                                                                                     FILED
                                                                                 Apr 04 2018, 9:26 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Blake J. Burgan                                            Michael H. Michmerhuizen
      Manuel Herceg                                              H. Joseph Cohen
      Steven C. Shockley                                         BARRETT MCNAGNY LLP
      TAFT STETTINIUS & HOLLISTER LLP                            Fort Wayne, Indiana
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Great Lakes Anesthesia, P.C.,                              April 4, 2018
      Appellant-Defendant/Counterclaimant,                       Court of Appeals Case No.
                                                                 27A02-1708-CT-1956
              v.                                                 Interlocutory Appeal from the
                                                                 Grant Circuit Court
      Kyle O’Bryan and                                           The Honorable Mark E. Spitzer,
      Megan O’Bryan,                                             Judge
      Appellees-Plaintiffs/Counterclaim-                         Trial Court Cause No.
      Defendants.                                                27C01-1703-CT-22



      Bailey, Judge.



                                            Case Summary
[1]   Great Lakes Anesthesia, P.C. (“Great Lakes”) brings an interlocutory appeal to

      challenge the denial of its motion for a preliminary injunction to restrain its

      former employees, Kyle O’Bryan and Megan O’Bryan (“the O’Bryans”), from

      Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                      Page 1 of 21
      performing nurse-anesthesia services for Associated Anesthesiologists of Fort

      Wayne (“AAFW”) at Marion General Hospital (“the Hospital”), pending

      resolution of a declaratory judgment action, counterclaim, and third-party claim

      relative to a covenant not to compete within the O’Bryans’ employment

      contracts with Great Lakes. Great Lakes presents the single consolidated issue

      of whether the trial court’s judgment is contrary to law. We affirm.



                             Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows. In the summer of

      2016, the O’Bryans, who are married and work as certified registered nurse

      anesthetists (“CRNAs”), responded to a job posting listed by Great Lakes on an

      internet website.1 The O’Bryans engaged in recruitment discussions with

      Courtney Morrison (“Morrison”), the special assistant to the Chief Executive

      Officer (“CEO”) of Great Lakes. At that time, the O’Bryans lived in Georgia

      and wished to re-locate closer to family members in the Midwest. They also

      desired to decrease their travel time from home to work and minimize their

      time spent apart, assigned to different locations. The O’Bryans explained these

      considerations to Morrison. Morrison initially offered the O’Bryans positions

      in Crown Point, Indiana. Concluding that it would be difficult to meet the




      1
        Great Lakes provides anesthesia, pain management, and obstetric services to hospitals and surgery centers
      in northeastern Indiana. Great Lakes employs anesthesiologists, who are licensed physicians, and CRNAs,
      who are registered nurses specially trained and certified to provide anesthesia to patients. AAFW is Great
      Lakes’ primary competitor in northeastern Indiana.

      Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                        Page 2 of 21
      requisite thirty-minute response time2 from their desired home location, the

      O’Bryans declined the positions. Morrison responded by asking them not to

      seek other employment and to allow her to find suitable positions for them.


[3]   Morrison began efforts to recruit the O’Bryans for positions in Grant County.

      Great Lakes was then contracted with Marion Anesthesiologists (“MA”) to

      provide anesthesiology services; MA had a contract with the Hospital.

      Although Great Lakes was a sub-contractor, it was attempting to secure a direct

      contract with the Hospital in anticipation of the dissolution of MA. Great

      Lakes assured the O’Bryans that it had a good relationship with the Hospital.

      According to the O’Bryans, they were repeatedly told that Great Lakes had a

      contractual relationship with the Hospital.


[4]   On August 4, 2016, the O’Bryans signed employment agreements drafted by

      Great Lakes (“the Agreements”), providing in relevant part:


               Restrictive Covenants. Upon termination, other than if
               Employee terminates this Agreement for cause, Employee agrees
               not to provide anesthesia services, directly or indirectly, for a
               period of twenty four (24) months at the specific facilities where
               Corporation has assigned Employee to provide anesthesia
               services, along with any facilities in a twenty five (25) mile
               radius, within the twenty four (24) month period immediately
               prior to the termination date (the “Restricted Area”). The
               Employee recognizes that the Corporation will suffer great loss



      2
        Many medical facilities require that a provider of anesthesia services must be able to be at a patient’s
      bedside within thirty minutes of the facility call to the provider. When a service provider who is on call lives
      in a location that does not permit this rapid response time, he or she typically will stay overnight at or near
      the medical facility.

      Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                            Page 3 of 21
        and damage if the Employee should compete with the
        Corporation or disclose confidential information in violation of
        Section 5.3. The Employee understands and agrees that the
        Corporation has a substantial investment in the good will of the
        Corporation’s healthcare practice and the right to protect such
        practice by the restrictive covenants contained in this Agreement.
        In making these covenants, the Employee represents and
        warrants to the Corporation that the Employee’s experience and
        capabilities are such that the Employee can obtain employment
        outside of the Restricted Area in the specialty of anesthesiology
        and that the enforcement of these covenants will not prevent the
        Employee from earning a livelihood outside the Restricted Area.
        As a result, the parties agree as follows:


        (a) The Employee’s breach of any of the restrictive covenants
            contained in Sections 4.5 or 5.3 will entitle the Corporation to
            injunctive relief, as well as compensation for damages
            incurred because the Corporation’s remedy at law will be
            inadequate.


        (b) If the Corporation institutes an action against the Employee
            for breach of this covenant against competition, or if the
            Employee institutes an action to challenge the Corporation’s
            ability to enforce any of the covenants contained in Sections
            4.5 or 5.3., the losing party will pay the prevailing party’s
            reasonable attorney fees, costs, and expenses of litigation,
            such as expert witness fees.


        (c) If a court should enter injunctive relief in favor of the
            Corporation and against the Employee, the Corporation shall
            not be required to post a bond or other security.


        (d) If a court should declare all or part of any restrictive covenant
            contained in Section 4.5 or 5.3 unenforceable because of any
            unreasonable restriction, the Corporation and the Employee

Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018    Page 4 of 21
                   agree that the court shall have the express authority to reform
                   this Agreement to provide for reasonable restrictions.


              (e) If the Employee is found to be guilty of violating the
                  restrictive covenant contained in this Section 4.5, the duration
                  of the covenant will automatically be extended to include the
                  period of violation.


              (f) The prohibited acts contained in Sections 4.5 and 5.3 shall be
                  construed as independent of any other provision of this
                  Agreement and shall survive the termination of this
                  Agreement. The existence of any claim or cause of action of
                  the Employee against the Corporation, whether predicated on
                  this Agreement or otherwise, shall not constitute a defense to
                  the enforcement by the Corporation of any or all of such
                  prohibited acts.


      (App. Vol. II, pgs. 42-43.) The O’Bryans relocated from Georgia and began

      working for Great Lakes in November of 2016. They were assigned, primarily,

      to perform services at the Hospital; they were sometimes assigned to provide

      services at two other hospitals.


[5]   In January of 2017, Seth Claxton (“Claxton”) became the new CEO of Great

      Lakes. Having had little involvement with the prior negotiations between

      Great Lakes and the Hospital, he believed that a contract between them was

      inevitable and the parties just needed to finalize details. However, Claxton

      learned that the Hospital had been in discussions with AAFW and might be

      extending a contract to AAFW. In mid-February, Claxton took part in a

      telephone conference with the CEO of the Hospital, Stephanie Hilton-Siebert

      (“Hilton-Siebert”). At that time, Hilton-Siebert expressed some concerns about
      Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 5 of 21
      Great Lakes’ pricing and performance and revealed that discussions with

      AAFW had taken place. Claxton responded with an ultimatum, giving the

      Hospital two weeks to decide if the Hospital would contract with Great Lakes;

      if not, Great Lakes was to stop providing services at the Hospital pursuant to its

      contract with MA. Hilton-Siebert decided not to enter into a contract with

      Great Lakes, because of the ultimatum.


