gulf port OB-GYN d oes argue t his, but, a s we shall explain, the record does not support its claim

. Instead, t he record shows that the contract prepared by the def endant law f

irm was the only

agreem ent between the parties.

6¶10. The evidence m ust be viewed i n the light m ost f avorable to Gulf

port OB-GYN as the

nonm o ving party to a sum m ary judgm ent m otion, and Gulf port OB-GYN is entitled to the benef it o f reasonable inf

erences f rom the evidence. B u ckel v . Chaney , 47 So. 3d 148, 156 (Miss. 2010). But the evidence here f a lls short even under that lenient standard. Gulf port OB-GYN relies on an a f

f idavit attorney Blum subm itted in the c h ancery case between Dr. Daigle and Gulf

port OB-GYN. 1 Blum ’s af f idavit described the emp l o y me n t negotiations with Conrad Mey er, Dr. Daigle’s a ttorney

. It stated that “Mey er r equested that the covenant
not t o com

pete b e elim inated,” but that “[ r]em o val o f t h e covenant was not agreed upon, althoug h r e v i s i ons were m ade.” The a f f idavit then goes on to note that, in an em ail 2 to Mey e r, B lum expressed her u nderstanding of the noncom p etition c o venant while discussing a related clause: The other shareholders do no t h a v e such an indem nif ication clause, and theref ore t hey will not agree to this. This indem n if ication by D r . Daigle is strictly in the event she ceases em ploy m ent and pay s the l iquidated dam a ges.

. . . All of the phy sicians have t his c lause, a n d i t o n l y r e l a tes t o an event of term ination/resignation f

ollowed by p ay

m ent of liquidated dam a g es in lieu of noncom petition. Blum f urther stated i n the a f

f idavit, “Based upon m y em ail of October 14, 2008, to Mr. Mey e r, I believe the intent was that the covenant not to c o m pete be ef f e c tive in the event of

term ination or resignation, and that the statem ent of ‘regardless of c ause’ in Paragraph 15(a) is evidence thereof

.”

1 The chancery

court ultim ately

f ound the noncom

petition covenant inapplicable to Dr. Daigle’s voluntary

exit.

2 T h e em ail itself

is n o t in th e reco rd , b u t p art o f it is q u o ted i n B lu m ’s af f id av it. 7¶11. Gulf port OB-GYN argues that because nei t h e r D r . Daigle nor her a ttorney , Mey er, disavowed B l u m’ s r epresentations about the contract, they m ust have agreed with Blum ’s interpretation. This argum ent is unconvincing; Mey er, a s a n attorney , s urely knew the words used in the contract i tself controlled, not a tangential recitation of the d raf ter’s unders tanding. See, e.g. , C

lark v. Neese , 262 So. 3d 1117, 1126 (Miss. 2019). ¶12. Blum ’s af

f idavit f ails t o establish what Gulf port OB-GYN claim s it does, that there

was an agreem ent between the parties to execute a noncom petition covenant on term s other than those used in the contract. In f act, the record a f

f i rm atively suggests the opposite, that the proposed em

ploy m e nt contrac t was tendered to Dr. Daigle’s attorney early in the negotiations and that i t, in actual f act, constituted the agreem ent between the parties. Every i t eration of the noncom

petition covenant contained the “f ollowing term ination of h e r

em ploy m ent b y the Em

ploy er” language Gulf

p ort OB-GYN com

plains w a s negligently draf ted. ¶13. Gulf

port OB-GYN also asserts i t would not have h ired D r. Daigle had s h e ref used a

m ore com

prehensive n oncom

petition covenant

. W hile i t is true this would have allowed Gulf port O B

- G Y

N t o “avoid[ ] its dam ages b ecause it would have never e m ploy ed Daigle and litigated against her,” a s G u lf port OB-GYN argues, G ulf port OB-GYN also received the benef it o f Dr. Daigle’s services. There has b een n o showing this alleged l o s s o f p o s i tion caused dam ages to Gulf

port OB-GYN. ¶14. Finally , Gulf

p ort OB-GYN cites Tem p l e H o y n e Buell Foundation v. Holland &
Hart , 8 51 P.2d 192, 198-99 (Colo. App. 1992), and First Interstate Bank o f Denver, N.A.

