The opinion
[Cite as Maccarone v. Mark Mandell-Brown, M.D., Inc., 2025-Ohio-5071.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
GINA MACCARONE, M.D., : APPEAL NO. C-250052
TRIAL NO. A-2404138
Plaintiff-Appellee, :
vs. :
MARK MANDELL-BROWN, M.D., : JUDGMENT ENTRY
INC.,
Defendant/Counterclaim :
Plaintiff-Appellant,
and :
MARK MANDELL-BROWN, M.D., :
Counterclaim Plaintiff- :
Appellant,
vs. :
MEGHAN JOHNSON, et al., :
Defendants. :
This cause was heard upon the appeal, the record, and the briefs.
For the reasons set forth in the Opinion filed this date, the judgment of the trial
court is affirmed, and the appeal is dismissed in part.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs be taxed 50 percent to Mark Mandell-Brown,
M.D., Inc., and 50 percent to Mark Mandell-Brown, M.D.
The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.
OHIO FIRST DISTRICT COURT OF APPEALS
To the clerk:
Enter upon the journal of the court on 11/7/2025 per order of the court.
By:_______________________
Administrative Judge
[Cite as Maccarone v. Mark Mandell-Brown, M.D., Inc., 2025-Ohio-5071.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
GINA MACCARONE, M.D., : APPEAL NO. C-250052
TRIAL NO. A-2404138
Plaintiff-Appellee, :
vs. :
MARK MANDELL-BROWN, M.D., : OPINION
INC.,
Defendant/Counterclaim :
Plaintiff-Appellant,
and :
MARK MANDELL-BROWN, M.D., :
Counterclaim Plaintiff- :
Appellant,
vs. :
MEGHAN JOHNSON, et al., :
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Appeal Dismissed in Part
Date of Judgment Entry on Appeal: November 7, 2025
The Janszen Law Firm and August T. Janszen, for Plaintiff-Appellee Gina Maccarone,
M.D.,
Hemmer Wessels McMurtry PLLC and Scott R. Thomas, for Defendant/Counterclaim
Plaintiff-Appellant Mark Mandell-Brown, M.D., Inc., and Counterclaim Plaintiff-
Appellant Mark Mandell-Brown, M.D.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} This dispute arises between an employer and several former employees.
The case was initiated by plaintiff-appellee Gina Maccarone, M.D., when she filed a
complaint “for declaratory judgment, temporary restraining order, preliminary
injunction, and compensatory damages” against her former employer, defendant-
appellant Mark Mandell-Brown, M.D., Inc., (“MMBI”). Her claims arose from an
alleged unlawful covenant not to compete (“the noncompete agreement”) in her
employment agreement with MMBI.
{¶2} Thereafter, a flurry of other claims, and parties, were added to the case.
First, MMBI, in combination with Mark Mandell-Brown, M.D. (“Dr. Mandell-
Brown”), filed several counterclaims—see Civ.R. 13(H)—against Dr. Maccarone, and
also initiated several other claims against three other former employees of MMBI,
Meghan Johnson, Melissa Hargis, and Kendall Hemsath. These claims included
conversion, unjust enrichment, defamation, “tortious interference with contract and
business relations,” breach of fiduciary duty, breach of duty of good faith and loyalty,
civil conspiracy, breach of contract, declaratory judgment, injunctive relief, and
punitive damages. Relevant here, MMBI sought a declaratory judgment that the
noncompete agreement with Dr. Maccarone was valid and enforceable, and
“preliminary and permanent injunctive relief to the extent necessary to enforce the
restrictive covenant because it has no adequate remedy at law.” Next, Dr. Maccarone
amended her complaint to add claims against MMBI for wrongful discharge and
punitive damages. Then, defendant Hemsath filed counterclaims against MMBI and
Dr. Mandell-Brown for abuse of process and punitive damages. Further, MMBI
amended its responsive pleading to Dr. Maccarone to add another counterclaim for
breach of contract. Several motions to dismiss were also filed by and against various
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OHIO FIRST DISTRICT COURT OF APPEALS
parties.
{¶3} Intermixed within the flurry of pleadings and responsive motions, Dr.
Maccarone filed a motion for a preliminary injunction. After responsive briefing and
a hearing, the trial court granted the motion, enjoining enforcement of the
noncompete agreement between MMBI and Dr. Maccarone. In doing so, the trial
court denied MMBI’s “cross-motion” for a declaratory judgment that the noncompete
agreement was enforceable. MMBI and Dr. Mandell-Brown—claiming to both be
“defendants”—filed a notice of appeal from this order, and it is this interlocutory order
that is the subject of this appeal. The remaining litigation is still ongoing in the trial
court.
{¶4} MMBI and Dr. Mandell-Brown assert a single assignment of error,
arguing that the trial court erred in granting Dr. Maccarone’s motion for a preliminary
injunction. For the reasons that follow, we dismiss the appeal of Dr. Mandell-Brown
for lack of standing, and we overrule MMBI’s sole assignment of error and affirm the
judgment of the trial court.
