Primary Health Physicians v. Sarver, Wallace , 2012 Tex. App. LEXIS 10101 ( 2012 )

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No. 05-12-00351 -CV
PRIMARY HEALTH PHYSICIANS, P.A., Appellant
V.
WALLACE SARVER, D.O., Appellee
On Appeal from the 192’ Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC 12-00289-K
OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Morris
In this accelerated interlocutory appeal, appellant Primary Health Physicians., P.A. challenges
the trial court’s order denying a temporary injunction against Wallace Sarver, D.O.. based on a
covenant not to compete in the parties’ employment agreement. Among other things, the trial court
concluded PHP would not suffer irreparable injury pending trial on the merits. In two issues, PHP
asserts the trial court abused its discretion because (1) PuP did not need to show irreparable injury
once it established Sarver violated a covenant not to compete that was enforceable under the
Covenants Not to Compete Act, and (2) the evidence at the hearing proved irreparable injury. We
affirm the trial court’s order.
Sarver was hired by PHP as a doctor for its CareNow clinic in Frisco. Sarver signed an
employment aercement providing he would not, engage in any business that was competitive with
NIP within the ten—mile radius around the Frisco CareNow facility for a period of two years
following the termination of the employment agreement. Sarver resigned from his position at the
Frisco CareNow clinic in i)ecember 20 ii . On January 9. 2012. Sarver began working for
FamilyWise. in Alien. lexas, where he assumed another phvsicians practice and full load of
patients. It is undisputed that Family Wise was within the ten-mile radius of the Frisco CareNow
Clinic. Sarver then sued PHP seeking injunctive and declaratory relief to prevent PI-IP from
enforcing the noncompete provision with respect to his employment with FamilyWise. PHP
answered and filed a counterclaim seeking, among other things, a temporary injunction enjoining
Sarver from working at FamilyWise. After a hearing, the trial court denied PI-IP’s request for a
temporary injunction. This appeal followed.
Our review of the trial courts order is limited to whether the trial court abused its discretion
in refusing to grant temporary relief. See Butnaru v. Ford Motor Co., 84 S.W.3d 198. 204 (Tex.
2002). A trial court abuses its discretion when it misapplies the law to established facts or when the
evidence does not reasonably support the trial court’sfactial determinations. See Id. at 211: Rugen
v. Interactive Bus. Sys., Inc., 864 S.W.2d 548. 551 (Tex. App.—DaIlas 1993. no writ).
A temporary injunction applicant must plead and prove the following three elements: (1) a
cause of action against the defendant: (2) a probable right to the relief sought; and (3) a probable.
imminent, and irreparable injury in the interim. See Tom James o,f Dallas, Inc. v. Cobb. 109 S.W.3d
877, 882 (Tex. App.—Dallas 2003, no pet.). A temporary injunction is an extraordinary remedy and
does not issue as a matter of right. Butnaru, 84 S.W.3d at 211.
The enforceability of a covenant not to compete is governed by the Covenants Not to
Compete Act. See TEX. Bus. & C0M. CODE ANN. § 15.50 et seq. (West 2011). The Act contains
a provision stating its procedures and remedies to enforce a noncompete anrecment are exclusive and
preempt any other criteria for enforceability under common law or otherwise. Id. at § I 5.52.
In its first issue. PHP contends it was not required to establish irreparable harm for a
temporary injunction because it established the covenant not to compete was enforceable under the
Act and Sarver was violating the covenant by working at FamilyWise. PI-IP cites three cases from
this Court to support its position that, under the Act, an applicant need not establish irreparable harm
to obtain a temporary injunction to enforce a covenant not to compete. See McNeilus Cos. Inc. v.
Sums. 971 S.W.2d 507 (Tex .App.—Dallas 1997. no pet.): Huh, Rogal & Hamilton Co. of Tex. v.
Wurzman. 861 S.W.2d 30 (Tex. App.—Dalls 1993, no writ); Recon Exploration, Inc. v. Hodges.
798 S.W.2d 848 (Tex. App.—Dallas 1990, no writ). Although the cases cited by PHP do contain
dicta suggesting the Act’s enforceability requirements supercede those under the common law for
injunctive relieI we have never held the Act eliminates the requirement that an applicant show
irreparable harm to obtain a temporary injunction based on a covenant not to compete.