[6]   On April 1, 2017, Claxton gave notice to MA that Great Lakes was terminating

      its contract with MA and would cease providing services under that contract in

      thirty days. With this tactic, risking a gap in the provision of anesthesiology

      services at the Hospital, Great Lakes hoped to pressure the Hospital or improve

      the bargaining position of Great Lakes. After learning they would no longer be

      based at the Hospital, the O’Bryans asked to be released from the Agreements;

      Great Lakes refused.


[7]   Great Lakes issued its CRNA assignment schedule for April of 2017. The

      O’Bryans were scheduled for fewer shifts, to be worked at hospitals that were

      more than thirty minutes from their home, necessitating overnight stays.

      AAFW contacted Great Lakes, offering to buy out the O’Bryans’ employment

      agreements; Great Lakes refused. On March 31, 2017, each of the O’Bryans

      tendered a resignation, effective immediately, to Great Lakes.


[8]   As of April 1, 2017, at 6:00 a.m., Great Lakes no longer provided anesthesia

      services at the Hospital pursuant to its contract with MA. The O’Bryans began




      Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 6 of 21
       providing services at the Hospital, pursuant to agreements with AAFW,

       beginning on April 3, 2017.


[9]    On the day of their resignation, March 31, 2017, the O’Bryans filed a four-

       count complaint against Great Lakes. They sought a declaratory judgment that

       the non-compete covenants were unenforceable. They also alleged fraudulent

       inducement, fraud, and promissory estoppel. Great Lakes filed a counterclaim

       against the O’Bryans and also filed a motion for a preliminary injunction,

       asking that the O’Bryans be enjoined from providing services at the Hospital.

       Great Lakes subsequently filed an amended counterclaim and third-party claim.

       Great Lakes asserted that the Hospital, AAFW, and the CEOs of each entity,

       personally, had tortiously interfered with a contractual relationship. The

       Hospital filed a counterclaim against Great Lakes, alleging that the Hospital

       was due $250,000.00 for unreimbursed billings.


[10]   On May 31 and June 12, 2017, the trial court heard evidence pertaining to the

       motion for a preliminary injunction. On August 2, 2017, the trial court entered

       findings of fact, conclusions thereon, and an order denying the motion for a

       preliminary injunction. Great Lakes brings this interlocutory appeal as of

       right.3




       3
         Indiana Appellate Rule 14(A)(5) provides that an appeal may be taken “as a matter of right” from an
       interlocutory order “[g]ranting or refusing to grant, dissolving, or refusing to dissolve a preliminary
       injunction.”

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                          Page 7 of 21
                                   Discussion and Decision
                                          Standard of Review
[11]   An injunction is an extraordinary equitable remedy, which should be granted

       only “in rare instances in which the law and facts are clearly within the moving

       party’s favor.” Barlow v. Sipes, 744 N.E.2d 1, 5 (Ind. Ct. App. 2001), trans.

       denied. To obtain a preliminary injunction, the moving party must demonstrate

       by a preponderance of the evidence: a reasonable likelihood of success at trial;

       the remedies at law are inadequate; the threatened injury to the movant

       outweighs the potential harm to the nonmoving party from the granting of an

       injunction; and the public interest would not be disserved by granting the

       requested injunction. Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 727

       (Ind. 2008). To show a reasonable likelihood of success at trial, the moving

       party must establish a prima facie case. Norlund v. Faust, 675 N.E.2d 1142,

       1149 (Ind. Ct. App. 1997), clarified on denial of reh’g, 675 N.E.2d 1142.


[12]   We review a trial court’s grant or denial of a preliminary injunction for an

       abuse of discretion. Cent. Ind. Podiatry, 882 N.E.2d at 727. When a movant has

       failed to meet any one of the four requirements for seeking the issuance of a

       preliminary injunction, the trial court does not abuse its discretion in denying

       relief. Zimmer, Inc. v. Davis, 922 N.E.2d 68, 74 (Ind. Ct. App. 2010).


[13]   Pursuant to Indiana Trial Rule 52(A), “[t]he court shall make special findings of

       fact without request in granting or refusing preliminary injunctions.” When we

       consider whether the trial court has abused its discretion regarding a

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018    Page 8 of 21
       preliminary injunction, we determine whether the evidence supports the trial

       court’s special findings of fact and whether the findings support the judgment.

