*1 ISUANI, M.D., Hugo Appellant, E.
v. RADIOLOGY MANSKE-SHEFFIELD GROUP, P.A., Aрpellee. No. 09-90-070 CV. Texas, Appeals of Court of Beaumont. 13, Sept. 1990. Rehearing Denied Nov. Jamail, Benckenstein,
George Michael Oxford, Beaumont, Johnson, Radford & appellant. Partain, Wells, Beard, Peyton,
Bruce M. Crawford, Beaumont, Greenberg, Hunt & appellee. OPINION BROOKSHIRE, Justice.
Appeal granting from of a temporary injunction. Background Facts Partial Hugo Isuani a full member and Radiolo- of the Manske-Sheffield officer radiology prac- gy Group, P.A. This well specialty ticed in medicine as their subspecialties in Port specialized certain every member Arthur. The into a of em- thereof had entered contract ployment. non-compete clause. The
contained year limited clause in time territory to an of miles radius area Mary’s Hospital Port measured from St. Arthur. agreements cove-
The restrictive partners and members nants between equally radiology group applied resigned from the Dr. Isuani each doctor. *2 347 group 31, on March 1990. Two employ- Some non-compe- evidence exists that the ment agreement contracts had existed. The first tition one in the placed was contract was in protect employment The interest contracts business of the ra- Sheffield, were very diology group as good similar. Dr. Dr. as wеll will. King, Isuani, CPA, group Dr. in Mr. The 1987 contracts Hefty, a and had with the Mr. hospitals. same two Greenberg, group The had lawyer, and a Mr. Joe Ver- several non, private CPA, offices well. At the time the meeting as attended 1987 Dr. signed, in contract was Isuani was discussed some the first detail contract an officer of professional association employment. Hefty Mr. was an advisor and was a Isuani; stockholder therein. His annual for Dr. Greenberg Messrs. and compensation same was the as the other Vernon were for group. advisors members of monthly and his group Hefty Mr. represented was a and CPA in draw was the any same other doctor. that capacity generally and legal- —but The monthly $20,000 draw was ly meeting. Isuani at first The —Dr. first contract gone was over and the discus- The business interests and existing sion of the page contract on a by page was contracts that the group had in 1987 were basis. The record reflects that the employ- Mary’s Hospital, St. County Mid-Jefferson ment general contract in particular and the Hospital, Texaco, (Chevron) Gulf Oil and an paragraphs in issue were entered into to entity known as Imaging Sоutheast Texas protect the good- business interests and the Center. will of the radiology group. In 1982 the group had a Mary’s contract St. Hos- The contract also related to future busi- pital and a contract with Mid-Jefferson ness interests. general feeling of the County Hospital agree- group as well as certain any that if individual violated ments near-by with several of the non-competition refiner- agreement any then ies and other industries. As to the refiner- other doctor or could member do so. This ies, agreements by letter radiology and for would in result disinte- the purpose of interpreting X-rays. grating. There hospital existed other in the area that the Manske-Sheffield Dr. Isuani had apparently expressed group had dealings some with. The any misapprehension or misunderstanding protect potential desired to this future busi- concerning these restrictive covenants ness interest. since March of early 1982 until sometime in The record clearly reflects that Dr. Isua- January January 1990, of 1990. In ni, group, spe- while a member of the had Isuani wanted to the leave and he cialized in particular certain areas and had indicated to the group that he free very proficient become therein. He was practice wherever he desired. experienced angiogra- said to be the most agreed signed Dr. Isuani to and a 1987 pher in group. He had had extra train- employment radiology ing angioplasty. had He become an applicable This 1987 contract was expert temporomandibular joint arthro- to all of the and members officers of the blocks, grams. He had done facet disko- radiology group. grams, exceptionаlly and was talented objec- contract came into without evidence acquired He radiology. interventional tion. subspecialties perfected these while a paragraph The crucial of the 1987 con- of the and somewhat at the member applied tract expense to the other doctors of the He had also taken paragraph, being profi- that crucial had become additional courses and paragraph (MRI). magnetic imaging was discussed with Dr. Isua- cient resonance Paragraph non-comрetition ni. is the He had taken courses in 1989 New Or- agreement. diskograms. proficient Dr. Isuani did not ask to become leans prior questions concerning 21 in courses in paragraph the He had also taken some evidence diskograms. There is 1987 contract. de- training paid films. Pneumoconiosis been
additional
had been
niosis
lung disease
type
of industrial
Manske-Sheffield.
