AFFIRM; Opinion issued 1)ecernber 6,2012

çE

In The

tnurt of \ppiahi

ifth Iitrict of iIixa at 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

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 FamilyWise 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. SeeE1ISL 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

FamilyWise. 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

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 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 FamilyWise actually competed with CareNow.

While CareNow and FamilyWise facilities were both involved in the practice of family medicine

and provided treatment for acute and chronic illnesses, the CareNow facility was a non-appointmentbased 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 FamilyWise. 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 FamilyWise 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 ofthe 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

120351F.P05
Ziiirt tf ;\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 I 92 Judicial District

Court of Dallas 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 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