       Hannum Wagle & Cline Eng’g, Inc. v. American Consulting, 64 N.E.3d 863, 874

       (Ind. Ct. App. 2016). We do not disturb the findings or judgment unless they

       are clearly erroneous. Id. We do not reweigh the evidence or assess witness

       credibility. Id. Rather, we consider only the evidence favorable to the

       judgment and the reasonable inferences to be drawn therefrom. Id. We will

       reverse the trial court’s judgment only when it is clearly erroneous, that is,

       when our review of the record leaves us with a firm conviction that a mistake

       has been made. Id. Although we defer substantially to findings of fact under

       Trial Rule 52, we need not do so for conclusions of law. McCauley v. Harris, 928

       N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied.


[14]   Also, because Great Lakes bore the burden of proof upon its motion for

       injunctive relief and now appeals from a negative judgment, “it must

       demonstrate that the trial court’s judgment is contrary to law; that is, the

       evidence of record and the reasonable inferences therefrom are without conflict

       and lead unerringly to a conclusion opposite that reached by the trial court.”

       Primecare Home Health v. Angels of Mercy Home Health Care, LLC, 824 N.E.2d 376,

       380 (Ind. Ct. App. 2005).


                                                     Analysis
[15]   Great Lakes contends that it presented evidence to establish each of the factors

       necessary for a grant of injunctive relief and that the trial court misapplied the


       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 9 of 21
       law. Great Lakes does not acknowledge that it appeals from a negative

       judgment, nor concede that the denial is not an abuse of discretion if there was

       a failure of proof on any one of the requisite factors. Zimmer, 922 N.E.2d at 74.

       Primarily, Great Lakes presents voluminous factual arguments, emphasizing its

       own interpretation of the facts. Nonetheless, we will endeavor to consider

       Great Lake’s arguments with reference to the appropriate standard of review.


[16]   Reasonable Likelihood of Success at Trial. Covenants not to compete in

       employment contracts are in restraint of trade and are disfavored by the law.

       Cent. Ind. Podiatry, 882 N.E.2d at 728-29. The covenants are strictly construed

       against the employer and will be enforced only if reasonable. Id. at 729.

       Covenants must be reasonable with respect to the legitimate interests of the

       employer, restrictions on the employee, and the public interest. Titus v.

       Rheitone, Inc., 758 N.E.2d 85, 92 (Ind. Ct. App. 2001), trans. denied. The

       ultimate determination of the reasonableness of a restrictive covenant is a

       question of law, but its reasonableness must rest upon adequate facts.

       Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 279 (Ind. 1983).


[17]   In determining the reasonableness of the covenant, we first examine whether

       the employer has asserted a legitimate interest that may be protected by a

       covenant. Cent. Ind. Podiatry, 882 N.E.2d at 729. If the employer has asserted a

       legitimate, protectable interest, we next determine whether the scope is

       reasonable in terms of time, activity, and geographic area restricted. Id. The

       employer must show the covenant is “necessary in light of the circumstances”

       or, “in other words, the employer must demonstrate that the employee has

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 10 of 21
       gained a unique competitive advantage or ability to harm the employer before

       such employer is entitled to the protection of a noncompetition agreement.”

       Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 172-73 (Ind. Ct. App. 2008).


[18]   Here, the trial court concluded that Great Lakes did not have a protectable

       interest in enforcing the non-compete covenants because Great Lakes had

       elected, as of April 1, 2017, to no longer provide anesthesia services at the

       Hospital. Moreover, Great Lakes was not providing anesthesia services

       elsewhere in Grant County and there was no evidence that Great Lakes lost

       patients because the O’Bryans were working for AAFW at the Hospital. The

       trial court also observed that, by permitting its independent contractors to work

       at facilities not served by Great Lakes, but within 25 miles of Great Lakes-

       served facilities, Great Lakes implicitly recognized that “patients do not make a

       choice about medical care on the basis of a CRNA.” Appealed Order at 12.

