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Is this non-compete clause valid?

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lazyk_76

Junior Member
What is the name of your state? West Virginia

10 months ago I signed a one-year contract to work with another doctor. I signed a non-compete clause that states that upon completion or termination of my contract, I cannot open an office within 15 miles for 3 years after the termination of my contract. The contract also states that the employer can terminate the contract with 30 days notice. The non-compete clause does not specify any dollar amount for damages. What I put above is the extent of the clause. No office within a 15 mile radius for 3 years. Period.

Okay, fast forward to 2 months ago....I was approached by the employing doctor about working in a branch clinic of the main clinic. Essentially, he wanted to open an office in another town, have me work in the branch office for 3 years, and then buy the branch office from him. The doctor told me that there was "no wrong answer", and that he just wanted to extend me the opportunity. I declined the offer and told the doctor that I just wanted to finish my contract and open my own office. He said that he was fine with that...no hard feelings.

About one week later, I was given my 30 day notice. The doctor told me the reason was b/c they wanted to hire another doctor in my place that would possibly work in a branch office for them. So...I was fired. This after being told repeatedly that my job was safe, no matter what the answer. Also, there is no mention of working in a branch office in my contract. This is not something that I agreed to.

Several weeks after I was given my notice, I told the doctor that I was considering opening an office in a nearby town. I documented the conversation...he told me "I couldn't care less if you opened across the street. We aren't competitors. We are in this together."

I am now opening an office of my own. The problem is that the building is located 14.97 miles door to door from the office I worked in. I am worried that the doctor might try to sue me over the non-compete clause. I spoke w/ the doctor yesterday and told him where I am opening, and asked if he had a problem with it. He said "Well, it has to be far enough away to not violate the non compete clause....but I don't think that location would be a problem"

My questions are:

1) Did the employer void the contract by firing me for something that was not part of the contract (i.e. working in the "branch office" was never a stipulation in the contract)?
2) Is 15 miles considered door to door...or is a 15 mile radius actually taking out a map and drawing a 15 mile circumference from the office (which would be different than driving distance)
3) Would 14.97 miles really be considered 15 miles? Would a court nitpick over 0.03 miles?
4) Would the fact that I never actually negotiated the terms of a non-compete clause void that section of the contract?
5) I will not be soliciting the doctor's patients. In this sense, how would he prove financial damages against me? He has the most lucrative office in the region...I don't see how I would ever damage his income. Plus, he gets very few patients from the area that I will be working in.

I have a friend that is an attorney, but doesn't do contracts. She says that she thinks he contract is void due to my termination, and that I really don't have anything to worry about. Any opinions/help would be greatly appreciated.
 


Beth3

Senior Member
No one here is in a position to give you an interpretation of a contract you signed. Among other things, that would mean entering into an attorney-client relationship and that is most certainly not going to happen on a bulletin board. You will need to consult with a local attorney familiar with your State's case law on this.

Ask your friend for a referral to an attorney who is qualified to advise you.
 

lazyk_76

Junior Member
Re:

What's the point of this forum if nobody can answer? I would never take someone's advice on here without consulting a local attorney. For all I know, there are no attorney's on this board. I was just looking for some outside opinion on this matter.
 

Beth3

Senior Member
There are several attorneys on this board. You'll notice none of them have responded. Boards like this provide general legal information. I understand what you're looking for but nobody (especially an attorney) is going to provide you a legal opinion on a specific contractual issue. It would be completely inadvisable for them to do so.
 

BelizeBreeze

Senior Member
lazyk_76 said:
I have a friend that is an attorney, but doesn't do contracts. She says that she thinks he contract is void due to my termination, and that I really don't have anything to worry about. Any opinions/help would be greatly appreciated.
Wrong. Unless your contract specifically states that it is void on termination, then at a minimum, the non-compete is still valid.

lazyk_76 said:
1) Did the employer void the contract by firing me for something that was not part of the contract (i.e. working in the "branch office" was never a stipulation in the contract)?
Based on the facts as presented, no. Unless there is a no termination clause in your contract he could have fired you for ACCEPTING the chance to keep working for him.

lazyk_76 said:
2) Is 15 miles considered door to door...or is a 15 mile radius actually taking out a map and drawing a 15 mile circumference from the office (which would be different than driving distance)
That is a question of fact for a judge and/or jury to determine.
lazyk_76 said:
3) Would 14.97 miles really be considered 15 miles? Would a court nitpick over 0.03 miles?
Who knows. At this point, it's not whether or not the court would nitpik but whether or not the ex employer would.
lazyk_76 said:
4) Would the fact that I never actually negotiated the terms of a non-compete clause void that section of the contract?
no.
lazyk_76 said:
5) I will not be soliciting the doctor's patients. In this sense, how would he prove financial damages against me? He has the most lucrative office in the region...I don't see how I would ever damage his income. Plus, he gets very few patients from the area that I will be working in.
The solicitation or not of patients is not the point. Simply opening the office is a violation of the no-compete, IF your ex-employer wishes to pursue it.
 

lazyk_76

Junior Member
Okay, I understand that.

Fair enough. Maybe you can give me an answer if I present a more generalized question. If someone is terminated without cause, does that "void" the contract? (hmmm...you wouldn't be able to answer that without seeing the contract...right?) :)
 

lazyk_76

Junior Member
Re:

Thanks for the answer. It came up while I was typing my last message. Does it matter that the doctor verbally told me that he didn't have a problem with my location, or does it have to be "on paper"?
 

BelizeBreeze

Senior Member
lazyk_76 said:
Thanks for the answer. It came up while I was typing my last message. Does it matter that the doctor verbally told me that he didn't have a problem with my location, or does it have to be "on paper"?
Well, no. A contract is voided on it's own terms or fraud, enducement or other legally violative terms.

Termination is not one of them unless specifically stipulated within the contract itself.

Now, before you ask, YES, this is why you NEVER sign anything without first reading it, taking it to an attorney to read or asking a ton of questions. In this case, the correct question to yourself would have been "Do I want to be bound to a non-compete if they fire me?"

And the answer to that question before signing would have prevented this situation.
 

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