DR. C. BRENT HAEBERLE v. DRS. MCCALL, CURRENS, TOPOR & THOMPSON, P.S.C.
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RENDERED: APRIL 20, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002265-MR
DR. C. BRENT HAEBERLE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 03-CI-005394
DRS. MCCALL, CURRENS, TOPOR & THOMPSON, P.S.C.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; HENRY,1 SENIOR JUDGE.
MOORE, JUDGE: Appellant Dr. C. Brent Haeberle appeals the Jefferson Circuit Court's
judgment directing a verdict in favor of his former employer Appellee McCall, Currens,
Topor and Thompson, P.S.C. ("the P.S.C.") on his counter claim he also appeals a jury
verdict in favor of the P.S.C. on its claim to recover overpayments made to Dr. Haeberle.
Upon review, we affirm.
1
Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
I. FACTUAL BACKGROUND
Dr. Haeberle, a dentist specializing in prosthodontics, entered into a written
employment contract with the P.S.C., which was engaged in the practice of dentistry. Dr.
Haeberle worked for the P.S.C. between April 2000 and May 2003.
The P.S.C. had a compensation method whereby each dentist, employed by
the P.S.C., received 40% of the income he generated and the remaining 60% went to the
P.S.C. Laboratory bills were the responsibility of the individual dentist and were not part
of the P.S.C.'s 60% split. This method of compensation was orally explained to Dr.
Haeberle when he was hired; and he began to see patients on April 10, 2000. Later, this
agreement was memorialized in a three-year written employment agreement which was
executed between the parties on May 12, 2000.
In relevant part, the agreement provides as follows:
Base Compensation. The PSC shall pay the Employee as
compensation for the services provided under this Agreement
the base compensation set forth on Schedule A to this
Agreement (the “Base Amount”). The Employee and the
PSC may adjust the Employee's Base Amount by mutual
agreement by amending Schedule A.
Early Termination With Notice. Subject to earlier
termination upon mutual agreement by the parties in their sole
discretion, Employee may terminate his employment
relationship with the PSC for any reason upon 120 days prior
written notice to the PSC.
Effect of Termination. The PSC's obligations to pay any
compensation to the Employee or to his estate or heirs shall
cease upon any termination of the Employee's employment
relationship with the PSC.
Schedule A To Employment Agreement
The Employee's compensation shall be the amount
equal to 40% of all fees paid to the PSC by patients, or by
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third party payors on behalf of such patients, for dental
services performed by the Employee. The Employee shall
also receive an amount equal to 40% of all fees paid to the
PSC by patients, or by third party payors on behalf of such
patients, for dental services performed by hygienists and other
personnel of the PSC other than licensed dentists with respect
to all patients the source of which is directly traceable to the
efforts of the Employee. The PSC's Board of Directors shall
make all determinations with respect to the source of any
patient which is in dispute among the dentists employed by
the PSC.
Despite the fact that the employment agreement is silent on the payment of
laboratory fees, Dr. Haeberle paid his own fees for the year 2000 out of his 40%
compensation -- consistent with the parties' oral agreement.
Beginning in 2001, the P.S.C. made an accounting change and generated a
formula for Dr. Haeberle's salary based on his projected earnings. At this time, the
P.S.C. began paying the laboratory fees rather than the dentists.
Under this method, an additional ten percent was subtracted from Dr.
Haeberle's gross receipts to pay for his laboratory fees. The reason for this change was to
allow the P.S.C. to begin paying for the laboratory fees as ordinary and necessary
business expenses which could be deducted for the purposes of the P.S.C.'s tax liability.
As a matter of practice of the industry, there is generally a delay between
the performance of dental work and the receipt of payment, especially when insurance is
involved. Consequently, it became necessary to arrive at a rough estimate of the
laboratory bills to maintain a regular semi-monthly flow of income to each dentist. This
agreement was explained by Dr. Douglas H. McCall2 at trial as follows:
2
Dr. McCall is an owner of the P.S.C.
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We took several months out of the year 2000, we
multiplied it by four, and that would figure into what we were
anticipating the gross receipts would be, and then from the
gross receipts we took 40 percent, we took out 10 percent to
try to keep from getting, doing overpayments with the
laboratory bills, and then wrote him a check for the rest.
