Date: 10-08-2012

Case Style: Lauren Whenry DDS v. Mark D. Tiernan DMD and Associates, P.C.

Case Number: CJ-2010-1830

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Mark Donaldson Lyons

Defendant's Attorney: Gary L. Richardson, Charles L. Richardson and Melissa A. East

Description: Lauren Whenry DDS sued Mark D. Tiernan DMD and Associates, P.C. on a breach of contract theory and embezzlement theories.

Defendant counterclaimed asserting claims based on conversion, breach of contract, and bad faith breach of written contract theories.

1. On November 3, 2008, Plaintiff entered into an Employment Agreement with Defendant to be employed as a professional dentist (the “Employment Agreement�). [See Employment Agreement, attached hereto as Ex. “A�].

2. For the first three (3) months of Plaintiffs employment with Defendant, Plaintiff received a salary of $7,000 per month. [See Ex. “A�; AIT. of Mark D. Tiernan, ¶ 4, attached hereto as Ex. “B�].

3. Following the first three (3) months of Plaintiffs employment with Defendant, Plaintiff received 35% of her collections as her compensation. [See Ex. “A�; Ex. “B,� ¶ 4].

4. Pursuant to the Employment Agreement, Plaintiffs employment with Defendant was at-will and Defendant could terminate the contract without cause and without notice. [See Ex. “A,� p.4, § 6.1].

5. Additionally, pursuant to the Employment Agreement, Plaintiff agreed to the following:

a) she must not discount any Professional Fees or other fees for professional services provided by Plaintiff to Defendants’ patients without the prior consent of Defendant [Id. at pp. 3-4. § 4.1(f)];

b) she must not remove patient records, supplies or equipment from Defendant without the prior consent of the Employer [Id. at pp. 3-4, § 4.1(j)].

6. During the summer of 2009, Naintiff determined there were inaccuracies with her collections and she began to “snoop.� [See Dep. of Lauren Whenry, p. 36, 11. 12-17, attached hereto as Ex. “C�].

7. Plaintiff subsequently made complaints to Mark D. Tiernan (“Tiernan�), the president and owner of Defendant, regarding alleged inaccuracies to the accounting of her compensation. [See Ex. “C,� p. 48, 11. 3-25].

8. In October of 2009, Defendant experienced a computer crash, lost most, if not all, of its patient and billing information, and had to re-create accounting reports. [See Ex. “B,� ¶ 6; Ex. “C,� p. 80, 11. 1-10].

9. Following the computer crash, Plaintiff took patient files home without informing Defendant and without receiving prior consent from Defendant. [See Ex. “B,� ¶ 7; Ex. “C,� p. 97,1.21—p. 98,1.24].

10. On or about November 7, 2009, Defendant terminated Plaintiff’s employment for the reasons stated hereinabove. [See Ex. “B,� ¶ 8].

11. Following Plaintiffs termination, Defendant determined that Plaintiff was personally receiving insurance checks from insurance companies and was improperly cashed these insurance checks retaining possession of 100% of the monies when she was only entitled to 35%. [See Ex. “B,� ¶ 9; Ex. “C,� p. 70, 11. 6-11, p. 72,11. 6-24; Dep. of Janet Guest, p. 34,1. 5— p.35,1. 15, attached hereto as Ex. “D�; Aff. of Sherry Hyatt, attached hereto as Ex. “E�].

12. According to Plaintiff, she used the monies from these insurance checks as an offset for monies Defendant owed her. [See Ex. “C,� p. 72, 11. 6-24].

13. Defendant also determined that Plaintiff had, on more than one occasion, provided services for patients free of charge and gave away products free of charge without Defendant’s prior consent. [See Ex. “B,� ¶ 10; Letter from Vicky Meacham dated 11/16/09, attached hereto as Ex. “F�].

14. Additionally, Plaintiff received $1,500 on November 13, 2009. [See Pay Stub for Lauren Whenry dated 11/13/09, attached hereto as Ex. “U�].

15. Plaintiffs collections through December 31, 2009 totaled $29,188.15. Plaintiff was also provided an adjustment for previous unpaid collections in an amount of $6983.11. These previous unpaid collections were credits for the final amounts that were incorrectly credited to Defendant. After expenses for lab fees and refunds paid to patients, Plaintiff’s net collections through December 31, 2009, totaled $33,866.62. [See Ex. “B,� ¶ 13; Mark D. Tieman, DMD and Assoc., PC Payroll Calculation for Dr. Lauren Whenry, attached hereto as Ex. “H�; Dr. Whenry Provider Adjustments Outstanding for 2009, attached hereto as Ex. “1�].

16. Plaintiff’s net pay for her final payroll calculation, which included the amounts her net collections through December 31, 2009, totaled $7,557.67. [See Sure Payroll, Payroll Detail for Lauren Whenry, attached hereto as Ex. “J�l.

17. Plaintiff has presented a spreadsheet of damages in this case which she alleges details the total amount of wages due and owed to her. According to Plaintiff, she did not create this spreadsheet, she had doubt as to the numbers in the spreadsheet, that she created the spreadsheet pursuant to numerous assumptions, and she cannot clarify the accuracy of the numbers as the spreadsheet. [See Ex. “B,� ¶ 14; Ex. “C,� p. 57, H. 12-18, p. 60, 1. 5 — p. 62, 1. 4, p.74,1. i—p. 75,1. 7].

18. Defendant has performed over 250 hours of research and analysis to determine the accuracy of the alleged wages due and owed to Plaintiff pursuant to Plaintiff’s spreadsheet of her alleged damages. [See Ex. “B,� ¶ 15].

19. Defendant’s research consisted of reviewing patient files and accounting records to determine the dates of service, and whether Plaintiff was properly credited for the wages she alleges are due and owed to her pursuant to the Employment Agreement. [Id].

20. As a result of this research, Defendant was able to verify that the number of entries in Plaintiffs damages spreadsheet that were accurate totaled an amount of $2,130.43. Defendant also determined that Plaintiff owes Defendant $14,115.02 for improper credits, patient refunds and due to Plaintiff’s failure to charge patients for services and/or for product. [See Ex. ‘‘B,� ¶ 16].

21. As of May 12, 2011, the total amount of monies Plaintiff obtained following her termination included $8,303.24 in insurance checks she cashed as offsets to the amounts Defendant owed to her and $1,500 in cash for her November 2009 mid-month salary advancement. [See Ex. “B,� ¶ ii Ex. “E,� ¶ 5; Collections Reconciliation from 10/21/09 to 5/11/11, attached hereto as Ex. “K�j.

Outcome: Settled and dismissed by both parties with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: