    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHOONG H. LEE, DMD, PLLC, a
professional limited liability company, CH             No. 68417-5-1
LEE, PLLC, a professional limited liability
company,                                               DIVISION ONE

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                     Respondents.                      FILED: March 10,2014


      Appelwick, J. — Lee is a licensed Washington dentist who owns and operates

two dental practices in Whatcom County.       He entered into a service agreement with

Thaheld, a nondentist, to aid in operation and management of the practices.              Lee

argues that the agreement is illegal in its entirety, because it violates Washington's

prohibition on corporate practice of dentistry, RCW 18.32.675(1).      We agree.         We

therefore reverse the decision of the trial court and remand with instructions to enter

partial summary judgment in Lee's favor.

                                           FACTS


      Dr. Choong-hyun Lee is a licensed Washington dentist and has practiced

dentistry in Whatcom County since 2004.            He operates one dental practice in

Bellingham through the legal entity Choong H. Lee, DMD, PLLC, and a second practice

in Blaine through the entity CH Lee, PLLC—collectively "Lee Dental Practices." Johann

Thaheld is not a dentist, but is the sole member and owner of Thaheld/Lee-01 LLC, a
No. 68417-5-1/2




dental consulting service business.1 Thaheld is also a full-time faculty member at
Western Washington University and holds a Juris Doctorate.

       By mid-2010, Lee's practices were struggling and losing money.         During this

time, Lee met Thaheld, who reviewed financial statements, contracts, scheduling

practices, payroll, and other aspects of Lee's two practices. Thaheld noticed a number

of administrative and accounting problems that he communicated to Lee.

      On July 21, 2010, Lee and Thaheld executed a service agreement.                The

Agreement called Lee Dental Practices the "Providers" and Thaheld/Lee-01 LLC the

"Service Company." The stated purpose of the agreement was to allow Lee to focus his

time and energy on practicing dentistry and delivering dental services. The Service

Company agreed to provide services necessary "for the day-to-day administration of the

non-dental aspects of Providers' dental practice." Thaheld and Lee agreed that the

Service Company would be compensated with a salary equal to Lee's salary or

$120,000, whichever was higher; a bonus of one half the practices' net profits; and one

half the increased terminal value of the practices.

      The parties' relationship deteriorated over the following months. On March 18,

2011, Lee filed a complaint against Thaheld seeking declaratory judgment, injunctive

relief, and monetary damages. Lee alleged that the service agreement gave Thaheld

an impermissible financial interest in and substantial control over Lee Dental Practices.




      1 Choong H. Lee, DMD, PLLC and CH Lee PLLC are appellants here. We refer
to these companies collectively as "Lee" or "Lee Dental Practices." Thaheld/Lee-01
LLC and Johann Thaheld, in his individual capacity, are respondents here. We refer to
the respondents collectively as "Thaheld."
No. 68417-5-1/3




He also alleged that the agreement was substantively unconscionable, because

Thaheld made material misrepresentations to induce Lee to sign it.

       Thaheld counterclaimed for breach of contract, specific performance, unjust

enrichment, and breach of employment obligations.        Thaheld requested that the trial

court dismiss Lee's complaint in its entirety. Alternatively, he asked the trial court to

enter a judgment declaring the service agreement to be legal.

       Lee subsequently moved for partial summary judgment. He requested that the

trial court declare the service agreement illegal and unenforceable as a matter of law.

He argued that the agreement violated Washington's statutory prohibition on unlicensed

corporate practice of dentistry, RCW 18.32.675(1).

       The trial court denied Lee's motion for partial summary judgment on January 27,

2012. However, the trial court certified its order for immediate review. Lee filed a notice

for discretionary review with this court, requesting review based on the trial court's

certification of the issue.   We concluded that discretionary review was proper and

granted the motion.

