   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

 PHYSIOTHERAPY                           )
 CORPORATION,                            )
                                         )
            Plaintiff,                   )
                                         )
      v.                                 )     C.A. No. 2017-0396-TMR
                                         )
 SAMUEL E. MONCURE, III and              )
 PHOENIX REHABILITATION                  )
 AND HEALTH SERVICES, INC.,              )
                                         )
            Defendants.                  )

                          MEMORANDUM OPINION

                         Date Submitted: February 8, 2018
                          Date Decided: March 12, 2018

James D. Taylor, Jr. and Gerard M. Clodomir, SAUL EWING ARNSTEIN &
LEHR LLP, Wilmington, Delaware; Attorneys for Plaintiff.

Daniel F. McAllister, BAIRD MANDALAS BROCKSTEDT, LLC, Dover,
Delaware; Attorney for Defendant Samuel E. Moncure, III.

Scott A. Holt, YOUNG CONAWAY STARGATT & TAYLOR, LLP,
Wilmington, Delaware; Scott R. Leah, TUCKER ARENSBERG, Pittsburgh,
Pennsylvania; Attorneys for Defendant Phoenix Rehabilitation and Health
Services, Inc.

MONTGOMERY-REEVES, Vice Chancellor.
      This case examines the enforceability of a non-compete agreement against

Defendant Samuel E. Moncure, III in light of an alleged prior contractual violation

by Plaintiff Physiotherapy Corporation (“Physiotherapy” or the “Company”).

Physiotherapy employed Moncure to manage physical therapy clinics in southern

Delaware.     Moncure’s employment agreement with Physiotherapy (the

“Employment Agreement”) includes two provisions relevant to the instant case.

The non-compete provision (the “Non-Compete”) prohibited Moncure from

conducting specified competitive activities within ten miles of the Physiotherapy

clinics he managed. The Employment Agreement also set forth an incentive bonus

plan (the “Bonus Plan”), which the Company could amend. Plaintiff contends that

after Moncure left the Company, Moncure violated the Non-Compete. Moncure

responds that he did not engage in violative competitive activities and, even if he

did, that Physiotherapy’s prior violation of the Bonus Plan excused his

performance of the Non-Compete. For the reasons set forth in this Memorandum

Opinion, I conclude that Physiotherapy’s prior material breach of the Employment

Agreement excuses Moncure’s obligations under the Non-Compete.

I.    BACKGROUND
      The facts in this opinion are my findings based on the parties’ stipulations,

162 trial exhibits, including deposition transcripts, and the testimony of two live

witnesses presented at a one-day trial before this Court held on October 4, 2017. I


                                        1
grant the evidence the weight and credibility that I find it deserves.1           I find

Moncure to be highly credible and forthright.

      Moncure began his career in physical therapy in 1994.2 He worked as an

independent contractor until joining Physiotherapy as an employee in 2008 to

manage a number of clinics.3 On February 3, 2008, Moncure and Physiotherapy

executed the Employment Agreement. 4 Under that agreement, Moncure was to

receive an annual base salary of $200,000 5 and a quarterly EBITDA-based bonus.6

In 2009, Moncure and Physiotherapy executed an amendment to the bonus

structure, under which Moncure would “participate in the Company’s Clinic

Incentive Plan (as amended from time-to-time by the Company), with such

eligibility and incentive awards as determined in accordance with the terms and

conditions of such plan.”7 The Bonus Plan entitled Moncure to an incentive bonus


1
      Citations to testimony presented at trial are in the form “Tr. # (X)” with “X”
      representing the name of the speaker. After being identified initially, individuals
      are referenced herein by their surnames without regard to formal titles such as
      “Dr.” No disrespect is intended. Exhibits are cited as “JX #.” Unless otherwise
      indicated, citations to the parties’ briefs are to post-trial briefs.
2
      Tr. 26 (Moncure).
3
      Id. at 28 (Moncure).
4
      JX 1.
5
      Id. § 3.1.
6
      Id. § 3.2.
7
      JX 6 at 3.
                                           2
based on the performance of the specific centers he managed. 8 Moncure continued

under the Bonus Plan until the events giving rise to this litigation.

