Lane Dermatology v. Smith

• Citation: 360 Ga.App. 370,861 S.E.2d 196
• Decision Date: 29 June 2021
• Docket Number: A21A0582, A21A0639
• Court: United States Court of Appeals (Georgia)
• Parties: LANE DERMATOLOGY et al. v. SMITH et al.; and vice versa.

360 Ga.App. 370

861 S.E.2d 196

LANE DERMATOLOGY et al.

v.SMITH et al.; and vice versa.

A21A0582, A21A0639

Court of Appeals of Georgia.

June 29, 2021

Thomas Frederick Gristina, Columbus, Carter Page Schondelmayer, James M. Sherman, Austin Steele Gibson, Atlanta, for Appellant in A21A0582.

Julie Arp Wood, Atlanta, Jerry Alan Buchanan, Columbus, Jared Cassity Miller, Atlanta, Trisha Dodd Hargrove, Columbus, John Hartshorn Elliott, Atlanta, for Appellee in A21A0582.

Thomas Frederick Gristina, Columbus, Carter Page Schondelmayer, James M. Sherman, Austin Steele Gibson, Atlanta, for Appellee in A21A0639.

Julie Arp Wood, Atlanta, Jerry Alan Buchanan, Columbus, Jared Cassity Miller, Atlanta, Trisha Dodd Hargrove, Columbus, John Hartshorn Elliott, Atlanta, for Appellant in A21A0639.

Miller, Presiding Judge.

After Laura Frances Smith left her employment with Lane Dermatology & Dermatologic Surgery, LLC ("Lane Dermatology"), she became employed as a physician's assistant with Skin Cancer

Specialists, PC ("SCS"). Lane Dermatology brought the instant action against Smith and SCS, arguing that Smith's employment with SCS violated the restrictive covenants in her employment contract. In Case No. A21A0582, Lane Dermatology seeks review of the trial court's order denying its motion for an interlocutory injunction to enforce the covenants. In Case No. A21A0639, Smith cross-appeals from the trial court's denial of her motion to dismiss Lane Dermatology's complaint under the anti-SLAPP statute ( OCGA § 9-11-11.1 ). After a thorough review of the record, we conclude that the trial court did not abuse its discretion when it denied Lane Dermatology's request for an interlocutory injunction, and we conclude that Smith has not made a threshold showing that the claims in this case arise from statements made "in connection with an issue of public concern" so as to fall within the ambit of the anti-SLAPP statute. We therefore affirm the trial court's judgment in both cases.

The record indicates that Smith was employed as a physician's assistant with Lane Dermatology in its Columbus, Georgia office from 2013 until September 2019. As part of her employment contract, Smith agreed to various restrictive covenants, including a non-compete covenant which provided as follows:

For the purposes of this Section, the term "Territory" shall mean the geographic area located within 15 miles from the primary business office of Employer located at 1210 Brookstone Centre Parkway, Columbus, Georgia. For and in consideration of the amounts being paid by Employer to Employee hereunder, Employee agrees that upon termination of Employee's employment, Employee will not provide services as a Physician's Assistant within the Territory for a period of two years following the termination of this Agreement.

The agreement also contained a non-solicitation covenant, which provided:

Employee agrees that, without Employer's prior written consent, during the two year period commencing on the termination of Employee's employment, Employee will not, on Employee's own behalf or on behalf of any other individual or entity, solicit any patient of Employer to see or obtain dermatology services from any provider other than Employer. This Section applies only to those patients to whom Employee provided medical services as a Physician's Assistant during her employment with Employer.

In September 2019, Smith resigned from her employment with Lane Dermatology and left in good standing. Smith began working at a dermatology center in Charleston, South Carolina, but she resigned on March 23, 2020, because she was planning to return to Columbus. Around that time, Smith contacted Lane Dermatology and was told that she could return to work for them. Smith also received a message and phone call from Dr. Mark Chastain, who offered her a position at SCS.

When Smith returned to Columbus on April 14, 2020, she was still considering whether to work for Lane Dermatology or SCS. During this time, Lane Dermatology reached out to its own patients about Smith's return. Smith ultimately accepted the offer to work for SCS at their Newnan, Georgia office, which was effective May 1, 2020, and she began working there on May 19, 2020. Smith promptly notified Lane Dermatology that she was not accepting a position with them and was pursuing other employment.

