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Shelbyville Hospital Corp. v. Mosley

United States District Court, E.D. Tennessee, Winchester Division

November 20, 2017

SHELBYVILLE HOSPITAL CORPORATION, d/b/a HERITAGE MEDICAL CENTER, Plaintiff,
v.
E. WAYNE MOSLEY, M.D., Defendant.

          MEMORANDUM OPINION

          Thomas W. Phillips United States District Judge

         This matter is before the Court on Plaintiff's Motion for Compensatory Damages and Interest [doc. 178], Defendant's Response in Opposition [doc. 180], Plaintiff's Reply [doc. 184], Plaintiff's Motion for Attorney's Fees and Costs [doc. 179], Defendant's Response in Opposition [doc. 181], Plaintiff's Reply [doc. 185], Plaintiff's Proposed Findings of Fact and Conclusions of Law [doc. 231], and Defendant's Proposed Findings of Fact and Conclusions of Law [doc. 232]. For the reasons herein, the Court will deny the motions and schedule this case for a trial on damages.

         I. Background

         In August 2011, Shelbyville Hospital Corporation and E. Wayne Mosley, M.D. (“Dr. Mosley”) entered into a Recruitment Agreement [doc. 1-1], under which Dr. Mosley, with financial incentives from Shelbyville Hospital, agreed to establish a medical practice in Shelbyville, Tennessee, for thirty-six months. [Id. at 1-2]. The parties agreed that this thirty-six-month period would proceed in two phases: (1) the Cash Collections Guarantee Period, which would comprise the first eighteen-months of the Recruitment Agreement, [1] and (2) the Cash Collections Continuation Period, which would comprise the second eighteen months of the Recruitment Agreement.[2] [Id. at 1, 3, 12]. During the first eighteen months-the Cash Collections Guarantee Period-Shelbyville Hospital guaranteed Dr. Mosley's practice would earn at least $84, 416.66 every month. [Id. at 1, 10]. If Dr. Mosley's practice failed to realize $84, 416.66 in any month, Shelbyville Hospital would make up the difference by providing Dr. Mosley with “Guarantee Payment[s], ” but those payments could not exceed $1, 013, 000 in the aggregate. [Id.].

         During the second eighteen months-the Cash Collections Continuation Period- Shelbyville Hospital would forgive one eighteenth of the total Guarantee Payments for each month that Dr. Mosley maintained the “Full-Time Private Practice of Medicine.” [Id. ¶ D.7]. The parties agreed to these terms of forgiveness in paragraph D.7:

During the Cash Collections Continuation Period, which shall begin on the day following the last day of the Cash Collections Guarantee Period and continue for the number of months set forth as the Continuation Period on the Cover Page, Hospital agrees that it will cancel (amortize) one eighteenth (1/18th) of the Total Cash Collection Guarantee Payments made by Hospital under this Agreement for each full month Physician remains in the Full-Time Private Practice of Medicine, in Physician's Specialty, in the Community. In the event Physician fails to maintain a Full-Time Private Practice of Medicine in the Community during the Cash Collections Continuation Period, Physician shall immediately reimburse to Hospital the unamortized amount of the Total Cash Collections Guarantee Payments paid hereunder.

[Id.]. Paragraph B.1 of the Recruitment Agreement defines “Full-Time Private Practice of Medicine” as a “minimum average of forty (40) hours per week of direct patient contact hours and patient care activities directly relating to the establishment of the practice of Physician's Specialty in the Community.” The Recruitment Agreement also binds Dr. Mosley to various “Covenants of Physician, ” [id. ¶¶ B.1-B.18], one of which is the requirement that Dr. Mosley, under paragraph B.1, must maintain the Full-Time Private Practice of Medicine during the full thirty-six-month duration of the Recruitment Agreement: “Physician shall . . . during the Practice Commitment Period, engage in the ‘Full-Time Private Practice of Medicine' (as defined herein) in the Community.” [Id. ¶ B.1].[3] In addition, paragraph B.4 requires Dr. Mosley to fulfill his contractual obligations “on a regular and continuous basis” during the first eighteen months specifically:

Physician shall discharge obligations hereunder on a regular and continuous basis. . . . If Physician fails to render services pursuant to this Agreement for a period of ten (10) consecutive business days during the Cash Collections Guarantee Period without Hospital and Physician's mutual agreement, Physician shall have failed to carry out Physician's covenants herein on a regular and continuous basis.

[Id. ¶ B.4]. The parties also contemplate consequences for Dr. Mosley's failure to fulfill his contractual obligations. Under paragraph D.6, they agreed that Dr. Mosley would be liable for damages if he failed to maintain the Full-Time Private Practice of Medicine during the first eighteen months:

Should the Physician fail to maintain a Full-Time Private Practice of Medicine in the Community during the Cash Collections Guarantee Period, Physician shall immediately reimburse to Hospital the total sum of the Total Cash Collections Guarantee Payments and/or any other payments made by Hospital under this Agreement to Physician to date.

[Id. ¶ D.6].

         During the thirty-six-month lifespan of the Recruitment Agreement, Shelbyville Hospital sued Dr. Mosley, alleging breach of contract after Dr. Mosley was absent from his practice for twenty-four consecutive business days while participating in an African mission trip in 2012. [Compl., doc. 1, at 8; Mem. Op., doc. 173, at 5, 13]. Dr. Mosley responded by bringing numerous counterclaims, [Countercl., doc. 22; Am. Countercl., doc. 31], which prompted Shelbyville Hospital to move for their dismissal, [Pl.'s Mot. Dismiss, doc. 32]. The Court dismissed most of the counterclaims. [Mem. Op. Granting Dismissal, doc. 41, at 1-20]. Dr. Mosley later requested voluntary dismissal of the remainder of them, [Def.'s Mot. Voluntary Dismissal, doc. 136], and the Court granted their dismissal, [Order Granting Dismissal, doc. 159].

         The case then moved through discovery and Shelbyville Hospital eventually moved for summary judgment on its claim of breach, contending that Dr. Mosley, while he was in Africa, breached the Recruitment Agreement during the first eighteen months by “violat[ing] the 10-day limit” under paragraph B.4. [Pl.'s Br., doc. 142, at 23]. As recompense, it requested $1, 013, 000 in Guarantee Payments under paragraph D.6, interest, and attorney's fees. [Id. at 24-25]. The Court determined that Dr. Mosley breached paragraph B.4 because he “missed more than ten consecutive days of work in late 2012, ” and it awarded summary judgment to Shelbyville Hospital on the issue of liability only. [Mem. Op. at 30]. It made no legal conclusions or factual findings on the issue of damages. Instead, it reserved ruling on damages and set a hearing in which it intended to allow the parties to present evidence and make legal arguments. [Id. at 30- 31]. It also ordered Shelbyville Hospital to submit proof of its damages. [Id.].

         Leading up to the hearing, Dr. Mosley argued that he is entitled to a setoff or reduction in damages because, after he completed his mission trip in 2012, he returned to the Full-Time Private Practice of Medicine in Shelbyville and “continued to treat his patients and perform surgeries as he had before.” [Def.'s Resp., doc. 180, at 4]. He requested the opportunity “to put on proof” at the hearing to show that he returned to his practice and is therefore entitled to receive a setoff “based upon partial continued performance.” [Id. at 2, 7, 15]. As to the exact amount of the setoff, Dr. Mosley proposes that “[a]ny amount of compensatory damages . . . should be reduced proportionally based upon the work [he] did provide under the contract.” [Id. at 7].

         On May 24, 2017, the Court held the evidentiary hearing and heard evidence and arguments from the parties. After the hearing, the parties filed legal briefs with the Court, in which they offered proposed findings of fact and further legal arguments. The Court has carefully reviewed them. It is now ready to address whether Shelbyville Hospital, as the movant, has established its right to compensatory damages-that is, reimbursement of the Guarantee Payments totaling $1, 013, 000-or whether genuine issues of material fact remain in the record and require a trier of fact's deliberation.

         II. Legal Standard

         Summary judgment is proper when the moving party shows, or “point[s] out to the district court, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), that the record-the admissions, affidavits, answers to interrogatories, declarations, depositions, or other materials-is without a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(a), (c). The moving party has the initial burden of identifying the basis for summary judgment and the portions of the record that lack genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party discharges that burden by showing “an absence of evidence to support the nonmoving party's” claim or defense, id. at 325, at which point the nonmoving party, to survive summary judgment, must identify facts in the record that create a genuine issue of material fact, id. at 324.