Using this formula, the P.S.C. arrived at a semi-monthly income for Dr. Haeberle of
$4,701.50, which it maintains was exclusive of the laboratory bills. Because the
laboratory bills were estimated at ten percent, this percentage was subtracted from Dr.
Haeberle's semi-monthly income, thereby fixing his salary draw at $4,231.35 starting in
January of 2001.
Not long after the new compensations arrangement started, the P.S.C.
complained to Dr. Haeberle that he was being overpaid under the new salary calculation
method. According to the P.S.C. during the first quarter of 2001, Dr. Haeberle had
received an overpayment of $7,475.95. Apparently, Dr. Haeberle generated higher
laboratory fees and did not bring in enough business to cover his semi-monthly draw of
$4,231.35.
According to the P.S.C.'s calculations for the year of 2001, Dr. Haeberle
was overpaid by $41,284.11. Dr. Haeberle assumed the P.S.C. was paying his laboratory
fees.
By mid-2002, the P.S.C.'s accounting showed that Dr. Haeberle had been
overpaid by $50,639.58. The P.S.C. maintains that at that time, Dr. McCall told Dr.
Haeberle that the P.S.C. was going to stop paying his laboratory bills and that the bills
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would henceforth be Dr. Haeberle's own responsibility. Dr. Haeberle contends, to the
contrary, that the issue of payment of laboratory bills did not come up until the end of his
tenure. However, Dr. Haeberle did pay all of his laboratory bills directly to the
laboratories from this point forward.
Dr. Haeberle's employment contract ended on May 12, 2003, but was
renewed. However, Dr. Haeberle resigned shortly thereafter.
Dr. McCall, on behalf of the P.S.C., approached Dr. Haeberle about the
overpayments, which by this time were $59,948.50, according to the P.S.C.'s
calculations. This overpayment includes $46,042.97 for laboratory fees and $13,905.53
for overpayment of compensation which exceeded Dr. Haeberle's entitlement irrespective
of laboratory fees.
Due to the delay in receiving payment for services rendered, which is
typical in the professional services industry, Dr. Haeberle maintains that he had
performed work on patients for whom the P.S.C. had not yet paid him for his services.
By his calculations, Dr. Haeberle estimates that approximately $20,000 was received by
the P.S.C. for work performed by Dr. Haeberle prior to his leaving. Dr. Haeberle
maintains in his counter claim that he is entitled to receive this payment for services
rendered pursuant to the employment agreement, which provides in relevant part:
Sole Source of Payment: The payment of the Employee's
compensation is the obligation of the PSC, and the Employee
agrees that in no event, including but not limited to any nonpayment by the PSC or the insolvency of the PSC, shall the
Employee bill, charge, collect, seek compensation or
remuneration from, or have any recourse against any patient,
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insurance company, managed care plan, or other payor or any
sort, public or private. This provision shall survive any
termination or expiration of this agreement and is intended to
benefit such patients and payors. (Employment Agreement,
Exhibit B, pg. 4, Clause 3(1)).
The P.S.C. refused to pay any of these fees to Dr. Haeberle relying on
Provision 6(c) of the agreement which states that “[t]he P.S.C.'s obligations to pay any
compensation to the Employee or to his estate or heirs shall cease upon any termination
of the Employee's employment relationship with the P.S.C.”
The P.S.C. brought suit in Jefferson Circuit Court to recover the
overpayments it alleges that Dr. Haeberle owed it. Dr. Haeberle filed a counter claim for
$20,728.22, which represented the fees he claimed the P.S.C. owed him for work he
performed before his resignation, but for which payment was not received until after his
departure.
The case was tried before a jury, and the jury rendered a verdict in favor of
the P.S.C. Specifically, the jury determined that Dr. Haeberle owed the P.S.C.
$46,042.97 in unpaid laboratory fees, as well as $13,905.53, which was the amount of
salary that Dr. Haeberle was overpaid by the P.S.C. Thus, the jury found that Dr.
Haeberle owed a total of $59,948.50 to the P.S.C. Additionally, the trial court entered a
directed verdict against Dr. Haeberle on his counter claim concerning the amount that he
claimed he was owed by the P.S.C. for the work he performed, but for which payment
had not been received, prior to his resignation.