I. The Relevant Restrictive Covenants in the Employment Agreement
{¶5} On September 21, 2022, Maccarone and MMBI entered into a two-year
employment agreement, beginning on October 1, 2022.1 Among other things, the
agreement contained the following restrictive covenants:
(a) Employee agrees that during the terms of this Agreement,
and for a period of two (2) years after the termination of Employee’s
employment with the practice, within the Restricted Area, Employee
shall not, directly or indirectly:
1 The compensation provisions of the employment agreement were amended in October 2023, with
all other provisions of the agreement remaining in full force and effect.
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OHIO FIRST DISTRICT COURT OF APPEALS
(i) Engage, individually, in partnership or through a
corporation or any entity as a proprietor, owner,
manager, employee, stockholder, consultant,
independent contractor, or otherwise, in the practice of
facial and/or body cosmetic medicine, or liposuction;
(ii) Solicit or contact anyone who, during the terms of this
Agreement, was a patient of the Practice, for purposes of
continuing to provide any services to those individuals; or
(iii) Hire, solicit or, [sic] encourage any person working
for the Practice to leave the employment of the Practice.2
(b) As used herein:
(i) ‘Restricted Area’ means a fifteen (15) mile radius ‘as
the crow flies’ of the Practice’s main office at 10735
Montgomery Road, Cincinnati, Ohio 45242 and a fifteen
(15) mile radius of the Practices satellite office at 1512
Yankee Park Place, Centerville, Ohio 45458 (or any new
Dayton/Centerville area office location established
during the time of employee employment). The Parties
agree that the Commonwealth of Kentucky is excluded
from the ‘Restricted Area.’
(ii) The phrase ‘the practice of facial and/or body
cosmetic medicine, or liposuction’ shall be construed
2 For purposes of this opinion, the restrictive covenant set forth in provision (a)(i) is referred to as
“the noncompete agreement” and the restrictive covenant set forth in provision (a)(ii) is referred to
as “the nonsolicitation agreement,” while all restrictive covenants in provision (a) are cumulatively
referred to as “the restrictive covenants.”
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OHIO FIRST DISTRICT COURT OF APPEALS
broadly to include the procedures typically performed by
physicians in these specialties. For avoidance of doubt,
the covenants of Section 7(a) do not prohibit Employee
from working after the termination of employment with
the Practice in another generally recognized medical
specialty, including without limitation, general surgery.
(c) Employee represents and acknowledges that enforcement of
the covenants contained in this Agreement, including without
limitation, the scope of medical practice, will not prevent Employee
from earning a livelihood as Employee has the necessary qualifications
and ability to reasonably expect to find work.
(d) The Employee acknowledges that the terms and conditions
of the restrictive covenants in this Section 7 are reasonable and
necessary for the protection of the Practice’s business, trade secrets and
confidential information and to prevent damage or loss to the Practice
as a result of actions taken by the Employee. The purpose of the above
covenants are to protect the Practice from the irreparable harm it will
suffer if Employee competes in its territory after having been employed
by the Practice and introduced to its referring physicians and patients,
and after learning the Practice’s special medical procedures, business
procedures, office and practice policies and the special and confidential
professional procedures developed by the Practice and its employed
physicians and/or taught to Employee in the course of the Employee’s
employment relationship. EMPLOYEE UNDERSTANDS THAT
EMPLOYEE’S EMPLOYMENT IS OFFERED SUBJECT TO SUCH
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OHIO FIRST DISTRICT COURT OF APPEALS
COVENANTS AND THE EMPLOYEE FREELY ACCEPTS SUCH
LIMITATION. If any provision of this Section relating to the restrictive
period, scope of activity restricted and/or territory described herein
shall be declared by a court of competent jurisdiction to exceed the
maximum time period, scope of activity restricted or geographical area
such court deems reasonable and enforceable under applicable law,
Employee and the Practice agree that the time period, scope of activity
restricted and/or area of restrictions held reasonable and enforceable
by the court shall thereafter be [the] restrictive period, scope of activity
restricted and/or the territory applicable to the restrictive covenant
provisions of this Section.
II. Dr. Mandell-Brown is Not a Proper Appellant
{¶6} As an initial matter, the notice of appeal was filed by both MMBI and
Dr. Mandell-Brown, claiming to both be “defendants.” However, Dr. Mandell-Brown
is not a “defendant” of Dr. Maccarone’s claims. Dr. Maccarone only asserted claims
against MMBI. Further, while Dr. Mandell-Brown appears to have joined some of
MMBI’s counterclaims under Civ.R. 13(H), the counterclaims relevant to this appeal
do not reveal Dr. Mandell-Brown as an additional party asserting those claims.