       Additionally, the trial court concluded that Great Lakes failed to present

       evidence that the 25-mile geographic restriction was reasonable.


[19]   The trial court’s factual findings have evidentiary support. Indeed, Great Lakes

       does not dispute that it ended its provision of services to MA at the Hospital on

       April 1, 2017, now provides no other anesthesia services in Grant County, and

       permits its independent contractors to provide anesthesia services for various

       medical providers without a 25-mile restriction relative to Great Lakes’

       activities. Although Great Lakes concedes that it does not currently provide

       anesthesia services in Grant County, it argues that it nevertheless has a

       legitimate interest in restricting the O’Bryans because the O’Bryans were “hired

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 11 of 21
       to develop” goodwill with the Hospital and “could not leverage that goodwill

       for their own benefit or transfer it to AAFW.” Appellant’s Brief at 36.


[20]   Goodwill can include secret or confidential information, such as customer lists,

       and also “the advantage acquired through representative contact.” Gleeson, 883

       N.E.2d at 173. However, an employer is not entitled to the protection of the

       employee’s use of his knowledge, skill, or information acquired or increased

       through work experience or enhanced from instruction received during

       employment. Buffkin v. Glacier Grp., 997 N.E.2d 1, 11 (Ind. Ct. App. 2013).


[21]   The nature of the industry is a proper focus:


               In industries where personal contact between the employee and
               the customer is especially important due to the similarity in the
               product offered by the competitors, the advantage acquired
               through the employee’s representative contact with the customer
               is part of the employer’s good will, regardless of whether the
               employee had access to confidential information. … If an
               employee is hired in order to generate such good will, she may be
               enjoined from subsequently contacting those customers or using
               that good will to her advantage. … Indeed, Indiana courts have
               held that a salesperson may be restrained from contacting former
               customers within her previous sales area. … There is a personal
               nature to the relationship between a salesperson and customer,
               and many times the customer’s only contact with the company is
               through the salesperson.


       Gleeson, 883 N.E.2d at 173 (internal citations omitted.). Great Lakes contends

       that the O’Bryans were hired to “develop goodwill” between Great Lakes and




       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 12 of 21
       the Hospital,4 specifically by “providing excellent anesthesia services and

       maintaining effective liaison with surgeons and other physicians who may

       require anesthesia services.” Appellant’s Brief at 37. Accordingly, Great Lakes

       equates the CRNA position with that of a salesperson or liaison.


[22]   In Norlund, a panel of this Court observed that “the law recognizes a protectable

       interest in the goodwill generated between a customer and a business” and “[i]f

       an employee is hired in order to generate such good will, he may be enjoined

       from subsequently contacting those customers or using that good will to his

       advantage.” 675 N.E.2d at 1152. Faust, an ophthalmologist, hoped to grow

       his business and decided to hire an optometrist, Norlund, both as a medical

       optometrist and as an “optometric liaison, building referral relationships with

       other area optometrists.” Id. at 1146. Norlund signed an employment

       agreement that included a non-compete clause. Faust’s business increased

       dramatically, but the parties ended their relationship during renegotiation of the

       contract. Two weeks after Faust terminated Norlund’s employment, Norlund

       assisted his wife, also an optometrist, to set up a competing “essentially

       identical” business. See id. at 1147. The trial court enjoined Norlund from




       4
         Great Lakes places the focus upon goodwill between its former CRNA employees and the Hospital and
       claims that the trial court erroneously focused upon goodwill between CRNAs and patients. According to
       Great Lakes, it “argued that its protectable interest lay in its goodwill with [the Hospital], not with the
       hospital’s patients.” Appellant’s Brief at 38. Great Lakes insists that the trial court failed to address this
       argument and claims that its “real customer” was the Hospital. Appellant’s Brief at 42. Great Lakes’
       contentions ignore its position vis-à-vis the Hospital, that is, Great Lakes never had a contractual relationship
       with the Hospital or provided services directly for the Hospital. Great Lakes’ customer was MA.