8v. Berenbaum , 872 P.2d 1 297, 1300 (Colo. Ap p . 1 9 9 3 ) , in which panels o f the Colorado

Court of Appeals held that a claim of legal m alpractice could arise when an attorney draf ts

a d ocum ent with am

biguous language if “reasonably prudent attorney s s hould have f oreseen
t h a t t h e l i kely result of its i nclusion would be litigation.” W e are a ware of no parallel holding in Mississippi l aw, and Gulf port OB-GYN of

f ers no com

pelling argum ent in f

avor of this m inority view that w ould essentially require attorney s t o prepare litigation-proof d o c u me n t s . Indeed, Mallen and Sm ith’s treatise on legal m alpractice devotes an entire section t o cautioning against adopting such a rule, which, in those scholars’ view, would excessively burden a ttorney s and lead to exce s s i v e caution and worse, not better, legal services f or clients. See 1 Ronald E. Mallen and J ef f r ey M. Sm ith, Legal Malpractice § 8:23 (updated 2 0 1 9 ) ( s pecif

ically discussing Berenbaum , 872 P.2d at 1300), W estlaw. W e decline to adopt such a rule.
CONCLUSION ¶15. Causation in a negligence-based legal-m a lpractice claim f o r a breach of the duty of

care requires proof that, but f or the attorney ’s negligence, a m ore f avorable result would have been obtained. Thus, when the com plaint is that t he attorney should have proposed dif f erent

or additional term s to a transaction, the m alpractice pla i n t if f m ust show t hat such term s would have been accepted by the other party or that the client would n ot have entered into the deal and w o u l d h a v e b e en b etter of f f or doing so. Absent such proof t here exists no genuine issue o f m aterial f act a s to causation of dam ages, and sum m ary judgm ent is appropriate.

9¶16. AFFIRMED.

RANDOLPH, C.J., KING, P.J., MAX WELL AND BEAM, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., COLEMAN AND CHAMBERLIN, JJ. GRIFFIS, JUSTICE, DISSENTING: ¶17. Because a g e nuine issue of m aterial f act exists as to causation, the circuit court erred in granting sum m ary j udgm ent against Gulf port OB-GYN. Theref

ore, I respectf

ully dissent. ¶18. Gulf

port OB-GYN hired D u k e s , Dukes, Keating & Faneca, P .A., t o prepare an

e m p l o y m e n t a g r e e m e n t , i n c l u d i ng a noncom petition covenant, r egardi n g D r . D o n i e l l e D a i g l e . The noncom

petition covenant in Dr. Daigle’s em ploy m ent agreem ent stated as f ollows:
Covenant Not To Com

pete.

a. Em

ploy ee a grees that f

or a p eriod three (3) y ears f ollowing term ination of h er e m p loy m ent by the Employer , regardless of cause ( subject to Section 7(d)), she will not engage in any m edical practice or perf orm any s ervice directly or in d i r e c t l y in com petition with the m edical pr a c t i c e of Em

ploy er, to include hospital staf f positions, o r have any i n t erest in any c apacity whatsoever in a ny enterprise that enga g e s i n such m edical p r a c t ice within a radius of f if ty (50) m iles f

rom the Mem orial Hospital at Gulf port, without the express written consent of the Em ploy er. Further, during sa i d three ( 3) y ear period, even if in com pliance with the above f

if ty ( 50) m ile radius p rovision, E m ploy ee agrees not to directly solicit, which includes, but is n ot lim i ted to, direct m a iling, em ails, o r telephone calls, either by Em ploy ee or any other person or entity a cting on Em ploy e e’s behalf

