AFFIRM; Opinion issued 1)ecernber 6,2012
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In The 

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## 1a11ai 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 Inthis acceleratedinterlocutoryappeal, appellantPrimaryHealthPhysicians.,P.A. challenges the trial court’s order denying a temporary injunction against Wallace Sarver, D.O.. based on a covenantnot to compete in theparties’ employmentagreement. Among otherthings, the trial court concluded PHP would not suffer irreparable injurypending trial on the merits. Intwo issues, PHP asserts the trial court abused its discretionbecause (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 anemployment 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 ofthe 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 FamilyWise was 

### within the ten-mile radius ofthe 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. Ourreview ofthe trial courts order is limited to whetherthe 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). Atrial court abuses its discretion 

### when it misapplies the law to established facts orwhen the evidence does not reasonably supportthe 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 ofaction against the defendant: (2) a probable right to the reliefsought; and (3) a probable. imminent, and irreparable injury inthe interim. See TomJames o,fDallas, Inc. v. Cobb. 109 S.W.3d 877, 882 (Tex. App.—Dallas 2003, nopet.). Atemporaryinjunctionis anextraordinaryremedyand does not issue as a matter ofright. 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 containsaprovision stating its procedures and remediesto enforceanoncompete anrecmentareexclusive 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 underthe Act and Sarver was violating the covenant by working at FamilyWise. PI-IP cites three cases from this Courtto supportits positionthat, undertheAct, an applicantneednotestablish irreparableharm 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 E 1 ISL Analytical, Inc. v. Younker. 1 54 S.W.3d 

### 693. 695 (Tex. App,—Houston[l4th Dist.j 2004, no pet.); CardinalHealth Sta/jingNetwork, Inc. v. Bowen, 106 S.W.3d230,239—40 (Tex. App.—Houston [1stDist.j 2003, no pet.); NMTCCorp. 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 whetherthe covenant is enforceable under section 15.50 ofthe business and commerce code is not
anissue forappellatereview. See ThinJames ofDallas, 109 S.W.3d at 882—83. Thetrial courtmay

—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 ifa 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 ofirreparable injury. The hearing on the temporary injunction took place on February 17, 2012, about five weeks after Sarver began working at FamilyWise. PHP presented evidencethat while working at CareNov. Sarverdevelopeda devoted patient following and afterhe 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 FamilyWise 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 anotherpractice. but do not give the patients any information as to where Sarveris currently working. 

### The doctortestified 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 ofany patients who were not coming to CareNow and instead going to see Sarver. Conflicting evidence also exists on whether FamilyWise actually competed with CareNow. While CareNow and FamilyWise facilities were both involved in the practice offamily medicine andprovidedtreatmentforacute andchronic illnesses, the CareNowfacilitywas anon-appointmentbased facility with extended hours that focused on the ‘episodic” needs ofpatients. FarnilyWise,
on the otherhand, was amoretraditional familypractice seeingpatients by appointments onlyduring regular business hours and focused on preventative and “chronic longitudinal” care. FamilyWisedoes not havetheresources totreat many acute injuriesthatarc treatedbyCareNow andrefers urgent
care patients to another facility. Sarverdid not solicit or contact patients he saw at CareNow nor did he use any confidential intrmaUon obtainedwhile working forCareNow. Moreover, two PI-IPrepresentativestestifiedthat since Sarverleft andbeganworking atFamilyWise. thepatientvolume andprofitabilityatCareNow
was about the same and had not decreased. Sarver stated that since he began working at FamilyWise, he had seen two patients he had treated previously at Care Now. One was already a patient ofFamilyWise and remained a patient ofCareNow. He noted the otherpatient would also continue to seektreatment atCareNow. Although PI-IP claims on appeal that CareNowhas and will continue to lose the valuable goodwill generated by Sarver’s treatment ofthe patients atits 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 120351F.P05

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## ;\p1.T1t1’3 J1ftI! 1tstrtrt ni tLrxai ztt 1a11&t; JUDGMENT PRIMARY IJEALTIl PIJYSICIANS. P.A.. i\ppellant No. 05-12-00351-CV V WALLACE SARVER, I).O.. Appeflee Appeal from the I92 Judicial District Court ofDallas County, Texas. (‘Ir.Ct.No. DC 12-00289-K). Opinion delivered by Justice Francis, Justices Morris and Murphy participating.
In accordance with this Court’s opinion ofthis date, the order ofthe trial court is AFFIRMED. It is ORDERED that appellee Wallace Sarver, D.O. recover his costs ofthis appeal from appellant Primary I-Iealth Physicians, P.A. Judgment entered December 6. 2012.

CIS JUSTICE