Moshe Myerowitz, D.C., P.A. v. Howard

• Decision Date: 01 April 1986
• Citation: 507 A.2d 578
• Parties: MOSHE MYEROWITZ, D.C., P.A. v. Ellen HOWARD, D.C.
• Court: Maine Supreme Court

Page 578

507 A.2d 578

MOSHE MYEROWITZ, D.C., P.A. v. Ellen HOWARD, D.C.

Supreme Judicial Court of Maine.

Argued March 10, 1986.

Decided April 1, 1986.

Gross, Minsky, Mogul & Singal, Louis H. Kornreich, (orally), Steven J. Mogul, Bangor, for plaintiff.

Rudman & Winchell, Philip D. Buckley, (orally), Bangor, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN and GLASSMAN, JJ.

McKUSICK, Chief Justice.

In this suit brought by Moshe Myerowitz, ¹ a chiropractor, to enforce a professional covenant not to compete against another chiropractor, Ellen Howard, the Superior Court (Penobscot County) issued on December 30, 1985, a preliminary injunction restraining defendant from violating that covenant pending the court's final decision on plaintiff's prayer for a permanent injunction. Dr. Howard attempts to appeal from that preliminary injunction, but she fails to bring this case within any exception to the final judgment rule. We accordingly dismiss her appeal.

In October 1981 Dr. Howard started in practice by becoming associated with Dr. Myerowitz at his Myerowitz Chiropractic Center in Bangor. On February 25, 1982, she signed an "Associate Doctor Agreement" with Dr. Myerowitz that included, among other things, a covenant not to compete. By that covenant Dr. Howard agreed not to practice chiropractics within a 50-mile radius of the Myerowitz Chiropractic Center for a period of 48 months immediately following the termination of the agreement. Until late 1985, Dr. Howard, as an associate of Dr. Myerowitz, practiced chiropractics and also performed invasive acupuncture treatments, the latter recently constituting about 70% of her practice.

In early November 1985 Dr. Howard terminated her association with Dr. Myerowitz and began to set up her own chiropractic office in Brewer, the city directly across the Penobscot River from Bangor. On November 26, 1985, Dr. Myerowitz filed this suit against Dr. Howard seeking, along with other relief, the issuance of a permanent injunction enforcing the covenant not to compete. Dr. Myerowitz also moved for similar injunctive relief pendente lite. On December 30, 1985, the Superior Court, after applying the four factors required by Ingraham v. University of Maine at Orono, 441 A.2d 691, 693 (Me.1982), including plaintiff's likelihood of success on the merits, preliminarily enjoined Dr. Howard from practicing chiropractics within a 50-mile radius of Bangor for a period of 48 months or until final disposition of Dr. Myerowitz's suit, whichever first occurs. The court did not enjoin Dr. Howard from performing invasive acupuncture, a professional activity not mentioned in the covenant not to compete. The court conditioned the preliminary injunction upon Dr. Myerowitz's posting a $150,000 bond (later changed to a letter of credit) as security in the event that Dr. Howard is ultimately found to have been wrongfully restrained. Dr. Howard promptly filed a notice of appeal from that preliminary injunction.

By the final judgment rule, an interlocutory order such as a preliminary injunction is generally not appealable. State v. Maine State Employees Association, 482 A.2d 461, 463 (Me.1984). That judicially imposed prudential rule "helps curtail interruption, delay, duplication and harassment it minimizes interference with the trial process; it serves the goal of judicial economy; and it saves the appellate court from deciding issues which may ultimately be mooted, thus not only leaving a crisper, more comprehensible record for review in the end but also in many cases avoiding an appeal altogether." Id. at 464. Over the years our cases have, however, delineated a few narrow exceptions to the final judgment rule. Dr. Howard asserts that her appeal falls within either the "death knell" exception or the "collateral order" exception. In the alternative she asks the court to fashion a new exception to the rule based on the fact circumstances of her appeal.

The death knell doctrine allows an appeal to be taken from an interlocutory order where "substantial rights of a party will be irreparably lost if review is delayed until final judgment." Moffett v. City of Portland, 400 A.2d 340, 343 n. 8 (Me.1979). In other words, where a preliminary injunction has the "practical effect of permanently foreclosing relief on a claim," that order is immediately appealable. Crafts v. Quinn, 482 A.2d 825, 827 (Me.1984). Dr. Howard's appeal, however, does not fall within that exception. The merits of the preliminary injunction here are, for all practical purposes, identical to the merits on the issuance of the permanent injunction, which if issued will be subject to appellate review. All of the arguments put forth by Dr. Howard why she should not be restrained pendente lite from chiropractic practice within 50 miles of Bangor remain open to her in the upcoming trial of Dr. Myerowitz's request for a...