                                      DISCUSSION

       The issue on appeal is whether the trial court erred in denying Lee's motion for

partial summary judgment. Lee argues that the service agreement grants Thaheld an

impermissible role in Lee Dental Practices.          Specifically, he contends that the

agreement gives Thaheld expansive control over Lee's practices, enmeshes Thaheld in

the practices' finances, and imposes onerous restrictions on Lee's professional

freedom.   Lee contends that this violates RCW 18.32.020(3) and RCW 18.32.675(1)
No. 68417-5-1/4




that together forbid nondentist corporations from owning, operating, or maintaining

dental practices.

       In response, Thaheld argues that the agreement is valid as a matter of law,

because Lee retained complete control over all aspects of his dentistry practice. In any

event, Thaheld contends, the parties modified the agreement by their conduct, creating

questions of fact about its meaning. Thaheld also argues that, when interpreting the

agreement, we should recognize changes to the practice of dentistry in light of modern

economic realities.


       We review summary judgment orders de novo. Hearst Commc'ns. Inc. v. Seattle

Times Co.. 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is proper

only when there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Id; CR 56(c). We review all facts and reasonable

inferences drawn from the facts in the light most favorable to the nonmoving party.

CTVC of Haw. Co. v. Shinawatra. 82 Wn. App. 699, 708, 919 P.2d 1243, 932 P.2d 664

(1996).      The legality of an agreement is a question of law reviewed de novo.

Fallahzadeh v. Ghorbanian, 119 Wn. App. 596, 601, 82 P.3d 684 (2004).

  I.   Legality of Service Agreement

       Washington law prohibits the corporate practice of dentistry. RCW 18.32.675(1)

specifies:

       No corporation shall practice dentistry or shall solicit through itself, or its
       agent, officers, employees, directors or trustees, dental patronage for any
       dentists or dental surgeon employed by any corporation:
       PROVIDED . . . [that this prohibition shall not] apply to corporations or
       associations furnishing information or clerical services which can be
       furnished by persons not licensed to practice dentistry, to any person



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No. 68417-5-1/5


       lawfully engaged in the practice of dentistry, when such dentist assumes
       full responsibility for such information and services.

Under RCW 18.32.020(3), any person who "owns, maintains or operates an office for

the practice of dentistry" is engaged in the practice of dentistry.

       This prohibition extends to most other learned professions that affect public

health and welfare, such as law, medicine, and optometry. Morelli v. Ehsan, 110 Wn.2d

555, 559, 756 P.2d 129 (1988). The Washington Supreme Court has explained the

reason for such prohibitions:

       The ethics of any profession is based upon personal or individual
       responsibility. One who practices a profession is responsible directly to
       his patient or his client. Hence he cannot properly act in the practice of his
       vocation as an agent of a corporation or business partnership whose
       interests in the very nature of the case are commercial in character.

State ex rel. Standard Optical Co. v. Superior Court for Chelan County, 17 Wn.2d 323,

332, 135 P.2d 839 (1943). The prohibition maintains a high standard of professional

care by making dentists directly responsible to their patients, rather than a corporation.

State v. Boren, 36 Wn.2d 522, 528, 219 P.2d 566 (1950).

       When a contract gives a nondentist or corporation the power to influence the

operation of a dental practice and share in the practice's profits, Washington courts hold

such contracts to be illegal. See, e.g., Morelli, 110 Wn.2d at 560-61; Boren, 36 Wn.2d

at 524, 532; Fallahzadeh, 119 Wn. App. at 603-04. In determining whether an illegal

business relationship exists between a dentist and a nondentist corporation, we

consider: (1) the extent to which the corporation exercises control over the practice's

operations and (2) the nature of the payment scheme between the practice and the

corporation. See Fallahzadeh, 119 Wn. App. at 603-05; see also OCA. Inc. v. Hassel,

389 B.R. 469, 476 (E.D. La. 2008).
No. 68417-5-1/6




       For instance, in Boren, two nondentists entered into a conditional sales contract

with a dentist who agreed to pay $55,000 for an on-going dental practice in $750

monthly installments. 36 Wn.2d at 523. Under the contract, the dentist drew a $500

monthly salary. JU at 524. One of the nondentists worked for $500 a month as office

manager—"'buying the supplies and watching the charts and making out the accounts

and payments, and general manager, and looking after the advertising.'" \± The office

manager also received monthly bonus payments "in appreciation of the increase in

business." jd.    The court held that this activity by a nondentist constituted owning,

operating, or maintaining a dentistry practice, and violated Washington law. jd. at 532.