         Not just any factual dispute will defeat a motion for summary judgment-the requirement is “that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it may affect the outcome of the case under the applicable substantive law, id., and an issue is “genuine” if the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Id. In short, the inquiry is whether the record contains evidence that “presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. When ruling on a motion for summary judgment, a court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. A court may also resolve pure questions of law on a motion for summary judgment. See Hill v. Homeward Residential, Inc., 799 F.3d 544, 550 (2015).

         III. Analysis

         As an initial matter, the Court emphasizes that Dr. Mosley's request for a setoff is not something that he fancifully plucked out of the ether here in the final stages of this litigation. In his Amended Answer [doc. 21], he “adopted herein by reference and incorporated as an affirmative . . . defense” numerous counterclaims. [Id. ¶ 39]. One of those counterclaims included an assertion that he is “entitled to a setoff for his continued practice in Shelbyville.” [Am. Countercl. ¶ 49; Countercl. ¶ 36]. The Court's view has been, all along, that this assertion preserved his right to a setoff as an affirmative defense. [See Mem. Op. Den. Discovery, doc. 201, at 6; Mem. Op. Den. Recons., doc. 225, at 11].

         Shelbyville Hospital has pushed back against this view, arguing that Dr. Mosley cannot now rely on setoff as an affirmative defense because the Court already dismissed his counterclaims. [Hr'g Tr., doc. 230, at 5:7-25; 6:1-2]. Shelbyville Hospital contends that Dr. Mosley's defense of setoff is a casualty of the Court's order of dismissal because it was “embedded” in his counterclaim of unjust enrichment, [id. at 5:19-21], and it procured dismissal of this counterclaim, [Mem. Op. Granting Dismissal at 18-20]. Even if the Court's order of dismissal did not nullify his right to a setoff, it argues that he still lacks this right because under Tennessee law a setoff is available only if a defendant has an “independent action . . . against the plaintiff.” [Hr'g Tr. at 5:4-5]. Because Dr. Mosley has no counterclaims or any other claims left standing, Shelbyville Hospital believes that his demand for a setoff has no valid basis under Tennessee law, and it “object[s] to him now coming back and [reasserting it].” [Id. at 7:5-6].

         Although Shelbyville Hospital did obtain dismissal of several counterclaims, including Dr. Mosley's counterclaim of unjust enrichment, this counterclaim's fate has little to do with his defense of setoff-even if his allegations of setoff were “embedded” in his allegations of unjust enrichment. After all, a setoff is not one of the elements of an unjust enrichment claim, see Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005) (listing the elements of unjust enrichment), and under Tennessee law, a setoff can and oftentimes does operate as a stand-alone affirmative defense, see W.R. Naylor & Son Constr. Co. v. Campbell, 1989 WL 18770, at *1 (Tenn. Ct. App. Mar. 3, 1989) (referring to “the defense of set-off”), perm. app. denied, (Tenn. 1988).[4] Simply, because Shelbyville Hospital did not move for dismissal of Dr. Mosley's allegations pertaining to a setoff, it did not secure their dismissal.

         And although the Court later granted Dr. Mosley's own request for dismissal of his surviving counterclaims, this second wave of dismissal did not extinguish his right to pursue setoff as a defense either. In granting dismissal, the Court was clear that it “gives no opinion on [D]r. Mosley's right to establish affirmative defenses similar in theory to those claims that have been dismissed.” [Order Granting Dismissal at 1]. The Court's language is consistent with the way that Dr. Mosley fashioned his request for dismissal; he petitioned the Court “to dismiss his claims” but to permit him to “move forward with his allegations as defenses.” [Def.'s Mot. Voluntary Dismissal at 2]. The Court's Order plainly did not curtail Dr. Mosley's ability to assert any affirmative defenses that he had pleaded-if anything, it did the opposite-and again, a setoff can and does operate as an affirmative defense. See W.R. Naylor & Son Constr., 1989 WL 18770 at *1.

         If Shelbyville Hospital were uncertain about the effect of the Court's order- namely about whether Dr. Mosley's defense of setoff was subject to the order-it could have moved for clarification from the Court. It did not. Dr. Mosley's bid for a setoff therefore is viable, preserved in his Amended Answer as a properly pleaded defense, and he has every right to raise it now to challenge the amount of compensatory damages that he owes to Shelbyville Hospital. The only remaining question is whether he can legally pursue a setoff without a counterclaim or another independent claim in tow. The answer to that question depends on the source from which he purports to derive his right to receive a setoff-that is, whether he portrays his right as originating in common law, equity, or the Recruitment Agreement itself.

         “The fundamental philosophy of all setoffs . . . is that a party being sued for money may claim entitlement to money from the party bringing the suit[.]” Conister Tr. Ltd. v. Boating Corp. of Am., No. M1998-00949-COA-R3-CV, 2002 WL 389864, at *18 (Tenn. Ct. App. Mar. 14, 2002). Although a defendant's right to a setoff is “a common-law right, ” id. (quotation omitted), it has its genesis as “an equitable doctrine” and remains attainable in equity, id. at *20; see Id. at *19 (“This court has also allowed a party to assert a claim of setoff where ‘complete justice and equity cannot be meted out to the parties' otherwise.” (citing Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297, 307 (Tenn. Ct. App. 1984); Moore v. Howard Pontiac-Am., Inc., 492 S.W.2d 227, 230 (Tenn. Ct. App. 1972))). Shelbyville Hospital is accurate in its contention that a setoff is unavailable to a defendant who does not have an independent cause of action against a plaintiff. See Id. at *19. (“A setoff must be a valid claim for which the defendant might have sued the plaintiff and recovered. In other words, a setoff claim must be sufficient to support an independent action by the defendant against the plaintiff.” (citing Howard v. Abernathy, 751 S.W.2d 432, 434 (Tenn. Ct. App. 1988); Combustion Eng'g Co. v. McFarland, 209 Tenn. 75, 79 (Tenn. 1961))). This is true whether a defendant pursues a legal or an equitable setoff. See Combustion Eng'g, 209 Tenn. at 79.

         In some ways, Dr. Mosley's request for a setoff sounds in equity, [see Def.'s Resp. at 7 (attesting that “even if insufficient under the contract, ” Dr. Mosley's “continued practice . . . should reduce the amount” of damages)], and up to this point, the Court has interpreted it as having equitable overtones, [see Mem. Op. Den. Recons. at 2 (stating that the Court has been under the impression that Dr. Mosley's request is “equitable in nature”)]. The Court, in part, derived its interpretation from the fact that a setoff is traditionally most commonplace in equity. Conister, 2002 WL 389864 at *20. But leading up to the hearing, Dr. Mosley strenuously objected to the Court's interpretation of his request as equitable in nature. He stressed that the Recruitment Agreement itself provides his right to a setoff. [Mot. Recons., doc. 222, at 2]. In his own words, he stated that “[a]ll of his arguments in opposition to Plaintiff's proof of damages are legal, rather than equitable, because all of them concern the extent (if any) of the damages claimed by the Plaintiff for the alleged breach of the Recruitment Agreement.” [Id.].

         The Court has not yet considered whether this recent articulation of Dr. Mosley's position is consistent with the position he has voiced in the record up to this point. While the Court, without expressing its opinion one way or another, has since left open the possibility that Dr. Mosley's request for a setoff could have “a legal basis, an equitable basis, or otherwise, ” [Mem. Op. Den. Recons. at 12], it is unwilling to construe his request in a way that would take Shelbyville Hospital by surprise at this late hour in the litigation, see Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971) (stating that Federal Rule of Civil Procedure 8(c)'s requirement that a defendant must affirmatively plead a defense in the answer is meant to provide the plaintiff with notice of the defense and a chance to rebut it). But Shelbyville Hospital has not lacked notice of Dr. Mosley's request for a setoff, whether legal or equitable, or a chance to rebut it. In its legal brief on damages and its post-hearing brief, it argued that Dr. Mosley has no right to a setoff in terms of equity or in terms of the Recruitment Agreement's legal framework. [Pl.'s Reply, doc. 184, at 1-12; Pl.'s Post-Hearing Br. at 9-10, 14-16].