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                           Page 13 of 21
       contacting any of the 122 optometrists who had referred patients to Faust Eye

       Center. See id. This Court found that provision of the court order to be valid:


               Indiana courts have decided that a salesman may be restrained
               from contacting his former customers within his previous sales
               area. There is a personal nature to the relationship between the
               salesperson and customer, and many times, the customers’ (in
               this case the referring optometrists’) only contact with the
               company is through the salesperson. Although R. Norlund was
               not a “salesman” per se, we reason to apply those cases by
               analogy.


               R. Norlund was employed by Faust to generate good will
               between Faust and the area optometrists. Although Faust does
               not have a protectable interest in the patients of those
               optometrists, Faust does have an interest in the good will created
               by R. Norlund on Faust’s behalf. Therefore, that interest is
               protectable and the action of the trial court enjoining R. Norlund
               from contacting any of the optometrists as outlined in the court’s
               order sections 3 and 4 is valid.


       Id. at 1154-55.


[23]   Although Norlund was not a salesman in the traditional sense, he was hired to

       increase Faust’s business by making direct overtures for new business. During

       Norlund’s employment, “Faust’s optometric referrals increased from 20% to 80-

       90% of his business” and “[t]his increase was due to R. Norlund’s activities

       developing the network on behalf of and funded by Faust.” Id. at 1147. Here,

       by contrast, the evidence most favorable to the judgment indicates that the

       O’Bryans were hired to administer anesthesia to patients.



       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 14 of 21
[24]   Great Lakes’ only customer was MA. See Duneland Emergency Physician’s

       Medical Grp., P.C. v. Brunk, 723 N.E.2d 963, 966 (Ind. Ct. App. 2000) (where a

       physician was employed by Duneland and Duneland contracted with a hospital

       to provide emergency room staff, the only customer of Duneland was the

       hospital with which it contracted), trans. denied. Great Lakes expected the

       O’Bryans to provide “excellent service” and be “effective liaisons with

       physicians.” Appellant’s Brief at 37. One would reasonably anticipate that

       Great Lakes’ contractual/customer relationship with MA would be maintained

       if the O’Bryans performed according to expectation. But Great Lakes does not

       point to evidence that the O’Bryans were hired to increase a customer base, akin

       to a traditional salesman or even a liaison for solicitation purposes, such as

       Norlund.5 Nor were the O’Bryans in partnership with Great Lakes or engaged

       in profit-sharing. See e.g., Raymundo, 449 N.E.2d at 279 (a non-compete

       covenant was valid when it “did nothing more than protect the Clinic’s

       goodwill against piracy by a mutinous partner”). There is evidence to support

       the trial court’s conclusion that the O’Bryans did not gain a competitive

       advantage to Great Lakes’ detriment because of their interaction with health

       care providers at the Hospital.


[25]   Great Lakes argues it has an “interest in competing for [the Hospital’s] business

       in the future” and that the O’Bryans “harmed” Great Lakes’ “ability to




       5
         The Norlund Court observed: “What R. Norlund has been doing, and what he is restrained from, is acting as
       a salesman of sorts.” 675 N.E.2d at 1154.

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                     Page 15 of 21
       compete with AAFW for [the Hospital’s] business in the future.” Appellant’s

       Brief at 44-45. Presumably, the “harm” caused by the O’Bryans is the

       performance of their services as CRNAs. At the time that the O’Bryans

       executed non-compete agreements, Great Lakes had a protectable interest in

       providing services to MA at the work site of the Hospital. The restrictions upon

       the O’Bryans, if imposed in an enforceable contract, would have arguably been

       necessary to protect Great Lakes’ interest.


[26]   However, when contract negotiations turned sour, Great Lakes divested itself of

       an interest in performing services for its client, MA, at the Hospital. Having

       terminated its interest, Great Lakes insists that it has a right to protect a possible

       future relationship with the Hospital. This is not akin to a situation where

       customers have been lured away and might return. See e.g., Coffman v. Olson &

       Co., P.C., 906 N.E.2d 201 (Ind. Ct. App. 2009), trans. denied. The speculation

       that Great Lakes might be offered a future contract by the Hospital is tenuous,

       at best, given that Great Lakes deliberately discontinued services to MA early –

       despite potential consequences to Hospital patients – as a bargaining chip. The

       trial court did not err as a matter of law in finding that Great Lakes had no

       protectable interest in the provision of anesthesia services at the Hospital.