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Dr. Haeberle now appeals, raising the following claims: (1) The trial court
erred when it allowed the P.S.C. to present evidence of records, including laboratory fees,
that the P.S.C. claimed it had paid on Dr. Haeberle's behalf; and (2) the trial court erred
when it sustained the P.S.C.'s motion for a directed verdict on the amount of $20,728.22,
for work performed by Dr. Haeberle.
1. CLAIM CONCERNING THE ADMISSION OF RECORD
EVIDENCE AT TRIAL
A. STANDARD OF REVIEW
Dr. Haeberle first claims that the trial court erred when it allowed the
P.S.C. to present evidence of records, including laboratory fees, that the P.S.C. claimed it
had paid on his behalf. We review a trial court's evidentiary rulings for an abuse of
discretion. See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.
2000). “[T]he test for abuse of discretion is whether the trial judge's decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Miller v.
Eldridge, 146 S.W.3d 909, 914 (Ky. 2004).
B. ANALYSIS OF CLAIM
1. Business record exception
During trial, the P.S.C. sought to introduce evidence of the quarterly reports
indicating the total amount of Dr. Haeberle's billings, the amount of salary that he should
have received based on those billings, the amount of salary that he actually received, the
amount of laboratory bills that the P.S.C. paid on his behalf, and the total amount that Dr.
Haeberle was overpaid for the quarter. Dr. Haeberle's counsel objected at trial to the
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introduction of the quarterly reports, arguing that they were inadmissible hearsay
evidence, pursuant to KRE 802,3 because they were summaries that had been prepared by
a former employee of the P.S.C. who did not testify at trial. The P.S.C.'s counsel asserted
that the quarterly reports fell within the business records exception to the hearsay rule,
KRE 803(6).4 The trial court overruled the objection of Dr. Haeberle's counsel. Dr.
Haeberle now appeals the trial court's decision overruling the objection.
"Business records . . . must be authenticated by a live foundation witness or
meet one of the foundation exceptions listed in KRE 803(6), namely . . . KRE 902(11)."
Matthews v. Commonwealth, 163 S.W.3d 11, 27 (Ky. 2005).
KRE 902(11)(A) states that business records fall under the
self-authentication exception so long as there is no indication
of a lack of trustworthiness in the sources of the information
and the custodian of the record certifies that the record:
(i) Was made, at or near the time of the occurrence of
the matters set forth, by (or from information transmitted by)
a person with knowledge of those matters;
3
KRE 802 provides: "Hearsay is not admissible except as provided by these rules or by rules of
the Supreme Court of Kentucky."
4
KRE 803 provides:
The following are not excluded by the hearsay rules, even though
the declarant is available as a witness: . . . (6) A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "business"
as used in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit. . . .
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(ii) Is kept in the course of the regularly conducted
activity; and
(iii) Was made by the regularly conducted activity as a
regular practice.
Id. (discussing KRE 902(11)(A)).
During trial, Dr. McCall, who is one of the owners of the P.S.C., laid a
foundation for the admission of the quarterly reports. Dr. McCall testified that the
quarterly report was prepared by the P.S.C.'s bookkeeper. The bookkeeper prepared this
report for every dentist working at the P.S.C. The computer software that was used to
produce the report was called "Peachtree," and Dr. McCall understood how Peachtree
operated because he was trained on how to use the software at the same time that the
bookkeeper received Peachtree training.
Dr. McCall testified that he knew the sources for the numbers that were
reflected in the quarterly reports. Specifically, he attested that a transmittal form was
provided to each dentist with each patient's chart. The dentist would mark on each form
the code reflecting the types of evaluations and procedures that were performed on the
patient. The code was then provided to the P.S.C.'s accounts manager, and she entered it
into her journal which generated a day sheet. The accounts manager provided the
information to the bookkeeper every day that the bookkeeper was at work, i.e., two days
per week. At the end of the month, a monthly summary was produced by the accounts
manager and given to the bookkeeper. The bookkeeper entered the information from the
monthly summary into the Peachtree computer program and generated the quarterly
reports from that information. Id. at p. 170. Dr. McCall attested that he discussed the
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first quarterly report with Dr. Haeberle and explained to him how his salary would be
calculated as reflected in the report and that ten percent would be withheld as an estimate
of the amount of laboratory fees that the P.S.C. would pay for Dr. Haeberle. After the
report was explained to him, Dr. Haeberle did not have any questions or complaints
concerning it.