scribed as
companies
law-
Industrial
disorder.
leave the
If Dr. Isuani were allowed to
of a
usually
firms
for the services
asked
mem-
group, then it would take
“B” reader.
two
group anywhere
frоm
bers
*3
acquire
year
to
months
a
to
weeks
two
Upon a
on the
review of the record made
subspecialties of
proficiency in
of
some
the
temporary injunction we cannot hold that
However,
subspe-
different
Dr. Isuani.
judge sitting in equity
the trial
abused
cialties,
group
members of
same
discretion, but we conclude limited modifi-
perform the same.
and
could
would
demand,
necessary. By special
are
cations
advanced on
year
explained
limitation was
this matter was
the docket.
The one
necessary
prop-
of
being
рeriod
that
time
lucidly demonstrates that the
The record
replacements
properly
erly recruit
and
of
annual income
group derived an
practice
group
in the
qualify them
$2,600,000.
that this is a
It can be said
subspecialties of
in some of the
and
which the
business interest
substantial
period
ap-
The time
sense
trying
protect.
There
group was
pears reasonable. Some evidence exists
probative force that the
some evidence of
would at once commence
that
Isuani
group
had an
and officers
members
employment
Hospital.
Park Place
His
at
$300,000.
approximately
income of
annual
point.
Park Place Hos-
brief concedes
genuine
that
a
concern
The record reflects
mile limitation.
pital was within the 15
and
group
lose certain contacts
would
practice
Park
that his
at
There
evidence
companies.
some of the
contracts with
on the
negative impact
would have a
Place
per-
could amount to about
These losses
well as
of Manske-Sheffield as
business
gross income. Other industrial
cent of the
It
shown
group.
will of the
good
involved,
Bu-
such as Neches
plants were
requested by
had
a
that Dr. Isuani
been
Polymer.
Arco
tane and
spe-
referring
to do
physicians
number of
fact,
group
In
established affirmative
perform specific tests for
cific work and to
up
good
will of
procedures
This
in-
build
referring physicians.
business
especially
longer
good
This
group.
applied
come to
probably would no
terest
local, surrounding
attempted
had
and will in the
area.
group.
good
building up
group encouraged
will with
their members to live in
had succeeded
immediately
over
physicians
in the area
the Port
or in an area
sur-
a number
Arthur
fact,
good
referrals.
years.
rounding
This
will enhanced
Port Arthur.
In
there was a
$5,000
result
per
failing
said to be the
penalty
The referrals were
month
$5,000
will of the
good
live in the Port Arthur area. This
per
penalty was not enforced.
month
unjustifiably ex-
could
opinion
This
be
recital of other evidence.
by the
tended
protect-
There was
reasonable basis
had been
example,
For
Manske-Sheffield
ing
good
will of the
If a mem-
person
by
important
initially approached
hospi-
ber of the
lived close
for a
Hospital
Park Place
connected
involved,
emergency care could
tals
then
hospi-
with that third
possible association
provided quickly.
If there was an emer-
place probably
These
took
tal.
endeavors
gency
night,
specialized
call at
medical
of 1989. Dr. Isuani’s
part
latter
performed more
if
quickly
services could be
at
going to work
leaving
radiologist
emergen-
lived close
reflects,
Place,
would
Park
the record
cy
perceive
group’s
We
room.
on the inter-
negative impact
a substantial
good
protect its
attempt to
under the
radiology group.
good will of the
ests
was reasonable.
it
a sound
think
medical basis.
by Dr. We
developed
subspecialty
Another
basis in turn
That
medical
inured to
sound
being
“B” reader.