, any patient who has been served by t he Em

ploy er with i n three (3) y ears prior to the date her em ploy m ent with Em

ploy er ends, wheth e r b y t erm ination or resignation, or m

u tual agreem ent. (Em phasis added.) ¶19. G u l f

p o rt OB-GYN contends t hat Dukes, D ukes, Keating & F aneca and attorney Je’Nell B lum n e gligently draf ted the noncom

petition covenant. Gulf

port OB-GYN argues

1 0that Blum ’s inclusion of the phrase “term in a t i o n of [ Dr. Daigle’s] e m ploy m ent by the Employer ” was n egligent in that it allowed Dr. D aigle to com pete with the clinic in the event of her resignation. ¶20. To recover f

o r l egal m alpractice, a plaintif f m ust prove f

our elem ents : ( 1 ) t he existence of an attorney -cl i e n t relationship, (2) acts constituting negligence, ( 3) that the negligent acts proxim ately caused the injury , a n d (4) dam ages. Lane v. Oustalet , 873 So. 2d 92, 98-99 (Miss. 2004). It is undisputed that an a ttorney -client relationship existed between Dukes, Dukes, Keating & Faneca, Blum , and Gulf port OB-GYN. A d d i t i o n a lly , Gulf port OB-GYN’s expert witness opined as f ollows: [ T]he applicable standard of care required

. . . Blum

to draf t the noncom

pete provision

. . . to apply irrespective o f the circum s tances of Dr. Daigle’s separation f

rom em ploy m e nt at G ulf

port OB-GYN

. . . . I t is m y opinion t hat

. . . Blum breached the applicable standard of c a re b y draf ting [ the noncom

pete provision] to a

pply only upon “term ination of

[ Dr. Daigle’s] em

p loy m ent by the Em ploy er.” This poorly draf ted l anguage excluded cove r a ge when Gulf port OB-GYN m o st expected it - upon Dr. Daigle’s voluntary term ination. ¶21. “In order f

or an a ct of negligence to proxim ately cause the dam age, the

. . . negligence [ m u st be] both the cause in f act and [ the] legal cause of the dam age.” Glover e x rel. Glover

v. Jackson State University , 968 So. 2d 1267, 1277 ( Miss. 2007) (citing Dan B

. Dobbs, The
Law of T orts § 1 80 (2000)). “A def endant’s negligence is the c a use in f act of a plaintif

f ’s dam age where the f

act f inder c oncludes that, b ut f or the def endant’s negligence, the injury would not have occurred.” Id. (f ootnote om itted). In a negligence-based m alpractice action, a plaintif f m ust show proxim ate cause by the “so-called ‘trial-within-a-trial’ test.” Crist v. Loyacono , 65 So. 3d 837, 842 (Miss. 2 011). In other words, “ t he c l ient ‘m ust s how that, but

1 1f

or [ his] attorney ’s negligence, he would have been s uccessf ul in t he p rosecution or def ense of the underly ing action.’” Id. ( quoting Wilbourn v. Stennett, W ilkinson & Ward , 687 So. 2d 1205, 1215 (Miss. 1996)). L egal cause m eans that “ t he dam a ges m ust

. . . [ be] a reasonably f

oreseeable consequence of the def endant’s negligence.” Glover , 968 So. 2d at 1277. ¶22. In g ranting sum m ary judgm ent, the circuit court f o und that it was “necessary to hear

t h at but f or [ Blum ’s draf

ting] error there would have been a n enf orceable covena n t n o t t o

com pete.” The circuit court reasoned that, “[ a]bsent t hat necessary elem ent

. . . , [ Gulf port OB-GYN] [ could not] go f orward

. . . .” But this case dif f ers f rom a traditional trial-withina-trial case in w hich a plaintif f m ust s h o w t hat b ut f

or his attorney ’s negligence, the underly ing case would have been successf ul. ¶23. In a t raditional legal-m alpractice case, the attorney ’s n egligence is n ot a f actor in the underly ing d ispute. Here, Blum ’s negligence was a f actor in the underly ing dispute. Indeed, Blum ’s negligent draf

ting a llowed Dr. Daigle to sue Gulf p ort OB-GYN and to argue that the

covenant not to com

pete did not apply

to her resignation and was theref ore unenf orceable. ¶24. In Crist , “[ s ]ixteen f orm er clients s ued two lawy ers w ho had represented them in