      Moncure’s performance as a manager and a physical therapist enabled him

to negotiate his considerable compensation and the Bonus Plan. Moncure noted

that his salary was “substantially” higher compared to what other physical

therapists make “because of overseeing other clinics and having a longstanding

track record of performance in those clinics.”9 And Moncure testified that “there

were years where [his bonus] was up to 30, $35,000” as a result of his management

of the clinics, representing “15, 18 percent of [his] salary at the time.”10

Physiotherapy does not dispute any facts surrounding Moncure’s original

compensation package.

      The Employment Agreement bound Moncure to the Non-Compete.

Pursuant to Section 8.1 of the Employment Agreement:

              In consideration of the Company’s agreement to employ
              Employee pursuant to the terms hereof, the Employee
              agrees that, during his employment with the Company
              and for twelve (12) months following the date of the
              Employee’s termination from the Company, he will not
              directly or indirectly: (a) engage, whether as principal,
              agent, investor, representative stockholder (other than as
              the holder of not more than five percent (5%) of the stock
8
      Id. at 1.
9
      Tr. 32 (Moncure).
10
      Id. at 130 (Moncure).

                                           3
             or equity of any corporation, the capital stock of which is
             publicly traded), employee, consultant, volunteer or
             otherwise, with or without pay, in any business venture
             involved in any way in the provision of outpatient
             rehabilitation services of a type and nature provided by
             the Company, anywhere within ten (10) miles of any of
             the Subject Centers[;] . . . (b) solicit or entice or endeavor
             to solicit or entice away from the Company or any of its
             subsidiaries any director, officer, employee, agent or
             consultant of the Company or any of its subsidiaries,
             either on his own account or for any person, firm,
             corporation or other organization, whether or not the
             person solicited would commit any breach of such
             person’s contract of employment by reason of leaving the
             Company’s service; (c) solicit or entice or endeavor to
             solicit or entice away any of the clients or customers of
             the Company or any of its subsidiaries, either on his own
             account or for any other person, firm, corporation or
             organization; or (d) employ any person who was a
             director, officer or employee of the Company or any of
             its subsidiaries on the date of the Employee’s termination
             or at any time during the six month period immediately
             prior to such termination. 11

      Select Medical (“Select”) acquired Physiotherapy through a stock purchase

agreement in early 2016.12 Moncure testified—and Plaintiff did not contest—that

following the acquisition, Moncure’s new direct supervisor told him “to assume

that the [Physiotherapy Bonus] [P]lan was no more because there was no

[Physiotherapy].” 13


11
      JX 1 §8.1.
12
      Tr. 36-37 (Moncure).
13
      Id. at 130 (Moncure).

                                           4
      On May 16, 2016, Moncure was cc’ed on an email stating that “ALL

EMPLOYEES at the Market Manager level will be on the SELECT MARKET

MANAGER PLAN.” 14 That email does not state which employees are Market

Managers. The email includes an attachment entitled “Market Manager % of

Salary Plan – EBITDA.doc,”15 but neither party submitted that document to the

Court. Further, that email states that “[f]or those . . . who will be overseeing

[Physiotherapy] centers[,] I am awaiting [sic] for the official copy of the Center

incentive plan . . . Once I have received it I will forward it to all of you so there is

no miscommunication when discussing these plans.” 16 Moncure testified at trial

that he never received or saw such a plan (the “Select Plan”). 17 Physiotherapy

offered no evidence to the contrary.

      On September 15, 2016, Moncure resigned from Physiotherapy. 18 Moncure

explained that the absence of an incentive plan, along with disagreements with the

Company’s new owner, caused his resignation.19 Moncure joined Phoenix on



14
      JX 15.
15
      Id.
16
      Id.
17
      Tr. 133 (Moncure).
18
      JX 15.
19
      Tr. 140 (Moncure).

                                           5
September 18, 2016.20 At that time, Phoenix was in the process of acquiring a

location in Wilmington, and Phoenix did not have any other Delaware operations.21

Within months, Phoenix opened two new clinics in Milford and Seaford—

restricted areas under Moncure’s Employment Agreement. 22 On May 25, 2017,

Plaintiff initiated this action challenging the behavior of Moncure and Phoenix.

