Isuani v. Manske-Sheffield Radiology Group, P.A.

• Decision Date: 28 February 1991
• Docket Number: No. 09-90-113,MANSKE-SHEFFIELD,09-90-113
• Parties: Hugo E. ISUANI, M.D., Appellant, v.RADIOLOGY GROUP, P.A., Appellee. CV.
• Court: Texas Court of Appeals

Page 602

805 S.W.2d 602

Hugo E. ISUANI, M.D., Appellant, v. MANSKE-SHEFFIELD RADIOLOGY GROUP, P.A., Appellee.

No. 09-90-113 CV.

Court of Appeals of Texas Beaumont.

Feb. 28, 1991.

Rehearing Denied March 14, 1991.

George Michael Jamail, Benckenstein, Oxford & Johnson, Beaumont, for appellant.

Bruce M. Partain, Wells, Peyton, Beard, Greenberg, Hunt & Crawford, Beaumont, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE, Justice.

At a previous time, on September 13, 1990, the Court issued an opinion resulting from an appeal from the granting of a temporary injunction favorable to Manske-Sheffield. This opinion concerns an appeal by Dr. Isuani from the granting of a permanent injunction. Our previous opinion (one Justice dissenting) is reported in 798 S.W.2d 346.

We are presented now with a transcription of the reporter's notes covering a non-jury trial on the merits for the permanent injunction, having been conducted on June 4, 1990. We also have before us the record made on June 5, 1990, entitled the Court's Final Ruling and Hearing on Bond.

The trial on the merits for the permanent injunction was a bench trial. The parties and their attorneys agreed to reoffer on the merits all of the evidence that was admitted on the temporary injunction hearing for the consideration of the bench. The method used was that one of the parties actually offered and retendered what was described as Exhibits No. 1 and No. 2 on the merits of the case. Exhibits 1 and 2 were the transcript and the statement of facts from the temporary injunction hearing. The opposing attorney had no objection and, in fact, made this statement:

--The only thing I have to say, pursuant to the Rules of Evidence, Rule 200, we're asking you to take judicial notice of all prior testimony.

I don't know how you're going to handle this. It does need to be made a part of the record, assuming there is going to be an appeal from one side or the other....

In addition to Exhibits 1 and 2, there existed twelve more pages which had been in some manner not copied. These twelve pages consisted of certain testimony of Dr. Sheffield. These twelve pages were identified and placed in evidence in the trial on the merits as Exhibit No. 3. Isuani's Exhibit No. 1 consisted of a series of W-2 wage and tax statements for 1988, setting forth the "wages, tips, and other compensations" made by a number of the members of the radiology group. We use the wording of the IRS W-2 form. For calendar 1988, although it is difficult to be absolutely certain because of the poor quality of the exhibits, we think, using a magnifying glass, that about half of the members of the group grossed about $278,717 while other members of the group grossed about $286,717. Dr. Isuani, in 1988, if we can properly decipher his W-2 statement, made $286,717. Upon a more careful examination with a more powerful magnifying glass, we think that all of the doctors who were members of the group in 1988 made $286,717 with the exception of one doctor who apparently was the youngest of the group, his income being $278,717.

The next exhibits were the W-2 statements for the calendar year 1987. Dr. Isuani and some others are shown to have made $287,000. Two of the younger members made about $206,004 and $218,460. The balance of the exhibit shows check stub entries and check records, the last exhibit being Isuani's Exhibit No. 4, the W-2 wage and tax statements for calendar year 1989. There it appears that most of the partners made $315,000 or possibly in one case, $318,000. Dr. Isuani's "wages, tips, and other compensation" on line 10 of the IRS form appears to be $315,000, which is apparently the same figure as made by the other radiologists. We recite these figures to demonstrate that significant business interests were involved.

The last exhibit is from the Whittaker Medical Services Group, Inc., for June and May of 1990 wherein Dr. Isuani apparently made a total of $13,558. Again, we have carefully reconsidered the entire record before us and we fail to perceive how in a meaningful and in a distinguishing way the non-jury trial on the merits differs from the record made at the hearing on the temporary injunction. In fact, from reading the dialogue and from the arguments of both counsel--the arguments being able and eloquent--it seems that both attorneys wanted to, in a very realistic sense, resubmit the same statement of facts that was made at the temporary hearing again to the trial court as the record on the permanent hearing.