{¶7} In the list of “causes of action” set forth in the original filed
“counterclaim and complaint” against Dr. Maccarone and the several new defendants,
two claims are relevant here: the claim for a declaratory judgment and the claim for
injunctive relief. While both claims begin by stating in the first paragraph a general
statement that “MMB[I] and Dr. Mandell-Brown incorporate each of the allegations…”
previously set forth in the document, the paragraphs seeking relief for each claim only
pertain to MMBI. First, the declaratory-judgment claim sets forth the relevant
8
OHIO FIRST DISTRICT COURT OF APPEALS
provisions of the employment agreement, states that “an actual controversy exists
between Dr. Maccarone and MMB[I] regarding the enforceability of the Restrictive
Covenants,” and asserts that “MMB[I] is entitled to an order declaring that the
Restrictive Covenants are valid and enforceable as written.” (Emphasis added.)
Second, the claim for injunctive relief asserts, “MMB[I] is entitled to preliminary and
permanent injunctive relief to the extent necessary to enforce the Restrictive
Covenants because it has no adequate remedy at law.” (Emphasis added.) This is
different from the defamation, civil-conspiracy, and punitive-damages claims that
assert that both MMBI and Dr. Mandell-Brown were damaged by the actions at issue
in the claims. (“As a direct and proximate result of the conduct of Ms. Johnson and
Dr. Maccarone, MMB[I] and Dr. Mandell-Brown have been damaged, and will
continue to suffer damages, in an amount exceeding the jurisdictional threshold of this
Court to be proven at trial”; “As a direct and proximate result of the tortious conduct
of Dr. Maccarone and the Third-Party Defendants, MMB[I] and Dr. Mandell-Brown
have suffered damage herein, in an unknown amount exceeding the jurisdictional
threshold of this Court to be proven at trial”; “MMB[I] and Dr. Mandell-Brown are
entitled to an award of punitive damages, costs, and attorney’s fees.”). Further, the
later filed “Amended Counterclaim” appears to have only been filed by MMBI (“Now
comes [MMBI], by and through counsel, and for its amended Counterclaim against
Plaintiff Gina Maccarone, M.D., states . . .”), only added a claim by MMBI against Dr.
Maccarone for breach of contract, and did not make any changes to the declaratory-
judgment or injunctive-relief claims.
{¶8} Notably, the employment agreement is only between MMBI and Dr.
Maccarone. Further, the memorandum in opposition to Dr. Maccarone’s motion for
a preliminary injunction and the combined responsive motion for a declaratory
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment that the noncompete agreement was enforceable was only submitted by
MMBI. Thus, the trial court’s order only addressed the “Cross-Motion for Declaratory
Relief” filed by the “Defendant,” which was MMBI.
{¶9} “Generally, a party lacks standing to bring an appeal to protect the rights
of a third party.” Hartford Fire Ins. Co. v. Debra-Kuempel, Inc., 2024-Ohio-5830, ¶
45 (1st Dist.), citing Axline v. Kevin R. Conners, LLC, 2015-Ohio-4679, ¶ 43 (10th
Dist.). “This is because only a party aggrieved by an order may bring an appeal.” Id.,
citing Axline at ¶ 43. “A party is aggrieved by an order and has standing to appeal the
order if a party has a ‘present interest in the subject matter of the ligation which has
been prejudiced by the judgment of the lower court.’” Id., Willoughby Hills v. C.C.
Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26 (1992).
{¶10} In Hartford, this court held that a party lacked standing to appeal a
judgment in favor of a third-party defendant where the appealing party (the plaintiff,
asserting a subrogation claim) lacked an interest in the dispute between the defendant
and the third-party defendant (an indemnification and contribution claim) where the
defendant’s potential recovery from the third-party defendant “would have no
immediate effect” on the plaintiff’s claims against the defendant and the plaintiff had
no claims against the third-party defendant. Id. at ¶ 48.
{¶11} Here, Dr. Mandell-Brown’s claims in the case against Dr. Maccarone
include defamation, civil conspiracy, and punitive damages. The defamation claim
pertains to information allegedly provided by Dr. Maccarone to the Ohio State Medical
Board. The civil-conspiracy claim appears to derive from alleged acts of Dr.
Maccarone and the other employees that occurred during their employment with
MMBI (e.g., converting company property for personal use, awarding business
promotions to family members, directing clients to Dr. Maccarone instead of Dr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Mandell-Brown, promoting similar services at other entities). The punitive-damages
claim is based on “willful and wanton conduct exhibiting reckless disregard for the
rights of MMB[I] and Dr. Mandell-Brown.” None of these claims appear to pertain to
the enforceability of the noncompete agreement, and it does not appear that any of
these claims would be affected by the preliminary injunction.