m ass-tort litigation, claim ing the lawy ers had breached their f iduciary duty

by prem aturely settling their cases in order to m a xim i ze a ttorney f ees.” Crist , 65 So. 3d at 840. T his Court noted that “we have never required a legal-m alpractice plaintif f alleging b reach of f

iduciary duty to e stablish that, but f or the breach, the plaintif

f would have won the underly ing case.”
Id. at 842. The Court stated,

1 2Because attorney s are a f f orded a d egree of prof

e ssional autonom y , proof of success in the underly ing case is a n appropriate test f o r proxim ate cause in a negligence-ba s e d action because it ensures that attorney s are only h eld prof essiona l l y l i a b le where their f ailures to adhere to the standard of care actually im

pacted the plaintif

f ’s interests in the case. But an attorney ’s breach of his f id u c i a r y d

uties to his client m ay cause i njury to the client entirely separate f rom the m erits of

the underly ing case.

. . . . The f iduciary -duty claim s . . . survive, e ven absent a showing that the plaintif f s would have won the underly ing . . . lawsuit . . . .
Id. at 843. ¶25. Although Gulf

port OB-GYN did n ot allege a breach of f iduciary duty , it did allege that Blum ’s breach, i.e., her negligent draf ting, “ cause[ d] injury to the client entirely separate f rom the m erits of t he underly ing cas e . ” I d . Gulf port OB-GYN sued f

or dam ages caused by Dr. Daigle’s lawsuit against i t

. G u l f p ort OB-GYN’s attorney s’ f e es resulted f

rom its litigation with Dr. Daigle. D r. Jam es Gaddy , with Gulf port OB-GYN, t estif

ied that Gulf

port O B

- G Y N would n ot have had to def end t he l awsuit f

iled by Dr. Daigle or h ad a judgm e n t entered against it if Blum had properly draf t ed the agreem ent. Gulf

port OB-GYN’s expert

w i tness agreed. T hus, it a ppears that t he traditional t rial-within-a-trial a naly sis d o e s n o t apply t o t h i s n e g l i g e n t

- draf

ting legal-m alpractice case. In other words, because Gulf port OBGYN presented evidence of injury entirely separate f rom the m erits of the underly ing case, its claim s should sur v i v e , even a bsent a showing t hat it would h ave won the underly ing lawsuit. ¶26. However, even if the trial-within-a-trial a naly sis does apply , G ulf port OB-GYN has presented suf

f icient evidence to show that, but f or Blum ’ s error, there would have been an

1 3enf

orceable covenant not to com pete. Dukes, Dukes, Keating & Faneca a n d B lum assert that in order to show cause i n f act and m eet the but f

or test f or proxim ate causation, Gulf port OBGYN m u st show that Dr. Daigle w ould h ave accepted the noncom petition covenant without the negligent l anguage at issue. In other w ords, G ulf p ort OB-GYN m

ust show that Dr. Daigle w ould have accepted the n o ncom petition covenant without the inclusion o f the phrase “f ollowing term ination of

her em ploy m ent by the Employer .” I respectf ully disagree. ¶27. In support of their argum ent, D ukes, D u kes, Keating & Faneca and Blum rely on Harrison v. Taft, Stettinius & Hollister, L.L.P. , 3 8 1 F

. Appx. 432 (5th Cir. 2010). In Harrison , the court f

ound that “ [ w ]here

. . . legal m a l practice is alleged in connection with

a negotiation of contractual term s, a plaintif f m ust e stab l i s h that the counter-party would have agreed to the additional or changed term (s) in the contract a nd that t he inclusion of the

term (s) would h ave put th e p l a intif f in a better p osition.” Id. at 435. But H arrison is distinguishable f

rom this case. ¶28. First, Harrison is an unpublished decision with no precedential value. Id. at 433 f n **. A dditionally , Harrison applied Texas law. Id. at 4 34. Moreover, H a r r i s o n d i d not involve negligent d

raf tsm anship, nor was there a n y e v i d e n c e t

h a t t h e purchase agreem ent was contrary to the parties’ intent. Indeed, the plaintif f s did not allege that their lawy ers negligently draf

ted the purchase agreem ent. Instead, in Harrison , the plaintif f s a l leged that their a t torney s should have negotiated a better deal. Id. at 435-36. Plaintif f s’ expert witness,
“on s everal occasions

. . . , u n e q u ivocally disclaim ed opining on any issues of proxim ate causation.” Id. at 435.

