MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Aug 12 2019, 9:20 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David C. Jensen                                          Kimberly P. Peil
John P. Twohy                                            Hoeppner Wagner & Evans LLP
Eichhorn & Eichhorn, LLP                                 Merrillville, Indiana
Hammond, Indiana
                                                         Alon Stein, Pro Hac Vice
                                                         Stein Law Offices
                                                         Des Plaines, Illinois


                                           IN THE
    COURT OF APPEALS OF INDIANA

Neurological Institute and                               August 12, 2019
Specialty Centers, P.C.,                                 Court of Appeals Case No.
Appellant-NISC,                                          18A-PL-3039
                                                         Appeal from the Lake Circuit
        v.                                               Court
                                                         The Honorable Marissa J.
Subhasree Misra, M.D.,                                   McDermott, Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         45C01-1803-PL-18



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019                   Page 1 of 8
                                             Case Summary
[1]   Neurologist Subhasree Misra, M.D., signed an employment agreement with

      Neurological Institute and Specialty Centers, P.C. (“NISC”), that contained a

      restrictive covenant prohibiting her from practicing medicine independently or

      as an employee for an organization within five Indiana counties for two years

      after the expiration or termination of the agreement. Dr. Misra resigned from

      NISC and started practicing medicine in Illinois. NISC sued Dr. Misra for

      breach of their agreement and filed a motion for preliminary injunction to

      enforce the restrictive covenant. The trial court denied the motion, concluding

      that NISC had failed to demonstrate a reasonable likelihood of success at trial

      because Dr. Misra is not practicing medicine in the prohibited counties. On

      appeal, NISC argues that the trial court erred in denying its motion for

      preliminary injunction. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019   Page 2 of 8
                                   Facts and Procedural History 1
[2]   The relevant facts are undisputed. In December 2010, Dr. Misra signed an

      employment agreement with NISC that contains the following restrictive

      covenant:


               During the term of this Agreement and for a period of two (2)
               years after the expiration or termination of this Agreement for
               whatever reason, Doctor agrees that he/she shall not:


                        (i) practice medicine independently, in private practice …
                        nor as a physician employee or contract provider of
                        services for an individual, organization, or institution …
                        within the five (5) county area referenced below ….


      Ex. Vol. 1 at 52. The five-county area comprises Lake, Porter, Jasper, LaPorte,

      and Newton Counties in Indiana. Id. at 53. In November 2017, Dr. Misra

      gave notice that she would be resigning from NISC. In January 2018, she

      signed an employment agreement with Midwest Neurology Associates

      (“Midwest”), whose principal office is in Lake County, Indiana. Since joining




      1
        Several procedural observations are in order. Indiana Rule of Appellate Procedure 46(A)(6) provides that
      an appellant’s statement of facts “shall describe the facts relevant to the issues presented for review but need
      not repeat what is in the statement of the case.” NISC’s brief contains numerous facts that are irrelevant to
      the issues presented for review. Also, a party’s statement of facts should be narrative and not argumentative.
      Anthony v. Ind. Farmers Mut. Ins. Grp., 846 N.E.2d 248, 252 (Ind. Ct. App. 2006). Dr. Misra’s statement of
      facts is inappropriately argumentative. Moreover, both parties’ briefs include a “witness by witness summary
      of the testimony” from the preliminary injunction hearing in violation of Appellate Rule 46(A)(6)(c).
      Additionally, NISC failed to file an appellant’s appendix, which should have contained its complaint, its
      motion for preliminary injunction, and other documents “that are necessary for [this] Court to decide the
      issues presented.” Ind. Appellate Rule 50(A)(1). Thankfully, Dr. Misra submitted an appellee’s appendix
      with those documents. We urge both parties’ counsel to comply with our procedural rules in future cases.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019                     Page 3 of 8
      Midwest, Dr. Misra has practiced medicine only in Midwest’s office in Cook

      County, Illinois.


[3]   NISC filed a complaint against Dr. Misra for breach of the employment

      agreement and also filed a motion for preliminary injunction to enforce the

      restrictive covenant. After a hearing, the trial court issued an order denying

      NISC’s motion that reads in relevant part as follows: 2


                 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. To show a reasonable likelihood of success
                 at trial, the moving party must establish a prima facie case.

                 Here, law and facts are not in NISC’s favor. The restrictive
                 covenant at issue, drafted by NISC, appears clear on what it
                 prohibits and what it permits: it prohibits practicing medicine
                 within five designated counties, none of which include the
                 county in which Dr. Misra now practices.…

                 If NISC wanted to restrict Dr. Misra from competing in the same
                 geographical area as itself, it could have simply included a
                 restriction on practicing in Cook County, Illinois; or it could
                 have set forth a radius within which Dr. Misra could not practice.
                 It did neither.

                 ….




      2
          We have replaced the trial court’s references to “Plaintiff” with “NISC.”


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019   Page 4 of 8
               The uncontroverted and credible evidence shows that Dr. Misra
               only sees patients in Illinois and that she is not even permitted to
               practice in Indiana due to lack of malpractice insurance coverage
               there. While her employer, Midwest, is located in Indiana, she is
               not.

