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Click here for the full text of this decision FACTS:Appellee Encore Medical LP adopted a severance agreement to protect its key executives should a third party take control of the company. Two conditions triggered benefits under the agreement: a change of control and a termination event, defined to include an executive’s resigning for “good reason.” Joyce Ludwig sued for severance benefits, alleging that control of the company had changed and that she had terminated her own employment for good reason. Encore denied both allegations. The jury found that control of the company had changed, but that Ludwig had not terminated her employment for good reason. No benefits were provided to Ludwig by the severance agreement. After the jury’s verdict, Ludwig presented her claim for attorney’s fees to the court, asserting that under the severance agreement, Encore was obligated to pay litigation expenses even to a nonprevailing party. The district court denied her request for attorney’s fees and entered a take-nothing judgment on the jury verdict. Ludwig does not appeal the take-nothing judgment, but complains only of the court’s failure to grant her attorney’s fees. HOLDING:Affirmed. Ludwig claims that the district court erred in refusing to award attorney’s fees and expenses because 1. she did not have to prevail on the merits of her claims to recover reasonable attorney’s fees and expenses, 2. the evidence in the record conclusively demonstrates that she did seek to obtain or enforce a right or benefit provided by her severance agreement, and 3. the contractual fee-shifting provision at issue in this case does not violate public policy as the district court concluded. Encore’s obligation to Ludwig under the litigation expenses provision does not specifically provide litigation expenses to the nonprevailing party. Nor does it grant the executive such wide-ranging choice of when to employ counsel; she must be seeking benefits actually provided by the agreement. This provision does not express the company’s intent to relieve the executive of any and all legal fees. Moreover, the Creel executives would have been entitled to attorney’s fees even under the district court’s construction of the Encore agreement: the Creel executives were undeniably entitled to benefits provided by their agreements and only disputed the calculation of those benefits. We reject Ludwig’s reading that under this latently ambiguous provision Encore must reimburse legal expenses to every executive who seeks benefits under the severance agreement, even under circumstances where the agreement provides no benefits. Nicolas Cindrich, Encore’s president at the time the severance agreement was drafted, testified that the agreement was not designed to be a bonus or to protect an employee who left the company for personal reasons. Likewise, Harry Zimmerman, Encore’s corporate counsel who drafted the agreement, testified that an executive would not be entitled to attorney’s fees under the litigation expenses provision unless the severance agreement had been triggered. The court holds that an executive who has previously resigned for personal reasons is unable to seek to obtain benefits provided by this severance agreement, just as an executive seeking severance benefits for a termination event that occurred three years and one week after a change of control could not seek benefits under the agreement. It was not unreasonable to construe the litigation expenses provision to deny attorney’s fees sought by an executive who had already resigned for personal reasons before claiming severance benefits for a termination event. Accordingly, the district court did not abuse its discretion in construing the agreement to deny attorney’s fees under the circumstances of this dispute. The jury was asked to determine whether Ludwig terminated her employment for good reason, as that term was defined by the severance agreement. The jury answered “no.” The jury was in the best position to judge the credibility of Ludwig and the Encore witnesses to determine when and why she resigned. At the post-trial hearing on Ludwig’s motion for attorney’s fees, the parties agreed that the district court could and should consider all of the evidence presented throughout the trial. This included Encore’s evidence that Ludwig had already resigned for personal reasons before she sought benefits under the severance agreement. “We have already determined that there is a latent ambiguity as to whether litigation expenses must be paid for any claim made under the agreement, and that in some narrow circumstances fees may be denied for suits not contemplated by the agreement. The evidence that Ludwig had already resigned for personal reasons supports the district court’s single finding that Ludwig”did not seek to obtain or enforce any right or benefit under the Severance Agreement.’” If Ludwig had already resigned for personal reasons, the severance agreement provided no more benefits than if she had resigned more than three years after the change in control. OPINION:Smith, J.; Smith, Patterson and Puryear, JJ.

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