         In retracing Dr. Mosley's request for a setoff to the original language he used in his Amended Answer-and in reviewing Shelbyville Hospital's arguments in response to his request-the Court is confident that he intended to claim a setoff that is contractual in nature. In the Amended Answer, he expresses his entitlement to a setoff in these exact terms: “Mosley is also entitled to a setoff for his continued practice in Shelbyville under the non-compete clause of the Recruitment Agreement with Heritage Medical Center operating under the forgiveness period.” [Am. Countercl. ¶ 49].[5] Dr. Mosley's reference to the non-compete clause is not clear to the Court, but his reference to the forgiveness period is undoubtedly an invocation of paragraph D.7. Shelbyville Hospital, too, has interpreted Dr. Mosley's request as one that falls-or at least should fall-under paragraph D.7, contending that paragraph D.7 has “express conditions for forgiveness, ” that it encapsulates the parties' agreed-to terms as to a setoff, and that it is therefore the lone legal mechanism through which he can claim a setoff. [Pl.'s Reply at 5]. According to Shelbyville Hospital, “[h]e cannot now invent a new mechanism for forgiveness without depriving the Hospital of the benefit of its bargain.” [Id.].

         In sum, the parties ostensibly share the belief that Dr. Mosley's request for a setoff is legal in nature, rather than equitable, and the parties depict paragraph D.7 as the relevant landscape on which the Court must conduct its analysis. [Compare Id. (arguing that paragraph D.7 offers the only basis for a setoff), with Am. Countercl. ¶ 49 (pleading that “Mosley is . . . entitled to a setoff for his continued practice in Shelbyville . . . under the forgiveness period”)]. The Court will therefore decide whether Dr. Mosley is entitled to a setoff under paragraph D.7. As is true with any contractual analysis, the Court must interpret and enforce the Recruitment Agreement based on its plain terms, which are the lodestars from which the Court ascertains the parties' intent. See Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002) (“The central tenet of contract construction is that the intent of the contracting parties at the time of executing the agreement should govern. The intent of the parties is presumed to be that specifically expressed in the body of the contract.” (citation omitted)).[6] The Court cannot look beyond these terms unless they are ambiguous. Bokor v. Holder, 722 S.W.2d 676, 679 (Tenn. Ct. App. 1986). If they are ambiguous, “the parties' intent cannot be determined by a literal interpretation of the language, ” and the Court “must resort to other rules of construction.” Pylant v. Spivey, 174 S.W.3d 143, 152 (Tenn. Ct. App. 2003) (citing Planters Gin, 78 S.W.3d at 890). A contract's terms, however, are ambiguous only when they are “susceptible to more than one reasonable interpretation.” Id. (citing Planters Gin, 78 S.W.3d at 890).

         Because the Court has to decide whether and to what extent Dr. Mosley is entitled to a setoff under paragraph D.7's plain language, it does not consider the common-law principles of setoff-like the rule that “a setoff claim must be sufficient to support an independent action . . . against the plaintiff, ” Conister, 2002 WL 389864 at *19-to have bearing on its analysis. Instead, “the intent of the parties must prevail.” Piper Indus., Inc. v. First Tenn. Bank, N.A., 1986 WL 4283, at *3 (Tenn. Ct. App. Apr. 11, 1986) (citing Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973)); see Planters Gin, 78 S.W.3d at 890 (stating that “the intent of the contracting parties at the time of executing the agreement should govern”). Also, because a setoff, in plain terms, is simply a deduction of money from a debt, see Setoff, Black's Law Dictionary (10th ed. 2014) (“Set-off signifies the subtraction or taking away of one demand from another opposite or cross demand[.]” (quotation omitted)), the Court will first consider whether Shelbyville Hospital, as the movant for damages under paragraph D.6, has established its right to a debt. Only then would the Court have a minuend, or ascertained amount, from which it could even begin to deduct a setoff.