Dr. McCall testified that the quarterly reports were a regular part of the
P.S.C.'s business activity. He further attested that the bookkeeper prepared the initial
quarterly report within a few days of the end of the quarter.5 In addition to the amount of
billings that a particular dentist had during the month, the amount of the dentist's
laboratory bills was reflected on the quarterly report.
Dr. Haeberle contends that the quarterly reports should not have been
admitted as evidence under the business records exception because Dr. McCall was not
the person who created the reports and he was not the custodian of the reports.
Therefore, Dr. Haeberle argues that Dr. McCall was not the proper person to lay the
foundation for those reports to be admitted.
However, Dr. Haeberle's argument is misplaced. Kentucky Rule of
Evidence 803(6) provides that a report may be admitted into evidence under the business
records exception to the hearsay rule if "the custodian or other qualified witness" testifies
that the report was produced in the regular course of business. "A qualified witness is
one who has sufficient personal knowledge to explain how the offered record was made
5
The parties did not submit any evidence concerning when the remainder of Dr. Haeberle's
quarterly reports were prepared.
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and kept, and who can testify that the record comports with the business record
exemption to the hearsay rule." Robert G. Lawson, The Kentucky Evidence Law
Handbook 682 (4th ed., Matthew Bender & Co. 2003) (internal quotation marks and
citations omitted).
Dr. McCall satisfied this "qualified witness" standard, as he clearly had an
in-depth understanding of how the quarterly reports were created and kept, as discussed
supra. Dr. McCall testified that the information in the quarterly reports was based on the
information from the transmittal sheets that were completed by the dentists. He also
testified concerning the process by which the quarterly reports were created. Dr. McCall
attested that the quarterly reports were generated near the time of the matters set forth in
the reports and by the bookkeeper who had knowledge of the matters contained therein;
that the reports were kept in the course of the regularly conducted business; and that they
were generated as a regular practice. See KRE 902(11)(A). Thus, Dr. McCall was a
"qualified witness."
Furthermore, there was no lack of trustworthiness regarding the sources of
the information contained in the reports. Dr. McCall testified that each dentist was
responsible for reviewing his or her quarterly reports and for notifying the bookkeeper of
any errors therein. There was one error in one of Dr. Haeberle's reports that he had
brought to the attention of the P.S.C., and that error was corrected by the following day.
Because that error was corrected, Dr. Haeberle never reported other errors, and he did not
present evidence at trial showing that there were other errors to his knowledge; there was
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no indication that the quarterly reports possessed a "lack of trustworthiness in the sources
of the information." KRE 902(11)(A). Therefore, the trial court did not abuse its
discretion when it admitted the quarterly reports as evidence under the business records
exception to the hearsay rule. See generally Goodyear Tire & Rubber Co., 11 S.W.3d at
577.
2. Best evidence rule
Dr. Haeberle also asserts that, pursuant to the best evidence rule, the P.S.C.
should have been required to produce the individual laboratory bills, rather than the
summaries reflecting the total amount of laboratory bills received during a particular time
period. The "best evidence rule" provides that if a party intends to "prove the contents of
a writing, [the party] must produce the writing itself." Hall v. Commonwealth, 817
S.W.2d 228, 230 (Ky. 1991) (internal quotation marks and citation omitted), overruled
on other grounds by Commonwealth v. Ramsey, 920 S.W.2d 526 (Ky. 1996). Under this
rule, because the P.S.C. sought to prove the contents of the laboratory summaries, the
P.S.C. was required to produce the summaries themselves, and it did so, as part of the
quarterly reports.
Further, KRE 1006 provides as follows:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court
may be presented in the form of a chart, summary, or
calculation. A party intending to use such a summary must
give timely written notice of his intention to use the summary,
proof of which shall be filed with the court. The originals, or
duplicates, shall be made available for examination or
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copying, or both, by other parties at reasonable time and
place. The court may order that they be produced in court.