was that
Isuani
injured,
salutary benefit of the
suffer-
has been
radiologist “B" reader is a
patients.
ing
interpretation
pneumoco-
in the
certified
group signed
think that such
We
considerations as
that all of the members of the
emergency
There exists
prompt
room care
treat-
identical contracts
prоperly
probative testimony
ment can and should be
con-
some
that the
Place
judge.
sidered
the trial
was under consideration
Park
Hospital,
Appel-
but that the actions of the
Furthermore,
testimony
there exists
put
stop
negotiations.
lant
Tes-
to these
Appellant
entitled to one-sixth
timony
to,
if
exists that
the income of the
his name
and that
involved,
impunity,
break the covenant
possessed
good
excellent
will.
impact
radiology group
then the
on the
disintegration.
This evidence
Paragraph
The Crucial
weighed by
was to be
the trial cоurt. The
21. NON-COMPETITION AGREE-
disintegration
radiology group
cer-
expressly
MENT: It is
understood and
negative impact
in a
tainly would result
on
*4
agreed
expi-
upon
that
the termination or
The income of the
a business interest.
Contract, Employee
ration of this
not
spelled
year
for the
1989 is
out
group
engage in
in
practice
of medicine
above.
Employee’s
own name or
association
contract,
employment
Pursuant
to the
others,
Employee’s
with
or offer
services
buy
period
group
had to
back over a
consultant, employee, independent
as a
year
by
six
owned
months to one
stock
otherwise,
directly
contractor or
whether
buy-back
Dr. Isuani. This
would have
indirectly,
having
or
within the area
negative impact on the income of the re-
Mary’s
radius of fifteen miles from St.
Texas,
maining
clearly
doctors. The record
Hospital,
Arthur,
peri-
Port
for a
unequivocally
year
reveals that each member
od
one
from the termination or
Moreover,
expiration
group
received
salaries and bonuses
Contract.
it
$300,000
specifically
agreed
figure
or a
close thereto for the
understood and
agreement may
year
Again,
that this covenant and
calendar
we think this is
by
injunction, monetary
enforced
suit for
inter-
a reasonable and substantial business
both,
damages,
any
or
radiologists
and without
bond
to the individual
as well as
est
being required
posted.
group.
participated
Dr. Isuani
salary
same extent
and bonuses.
employment
The first
1982 con-
provided
buy-out
The contract
that
paragraph
tained a
19 which
awas
similar
agreement would be the same as to each
non-competition.
restrictive covenant of
group.
member of the
This earlier document was discussed and
gone
Dr.
over with
Isuani and his Certified
testimony
The record also reflects sworn
page
page by
Public Accountant on a
basis
paragraph
that Dr. Isuani understood
inviting any questions that needed to be
going
but said that he was not
to abide
Dr.
asked. Neither
Isuani nor his Certified
specifically that he
it and further stated
Public Accountant had
discussion or
go
Hospi-
at Park Place
wanted to
to work
questions concerning paragraph 19.
tal.
radiologist,
King,
Dr.
as
who served
acknowledged that he had
Appеllant
The
group,
president
testified that
employment con-
a chance to review the
objection
para-
Dr. Isuani had no
to either
his
tract and that he could have obtained
paragraph
King
graph 19 or
21. Dr.
ex-
lawyer
personal
own
to review the same.
plained the reason for the time limitation.
acknowledged
financial
Appellant
that his
year
group
The
needed at least a
to find a
accountant,
adviser,
a certified
qualified replacement. The area limitation
role, according
Hefty’s
with him. Mr.
the limits and loсale of the
had to do with
in the financial
Appellant,
was to look
is,
specialized radiology
practice; that
and to be a financial adviser
records
practice
group.
challenged con-
Hefty
that
reviewed
Appellant
The
sim-
permit
employment.
tract of
willing
former
The
Beaumont,
not see the need
Orange,
ply
stated that he did
practice
members
he
significant
attorney but that
could
It is
retain an
and other areas.