{¶12} Further, the employment agreement specifically states that the
restrictive covenants are necessary to protect “the Practice’s business, trade secrets
and confidential information and to prevent damage or loss to the Practice as a result
of actions taken by the employee.” (Emphasis added.) Even further, it states that the
purpose of the restrictive covenants is
to protect the Practice from the irreparable harm it will suffer if
Employee competes in its territory after having been employed by the
Practice and introduced to its referring physicians and patients, and
after learning the Practice’s special medical procedures, business
procedures, office and practice policies and the special and confidential
professional procedures developed by the Practice and its employed
physicians and/or taught to Employee in the course of the Employee’s
employment relationship.
(Emphasis added.)
{¶13} In Tortbeck v. Indus. Mfg. Co., 2015-Ohio-3041 (1st Dist.), this court
held that a principal shareholder and president of a manufacturing company lacked
standing to appeal a judgment on certain claims asserted in the case—
misappropriation of trade secrets and breach of the duty of loyalty—where the officer,
in his individual capacity, did not allege an interest in these specific claims in the
complaint and it was the company that held the enforceable rights on the claims—and
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OHIO FIRST DISTRICT COURT OF APPEALS
not the officer—as the duty of loyalty is owed to the employer, not its officers, and the
company owns the company’s trade secrets, not the officer. Id. at ¶ 16-17. Accordingly,
this court held, “Because [the officer] did not raise these claims in the trial court and
was not aggrieved by the judgment relating to misappropriation of trade secrets and
the duty of loyalty, he lacks standing to challenge the trial court’s judgment as it relates
to those claims.” Id. at ¶ 18.
{¶14} Here, Dr. Mandell-Brown is the shareholder and president of MMBI.
However, he did not assert any claims pertaining to the employment agreement below
and, under the terms of the employment agreement, it is the practice that holds the
enforceable rights at issue. For these reasons, we hold that Dr. Mandell-Brown lacks
standing to appeal from the trial court’s judgment. We therefore dismiss his appeal.
III. Background
A. As Provided by Dr. Maccarone
{¶15} Dr. Maccarone lives in Indian Hill with her husband, a “semi-retired
cardio and thoracic surgeon,” and two stepchildren. She went to medical school at the
University of Cincinnati (“UC”) and trained at Good Samaritan Hospital for five years
doing general surgery. She then completed a fellowship in trauma and critical care at
UC and worked at Christ Hospital in a general-surgeon and critical-care position. She
worked in this position at Christ Hospital for almost eight years. When she left this
position in 2021, her salary was $450,000 a year. In this position, she “did a lot of
minimally invasive surgery, robotic surgery, abdominal surgery, [and] skin cancer
surgery,” and “started a medical spa” for cosmetic treatments. She testified, “I always
had a cosmetic disposition with all of my surgery patients as far as closures, scarring,
those kinds of things.” While at Christ Hospital, she was marketed as a “highly skilled
surgeon,” and provided various media content for patient engagement and general-
12
OHIO FIRST DISTRICT COURT OF APPEALS
education purposes. In her Instagram marketing, she dubbed herself, “the
Surgeonista.”
{¶16} Dr. Maccarone always had an interest in cosmetic surgery and did
“several months of plastic surgery during [her] general surgery training.”
Additionally, while working at Christ Hospital, she took “courses,” learned how to do
“injectable treatments,” and started the medical spa because of her interest in cosmetic
surgery. Once she reached a point in her career that she felt like she wanted
“something more,” she looked into the American Academy of Cosmetic Surgery
fellowship training. This is how she “found” Dr. Mandell-Brown.
{¶17} She chose to complete this one-year program “where all you learn is
cosmetic surgery,” instead of the two-to-three year “classic plastic and reconstructive
training program.” This program allowed her to do “solely cosmetic surgery,” like
“breast, tummy, [and] liposuction,” rather than “microsurgery, reconstruction, burn
surgery, [or] flap surgery.” In other words, she testified that the shorter program (the
“ABCS certification”) allows “graduates to do the type of surgery that they like to do
without having to learn these other skills learned during plastic and reconstructive
training” (the “PRS certification”).
{¶18} Dr. Maccarone testified that “[m]ost hospitals in Cincinnati require that
a surgeon have a board certification by what’s called an ACGME training program.”
The PRS certification “is an ACGME training program, whereas cosmetic surgery is
not.” Consequently, she testified that she is prohibited “from obtaining cosmetic
surgery privileges at the local hospitals, including Northern Kentucky, because [she’s]
not board certified in plastic and reconstructive surgery.” This was said to include “all
the hospitals here,” including Christ Hospital, as well as “University of Cincinnati,
Jewish, Mercy, Mercy Anderson, [and] Mercy West.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} When asked how she became involved in the fellowship with Dr.