       In Fallahzadeh, Abraham Ghorbanian was a licensed dentist employed by

Sunrise Dental Family Center, Inc.    119 Wn. App. at 599.     Sunrise's owners offered

Ghorbanian the opportunity to purchase the dental practice and building where it was

located, jd. Inexperienced in business matters, Ghorbanian asked Akbar Fallahzadeh,

a nondentist, to act as a partner in purchasing the practice. Id, They signed a lease

agreement in which Fallahzadeh would lease the building to the practice in exchange

for 50 percent of the practice's net profits as rent. ]d at 600. Ghorbanian bought the

practice, making a down payment and executing a promissory note for the balance. Id.

Fallahzadeh signed a $200,000 personal guaranty for the note. jd.

      Ghorbanian employed Fallahzadeh as office manager,           jd.    Fallahzadeh had

check-writing authority and handled the practice's accounts,        jd.    In addition, he

periodically deposited personal funds into the accounts as loans to the practice. Jd.

However, their relationship soon soured.      ]d   Ghorbanian became concerned that

Fallahzadeh was embezzling and instructed him not to return to work, effectively


                                               6
No. 68417-5-1/7




terminating Fallahzadeh's employment. Jd Fallahzadeh brought an unlawful detainer

action against Ghorbanian.        Id   Ghorbanian raised several defenses, including the

illegality of the agreement. Jd

       On appeal, we considered whether the parties' business relationship resulted in

an illegal partnership between a dentist and a nondentist.        jd. at 601.   We found

Fallahzadeh's office management analogous to Boren, because in both cases a

nondentist had complete control over the practice's finances, jd at 602-03. With the 50

percent net profit rent provision, Fallahzadeh also retained a substantial beneficial

interest in the practice's profits, jd at 603, The rent grossly exceeded market rate,

indicating that the purpose was to give Fallahzadeh a financial interest in the practice,

jd at 604-05.     And, as landlord, Fallahzadeh had exclusive control over physical

improvements to the premises that might be necessary for patient care. Jd at 603-04.

These are precisely the public health and welfare concerns that give rise to the law

against corporate practice of dentistry, jd at 604. Therefore, we held the agreement

between Fallahzadeh and Ghorbanian to be illegal and void, jd at 605.

      Lee also cites a federal district court case to argue that the service agreement

here is illegal: OCA, Inc., 389 B.R. 469.2 In OCA, Inc., two Washington orthodontists
entered into long-term service agreements with Orthodontic Centers of America, Inc.

(OCA), which provides office management and patient billing support. Jd at 472. The

contracts gave OCA exclusive control over the practices' revenues and bank accounts.

       2 Lee cites Engst v. Orthalliance, Inc., No. C01-1469C (W.D. Wash. Mar. 1,
2004), an unpublished federal district court order, for the same proposition. However,
we do not discuss that case here, because Federal Rule of Appellate Procedure 32.1(a)
prohibits courts from citing unpublished federal judicial opinions issued prior to January
1,2007.
No. 68417-5-1/8




Jd The orthodontists agreed to pay OCA a specified sum for each "'patient hour,'"

along with 50 percent of each practice's profits. Jd The court held that OCA's control

over the practices' operations and its beneficial interest in the practices' profits violated

Washington law. Jd at 478.

