Hoddeson v. Conroe Ear, Nose & Throat Associates, P.A.

OPINION

DIES, Chief Justice.

This is an appeal from an order issuing a temporary injunction. This court granted a stay of the injunctive relief granted. Both parties have filed a joint motion waiving oral argument, asking us to consider the appeal immediately, which we herewith proceed to do.

Appellee, Conroe Ear, Nose and Throat Associates, P.A. (“Conroe ENT”), owned entirely by Dr. M. James Dyke, hired Appellant, Dr. Robert Hoddeson. These two physicians comprised all of the physicians working with Conroe ENT, which has three offices in Montgomery County, including one in The Woodlands, a rapidly growing area in the south part of the county rather near to the Houston area. The Woodlands has a hospital which has filed an amicus curiae brief in support of Appellant’s position.

When Appellant went to work for Conroe ENT, he executed the following agreement:

“Upon the termination of this Agreement for any reason, Employee agrees that he shall not compete with Company in Montgomery County, Texas in that he shall not practice medicine there as an individual, a partner, an employee of a professional association, an employee of a hospital or in any other manner for five (5) years after such termination. Employee agrees that such geographical limitation and such time limitation are reasonable. However, in the event that they are determined by a court of law not to be reasonable, it shall be reduced to that determined by the court of law to *290be reasonable. The parties hereto agree that Company shall be entitled to injunc-tive relief in such case.”

Conroe ENT terminated the agreement two and one-half years later, then sought and obtained the temporary injunction alluded to above, prohibiting Appellant from practicing medicine in Montgomery County, Texas.

Appellant has several points of error, but for the purposes of this opinion, we need only address whether, under the facts of this case, the law will permit a non-competition injunction. Briefly, the facts are: Dr. Hoddeson is a board certified ear, nose and throat specialist. Appellee has three offices in Montgomery County, but apparently, Appellant does most of his work in The Woodlands area. At least he is the only ear, nose, and throat specialist on the staff of the hospital there, and last year, he performed 142 surgeries there, contrasted with 13 performed by his employer. The record shows that in his two and one-half years association with Appellee, Appellant vastly increased his patient load, with most of it coming directly to him and not from Appellee. The record also shows that referring physicians are governed by the skills and qualifications of the receiving physician, rather than his associations. Appellee did not impart trade secrets, specialized training or confidential information to Appellant. Covenants suppressing competition have never been favored in Texas, see Unitel Corp. v. Decker, 731 S.W.2d 636 (Tex.App.—Houston [14th Dist.] 1987, no writ), but we think it is accurate to state that since Hill v. Mobile Auto Trim Inc., 725 S.W.2d 168 (Tex.1987), such covenants receive added scrutiny.

The Hill court laid down four criteria which such covenants not to compete must meet if they are to survive court scrutiny:

1.The covenant must be necessary for the protection of the promisee. “That is to say, the promisee must have a legitimate interest in protecting business goodwill or trade secrets.”
2. The covenant must not be oppressive to the promisor, as courts are hesitant to validate employee covenants when the employee has nothing but his labor to sell.
3. The covenant must not be injurious to the public, since courts are reluctant to enforce covenants which prevent competition and deprive the community of needed goods.
4. The promisee must give consideration for something of value.

While in some respects this covenant not to compete for five years1 violates each of the four categories, let us briefly focus our attention on number three. The proof shows, without question, that to deny Appellant the right to practice medicine would be injurious to the public, and especially to those in The Woodlands area. As in Hill, “[t]his restrictive covenant is plagued by a lack of reasonableness.” Id. at 171. And, as in Hill, the covenant is oppressive to Appellant because “he is now prevented from using his previously acquired skills and talent to support him and his fami-ly_” Id. at 172. Appellant’s talents are his own. “Absent clear and convincing proof to the contrary, there must be a presumption that he has not bargained away the future use of those talents.” Id. The covenant before us was designed primarily to limit competition or restrain the right to engage in a common calling and “[is] not enforceable.” Id. (citing Robbins v. Finlay, 645 P.2d 623, 627 (Utah 1982)).

There are two competing interests in a covenant not to compete. The first, of course, is the protection of the investment made by many employers in their employees, such as training. The second is that employees be free to exercise their skills. In our case, Appellant received no training or skills from Appellee. The covenant was solely to protect Appellee from competition. See Note, Sakowitz v. Steck: Texas Looks at Covenants Not to Compete, 38 BAYLOR L.REV. 211 (1986). In the scrutiny of such a covenant, the interests of the public *291must also be considered. Matlock v. Data Processing Sec., Inc., 618 S.W.2d 327, 329 (Tex. 1981). And, in the case we review, the interests of the public are clearly not in enforcing the covenant not to compete. See Dujfner v. Alberty, 19 Ark.App. 137, 718 S.W.2d 111, 112 (1986). In such a determination, the three interests involved — the employer’s, the employee’s, and the public’s — must be balanced. “In the absence of special circumstances, a covenant which has as its sole purpose the elimination of competition is not reasonable.” Hospital Consultants, Inc. v. Potyka, 531 S.W.2d 657, 663 (Tex.Civ.App. — San Antonio 1975, writ ref’d n.r.e.).

We hold the covenant not to compete in question void and, thus, dissolve the temporary injunction.

. It goes without saying that to enjoin a physician from practicing in a certain county for five years effectively, and for all practical purposes, denies permanently the citizens of that county the services of the enjoined physician.