Several sister courts have determined the Act does not preempt the requirements for
obtaining temporary injunctive relief. See 1
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I SL Analytical, Inc. v. Younker. 1 54 S.W.3d 693. 695
(Tex. App,—Houston[l4th Dist.j 2004, no pet.); Cardinal Health Sta/jingNetwork, Inc. v. Bowen,
106 S.W.3d 230,239—40 (Tex. App.—Houston [1st Dist.j 2003, no pet.); NMTC Corp. v. Conarroe,
99 S.W.3d 865. 867—68 (Tex. App.—Beaumont 2003. no pet.). We agree with the reasoning of
these cases that the Act governs only final remedies and does not supplant the common law
requirements for a pretrial temporary injunction. In fact, when an appeal involves an order on a
temporary injunction application based on a covenant not to compete, the ultimate question of
whether the covenant is enforceable under section 15.50 of the business and commerce code is not
an issue for appellate review. See Thin James of Dallas, 109 S.W.3d at 882—83. The trial court may
—3—
theretore consider the parties’ respective conveniences and hardships. weighing the probable harm
to the plaintiff ii a temporary inlunction is erroneously denied with the probable harm to the
defendant if a temporary injunction is erroneously granted. See iVMTC Corp. v. Conarroe, 99
S.W.3d 865, 868 (Tex. App.—Beaumont 2003, no pet.).
Having concluded that PI-IP was required to show irreparable injury to be entitled to a
temporary injunction, we next address whether the trial court abused its discretion in determining
that PHP failed to make the requisite showing of irreparable injury. The hearing on the temporary
injunction took place on February 17, 2012, about five weeks after Sarver began working at
Family Wise. PHP presented evidence that while working at CareNov. Sarver developed a devoted
patient following and after he left. patients asked to see Sarver. No evidence shows. however, that
any of these patients stopped going to the Frisco CareNow and were instead now going to
Family Wise to see Sarver. Another doctor and the front desk manager from Frisco CareNow
testified that when patients request Sarver or ask about his absence, they inform them that he has
gone to another practice. but do not give the patients any information as to where Sarver is currently
working. The doctor testified he had seen only one patient who said she had been treated by Sarver
at FamilyWise and that patient was still seeking treatment at CareNow. The doctor was not aware
of any patients who were not coming to CareNow and instead going to see Sarver.
Conflicting evidence also exists on whether Family Wise actually competed with CareNow.
While CareNow and Family Wise facilities were both involved in the practice of family medicine
and provided treatment for acute and chronic illnesses, the CareNow facility was a non-appointment-
based facility with extended hours that focused on the ‘episodic” needs of patients. FarnilyWise,
on the other hand, was a more traditional family practice seeing patients by appointments only during
regular business hours and focused on preventative and “chronic longitudinal” care. FamilyWise
does not have the resources to treat many acute injuries that arc treated by CareNow and refers urgent
care patients to another facility.
Sarver did not solicit or contact patients he saw at CareNow nor did he use any confidential
intrmaUon obtained while working for CareNow. Moreover, two PI-IP representatives testified that
since Sarver left and began working at Family Wise. the patient volume and profitability at CareNow
was about the same and had not decreased. Sarver stated that since he began working at
Family Wise, he had seen two patients he had treated previously at Care Now. One was already a
patient of Family Wise and remained a patient of CareNow. He noted the other patient would also
continue to seek treatment at CareNow. Although PI-IP claims on appeal that CareNow has and will
continue to lose the valuable goodwill generated by Sarver’s treatment of the patients at its Frisco
facility, it references no evidence from the hearing to support this assertion.
Because some evidence supports the trial court’s determination that PI-IP would not suffer
probable irreparable harm before the case is finally tried on the merits, the trial court did not abuse
its discretion in denying the temporary injunction. We affirm the trial court’s order.
/ -
JOLLY FANCIS
JUSTICE
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JUDGMENT
PRIMARY IJEALTIl PIJYSICIANS. P.A.. Appeal from the I 92 Judicial District
i\ppellant Court of Dallas County, Texas. (‘Ir.Ct.No.
DC 12-00289-K).
No. 05-12-00351-CV V Opinion delivered by Justice Francis,
Justices Morris and Murphy participating.
WALLACE SARVER, I).O.. Appeflee
In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED. It is ORDERED that appellee Wallace Sarver, D.O. recover his costs of this
appeal from appellant Primary I-Iealth Physicians, P. A.
Judgment entered December 6. 2012.
C IS
JUSTICE