         A. Damages

         As the movant for summary judgment under paragraph D.6, Shelbyville Hospital has the legal burden to establish, beyond a genuine issue of material fact, not only its right to damages but also the amount of damages. See GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 541 (Tenn. Ct. App. 2005) (“Determinations concerning the amount of damages are factually driven.” (citation omitted)). In this vein, the Court has already noted that Shelbyville Hospital requested summary judgment on the issue of damages but the Court reserved ruling on that issue until now. The summary judgment standard and the legal burdens that accompany it therefore remain in play, with the initial burden resting on Shelbyville Hospital not only as to damages, which is of course part of its breach of contract claim, but also as to Dr. Mosley's affirmative defense of setoff. See Celotex, 477 U.S. at 327 (stating that the movant for summary judgment has the burden to establish that “the claims and defenses have no factual basis” (emphasis added)).

         1. Shelbyville Hospital's Motion for Compensatory Damages

         In beginning its analysis, the Court reiterates the fact that Shelbyville Hospital, in moving for summary judgment, contended that Dr. Mosley breached paragraph B.4 and has to repay, as damages under paragraph D.6, the total Guarantee Payments that it paid to him. [Pl.'s Br. at 23; Pl.'s Post-Hearing Br. at 2]. Once again, paragraph B.4 provides that Dr. Mosley cannot fail “to render services pursuant to this Agreement for a period of ten (10) consecutive business days during” the first eighteen months. The Court previously awarded summary judgment to Shelbyville Hospital based on Dr. Mosley's breach of this specific paragraph: “There is no question that Dr. Mosley missed more than ten consecutive business days of practice in November and December. He therefore breached Section B.4 of the Agreement.” [Mem. Op. at 14]. Now, the Court has to shift its focus to paragraph D.6, which states:

Should the Physician fail to maintain a Full-Time Private Practice of Medicine in the Community during the Cash Collections Guarantee Period, Physician shall immediately reimburse to Hospital the total sum of the Total Cash Collections Guarantee Payments and/or any other payments made by Hospital under this Agreement to Physician to date.

[Recruitment Agreement ¶ D.6]. Shelbyville Hospital, to dispatch its burden as the movant and establish its right to damages under paragraph D.6's plain terms, has to vault two hurdles. It has to establish, beyond any genuine issue of material fact, the amount of the Guarantee Payments that it tendered to Dr. Mosley “to date” of the breach, and it must show that he did not engage in the Full-Time Private Practice of Medicine during the first eighteen months. [Id.].

         i. The Guarantee Payments to Date of the Breach

          In establishing the total amount of Guarantee Payments that it paid to Dr. Mosley to date of the breach, Shelbyville Hospital discharges its burden with relative ease. First, it directs the Court to evidence showing that it issued $1, 013, 000 in Guarantee Payments to Dr. Mosley through November 2012. [Mitchell Frank Decl., doc. 178-1, ¶ 4; see Accounts Payable Listing, doc. 178-1, Ex. A, at 3]. Second, it also illustrates that the record lacks evidence refuting this amount, citing, among other evidence, Dr. Mosley's rendition of undisputed facts. [Pl.'s Post-Hearing Br. at 3]. In Dr. Mosley's narration of undisputed facts, he states:

13. The Hospital made payments totaling $1, 013, 000 to Dr. Mosley prior to November 15, 2012. (Mitchell Frank Decl. ¶ 5.)
Response:
Undisputed.

[Def.'s Statement Undisputed Facts, doc. 148-1, at 4]. In addition, Shelbyville Hospital identifies evidence showing that Dr. Mosley has not repaid any portion of the $1, 013, 000 in Guarantee Payments. [Pl.'s Post-Hearing Br. at 3 (citing Hr'g Tr. at 10:15-17)].

         The burden now shifts to Dr. Mosley, who must identify evidence of a genuine issue of material fact as to Shelbyville Hospital's figure of $1, 013, 000. He fails to satisfy his burden, citing no evidence creating a dispute as to this amount. During the evidentiary hearing, Dr. Mosley conceded that Shelbyville Hospital provided him with $1, 013, 000:

Q: Dr. Mosley, you understand that we are here due to a business arrangement that you had with the Shelbyville Hospital?
A: I do understand that.
Q: And pursuant to that arrangement, you performed the private practice of medicine in Shelbyville. Is that correct?
A: That's correct.
Q: Now, you were paid an amount by the ...

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