II.   ANALYSIS
      The complaint in this action alleges that Moncure violated the Non-Compete

and Phoenix tortiously interfered with the enforcement of the Employment

Agreement. 23 In particular, Plaintiff contends that Moncure violated the Non-

Compete by managing Phoenix clinics within restricted areas and soliciting

employees and physicians’ referrals.24 Plaintiff claims that Phoenix tortiously

interfered by knowingly employing Moncure despite the Non-Compete. 25 Among

other arguments, Defendants contend that Physiotherapy violated the Employment

Agreement first by cancelling the Bonus Plan and, thus, cannot seek to enforce the



20
      JX 61.
21
      JX 51.
22
      Tr. 151-53 (Moncure).
23
      Compl. ¶¶ 24-32.
24
      Id. ¶¶ 24-25.
25
      Id. ¶¶ 30-31.

                                         6
terms against Moncure. 26 I conclude that Physiotherapy violated the Employment

Agreement first, excusing Moncure’s performance of the Non-Compete. 27

       A.     Legal Standard
       Following trial, “Plaintiff[] . . . ha[s] the burden of proving each element,

including damages, of each of [his] causes of action against each Defendant . . . by

a preponderance of the evidence.”28 “[P]roof by a preponderance of the evidence

means that something is more likely than not.”29                “By implication, the

preponderance of the evidence standard also means that if the evidence is in

equipoise, Plaintiff[] lose[s].” 30

       “Delaware adheres to the ‘objective’ theory of contracts, i.e., a contract’s

construction should be that which would be understood by an objective, reasonable

third party.” 31 “When interpreting a contract, this Court ‘will give priority to the


26
       Defs.’ Answering Br. 24-25.
27
       Because I conclude that Physiotherapy violated the Employment Agreement first,
       I need not examine whether Moncure violated the Non-Compete.
28
       Revolution Retail Sys., LLC v. Sentinel Techs., Inc., 2015 WL 6611601, at *9 (Del.
       Ch. Oct. 30, 2015).
29
       Narayanan v. Sutherland Global Hldgs. Inc., 2016 WL 3682617, at *8 (Del. Ch.
       July 5, 2016) (citing Agilent Techs., Inc. v. Kirkland, 2010 WL 610725, at *13
       (Del. Ch. Feb. 18, 2010)).
30
       Revolution Retail, 2015 WL 6611601, at *9 (quoting 2009 Caiola Family Tr. v.
       PWA, LLC, 2015 WL 6007596, at *12 (Del. Ch. Oct. 14, 2015); OptimisCorp v.
       Waite, 2015 WL 5147038, at *55 (Del. Ch. Aug. 26, 2015)).
31
       Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
                                           7
parties’ intentions as reflected in the four corners of the agreement,’ construing the

agreement as a whole and giving effect to all its provisions.”32 The terms of the

contract control “when they establish the parties’ common meaning so that a

reasonable person in the position of either party would have no expectations

inconsistent with the contract language.”33 Standard rules of contract interpretation

state that “a court must determine the intent of the parties from the language of the

contract.”34 “In giving sensible life to a real-world contract, courts must read the

specific provisions of the contract in light of the entire contract.” 35

      Generally, “[i]f plaintiff is first guilty of a material breach of contract, it may

not complain if defendant subsequently refuses to perform.” 36 A “slight breach by

one party, [however,] while giving rise to an action for damages, will not

necessarily terminate the obligations of the injured party to perform under the



32
      Salamone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (quoting GMG Capital
      Invs., LLC v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012)).
33
      Id. at 368 (quoting Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d
      1228, 1232 (Del. 1997)).
34
      Id. (quoting Twin City Fire Ins. Co. v. Del. Racing Ass’n, 840 A.2d 624, 628 (Del.
      2003)).
35
      Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912,
      913-14 (Del. 2017).
36
      Dickinson Med. Gp., P.A. v. Foote, 1989 WL 40965, at *7 (Del. Super. Mar. 23,
      1989) (citing Hudson v. D & V Mason Contractors, Inc., 252 A.2d 166, 170 (Del.
      Super. 1969)).