After Smith agreed to work for SCS, SCS ordered a new nameplate for its Columbus office that listed Smith's name as one of its providers. The nameplate consists of the practice's name "Skin Cancer Specialists, P.C. & Aesthetic Center" in large letters and then lists, in smaller letters, the names of its doctors and other medical providers, including Smith. The sign lists all the providers that work for SCS, including those that only work in the Newnan office. SCS and its sign are located along the same road as Lane Dermatology's office such that "patients will ... [drive] right past this sign on the way to [Lane Dermatology]."

On May 20, 2020, Lane Dermatology brought this lawsuit, alleging that Smith violated her non-compete and non-solicitation covenants and seeking declaratory and injunctive relief.¹ Lane Dermatology also sought a temporary restraining order and interlocutory injunction to prevent Smith from continuing to violate the restrictive covenants and to remove the nameplate showing that Smith is an employee of SCS. In response, Smith filed a motion to strike Lane Dermatology's claims under the anti-SLAPP statute because the claims were based on the exercise of speech by displaying the nameplate.

Following a four-day evidentiary hearing, the trial court denied the motion for a preliminary injunction and denied Smith's motion to dismiss. The trial court first concluded that Lane Dermatology failed to produce evidence that Smith had violated either of the two restrictive covenants. The trial court held that there was no evidence that Smith was working as a physician's assistant within the restricted area and that Smith did not "provide services" in Columbus simply because her name was on SCS's nameplate. The trial court also found that Lane Dermatology did not provide evidence that Smith violated the non-solicitation provision because (1) the evidence showed that Smith only solicited patients to see her at Lane Dermatology, not SCS; (2) any communications by the patients to Smith regarding SCS were initiated by the patients; and (3) merely having Smith's name on the nameplate did not constitute the solicitation of patients. The trial court further concluded that Lane Dermatology had not shown that it had incurred any financial injury or lost any patients due to Smith or SCS and that the balance of harms and the public interest both weighed against granting an injunction. The trial court finally concluded that Lane Dermatology's claims regarding the nameplate with Smith's name did not invoke a constitutional denial of free speech as to matters of public interest or significance so as to come within the ambit of the anti-SLAPP statute. Lane Dermatology now appeals from the denial of its request for an injunction, and Smith cross-appeals from the denial of her motion to dismiss.

Case No. A21A0582

1. Lane Dermatology primarily argues that, for various reasons, the trial court erred in denying its request for injunctive relief because it established that Smith breached the restrictive covenants and that it had suffered (and would continue to suffer) actual loss of patients because of those breaches. We address each of Lane Dermatology's arguments in turn and conclude that the trial court did not abuse its discretion in denying an interlocutory injunction to enforce the covenants.

In deciding whether to issue an interlocutory injunction, the trial court should consider whether: (1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of [the] claims at trial; and (4) granting the interlocutory injunction will not disserve the public interest. Although an interlocutory injunction is an extraordinary remedy, and the power to grant it must be prudently and cautiously exercised, the trial court is vested with broad discretion in making that decision. We will not reverse the trial court's decision to grant or deny an interlocutory injunction unless the trial court made an error of law that contributed to the decision, there was no evidence on an element essential to relief, or the court manifestly abused its discretion.

(Citation omitted.) Western Sky Financial, LLC v. State ex rel. Olens , 300 Ga. 340, 352 (2) (b), 793 S.E.2d 357 (2016). The Supreme Court of Georgia "has declared that the first factor is the most important one, given that the main purpose of an interlocutory injunction is to preserve the status quo temporarily to allow the parties and the court time to try the case in an orderly manner." Id. at 354 (2) (b), 793 S.E.2d 357. "[W]here the trial court, in ruling on an interlocutory injunction, makes findings of fact based upon conflicting evidence, this court will not disturb the ruling as an abuse of discretion unless the denial or granting of the injunction was based on an erroneous interpretation of the law." (Citation omitted.) Westpark Walk Owners, LLC v. Stewart Holdings, LLC , 288 Ga. App. 633, 635, 655 S.E.2d 254 (2007).

(a) Lane Dermatology first argues that it provided evidence showing that Smith was soliciting its patients to work with her at SCS. Lane Dermatology points in particular to the evidence that Smith was communicating with Lane Dermatology's patients prior to her employment with SCS. We disagree.

Here, the non-solicitation provision prohibits Smith from "solicit[ing] any patient of [Lane Dermatology] to seek or obtain dermatology services from any...