Winnie
very good following
Appellant
had a
opportunity
done so and had
to do so. The
leaving
really
his
would
Appellant
unequivocally
The
admitted
affecting
competition
the referral business.
deposition
you
he
at
that
was asked “have
legit-
witness
This was viewed
any member of the
ever been advised
legit-
and also a
agreement
imate business interest
non-competition
that this
good will.
imate concern about
pro-
apply
does not
to all members
unequivocal
fessional association?”
Isuani,
brief,
his
has conceded
Appellant
answer was “no.”
understood
practice radiology at
that he now desires to
thаt
member of the
had a sim-
each
Hospital. Appellant
Park Place
concedes
ilar,
identical,
if
covenant in
restrictive
Nasser,
a staff
that he has talked with.
fact,
In
employment.
their contracts of
Hospital. Appel-
radiologist at Park Place
the same for each member of
contract was
thought
employ-
could
lant
he
obtain
This
defeat
with Dr. Nasser.
ment
any possibility of the Manske-Sheffield
he,
acknowledged
obtaining
Place.
a contract
Park
himself,
had terminated
acknowledged
Dr. Isuani
appellate
The standard for
review
$300,000
paid
he was
with his bonus
granting
court’s action
of the trial
group for the
from the Manske-Sheffield
injunction whether the trial
temporary
year 1989. Dr. Isuani admitted
calendar
granting
its
court abused
discretion
grant
that if
trial bench elected
tempo
pleadings for a
Manske-Sheffield’s
*5
he
temporary injunction
the
intended
Intern.,
v.
injunction.
Inc.
rary
Loomis
join
practice
in
of
to
Dr. Nasser
the
radiolo- Perkins,
(Tex.App
303
689 S.W.2d
. —Hous
gy
Dr.
contract was
and since
Nasser’s
writ).
1985, no
estab
ton
Under
Dist.]
[1st
Hospital,
the Park Place
then
exclusively at
precedents,
litigant seek
decisional
lished
practice
at the
radiology
Dr.
would
Isuani
ing
has the burden
temporary injunction
Hospital,
the 15 mile
Park Place
within
(a)
litigant
proba
to
that the
will
establish:
Mary’s Hospital.
radius of St.
merits; (b)
litigant
bly
upon
the
prevail
the
in
probable irreparable injury
will suffer
Another member of the
testified
the interim.
v. Wackenhut
DeSantis
enforced to
that he wanted
616, 1988 WL
Corp.,
Tex.Sup.Ct.J.
31
of the
protect the business interests
13, 1988,
rehearing
(July
motion for
71557
years legit-
He
that for several
testified
Whitaker, 424
pending);
v.
Sun Oil Co.
to
some
attempts
imate
had been made
do
(Tex.1978).
S.W.2d
Hоspital. In
Place
radiology work at Park
fact,
radiology chief at Park
sec.
the former
ANN.
TEX.BUS. & COMM.CODE
Hospital
apparently
(Vernon
provides
been re-
that a
15.50(2)
Supp.1990)
Place
or
is
non-competitive agreement
lieved
his duties and certain members
covenant
encouraged by
covenant
group had been
certain
can be enforced. The
lawful and
to
extent
Hospital
compete
Place
is enforceable
staff members
the Park
not to
toas
apply
reasonable limitations
for
Manske-Sheffield
to
that it cоntains
area,
activ-
meeting
time,
scope
radiology
geographical
there.
for the
work
impose a
that do not
ity
be restrained
including
matter
to
place
took
on this
pro-
necessary
to
Later, however,
greater restraint than
the record reflects
inter-
other business
good
tect the
or
against
former radiol-
charges
that the
15.50(2). We
promisee. Sec.
of the
ests
radiologist was
ogist
dropped and the
were
ac-
supports the
the record
conclude that
Hospital. This
at the Park Place
reinstated
werе
actions
the trial court which
tions of
radiologist,
opinion
make the
to
former
conformity
15.50
certain
Sec.
clear,
This member
not Dr. Nasser.
specific exceptions.
other reasons
group testified as to
interests.
protecting the business
Trim, Inc.,
v.
