Williams v. Hobbs , 9 Ohio App. 3d 331 ( 1983 )

While I agree with the majority's disposition of the appeal of plaintiff, Dale L. Williams, D.O., I respectfully dissent from the majority's disposition of the appeal of defendant T.C. Hobbs and Associates, Inc.

T.C. Hobbs and Associates, Inc., sought a temporary and permanent injunction pursuant to a noncompetitive covenant in its contract of employment with Dr. Williams. My review of the record indicates that the trial court's denial of the injunction is not supported by the evidence. As the majority states, the test to determine whether a covenant in a contract that restricts competition of an employee after he or she leaves an association with his employer is set forth in Raimonde v. Van Vlerah (1975),42 Ohio St. 2d 21 [71 O.O.2d 12]. In its decision, the trial court applied the Raimonde test and found that the covenant executed by T.C. Hobbs and Associates, Inc., and Dr. Williams: (1) "imposes an undue hardship on the plaintiff" and (2) "is injurious to the public." The trial court further observed that "[p]laintiff's services are vital to the health, care and treatment of the public" and that the "demand for his medical expertise is critical to the people" in this community.

The trial court made no finding with respect to the hardship the covenant not to compete would cause plaintiff. To review that test first, I find nothing in the record that indicates that plaintiff's agreement not to practice radiology in Franklin County for a period of two years after his termination of employment with T.C. Hobbs and Associates, Inc., caused him undue hardship. To be sure, any person who is prevented from practicing his profession or trade for a period of time in an area in which it has been practiced, suffers some hardship. However, theRaimonde test requires more than just some hardship. Plaintiff did not show that he could not readily obtain a position or establish a practice elsewhere. In fact, it could be assumed that, because his specialty appeared to be interventional radiology, there would be a demand for his services in many communities outside Franklin County. Too often courts have attempted to rewrite contracts for parties that appear after the fact to be more equitable to one or more of the parties. TheRaimonde opinion acknowledges that temptation and its test should therefore be strictly applied.

With respect to the other branches of the Raimonde test, I find nothing in the record that supports the trial court's conclusion that enforcement of the covenant not to compete would be injurious to the public. The evidence indicates that T.C. Hobbs and Associates, Inc. had at least one and perhaps two other associates who could perform the same services as those being performed by Dr. Williams. There was no evidence offered indicating that, if Dr. Williams was not permitted to practice his profession in Franklin County, anyone would suffer as a result therefrom. There was no evidence indicating a shortage of radiologists in Franklin County.

The Supreme Court, in Raimonde, further stated that a covenant not to compete could be enforced to the extent necessary to protect an employer's legitimate interest. Plaintiff became associated with T.C. Hobbs and Associates, Inc., immediately after completing his residency in radiology in 1967. He received considerable training and education during his association with T. C. Hobbs and Associates, Inc. The desirabilit of an arrangement by which a unified group of doctors operates the radiolog department in a hospital was recognized b plaintiff himself while he was associated with T.C. Hobbs and Associates, Inc. If plaintiff were to be permitted to compete within Franklin County in violation of his contract, he presumably could attempt to compete with his former employers at Doctors Hospital if their exclusive contract were to be terminated for some reason.

Because I do not find in the record sufficient evidence to support the trial court's application of the Raimonde test to the facts in this case, I would sustain the assignment of error of T.C. Hobbs and Associates, Inc., in case No. 82AP-571, and reverse the judgment of the trial court and remand the cause with instructions to enter judgment for T.C. Hobbs and Associates, Inc.