Susan Gasque v. Florence Family Practice and Dr. Linda C. Clemons (Appeal from Lauderdale Circuit Court: CV-19-900109).

Rel: April 12, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

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_________________________

Susan Gasque

v.

Florence Family Practice and Dr. Linda C. Clemons

Appeal from Lauderdale Circuit Court
(CV-19-900109)

FRIDY, Judge.

Susan Gasque, a former employee of Florence Family Practice

("FFP"), which is owned by Dr. Linda C. Clemons, 1 appeals from a

1The record does not indicate what type of entity FFP is. Based on

its name, it is presumably a sole proprietorship owned by Clemons.
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judgment of the Lauderdale Circuit Court ("the trial court") granting FFP

and Clemons's motion for a summary judgment. We affirm in part,

reverse in part, and remand.

Background

On September 18, 2017, Clemons, a physician, hired Gasque to

work as a certified registered nurse practitioner for FFP. That same day,

Chris A. Barnes, FFP's business manager, acting on behalf of FFP, and

Gasque executed a written employment contract ("the contract") that

specified that the term of the contract was one year and contained the

following pertinent provisions:

"3. COMPENSATION OF EMPLOYEE. As compensation for
the services provided by Gasque under this Contract, FFP will
pay Gasque an annual salary of $90,000.00 payable every two
weeks on Thursday. Production Bonus will be at $600 per
monthly average patient seen by FFP above 20 until second
[nurse practitioner] is hired and above 31 thereafter. Bonus is
contingent upon practice revenue increases. Upon
termination of this Contract, payments under this paragraph
shall cease; provided, however, that Gasque shall be entitled
to payments for periods or partial periods that occurred prior
to the date of termination and for which Gasque has not yet
been paid. This section of the Contract is included only for
accounting and payroll purposes and should not be construed
as establishing a minimum or definite term of employment.

"….

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"10. BENEFITS. Gasque shall be entitled to employment
benefits, including malpractice insurance, license, paid time
off and employee health insurance as provided by FFP's
policies, described in Employee Manual, in effect from time to
time. Additionally, Gasque will be allowed a [continuing-
medical-education] reimbursement of $1,500 per year and 4
days [paid time off] in addition to employee [paid time off].
One day additional [paid time off] shall be provided for each
year of service, up to 8 days additional [paid time off].

"11. TERM/TERMINATION. This Contract may be
Terminated by Gasque upon 60 days written notice except …
[n]on-compete provisions shall remain in force until
September 18, 2018. Likewise, FFP will provide 60 days
written notice except if Gasque is in violation of this Contract,
FFP may terminate employment without notice and with
compensation to Gasque only to the date of such termination.
The compensation paid under this Contract shall be Gasque's
exclusive remedy."

(Capitalization in original.) FFP terminated Gasque's employment on

April 27, 2018, before the one-year term of the contract had expired.

On March 26, 2019, Gasque sued FFP and Clemons, claiming that

they had breached the contract; that they had violated the Fair Labor

Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq.; and that they

had converted certain specified personal property that Gasque owned.

On May 1, 2019, FFP and Clemons filed a motion to dismiss

Gasque's FLSA claim, asserting that her $90,000 annual salary excluded

her from the protection of the FLSA. Gasque conceded that her FLSA

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claim was due to be dismissed, and the trial court entered an order

dismissing that claim only.

On May 12, 2023, FFP and Clemons filed a motion for a summary

judgment with respect to Gasque's breach-of-contract and conversion

claims and supported their motion with, among other things, an affidavit

signed by Clemons and a copy of the contract. In pertinent part,

Clemons's affidavit stated:

"I hired Susan Gasque to work for Florence Family
Practice ('FFP') on September 18, 2017. Ms. Gasque was
terminated for cause on April 27, 2018. Upon termination, Ms.
Gasque left FFP and did not take the personal items listed in
her Complaint for conversion with her. Since the filing of the
Complaint on March 26, 2019, over four years ago, I have
allowed Ms. Gasque numerous opportunities to retrieve her
personal items. As of this date, she has not retrieved her
personal items listed in the Complaint."