[27]   Also relevant to Great Lakes’ likelihood of success at trial are the allegations of

       fraud. There was evidence from which a fact-finder might conclude that the

       O’Bryans entered into the non-compete agreements due to Great Lakes’ alleged




       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 16 of 21
       misrepresentations.6 Megan testified that a Great Lakes recruiting

       representative told the O’Bryans that Great Lakes had a three-year contract

       with the Hospital, the Hospital and Great Lakes had a “great relationship,” and

       the contract was “solid.” (Tr. at 50.) Kyle testified that, when pre-closing

       documents were delivered pertaining to their new home, Megan contacted the

       recruiter for reassurances, which were forthcoming. The trial court stated that

       it had evaluated the testimony and the credibility of the witnesses, and it

       concluded that Great Lakes had “painted an overly rosy picture” of its

       relationship with the Hospital. (Appealed Order at 4.) The trial court described

       Great Lakes’ representations as “at best overstated and at worst knowingly false

       representations,” which were “the primary factor in the O’Bryans’ decision to

       locate in Marion.” (Appealed Order at 5.)


[28]   In sum, the trial court was asked to decide whether Great Lakes would likely

       succeed at trial in enforcing non-compete covenants – allegedly procured

       without transparency – that would restrict medical services to patients in a

       geographic area Great Lakes does not now serve and, more particularly, at a

       Hospital with which Great Lakes never contracted. Such would be

       unreasonable, as it would “extend beyond the scope of the employer’s

       legitimate interests.” Gleeson, 883 N.E.2d at 175. The trial court’s conclusion




       6
         The O’Bryans have a pending claim against Great Lakes for fraudulent inducement, the elements of which
       claim are: (1) a material representation of past or existing facts which (2) was false, (3) was made with
       knowledge or reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied
       upon by the complaining party, and (6) proximately caused injury to the complaining party. Tru-Cal, Inc. v.
       Conrad Kacsik Instrument Sys., 905 N.E.2d 40, 44-45 (Ind. Ct. App. 2009), trans. denied.

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018                            Page 17 of 21
       that Great Lakes failed to prima facie establish a reasonable likelihood of

       success at trial is not contrary to law.


[29]   Alternatively, and without having advocated such in the trial court hearing,

       Great Lakes asserts that the trial court should have utilized the blue-pencil

       doctrine. “If a noncompetition agreement is overbroad and it is feasible to

       strike the unreasonable portions and leave only reasonable portions, the court

       may apply the blue pencil doctrine to permit enforcement of the reasonable

       portions.” Cent. Ind. Podiatry, 882 N.E.2d at 730 (emphasis added). The

       doctrine permits excising language but not rewriting the agreement. Id.


[30]   Great Lakes assumes for purposes of argument that the 25-mile restriction is

       unreasonable and argues that the trial court clearly erred by declining to apply

       the blue-pencil doctrine such that the O’Bryans are prohibited from providing

       services for AAFW at the Hospital. In effect, Great Lakes is claiming that it

       would have a greater likelihood of success on the merits at trial if the non-

       compete geographic restriction were modified. The grant of an injunction is an

       extraordinary equitable remedy and we are directed to no authority for the

       proposition that a trial court must sua sponte sever or modify terms of an

       agreement to support the imposition of the extraordinary remedy.


[31]   Having determined that the trial court’s conclusion as to the first factor,

       likelihood of success at trial, is not contrary to law, we need not address Great

       Lakes’ contentions that the weight of the evidence was in Great Lakes’ favor as

       to the remaining factors. See Zimmer, 922 N.E.2d at 74. However, because


       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 18 of 21
       Great Lakes contends that the trial court applied an erroneous standard of law,

       we elect to briefly address the application of the remaining factors.