                                            8
contract.”37 Courts apply “[t]his general principle . . . in an action, such as this one

to enforce a covenant not to compete.” 38 In the specific instance of non-competes,

Delaware courts excuse performance of non-compete obligations following a

material breach of an employment agreement where the amount involved is not de

minimis, and the payment of the employee’s compensation goes to the essence of

the employment agreement. 39

      B.     Physiotherapy’s Material Breach of the Employment Agreement
             Excuses Moncure’s Performance Under the Non-Compete
      Moncure argues that Physiotherapy violated the Employment Agreement by

unilaterally discarding the Bonus Plan.40 Physiotherapy responds that the Bonus

Plan empowered the Company to unilaterally amend the Bonus Plan by replacing it

with a new Select Plan. 41 Thus, I must determine whether Physiotherapy adopted a

Select Plan that reflects an allowable amendment to the Bonus Plan.

      Moncure testified that after Select acquired Physiotherapy, his manager at

Select told him “to assume that the [Bonus] [P]lan was no more because there was
37
      Id. at *8 (citing 11 Williston on Contracts § 1292, at 8 (3d ed. 1968)).
38
      Id. at *7 (citing Schutzman v. Gill, 154 A.2d 226, 230 (Del. Ch. 1959); 54
      Am.Jur2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 570).
39
      Dickinson, 1989 WL 40965, at *7; see also Hipcricket, Inc. v. mGage, LLC, 2016
      WL 3910837, at *12 n.146 (Del. Ch. July 15, 2016) (applying Washington law but
      noting that Delaware follows the same rule).
40
      Defs.’ Answering Br. 24-25.
41
      Pl.’s Reply Br. 3-4.

                                            9
no [Physiotherapy].” 42 Moncure further testified that he never received a copy of

any bonus plan, and no one ever told him that he had a bonus plan while he was a

Select employee. 43 Physiotherapy does not contest that Moncure’s manager told

him that the Bonus Plan was cancelled. Instead, Physiotherapy points to an email

that it contends shows that Moncure had a new bonus plan, the Select Plan.

      The express language of Select’s email regarding incentive plans appears to

mention two different incentive plans.       First, the email states that “ALL

EMPLOYEES at the Market Manager level will be on the SELECT MARKET

MANAGER PLAN.” 44 Second, the email notes that “[f]or those of you who will

be overseeing PHYSIO centers, I am awaiting [sic] for the official copy of the

Center incentive plan for PHYSIO.” 45

      The face of the email, however, is ambiguous as to whether any incentive

plan existed for Moncure. Neither the email nor any other evidence presented

demonstrates that Moncure’s official title was “Market Manager.” No part of the

email makes clear whether one of the plans applied to Moncure. Even if one of the

plans did apply to Moncure, the email does not indicate which one, and


42
      Tr. 130 (Moncure).
43
      Id.
44
      JX 15.
45
      Id.

                                        10
Physiotherapy does not present arguments or explanations on this point. Further, I

am unable to review the attachments to the email or any later plan, as no one has

provided them to the Court. Thus, Moncure’s credible trial testimony and the one

piece of direct contemporaneous evidence referenced by Physiotherapy suggests

that Physiotherapy unilaterally discarded the Bonus Plan and perhaps enacted a

new Select Plan to which Moncure did not consent. But Physiotherapy presented

no evidence and cited no case law to support the proposition that discarding one

incentive plan and perhaps enacting a different plan constitutes an amendment of

the original plan. Moncure persuades the Court that Physiotherapy discarded his

Bonus Plan, and Physiotherapy fails to carry its burden to show that Physiotherapy

adopted an allowable amended incentive plan in its place.

      Physiotherapy now points to the fact that the Bonus Plan expressly allowed

amendments,46 which Moncure acknowledges occurred in the past,47 and tries to

cast the Select Plan as an amendment. To the extent I can conclude that a Select

Plan existed and covered Moncure, I address that argument.           At Moncure’s

deposition, Physiotherapy showed Moncure what Physiotherapy alleges is the



46
      The terms of the Bonus Plan allowed the plan to be “amended from time-to-time
      by the Company.” JX 6 at 3.
47
      Moncure agrees that, over the years, he acknowledged Physiotherapy’s changes to
      “metrics . . . used to measure” performance as acceptable amendments to the
      Bonus Plan. Tr. 38 (Moncure).