On appeal, Dr. Haeberle does not allege that the P.S.C. violated KRE 1006
by failing to give timely notice of its intent to use the summary, or by failing to make the
originals or duplicates available for examination or copying at a reasonable time and
place. Rather, Dr. Haeberle merely asserts that the P.S.C. failed to show that the
laboratory bills were "voluminous" to the extent that they were "too burdensome to
produce." It is important to note that Dr. Haeberle admitted in his appellate brief that the
laboratory bills were "numerous" because they reflected approximately four years of his
practice at the P.S.C., but he argues that the number of laboratory bills was not "so
voluminous that they would be too burdensome to produce." However, Dr. Haeberle
misinterprets KRE 1006, which provides that summaries may be admitted of voluminous
records that "cannot conveniently be examined in court," as opposed to records that are
"too burdensome to produce," as argued by Dr. Haeberle. Dr. Haeberle has not alleged,
much less shown, that the admittedly numerous laboratory bills could "conveniently be
examined in court." KRE 1006.
Furthermore, although Dr. Haeberle asserts that the P.S.C. failed to lay a
foundation for the admission of the bill summaries, the summaries were included as part
of the quarterly reports, and the P.S.C. properly laid the foundation for the admission of
the quarterly reports, as discussed supra. Therefore, the P.S.C. also properly laid the
foundation for the admission of the bill summaries contained in the quarterly reports.
Consequently, Dr. Haeberle has failed to show that the trial court abused its discretion
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when it permitted the P.S.C. to introduce the summaries of his laboratory bills. See
generally Goodyear Tire & Rubber Co., 11 S.W.3d at 577.
3. Unjust enrichment
Dr. Haeberle also alleges that the trial court erred when it denied his request
to introduce evidence concerning the P.S.C.'s decision to begin paying the laboratory fees
in order to receive a tax benefit, and then to seek reimbursement of those laboratory fees
from the dentists. Dr. Haeberle argues that this practice by the P.S.C. amounted to unjust
enrichment. "[F]or [his] unjust enrichment claim to be viable, [Dr. Haeberle] must show
the following elements: (1) a benefit conferred upon the [P.S.C.] at [Dr. Haeberle's]
expense, (2) a resulting appreciation of the benefit by the [P.S.C.], and (3) an inequitable
retention of the benefit without payment for its value." Tractor and Farm Supply, Inc. v.
Ford New Holland, Inc., 898 F.Supp. 1198, 1206 (W.D. Ky. 1995). The doctrine of
unjust enrichment "is applicable as a basis of restitution to prevent one person from
keeping money or benefits belonging to another." Haeberle v. St. Paul Fire and Marine
Ins. Co., 769 S.W.2d 64, 67 (Ky. App. 1989).
Dr. Haeberle has failed to show that the P.S.C.'s actions in paying his
laboratory bills, taking a tax deduction for the laboratory bills, then seeking repayment of
those bills from him, constituted unjust enrichment. Specifically, Dr. Haeberle has not
demonstrated that the P.S.C.'s actions amounted to a benefit received by the P.S.C. at Dr.
Haeberle's expense, as Dr. Haeberle failed to repay the P.S.C. for approximately
$46,000.00 of his laboratory bills.
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Nevertheless, the trial court denied as irrelevant Dr. Haeberle's request to
introduce evidence concerning the tax deduction. "'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." KRE 401. Because evidence concerning the P.S.C.'s laboratory bill tax
deduction did not have any consequence to the determination of whether Dr. Haeberle
owed money to the P.S.C., the evidence was irrelevant. Thus, the trial court did not
abuse its discretion when it denied Dr. Haeberle's request to admit evidence of the tax
deduction. See generally Goodyear Tire & Rubber Co., 11 S.W.3d at 577.
III. CLAIM CONCERNING THE DIRECTED VERDICT
A. STANDARD OF REVIEW
Dr. Haeberle next claims that the trial court erred when it sustained the
P.S.C.'s motion for a directed verdict on the amount of $20,728.22, for work performed
by Dr. Haeberle. When we review a trial court's ruling on a motion for a directed verdict,
we must "ascribe to the evidence all reasonable inferences and deductions which support
the claim of the prevailing party." Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998).
"Once the issue is squarely presented to the trial judge, who heard and considered the
evidence, a reviewing court cannot substitute its judgment for that of the trial judge
unless the trial judge is clearly erroneous." Id. "Generally, a trial judge cannot enter a
directed verdict unless there is a complete absence of proof on a material issue or if no
disputed issues of fact exist upon which reasonable minds could differ." Id. at 18-19.