[32]   Adequacy of Remedies at Law. Great Lakes claims that the trial court failed to

       properly address the issues before it relative to Great Lakes’ damages. Great

       Lakes describes at some length the staffing response and costs allegedly

       necessitated by the O’Bryans’ early departure and argues “A preliminary

       injunction is a more practical and efficient means of remedying the O’Bryans’

       breach than money damages.” Appellant’s Brief at 59. The trial court observed

       that Great Lakes was seeking breach of contract damages based upon the

       O’Bryans’ admitted failure to give 90-day notices but, according to the trial

       court, the breach and determination of damages, were “different issues for a

       different day.” (Appealed Order at 15.)


[33]   In Cent. Ind. Podiatry, our Indiana Supreme Court explained:


               Injunctive relief is not available where the breach can be
               adequately satisfied by money damages. Ind. Family & Soc. Servs.
               Admin. v. Walgreen, 769 N.E.2d 158, 162-68 n. 4 (Ind. 2002).
               However, a legal remedy is adequate only when it is “as plain
               and complete and adequate – or, in other words, as practical and
               efficient to the ends of justice and its prompt administration – as
               the remedy in equity.” Washel v. Bryant, 770 N.E.2d 902, 907
               (Ind. Ct. App. 2002).


       882 N.E.2d at 732. Suffering mere economic damage will not entitle a party to

       injunctive relief, because damages are sufficient to make the party whole.

       Gleeson, 883 N.E.2d at 178.


       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 19 of 21
[34]   In Cent. Ind. Podiatry, the Court found that it was “virtually impossible to

       quantify the profits diverted” when a podiatrist moved his practice. Id. at 733.

       This was because the effect of the move on new patients was “unlikely to be

       provable.” Id. The Court “assume[d] that many patients choose their

       physicians based on referrals by other patients and word of mouth references

       from patients.” Id. These considerations are not present here. The evidence

       before the trial court was that patients do not typically make surgery decisions

       based upon which CRNA is available. There was no evidence before the trial

       court that a patient had been referred to the Hospital, or a patient had decided

       to have his or her surgery at the Hospital, because of the availability of either of

       the O’Bryans. The trial court did not err as a matter of law by deferring the

       issue of damages, concluding that, if the O’Bryans are ultimately found liable

       for breach of contract, money damages are adequate.


[35]   Threatened Injury and Potential Harm. A court may issue injunctive relief only

       when the threatened injury to the moving party outweighs the potential harm to

       the nonmoving party. Id. Great Lakes’ argument in this regard is that the trial

       court gave improper weight to the O’Bryans’ potential harm. However, Great

       Lakes appeals a negative judgment and cannot predicate a reversal upon alleged

       improper weighing of conflicting evidence. Hannum Wagle, 64 N.E.3d at 874.


[36]   Public Disservice. Great Lakes argues that the trial court applied an incorrect

       legal standard in concluding that the public interest would be disserved by

       granting Great Lakes injunctive relief, because the trial court focused upon the

       early termination decision by Great Lakes, which could have left the Hospital

       Court of Appeals of Indiana | Opinion 27A02-1708-CT-1956 | April 4, 2018   Page 20 of 21
       short-staffed and put citizens of Grant County at risk. Great Lakes observes

       that the question of public interest is addressed to the time when the

       preliminary injunction would issue as opposed to an earlier date. To the extent

       that the trial court focused on historical events, as opposed to the consequences

       flowing from the requested grant of equitable relief, the focus was arguably

       misdirected. Nonetheless, this does not render the judgment contrary to law.

       Great Lakes bore the burden of showing that the public would not be disserved

       by the grant of injunctive relief. Even assuming that it did so, the burden of

       proof was not met as to all requisite factors and thus, the trial court did not

       abuse its discretion by denying injunctive relief. Zimmer, 922 N.E.2d at 74.



                                                 Conclusion
[37]   We cannot say based upon our review of the record that the evidence and the

       reasonable inferences drawn therefrom are without conflict and lead unerringly

       to a conclusion opposite that reached by the trial court. The trial court’s

       findings are supported by the evidence and the findings support the trial court’s

       conclusion to deny Great Lakes injunctive relief.


[38]   Affirmed.


       Crone, J., and Brown, J., concur.




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