                                        11
Select Plan used to replace the original Bonus Plan. Moncure contends he first saw

the Select Plan at his deposition.48 Despite this, Moncure noted that the document

put before him at his deposition (i) provided for annual bonuses, instead of

quarterly bonuses like the Bonus Plan and (ii) capped bonus amounts as a

percentage of his salary, regardless of how much EBITDA was produced by the

clinics he managed, unlike the Bonus Plan. 49            Physiotherapy points only to

Moncure’s distinctions as evidence that the Company’s changes to the Bonus Plan

are not material and simply reflect an amendment. But Physiotherapy did not even

present the Select Plan to the Court to allow an evaluation of how that plan varies

from the Bonus Plan. And Physiotherapy failed to provide compelling arguments

that these terms are sufficiently similar.

      The evidence presented at trial shows that Physiotherapy discarded

Moncure’s contractually negotiated Bonus Plan, which it perhaps unilaterally

replaced with another plan. The evidence also shows that Physiotherapy failed to


48
      Id. at 130-31 (Moncure). Physiotherapy provides no evidence that the Select Plan
      shown to Moncure at the deposition was the same incentive plan referenced in the
      Select email, or that the plan referenced in that email even existed in set, formal
      terms at the time of the email. The email itself noted, “I am awaiting [sic] for the
      official copy of the Center incentive plan . . . Once I have received it I will
      forward it to all of you so there is no miscommunication when discussing these
      plans.” JX 15. Thus, it is not clear whether Select was in the process of creating
      the plan at the time of the email, or if the sender of the email just did not yet have
      a copy of the plan itself.
49
      Tr. 131 (Moncure).

                                             12
provide Moncure or the Court with the details of a new incentive plan, to allow

either Moncure or the Court the opportunity to evaluate its terms. Physiotherapy

fails to offer convincing evidence or arguments that, to the extent a new plan even

existed, those two plans were sufficiently similar to constitute an allowable

amendment. On its face, this does not constitute an amendment to the incentive

plan provision of the Employment Agreement. And Physiotherapy presented no

evidence that Moncure accepted the change to the Bonus Plan.            Far from it,

Moncure cited the removal of the Bonus Plan as a reason for leaving

Physiotherapy. 50

      Moreover, Physiotherapy’s actions affected a material portion of Moncure’s

overall compensation package, a central feature of the Employment Agreement.

Moncure testified that he only negotiated two terms of the Employment

Agreement: “[his] salary and [his] participation in the [Bonus Plan].” 51 Moncure

further testified that the bonus was “up to . . . $35,000” in some years, constituting

“15, 18 percent of [his] salary at the time.” 52 The Bonus Plan constituted a

substantial portion of Moncure’s overall compensation. 53 In fact, this far exceeds


50
      Tr. 140 (Moncure).
51
      Id. at 121-22 (Moncure).
52
      Id. at 130 (Moncure).
53
      Id.

                                         13
what another Delaware case has found to be material in the context of excusing

non-compete obligations. 54      Thus, the Bonus Plan was a key part of the

Employment Agreement.

       Physiotherapy’s prior material breach of the Employment Agreement

through its cancellation of the Bonus Plan excuses Moncure’s performance of the

Non-Compete and implies that Phoenix did not tortiously interfere with the

(unenforceable) Non-Compete provision in the Employment Agreement.

III.   CONCLUSION
       For the foregoing reasons, I find in favor of Defendants and conclude that

Physiotherapy’s violation of the Employment Agreement excused Moncure’s

performance under the Non-Compete and bars the tortious interference claim

against Phoenix.

       IT IS SO ORDERED.




54
       Dickinson, 1989 WL 40965, at *7-8 (excusing performance of a non-compete
       provision following failure to pay $4,147 owed as a bonus, compared to a salary of
       $90,000).

                                           14