       Several provisions of the service agreement give Thaheld (the Service Company)

the power to exercise significant control over Lee's practices.           For instance, the

agreement creates a two member policy board, responsible for development,

management, and overall operation of the practices. The agreement names Lee and

Thaheld as the initial policy board members.            A majority vote is required for all

decisions. The board's responsibilities and authority include: capital improvements and

expansion, marketing and advertising, setting patient fees and collection policies,

establishing and maintaining contractual relationships with other providers and third-

party payors, strategic planning, capital expenditures, patient concerns and claims,

workplace health and safety, and approving or disapproving any merger with or

acquisition of another dental practice.

       The agreement also gives the Service Company power to negotiate and enter

into contracts "with third parties as are reasonably necessary and appropriate for

Providers' provision of Dental Care."       Lee must execute contracts at the Service

Company's behest. He must sign all leases and intellectual property over to the Service

Company. The agreement also specifies that, for an initial term of 40 years, Lee cannot

voluntarily terminate his employment without finding another qualified dentist to replace

him. These provisions result in Thaheld being substantially in control of Lee's practices,

even if he is not practicing hand-in-mouth dentistry.


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No. 68417-5-1/9



           Like Boren and Fallahzadeh, Thaheld also assumed sole responsibility for

handling the practices' accounts—both in fact and under the terms of the agreement.

The agreement gives the Service Company irrevocable, "exclusive special power of

attorney" to bill patients; manage all accounts; and take possession of, endorse, and

deposit all payments for dental care.       The agreement further makes the Service

Company agent and attorney in fact for Lee's practices.

           Significantly, the service agreement gives Thaheld a substantial beneficial

interest in Lee's practices. The agreement provides for the Service Company to be paid
an annual service fee equal to the highest paid dentist's salary or $120,000, whichever

is greater. In addition, the Service Company shall receive a formula-based monthly
performance fee from 10 percent up to 50 percent of the practices' profits. Thaheld also
stated in his declaration that he and Lee agreed that the Service Company would

receive a bonus of one half the practices' net profits. This is analogous to Fallahzadeh

and OCA, Inc., where the nondentists' payment included 50 percent of the practices'

profits.

           And, not only does Thaheld retain a substantial beneficial interest in the
practices' profits, he also has the power to terminate the agreement. In the event of
termination, Lee must immediately sell the practices on the open market. Fifty percent
of the net sales proceeds must go directly to the Service Company. These profit
sharing provisions give Thaheld an impermissible financial interest in the Lee's dental
practices.

           Thaheld points to several provisions in the agreement to argue that Lee
nevertheless retains complete control over dental care decisions and the practice of

                                                9
No. 68417-5-1/10




dentistry. For instance, U 2.5 specifies that dentists "shall be solely responsible for and

shall have complete authority, responsibility, supervision, and control over the provision

of all Dental Care." The same provision further states that the "Service Company shall

not have or exercise any control or supervision over the provision of Dental Care."

Other provisions specify the same: fl 3.4 (all dental decisions will be made solely by

dentist members of the Policy Board3), U 11.1 (dental care shall be the sole

responsibility of dentists and the Service Company shall not interfere), U 11.2 (the

Service Company is an independent contractor and cannot exercise control over the

manner or method of dentistry services).

       However, these provisions do not save the agreement from illegality.

Washington law is clear that noninvolvement in delivery of professional services is not

determinative. Fallahzadeh, 119 Wn. App. at 603. This is apparent from the structure

of RCW 18.32.020, which provides several definitions for the practice of dentistry. Most

definitions include typical hand-in-mouth dentistry, such as cleaning teeth, diagnosing

tooth pain, performing x-rays, and so on. See, e.g., RCW 18.32.020(1), (2), (5).

Conversely, owning, maintaining, or operating an office for practice of dentistry under
RCW 18.32.020(3) does not involve only the direct delivery of hand-in-mouth dentistry

services. Such activity is nevertheless impermissible for a nondentist. See Boren, 36

Wn.2d at 532.