Mandell-Brown, she said that she approached him in 2021 to learn more about the
training and also spend a day at the practice observing surgery. At the time, he had
not accepted a fellow for the following cycle. He mentioned that, because she was from
Cincinnati, it would be nice to have her as a fellow and have her potentially stay on and
practice thereafter if things went well. She entered into a fellowship agreement with
Dr. Mandell-Brown on October 4, 2021. Her annual salary as a fellow was $25,000,
without bonuses. The first six months of the fellowship “are spent learning and
observing surgery with Dr. Mandell-Brown.” After that, the fellow can have their own
independent cases at the discretion of Dr. Mandell-Brown. The fees from her work as
a fellow went to MMBI. During her time as a fellow, she worked primarily at the
Montgomery-Road location and “intermittently” at a location “in Springboro or south
of Dayton.” She claimed to be at the Cincinnati office 90 percent of the time. She said,
“It was maybe one day a month when we would travel to Dayton.”
{¶20} At the end of her fellowship, she was offered a two-year associate
position. As part of this position, she entered into an employment agreement and her
salary was increased to $275,000 a year, with a bonus opportunity. Throughout her
employment, discussions were held about a potential buy-in to the practice at the end
of her two-year position. So, when she was called to a meeting with Dr. Mandell-
Brown in August 2024, she was under the impression that the meeting was to discuss
more details of the practice purchase. Instead, she was “let go from the practice due
to lack of productivity and just not making good business sense for the corporation.”
{¶21} She has now opened a medical office in Cheviot, which is 30-45 minutes
from her home. Beyond that, she has limited general surgery privileges at TriHealth
and has obtained general and cosmetic surgery privileges at Highland District Hospital
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OHIO FIRST DISTRICT COURT OF APPEALS
in Hillsboro, Ohio, which is about an hour away.
{¶22} When asked why she can’t perform surgery at her own office, she said,
“I do some local procedures there, but because it’s not a certified surgery center I am
unable to do any types of procedures that require anesthesia.” She testified that,
typically, most surgeons report that it takes 18 to 24 months to build a surgery center
and “maintain all of the certifications for use.” Further, she testified that it would take
six months to a year to get all her general surgery privileges back.
B. As Provided by Dr. Mandell-Brown
{¶23} Dr. Mandell-Brown testified as to why he has “unique and customized
surgical skills or approaches.” He first said he has a unique method of patient
consultation, which he does not “always see . . . done around the city and in the
country.” He testified about how he instructed Dr. Maccarone on her consultation
skills.
{¶24} He further testified about his claimed unique surgical techniques.
Regarding breast augmentation, he said that he uses an approach that he suggested
was unique to this area—but not original, as he learned it from a friend in Texas.
Regarding tummy tucks, he implied that his technique was not “special” to him but is
not always done. He also claimed to teach his fellows to place the stiches in a certain
manner that results in “superior” outcomes and “possibly” gives him a competitive
advantage. Regarding facelifts, he said that he tries to “specialize a facelift for the
patient’s needs.” Regarding injections, he uses a practice for which he “claims no
origination” as he learned it from a doctor in Kansas. Regarding liposuction, he
testified that he is different from his competitors in that “some of [his] competitors
and colleagues [are] not turning down anybody.” He further said that he differs from
some of his competitors where he does long-term, follow-up care and in-person office
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OHIO FIRST DISTRICT COURT OF APPEALS
visits, while some others do virtual visits or no follow-up care. He also claimed that,
when he came to the area, most competitors were doing procedures under general
anesthesia, rather than IV sedation, whereas now only 40 to 50 percent do it under
general anesthesia.
{¶25} He next testified about the alleged value of his business’s financial
information to his competitors. He said, “So unfortunately Cincinnati is a very
competitive city -- almost a cutthroat city -- and my competitors would love to have
this information.” He said that he shared certain financial information with Dr.
Maccarone in anticipation of her joining the practice that he would not have provided
in the absence of the confidentiality agreement. Further, Dr. Maccarone was present
at board meetings wherein they discussed “deliberately and in great detail everything
that transpired in the surgical centers, including risk management, quality issues,
number of cases that we’ve done, number of specific cases: facelifts, rhinoplasties,
liposuction,” and discussed future plans and marketing strategies based on patient
data and satisfaction surveys. When asked what value the information from the board
meetings would have to his competitors, he said, “Well, it’s just privy to the way we
conduct our business. It’s a 20-page report that we went through today. It’s very
thorough.”
{¶26} Regarding pricing, he testified that his pricing was part of his practice’s
competitive strategy and said his competitors “would love to know exactly what we
charge everybody” because it is a competitive market in Cincinnati. He claimed that
competitor access to this information “could be helpful” in undercutting his ability to
attract patients. By virtue of her employment with the practice, Dr. Maccarone is
familiar with his pricing strategy.
{¶27} Regarding advertising, he testified that the company annually markets
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OHIO FIRST DISTRICT COURT OF APPEALS
the 15-to-20-mile radius that overlaps the restricted area in the noncompete. He
explained the practice’s advertising of Dr. Maccarone during her employment within
this area and said that he would not have done this advertising in the absence of the
noncompete agreement.