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B. ANALYSIS OF CLAIM
Dr. Haeberle argues that the P.S.C. violated Kentucky's Wage and Hour
Laws when it failed to pay him for the billings that he brought in, but which were not
paid by patients or their insurance companies until after he resigned from the P.S.C. Dr.
Haeberle cites KRS 337.055 in support of this argument. That statute states:
Any employee who leaves or is discharged from his
employment shall be paid in full all wages or salary earned by
him; not later than the next normal pay period following the
date of dismissal or voluntary leaving or fourteen (14) days
following such date of dismissal or voluntary leaving
whichever last occurs. Any employee who is absent at the
time fixed for payment by an employer, or who, for any other
reason, is not paid at that time, shall be paid thereafter at any
time or upon fourteen (14) days' demand. No employer shall,
by any means, secure exemption from this section.
However, Dr. Haeberle's argument is misplaced. Kentucky Revised
Statutes 377.385 provides that an employee who is paid less than he is due under KRS
377.055, supra, may sue his employer for the amount due. Furthermore, KRS 377.010
provides that, for purposes of bringing a claim against one's employer for unpaid wages
under KRS 377.385, an "'[e]mployee'" is any person employed by or suffered or
permitted to work for an employer, but shall not include: Any individual employed in a. .
. professional capacity. . . ." As a dentist, Dr. Haeberle was employed by the P.S.C. in a
"professional capacity" and therefore, he was not permitted to bring his counter claim
against the P.S.C. for unpaid wages pursuant to KRS 337.055 or 377.385.
Moreover, Section 6(c) of Dr. Haeberle's employment contract provided
that "[t]he PSC's obligations to pay any compensation to the Employee or to his estate or
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heirs shall cease upon any termination of the Employee's employment relationship with
the PSC." Where a contract provision is unambiguous, we construe the provision
"according to the strict, plain, common meaning of the words themselves." Bennett v.
Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d 910, 911 (Ky. App. 1928). However,
as noted by Dr. Haeberle in his appellate brief, ambiguities in a written employment
contract are "construed more strongly against the party who wrote it." Simon v. Neptune
Mfg. Co., 285 Ky. 340, 147 S.W.2d 1024, 1027 (Ky. App. 1941).
Nevertheless, section 6(c) of Dr. Haeberle's employment contract is
unambiguous, as it plainly states that once Dr. Haeberle's employment with the P.S.C.
ended, the P.S.C. was no longer obligated to pay any compensation to Dr. Haeberle. See
generally Bennett, 226 Ky. 747, 11 S.W.2d at 911. Thus, we construe the provision
according to the plain meaning of the words therein and conclude that the trial court's
decision granting a directed verdict regarding Dr. Haeberle's counter claim was not
clearly erroneous. See Bierman, 967 S.W.2d at 18.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
HENRY, SENIOR JUDGE, CONCURS.
COMBS, CHIEF JUDGE, CONCURS IN PART AND DISSENTS IN
PART BY SEPARATE OPINION.
COMBS, CHIEF JUDGE, CONCURRING IN PART AND DISSENTING
IN PART: I dissent solely as to the disposition of the amount of $20,728.22 for work
performed by Dr. Haeberle prior to his departure from the PSC. It is undisputed that Dr.
Haeberle performed services for which this compensation was paid after his departure.
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Nonetheless, that amount inexplicably was never applied as a set-off to
reduce the amount of $59,948.50 awarded by the jury to the PSC. There is no ambiguity
in the employment agreement as to the effect of termination. It clearly provides that the
obligation of the PSC to pay “compensation ... shall cease upon termination of the
employee's employment....” However, allowing a proper set-off for monies clearly
earned by Dr. Haeberle does not equate with compensation. But failure to do so
assuredly results in unjust enrichment to the PSC.
I am persuaded that the court clearly erred in granting a directed verdict to
the PSC for the $20,728.22. On the contrary, the proper outcome would have been entry
of a directed verdict setting off this amount against the total sum claimed. Failure to
properly account for this sum of money has undoubtedly resulted in unjust enrichment to
the PSC. Consequently, I would vacate and remand on this issue.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas E. Clay
Garry R. Adams, Jr.
Louisville, Kentucky
David Sean Ragland
William P. Swain
Louisville, Kentucky
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