We must stress that the evidence that was taken at the hearing on the temporary injunction was and is virtually and practically identical to the evidence developed at the trial on the merits. At the trial on the merits, of course, Manske-Sheffield prevailed and was awarded a permanent injunction against Dr. Isuani. At the beginning of the trial on the merits, it was actually stipulated and agreed to by both parties and their counselors that the testimony and evidence adduced and the record developed at the evidentiary hearing on the temporary injunction was to be the testimony, evidence, and record for the purposes of the trial to the bench on the very merits of the permanent injunction. We have attempted to review and summarize above the few additional strains of evidence adduced at the trial on the merits. We conclude that the entire record on the merits simply fails to reveal any crucial or differently dispositive factual matters.

We recognize and agree that the standard of review is different in the appeal of the granting of a temporary injunction as distinguished from the granting of a permanent injunction. Nevertheless, Dr. Isuani in his earlier appeal, had challenged both the factual sufficiency of the evidence and the legal sufficiency of the evidence. We attempted to discuss these points at some length in our previous opinion dated September 13, 1990. There we attempted to analyze and carefully consider the evidence presented. We determined that Manske-Sheffield business interests as well as its good will had been impacted by Dr. Isuani's actions. We determined in September of 1990 that the legitimate business interests of Manske-Sheffield and the good will attendant thereon justified the granting of the temporary relief and temporary injunction. We basically affirmed the action of the trial court, however, we did issue some limiting modifications in the interest of the public good and the welfare and the good health of the citizens and residents of mid and south Jefferson County.

A prevailing, successful petitioner for injunctive relief must demonstrate the following grounds:

(1) the existence of a wrongful act;

(2) the existence of imminent harm;

(3) the existence of irreparable injury; and,

(4) the absence of an adequate and realistically complete remedy at law.

See Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877 (Tex.App.--Fort Worth 1982). This case was affirmed by the Texas Supreme Court in March of 1983 at 647 S.W.2d 246. The affirmance by the Supreme Court was without a dissent.

In a supplemental transcript, we find findings of fact and conclusions of law. The trial court said that they were made pursuant to TEX.R.CIV.P. 269 and at the request of Hugo E. Isuani, defendant below. We have carefully reviewed the findings of fact which were seven in number and the separately filed conclusions of law which were twelve in number, signed on July 2, 1990, by Honorable Donald J. Floyd, Judge Presiding.

Findings of Fact

(1) Hugo E. Isuani ("Isuani") is a physician licensed to practice medicine in the State of Texas and was a stockholder, director, officer and employee of the Manske-Sheffield Radiology Group, P.A. ("Manske-Sheffield"), until March 31, 1990.

(2) Manske-Sheffield is a Texas Professional Association engaged in the practice of medicine.

(3) Prior to commencing employment with Manske-Sheffield in 1982, Isuani executed an Employment Contract that contained a Covenant Not to Compete. On or about March 6, 1987, Isuani executed another Employment Contract with Manske-Sheffield which contained a Covenant Not to Compete, as follows:

Paragraph 21. NON-COMPETITION AGREEMENT: It is expressly understood and agreed that upon the termination or expiration of this contract, Employee will not engage in the practice of medicine in Employee's own name or in association with others, or offer Employee's services as a consultant, employee, independent contractor or otherwise, whether directly or indirectly, within the area having a radius of fifteen (15) miles from St. Mary Hospital, Port Arthur, Texas, for a period of one (1) year from the termination or expiration of this contract. Moreover, it is specifically understood and agreed that this covenant and agreement may be enforced by suit for injunction, monetary damages, or both, and without a bond being required or posted.

Each physician employee of Manske-Sheffield executed a contract containing a Covenant Not to Compete identical to that contained in Isuani's Employment Contract.

(4) On or about January 8, 1990, Isuani notified Manske-Sheffield of his intention to withdraw from the Manske-Sheffield group effective March 31, 1990. He subsequently stated that it was his intention to practice medicine at Park Place Hospital in Port Arthur, Texas, which is within a fifteen (15) mile radius of St. Mary Hospital.

(5) As a result of Isuani's voluntary withdrawal from Manske-Sheffield, Manske-Sheffield is required to repurchase Isuani's stock in Manske-Sheffield.

(6) Manske-Sheffield renders professional medical services to St. Mary Hospital in Port Arthur, Texas, Mid-Jefferson Hospital in Nederland, Texas, and several refineries, chemical plants, and other businesses in the Port Arthur area under written agreements which are terminable by either party.

(7) Manske-Sheffield, with Isuani's knowledge and consent, has negotiated with Park Place Hospital and Dr....