Auto
In Hill Mobile
(Tex.1987),
Supreme
radiology, a 725
specialist in
S.W.2d
Yet another
that a cove
spelled out four criteria
the Court
group, testified that
of the
member
that the non-com-
meet in order
nant must
great
of doctors.
knew a
number
subspecialties simply can-
pete
be
and These
covenant
deemed reasonable
advanced
neces-
to
a secret of
enforceable. The covenant must be
not be considered
be
sary
protection
promisee,
employer
of the
other members
group since the
meaning
promisee
required
that the
to
possess
subspecialties.
did not
“secret”
legitimate
protecting
Consultants,
Inc., supra.
have a
interest
Hospital
See
will,
secrets;
business,
next,
good
Isuani,
therefore,
or trade
subspecialties
be oppressive
covenant must not
to him
were not confided
promisor,
Supreme
inasmuch
Court
doctors;
subspecialties
were
re-
nor
these
declared that
it was hesitant
to validate
techniques known
special
vealed to him
employee
when
employee
covenants
only to
the other members of the
nothing
but his
labor to sell.
In
own
words,
subspecialties
In other
these
addition,
time, territory,
limitation as to
imparted
way
Isuani
of confidenc-
activity
compete
the covenant not to
expressed to him
expressed
es
or secrets
Third,
must be reasonable.
the covenant
him the other doctors.
Isuani
did
injurious
be
since
must not
trust,
any
nor
he
breach
did
violate
the Texas Courts are reluctant
confidence,
attaining
the advanced skills
enforce
prevent competition
covenants which
subspecialties.
of his
Id.
deprive
community
goods
needed
record,
interpret
As
we
Isuani
Lastly,
the covenant should be
services.
encouraged by the other
doctors
only
promisee gives
enforced
if the
valu-
special,
edu-
take
advanced seminars and
able consideration.
subspecialties.
cational courses
his
Appellant agrees that
the Courts There is a
in the record
who
conflict
as to
recognized
legitimate
busi
paid for these advanced courses in various
interest,
ness
can
protected,
which
specialized
radiology.
within
Upon
fields
preservation
employ
record,
analysis
review and
whole
er’s
Hospital
customers or clients.
Con
enjoining
we determine that
of Dr.
sultants,
Inc. v. Potyka,
—Dallas Texas, et Accounts State temporary injunction preserve is al., Appellants, quo subject matter of the the status v. on merits to pending a trial final suit Here, however, public judgment. Id. COMPANY, Appellee. MARATHON OIL health, para- public and weal public welfare the usual mountly supersede and intervene BULLOCK, Comptroller Bob of Public rule. Texas, et Accounts of the State a Final permanent injunction entitled al., Appellants, on Judgment was entered on the trial v. action. A merits of the severed cause of jury specifically par- all the waived MARATHON PETROLEUM judgment In the final the court found ties. COMPANY, Appellee. paragraph 21 of the and concluded 3-89-216-CV, employment contract of Isuani with 3-89-217-CV. Nos. 6, 1987, May Manske-Sheffield dated is Texas, Appeals Court Further, entirety. enforceable in its we Austin. safely pronounce that can the record made permanent injunction virtually on the is 19, Sept. 1990. temporary on in- same as that made Rehearing Nov. 1990. parties least one of the Overruled junction. At right present argu- oral demanded the cannot
ment and this oral submission Hence, until pro- heard sometime health, tecting and welfare weal being qual- deeply concerned about ity availability adequate medical ser- people vices available to the of Mid-Jeffer- Arthur, County Port son we have is- Opinion appeal on the from the sued temporary injunction.
TEMPORARY INJUNCTION MOD- REFORMED; IFIED AND AND AS SUCH, AFFIRMED. Justice,
BURGESS, dissenting. appeal This respectfully I dissent. moot, majority opinion thus advis- majority recognizes gen-
ory one. The temporary injunction rule ex- eral that a a final pires judge when trial renders *8 then, authority, an- judgment, without an exception. nounces moot, appeal as I dismiss the Since would until the comment on the merits I reserve permanent injunction prop- appeal of the erly before us.