       Indeed, we rejected Fallahzadeh's argument that his firing demonstrated that

Ghorbanian retained complete control of all business and professional activities for the


       3 However, this provision goes on to state: "provided that nondentist members of
the Policy Board may participate in the analysis and discussion process."

                                                10
No. 68417-5-1/11




dentistry practice. Fallahzadeh, 119 Wn. App. at 603. In Standard Optical, the fact that

an optometrist retained complete professional control did not prevent the Washington

Supreme Court from concluding that his employer was illegally maintaining and

operating an optometry practice. 17 Wn.2d at 334-35. Likewise, in OCA, Inc., simply

because OCA refrained from making decisions about individual patient care did not

mean it lacked requisite interest in or control over the orthodontists' practices. 389 B.R.

at 478. The same is true here.


       Finally, Thaheld argues that, when interpreting the agreement, we should

recognize changes to the practice of dentistry in light of modern economic realities.

This is a policy argument best addressed to the legislature.       For now, the statutory

prohibition and case law are clear that nondentists may not own, operate, or maintain a

dental practice.

       We reverse the trial court and hold that the service agreement is an illegal

contract, because it results in Thaheld owning, operating, or maintaining Lee's dental

practices. This effectively creates a partnership between a dentist and a nondentist,

which violates Washington's prohibition on corporate practice of dentistry.

 II.   Effect of Illegal Agreement

       The service agreement here is facially invalid, because it creates an illegal

partnership between a dentist and a nondentist. Thaheld nevertheless argues that this

issue is not resolvable on summary judgment, because there are genuine issues of

material fact. He contends that the parties' subsequent conduct indicates that they did

not intend to give Thaheld impermissible control over Lee's dental practices.          For

instance, Thaheld argues that Lee actually asserted unilateral control over almost all


                                               11
No. 68417-5-1/12




business decisions, such as closing the Blaine practice and not paying Thaheld as they

agreed.

       However, the parties' conduct does not go to whether the agreement is void as a

matter of law. The legality of such an agreement is a question of law, not a question of

fact. Fallahzadeh, 119 Wn. App. at 601. Moreover, we rejected this very argument in

Fallahzadeh: Thaheld's lack of involvement in hand-in-mouth dentistry does not

preclude his ability to exert significant control over Lee's practices. See id. at 603-04.

       In the alternative, Thaheld argues that the parties modified the agreement by

their subsequent conduct. Thaheld is correct that, when interpreting a written contract,

courts may consider extrinsic evidence to ascertain the parties' intent. Go2Net. Inc. v.

C I Host, Inc., 115 Wn. App. 73, 84, 60 P.3d 1245 (2003). This includes the parties'

subsequent acts and conduct. Jd However, admissible extrinsic evidence does not

include evidence that would vary, contradict, or modify the written word.           Hollis v.

Garwall, Inc., 137 Wn.2d 683, 695, 974 P.2d 836 (1999).               Thaheld attempts to

contradict the written words of the agreement by arguing that the parties' subsequent

conduct shows that they did not intend to enforce the agreement as written.

       An illegal contract is void and unenforceable. In re Marriage of Hammack, 114

Wn. App. 805, 810, 60 P.3d 663 (2003). Such a contract is void ab initio, or, in other

words, null from the beginning, jd at 810-11. It is as if the contract was never created,

because a void agreement is by definition not a contract. 25 David K. Dewolf &Keller

W. Allen, Washington Practice: Contract Law and Practice § 1:7, at 12 (2d ed.




                                                 12
No. 68417-5-1/13




2007).    The entire relationship between Lee and Thaheld violates Washington law.

Thus, the entire agreement fails and no part of it can be enforced.4

         We reverse the decision of the trial court and remand with instructions to enter

partial summary judgment in Lee's favor.




WE CONCUR:




         4A savings clause in a void contract is also unenforceable. See Golden Pisces,
Inc. v. Fred Wahl Marine Const., Inc.. 495 F.3d 1078, 1081-82 (9th Cir. 2007).

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