{¶28} When asked to estimate the impact if Dr. Maccarone were able to
practice in the restricted area and “affiliate with one of [his] competitors,” he
answered, “I can’t put a dollar number it could be, but I think it would be irreparable
harm.” When asked by the trial court about his claim of irreparable injury and why
allowing Dr. Maccarone to practice in the restricted area would be unfair competition,
rather than ordinary competition, he said,
I put 150 percent in everything I do. I do. You don’t know that,
but you have to take my word for it.
When I train these fellows, these ten fellows, I give them my
medical expertise. I’m a sought-after medical expert around the
country. I don’t advertise. I’m imparting safety on them. I am
imparting my credentialing. I was a surveyor and am a surveyor for
AAAHC on their board of directors, chairman of their survey and
education.
I’m imparting that information to these doctors -- these ten
doctors.
I’m imparting my ENT training, which was in the top three
programs in the country. My facial plastic training was probably in the
top two in the country. And all that education and training I am pouring
into these individuals.
And I take everything I do to heart. When they do the
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OHIO FIRST DISTRICT COURT OF APPEALS
consultations, I want them to make sure they understand how to relate
to patients.
As a general surgeon, Dr. Maccarone didn’t get that. That’s not
how general surgeons act with patients. They see them once, they see
them afterwards, and that’s it. They’re done.
Cosmetic is a whole different way. It’s a way of thinking. I am
passionately giving them that information. And I’m doing it because I
want to commit to our profession, to grow the practice. And it’s a
commitment to expand our academy.
And so I want them to go out and be successful. I want them to
go out and contribute to our academy in educational and committees
and even in leadership, but I don’t want them in my backyard.
I can’t train and give them everything I’ve given and let them be
down the street from me.
And I’ve trained ten of them. I can’t have -- I just won’t do it. I
put too much into it to train my own competition. I’m cutting off my
own throat.
I want her to be successful. I want her to contribute to our
academy, but I don’t want her in my backyard.
And in general 15 miles, which she asked for in her own words -
- I used to have 20. She said can we do 15 and we mutually agreed.
This has nothing to do with anything, but my dad is 98 years old.
He lives in his own apartment in Columbus, and he is a World War II
veteran. And the only thing he taught me is honor. And you honor your
word, and you honor your verbal agreement, and you certainly honor
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OHIO FIRST DISTRICT COURT OF APPEALS
your written agreement.
The fellow that I had yesterday, I brought him here. I didn’t have
to. This is noncompete. He’s going to benefit if she wins. You enforce
it.
So -- but I wanted him to see it because this is his education.
But he told me on the way home, he said I would honor what I
agreed with you because that’s what we decided and . . . the great
generation . . . the great generation, they had honor.
IV. The Preliminary Injunction
{¶29} Dr. Maccarone filed a motion for a preliminary injunction enjoining
enforcement of “the non-competition restrictions and illegal restraints on trade” in the
employment agreement with MMBI, or, in the alternative, an order enjoining
enforcement of “the post-employment restrictions as applied to (1) locations more
than five miles away from MMB[I]’s offices, and/or (2) any hospitals or private
surgical centers where Dr. Maccarone may perform cosmetic surgeries, during the
pendency of this case.” The motion asserted that the noncompete agreement was
“illegal, invalid, and unenforceable” for three reasons: (1) “MMB[I] lacks a legitimate
business interest to enforce any post-employment non-competition restrictions upon
Dr. Maccarone in the practice of medicine, because there is no actual or potential risk
or evidence of unfair competition by Dr. Maccarone,” (2) “[t]he restrictive covenants
are patently and substantively ‘unreasonable’ in all respects -- including the temporal,
geographic, and subject matter restrictions -- under the Raimonde factors, Ohio law,
and the facts of the case,” and (3)
[a]ny reasonable and equitable reformation of the restrictions, reducing
the unreasonable restraints on trade to any alleged ‘legitimate business
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OHIO FIRST DISTRICT COURT OF APPEALS
interest’ or need to protect against unfair competition, if any, would
require the restrictions to be reduced to a one year, five-mile radius
from the MMB[I] Montgomery office, with such restrictions solely
applying to the medical office where Dr. Maccarone may work or meet
patients, and not to the surgery locations where she may perform
surgery.
(Emphasis in original.)
{¶30} MMBI filed a memorandum in opposition to Dr. Maccarone’s motion
for a preliminary injunction, in which it argued that Dr. Maccarone’s request for a
preliminary injunction must be denied where “unclean hands bar equitable relief, she
cannot meet her burden to establish entitlement to injunctive relief by clear and
convincing evidence, and the weighing of the Raimonde factors requires enforcement
of the non-compete agreement she voluntarily negotiated.” The motion further
asserted that “[t]he same facts that mandate denial of Dr. Maccarone’s motion require
granting MMB[I] declaratory relief as set forth in Count IX of its Counterclaim.”