FFP and Clemons argued that they had not breached the contract

because

"[t]he [contract] provided a clause for compensation of
employee which stated that such compensation would cease
upon the termination of the [contract]. … Additionally, under
the section of the contract that provides terms for
termination, the contract states, '[t]he compensation paid
under [the contract] shall be Gasque's exclusive remedy. …
(emphasis added). Because FFP and Dr. Clemons paid
everything listed under the compensation section of the
[contract] and only ceased once [Gasque] had been
terminated, FFP and Dr. Clemons did not fail to do what they
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had agreed upon by way of contract, which would constitute a
breach."

FFP and Clemons argued that they were entitled to a summary

judgment with respect to Gasque's conversion claim because, they said,

the undisputed evidence indicated that Gasque had abandoned the

property that was the subject of that claim.

Gasque filed a written response to FFP and Clemons's motion and

supported it with, among other things, an affidavit signed by Gasque, a

copy of the contract, and spreadsheets that FFP and Clemons had

produced to Gasque during discovery. In pertinent part, Gasque's

affidavit stated:

"2. On September 18th, 2017, I was hired by Florence
Family Practice (FFP) as a certified registered nurse
practitioner.

"3. On April 27th, 2018. I was terminated from FFP.
Prior to my termination. I was never provided with any
warnings, writeups or any indication I was underperforming
as a practice manager. Further, my termination letter did not
state how I was in violation of the terms of my contract with
FFP. Having read my employment contract, I did not do
anything to violate the terms of my contract with FFP.

"4. FFP is in violation of the terms of the contract. Per
the terms of my contract, I am entitled to a production bonus
on top of my salary. The bonus is $600.00 per monthly average
patient seen by FFP above 20 patients. After a second nurse
practitioner was hired the base level moved from 20 patients
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to 31 patients. To date, I have never been paid any production
bonuses, despite passing the base level patients seen on at
least two separate months.

"5. The terms of my contract also provided that FFP
would pay my medical license fee. My licensing fee of
approximately $750.00 was originally paid by FFP but it was
later deducted from my last paycheck.

"6. At the time of my termination, I had at least one
week of [paid time off] left and had not used the $1,500.00
allotted for my [continuing-medical-education] courses."

In her written response to the motion, Gasque argued, among other

things, that FFP and Clemons were not entitled to a summary judgment

with respect to her breach-of-contract claim because, Gasque said, the

contract required FFP and Clemons to give Gasque sixty days' notice

before terminating her employment and her salary unless "Gasque [was]

in violation of the contract," and FFP and Clemons had not made a prima

facie showing that Gasque was in violation of the contract when FFP and

Clemons terminated her employment. Gasque pointed out that, although

Clemons's affidavit stated that she had terminated Gasque's employment

"for cause," it did not state that Gasque had violated the contract or that

Clemons had terminated Gasque's employment because she was in

violation of the contract. Therefore, Gasque argued, there was a genuine

issue of material fact regarding whether she was entitled to receive sixty
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days' notice of her termination and to receive her salary for that sixty-

day period. Gasque also argued that FFP and Clemons were not entitled

to a summary judgment with respect to Gasque's breach-of-contract

claim because, she said, the evidence showed that, under the terms of the

contract, FFP and Clemons owed Gasque bonus compensation for two

months when the monthly average number of patients that FFP saw

exceeded the number that qualified Gasque for a bonus.

Following a hearing, the trial court, on July 7, 2023, entered a

judgment granting FFP and Clemons's summary-judgment motion; the

judgment did not state the trial court's rationale for granting the motion.

On August 3, 2023, Gasque filed a postjudgment motion in which she

asserted that the judgment was erroneous because, she said, it was based

on FFP and Clemons's argument that the employment-at-will doctrine

applied in this case and that doctrine did not apply where a contract sets

forth the terms and conditions governing the termination of an

employee's employment like the contract in this case. Gasque reiterated

that she was entitled to sixty-days' notice of her termination and that she

was entitled to recover the pay that would have accrued during that sixty-

day period. Gasque also argued that the undisputed evidence showed

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that she was entitled to bonus compensation for October 2017 and

February 2018, which FFP and Clemons had not paid her. The trial court

denied Gasque's motion on August 4, 2023. Thereafter, Gasque timely

appealed.

Standard of Review

An appellate court reviews a summary judgment de novo, applying

the same standard the trial court applied. See Dow v. Alabama

Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004). That is, the

appellate court must determine whether the movant made a prima facie

showing that no genuine issue of material fact exists and that the movant

is entitled to a judgment as a matter of law. Id. In making that

determination, the appellate court must view the evidence in the light

most favorable to the nonmovant. Id. If the movant makes a prima facie

showing that there is no genuine issue of material fact, the burden then

shifts to the nonmovant to produce "substantial evidence" indicating that

there is a genuine issue of material fact. Id. "[S]ubstantial evidence is

evidence of such weight and quality that fair-minded persons in the

exercise of impartial judgment can reasonably infer the existence of the

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fact sought to be proved." West v. Founders Life Assurance Co. of Florida,

547 So. 2d 870, 871 (Ala. 1989).

Analysis

Initially, we note that Gasque has not argued on appeal that the

trial court erred in granting FFP and Clemons's summary-judgment

motion with respect to her conversion claim. Therefore, we affirm the

trial court's judgment insofar as it granted the motion as to that claim.

See Boshell v. Keith, 418 So. 2d 89, 92 (Ala. 1982).

Gasque does argue on appeal that the trial court erred in granting

FFP and Clemons's summary-judgment motion with respect to her

breach-of-contract claim. This is so, because, Gasque says, the contract

required FFP and Clemons to give Gasque sixty days' written notice of

the termination of her employment unless Gasque was in violation of the

contract and FFP and Clemons did not offer any evidence indicating that

Gasque was in violation of the contract.

We note that Clemons's affidavit did not state that she had

terminated Gasque's employment because Gasque was in violation of the

contract. Rather, Clemons's affidavit stated that she had terminated

Gasque's employment "for cause." The contract does not define "cause" as

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being synonymous with "in violation of the contract"; however, even if

those terms are deemed to be synonymous, Gasque's affidavit testimony

stating that she was not in violation of the contract when Clemons

terminated her employment created a genuine issue of material fact

regarding whether Gasque was entitled to sixty days' written notice of

the termination of her employment. If she was entitled to receive sixty

days' written notice of the termination of her employment, FFP breached

the contract by failing to give her such notice and by failing to pay Gasque

her salary for that sixty-day period. The granting of a summary judgment

when there is a genuine issue of material fact constitutes reversible error.

See Taylor v. Hanks, 333 So. 3d 132, 138 (Ala. 2021).

In addition, Gasque presented substantial evidence showing that

FFP and Clemons still owed her bonus compensation, compensation for

accrued paid time off, and reimbursement for the expense of her licensing

fee and continuing-medical-education course that FFP and Clemons were

contractually obligated to pay her even if she was not entitled to sixty

days' written notice of the termination of her employment. For this

additional reason, the trial court should not have entered a summary

judgment for FFP and Clemons on Gasque's breach-of-contract claim.

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Conclusion

Based on the foregoing, we reverse the trial court's judgment

because there was a genuine issue of material fact regarding whether

Gasque was in violation of the contract and, if not, was entitled to receive

sixty days' written notice of the termination of her employment and to

receive her salary during that sixty-day period and because Gasque

presented undisputed evidence that she was entitled to payment of other

sums attributable to her service before the termination of her

employment. We remand the cause for further proceedings consistent

with this opinion.2

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Moore, P.J., and Edwards, Hanson, and Lewis, JJ., concur.

2Gasque argues that the trial court erroneously failed to hold a
hearing on her postjudgment motion. However, because we are reversing
the trial court's judgment, any error that the trial court committed in
failing to hold that hearing is moot.

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