1 4¶29. Unlike in H arrison , this case does not i nvolve legal m alpractice in connection with

a negotiation of contractual term s. The parties’ negotiation of t he term s of Dr. Daigle’s

em ploy m ent agreem ent is not a t issue. I nstead, this case involves legal m a l p r a c t i ce in connection with negligent draf tsm anship. Gulf

port OB-GYN alleges that B lum negligently draf ted the em

ploy m ent a greem e nt a n d f

a i l ed t o adequately include her client’s intent regarding the negotiated term s of Dr. Daigle’s e m ploy m e nt. G ul f

port OB-GYN’s expert opined that B lum ’s negligence proxim ately c a used d am ages to the clinic. Harrison is sim ply inapplicable. ¶30. D u k e s, Dukes, Keating & Faneca and Blum assert that “without evidence of [ D r . Daigle’s] agreem e nt t o the alternate language, a jury is lef t t o speculate on causation.” But they are asking this Court to speculate on what Dr. Daigle would have done. This is not the standard. W e do n ot know what Dr. Daig l e w o u l d have done had the noncom petition

covenant been p roperly draf ted to require her r esignation as well as her term ination f rom

em ploy m ent. But what we do k

now is that Dr. Daigle signed the em ploy m ent agreem ent and accepted the noncom

petition c ovenant as negligently draf ted by Blum

. It is this signed and accepted agreem ent that we m ust c onsider. C onsidering t hat signed a greem ent, it i s apparent that, b u t f o r Blum ’s draf

ting error, i.e., the inclusion of the phrase “by t he Em p loy er,” the

noncom petitio n c o v e n a

n t w o uld have applied to b oth Dr. D aigle’s resignation or term ination. Thus, but f

or Blum ’s negligent draf

ting, the signed and accepted noncom petition covenant would have been enf

orceable against Dr. Daigle.

1 5¶31. Had B lum p roperly draf ted the covenant not to com pete, one of two t hings would have occurred: (1) Dr. D aigle would have ref used to sign t he agreem e nt, in which case Gulf port OB-GYN would have avoided its dam ages because it would not have em p loy ed D r. Daigle, 3

or (2) Dr. Daigle would have signed t he agreem ent, in which case she w o u l d be unable to
argue that she could com pete with Gulf

port OB-GYN upon her r e s i g nation. Either way , Gulf port O B-GYN’s d a m ages were f oreseeable and avoidable. In m y opinion, this satisf

ies the causation elem ent of negligence. ¶32. I do n ot f

ind that this case f

alls within the traditional trial-within-a-trial analy sis f or
purposes of proving cause in f act. Nevertheless, the record shows that suf f icient evidence

w a s p r e s ented that “but f or [ B lum ’s draf

ting] error there would have been an enf orceabl e
covenant n ot to com

pete.” As a result, I would reverse the circuit court’s entry of sum m ary judgm ent and rem and this m atter f or trial.
K I T C H E N S , P . J . , C O L E M A N A N D C H A M B E R L I N , J J . , J O I N T H I S O P I N I O N .

3 H ad G u lf

p o rt O B -G Y N n o t em

p lo y ed D r. D aig le, D r. D aig le w o u ld n o t h av e resig n ed a n d su e d G u lf

p o rt O B -G Y N b ased o n th e co v en an t n o t to co m p ete, an d G u lf

p o rt O B -G Y N w o u ld n o t h av e h ad to p ay $ 4 2 5 ,0 0 0 to settle h er claim n o r w o u ld it h a v e in cu rred m o re th an $ 1 1 5 ,0 0 0 in atto rn e y s’ f ees d e f en d in g th e case. 1 6