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Carey v. Houston Oral Surgeons LLC

A mutual release signed by the parties negated a prior attorneys' fee award in the underlying litigation.

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Pursuant to the terms of purchase agreement, the Houston County Superior Court ordered Dr. Vincent M. Carey to pay attorney fees to the defendants in this case. After the entry of that order, the defendants and Carey executed a mutual release, which expressly included the release of claims for attorney fees. Carey contends that the mutual release negated the prior award of attorney fees. We agree and reverse. The record shows that in 1979, Clyde D. Marlow formed the professional association, Clyde D. Marlow, D.D.S., M.Sc., Oral and Maxillofacial Surgery, P.A. “OMS”. After maintaining offices in Macon and Dublin, OMS decided to expand to Warner Robins in 1997. OMS then recruited and hired Carey to work as an oral surgeon at its new office in Warner Robins. Until August 2001, Carey worked at the office in Warner Robins four days a week, and Marlow worked there one day per week.

As a result of discussions between Marlow and Carey about the possible sale of the Warner Robins practice to Carey, Marlow formed a new company, Houston Oral Surgeons, L.L.C. “Houston LLC” in June 2000. After Houston LLC acquired the Warner Robins practice and assets from OMS, Houston LLC then employed Carey as an oral surgeon in Warner Robins. On or about July 1, 2000, Carey executed a one-year employment agreement, which offered him an associateship with Houston LLC. This “letter agreement” also contained non-compete and non-solicitation covenants.

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