               Because the court finds and holds that NISC has not shown, by a
               preponderance of the evidence, a likelihood of success at trial, the
               court declines to analyze the remaining factors.


      Appealed Order at 5-6 (citations omitted). 3


                                        Discussion and Decision
[4]   NISC appeals the trial court’s denial of its motion for preliminary injunction.

      We review this ruling for an abuse of discretion. Clark’s Sales & Serv., Inc. v.

      Smith, 4 N.E.3d 772, 779 (Ind. Ct. App. 2014), trans. denied.


               To obtain a preliminary injunction, the moving party has the
               burden to show by a preponderance of the evidence: (1) a
               reasonable likelihood of success at trial; (2) the remedies at law
               are inadequate; (3) the threatened injury to the movant outweighs
               the potential harm to the nonmoving party from the granting of
               an injunction; and (4) the public interest would not be disserved
               by granting the requested injunction.


      Id. at 779-80. “If the movant fails to prove any one of these requirements, the

      trial court’s grant of an injunction would be an abuse of discretion.” Id. at 780.




      3
        NISC’s complaint and the trial court’s order also address patient solicitation and referral issues that are not
      relevant to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019                       Page 5 of 8
      To establish that a party has a reasonable likelihood of success at trial, the party

      must establish a prima facie case. Hannum Wagle & Cline Eng’g v. Am.

      Consulting, Inc., 64 N.E.3d 863, 874 (Ind. Ct. App. 2016). “The party is not

      required to show that he is entitled to relief as a matter of law, nor is he

      required to prove and plead a case, which would entitle him to relief upon the

      merits.” Id. (quoting Avemco Ins. Co. v. State ex rel. McCarty, 812 N.E.2d 108,

      118 (Ind. Ct. App. 2004)).


[5]   “When considering whether to grant a preliminary injunction, the trial court is

      required to make special findings of fact and conclusions thereon.” Clark’s, 4

      N.E.3d at 780 (citing, inter alia, Ind. Trial Rule 65(D)). “On appeal, we must

      determine whether the evidence supports the trial court’s findings, and whether

      the findings support the judgment. We will not disturb the findings or

      judgment unless they are clearly erroneous.” Id. (citation omitted). “[T]he

      power to issue a preliminary injunction should be used sparingly, with such

      relief granted only in rare instances in which the law and facts are clearly within

      the movant’s favor.” Id.


[6]   Indiana courts have recognized that “covenants not to compete are ‘in restraint

      of trade and not favored by the law’; however, they are enforceable if they are

      reasonable.” Hannum, 64 N.E.3d at 877 (quoting Cent. Ind. Podiatry, P.C. v.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019   Page 6 of 8
      Krueger, 882 N.E.2d 727, 729 (Ind. 2008)). 4 The reasonableness of the covenant

      between NISC and Dr. Misra is not at issue here; the only question is how it

      should be interpreted. We review the trial court’s interpretation of restrictive

      covenants de novo. Id. We give effect to the parties’ intentions as expressed in

      the four corners of the contract, “and clear, plain, and unambiguous terms are

      conclusive of that intent.” Oxford Fin. Grp., Ltd. v. Evans, 795 N.E.2d 1135,

      1142 (Ind. Ct. App. 2003). We may not construe clear and unambiguous

      provisions, nor may we add provisions not agreed upon by the parties. Id.


[7]   NISC argues that the restrictive covenant “expresses the parties’ intention that,

      should Dr. Misra cease to be employed by [NISC], she is not permitted to

      practice medicine either on her own, or for an ‘organization’ [such as Midwest]

      which is providing services within the five-county area encompassing Lake,

      Porter, LaPorte, Newton and Jasper counties.” Appellant’s Br. at 30. NISC’s

      interpretation adds language to the covenant that simply is not there. The

      covenant prohibits Dr. Misra from practicing medicine independently or as an

      employee in the five-county area; it does not prohibit her from practicing




      4
       The Krueger court stated, “We construe these covenants strictly against the employer and will not enforce an
      unreasonable restriction.” 882 N.E.2d at 729. Dr. Misra’s employment agreement with NISC states,
             The language of this Agreement shall be construed as a whole, according to its fair meaning and
             intendment, and not strictly for or against any party hereto, regardless of who drafted or was
             principally responsible for drafting this Agreement or any specific term or condition hereof.
             This Agreement shall be deemed to have been drafted by both parties hereto and no party hereto
             shall urge otherwise.
      Ex. Vol. 1 at 55. In its order, the trial court stated that the agreement was drafted by NISC, but the court did
      not specifically state that it construed the agreement strictly against NISC. Consequently, we do not address
      NISC’s assertion that the trial court improperly construed the agreement against it.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019                      Page 7 of 8
      medicine as an employee of an organization that provides medical services in

      that area. Because it is undisputed that Dr. Misra is not practicing medicine

      within the five-county area, we conclude that the trial court did not abuse its

      discretion in denying NISC’s motion for preliminary injunction.


[8]   Affirmed.


      Bradford, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3039 | August 12, 2019   Page 8 of 8