Therefore, MMB[I] moved the trial court to declare “the noncompete provision in Dr.
Maccarone’s employment agreements to be reasonable and enforceable.”
{¶31} Ultimately, after initial briefing, a hearing, and posthearing briefing/
written closing arguments, the trial court entered an order granting the preliminary
injunction on January 30, 2025. First, the trial court found that there is a substantial
likelihood that Dr. Maccarone will prevail on the merits as the noncompete agreement
is unenforceable where (1) there is no evidence that Dr. Maccarone’s competition is
unfair to MMBI so limiting her ability to compete is merely preventing ordinary
competition, and (2) even if there is a “legitimate interest in preventing competition
because Dr. Maccarone’s knowledge allowed her to compete unfairly, the
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OHIO FIRST DISTRICT COURT OF APPEALS
approximately six months that she has already complied with the agreement is more
than sufficient.” In doing so, the trial court found that (1) Dr. Maccarone has a
“fundamentally different take on how to practice cosmetic surgery and how to run a
practice,” (2) Dr. Maccarone “is not using confidential information or trade secrets to
replicate a practice based on the practice run by Dr. Mandell-Brown,” (3) the surgical
techniques that Dr. Maccarone learned while employed at MMBI “are not confidential
or trade secrets,” (4) Dr. Maccarone disposed of the financial information she had
access to, as requested, and (5) the pricing strategy that Dr. Maccarone has knowledge
of is not a trade secret. Additionally, the trial court found that (1) Dr. Maccarone will
suffer irreparable harm in the absence of a preliminary injunction as her inability to
practice would result in the loss of her surgical skills, which is harm that cannot be
compensated with money damages, (2) there is no evidence that third parties will be
unjustifiably harmed, and (3) the public interest is served as the law does not favor
restrictive covenants.
{¶32} MMBI now appeals and argues in a single assignment of error that the
trial court erred in granting Dr. Maccarone’s motion for a preliminary injunction.
V. Requirements for a Preliminary Injunction
{¶33} To prevail on a request for a preliminary injunction, a party must show
by clear and convincing evidence that “(1) there is a substantial likelihood that she/he
will prevail on the merits, (2) she/he will suffer irreparable injury if the injunction is
not granted, (3) no third parties will be unjustifiably harmed if the injunction is
granted, and (4) the public interest will be severed by the injunction.” Castillo-Sang
v. Christ Hosp. Cardiovascular Assocs., LLC, 2020-Ohio-6865, ¶ 16 (1st Dist.), citing
Proctor and Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267-268 (1st Dist. 2000).
“In determining whether to grant or deny injunctive relief, a court must balance all
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OHIO FIRST DISTRICT COURT OF APPEALS
four factors, and no single factor is dispositive.” Id., citing Brookville Equip. Corp. v.
Cincinnati, 2012-Ohio-3648, ¶ 11 (1st Dist.).
{¶34} “Whether to grant or deny an injunction is within the discretion of the
trial court, and a reviewing court will not disturb the judgment of the trial court absent
an abuse of discretion.” Id., citing Banker’s Choice, LLC v. Zoning Bd. of Appeals of
City of Cincinnati, 2018-Ohio-3030 (1st Dist.), and Garono v. State, 37 Ohio St.3d 171,
173 (1988). “‘An abuse of discretion occurs when “a court exercise[es] its judgment,
in an unwarranted way, in regard to a matter over which is has discretionary
authority.”’” Kross Acquisition Co, LLC v. Groundworks Ohio LLC, 2024-Ohio-592, ¶
17 (1st Dist.), citing State v. Austin, 2021-Ohio-3608, ¶ 5 (1st Dist.). “An abuse of
discretion ‘implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
A. Likelihood of Success on the Merits
{¶35} The Ohio Supreme Court has held that “a noncompetition agreement is
reasonable ‘if the restraint is no greater than is required for the protection of the
employer, does not impose undue hardship on the employee, and is not injurious to
the public.’” Id. at ¶ 18, citing Raimonde v. Van Vlerah, 42 Ohio St.2d 21 (1975),
paragraph two of the syllabus.
Among the factors to be considered in determining whether a
particular noncompetition agreement is reasonable are: (1) whether the
agreement contains time and space limitations; (2) whether the
employee is the sole contact with the customer; (3) whether the
employee has confidential information or trade secrets; (4) whether the
covenant seeks to limit only unfair competition or is designed more
broadly to eliminate ordinary competition; (5) whether the agreement
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OHIO FIRST DISTRICT COURT OF APPEALS
seeks to stifle the employee’s inherent skill and experience; (6) whether
the benefit to the employer is disproportional to the detriment to the
employee; (7) whether the agreement bars the employee’s sole means of
support; (8) whether the skills that the agreement seeks to restrain were
actually developed during the employment; and (9) whether the
forbidden employment is merely incidental to the main employment.
Id., citing Raimonde at 25.
1. Whether the Agreement Contains Time and Space Limitations
{¶36} The noncompete agreement does contain time and space limitations.
Under the terms of the employment agreement, the restrictive covenants are to be in
place “during this Agreement, and for a period of two (2) years after termination of
Employee’s Employment with the Practice.” Further, the restrictive covenants apply
to the “Restricted Area,” which is defined in the agreement as “a fifteen (15) mile radius
‘as the crow flies’ of the Practice’s main office at 10735 Montgomery Road, Cincinnati,
Ohio 45242 and a fifteen (15) mile radius of the Practice’s satellite office at 1512 Yankee
Park Place, Centerville, Ohio 45458.” The Commonwealth of Kentucky is not included
in the “Restricted Area.” Further, it should be noted that MMBI is not seeking to
enforce the noncompete agreement as it relates to the satellite office. It is only seeking
to enforce the 15-mile radius “as the crow flies” from “the Practice’s main office.”
2. Whether the Employee is the Sole Contact with the Customer
{¶37} This factor does not appear to be at issue. Nevertheless, the suggestion
from the record is that Dr. Maccarone was not the sole contact with the patients of the
practice. She testified about a “change in policy” in October 2023 where no new
patients were to be scheduled with her unless they specifically asked for her by name.
If they had not, they were to be scheduled with Dr. Mandell-Brown even if it would
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OHIO FIRST DISTRICT COURT OF APPEALS
cause delay.
3. Whether the Employee has Confidential Information or Trade
Secrets
{¶38} Regarding confidential information, MMBI argues that Dr. Maccarone
has access to financial information, pricing information, and business operation
information.
{¶39} Regarding financial information, MMBI points to information that Dr.
Maccarone received in a “valuation computation.” In particular, MMBI focuses on
page 17 of this report, which includes revenue and expense information for the practice
in 2021, 2022, and 2023. Dr. Maccarone testified that she was only allowed to review
the physical copy presented to her for around 45 minutes. Additionally, she testified
that the electronic copy she received was “disposed of as requested by Dr. Mandell-
Brown.” Notably, Dr. Mandell-Brown was questioned on cross-examination as to
whether he could testify about the exact financial figures provided in the valuation and
he said that he could not do so without seeing an unredacted copy of the document.
Dr. Maccarone is also subject to a nondisclosure agreement regarding this
information.
{¶40} Regarding pricing, Dr. Mandell-Brown testified that pricing
information is not publicized and is part of the practice’s competitive strategy, and that
Dr. Maccarone had access to this information during her employment and knows
where MMBI’s pricing falls on the “spectrum of pricing” in the area. However, he also
testified that he tells his patients what they will be charged and does not require them
to sign a nondisclosure agreement when doing so.
{¶41} Regarding both the financial information and pricing information, Dr.
Mandell-Brown was asked during his testimony what value this information would
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OHIO FIRST DISTRICT COURT OF APPEALS
have to his competitors, and he answered that his competitors “would love” to have
“this information” and “know what we charge everybody.” However, when asked if
competitors having the pricing information would “undercut the pricing of” the
practice and the ability to attract patients, Dr. Mandell-Brown answered, “Well,
pricing is only one factor in attracting patients, but it is an important factor. So, yes,
it could be helpful.”
{¶42} Lastly, regarding business operation information, Dr. Mandell-Brown
testified that Dr. Maccarone was present at the annual board meeting wherein
business operation information was discussed including “everything that transpired
in the surgical center, including risk management, quality issues, number of cases that
we’ve done, number of specific cases: facelifts, rhinoplasties, liposuction.” When
asked the value of this information to competitors, Dr. Mandell-Brown said, “Well, it’s
just privy to the way we conduct our business.”
{¶43} Dr. Maccarone denied having “any documents or information from”
MMBI’s office. Additionally, in her supplemental affidavit—which was admitted as an
exhibit at the hearing—Dr. Maccarone averred, “I possess no confidential or trade
secret information of any kind concerning MMB[I] or Dr. Mandell-Brown.” She
further said, “I have no knowledge of Dr. Mandell-Brown’s marketing plans, other
than his widespread use of billboard marketing, which is not a secret. I do not possess
any patient lists or patient contact information. I do not know anything relevant about
Dr. Mandell-Brown’s business, finances, or practice, which cannot be gleaned from his
affidavit.”
{¶44} MMBI does not appear to argue on appeal that any of this is a “trade
secret.” To the extent that it claims certain surgical techniques are “trade secrets,” this
is addressed under the eighth factor below.
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OHIO FIRST DISTRICT COURT OF APPEALS
4. Whether the Covenant Seeks to Limit Only Unfair Competition or is
Designed More Broadly to Eliminate Ordinary Competition
{¶45} The employment agreement expressly states that the restrictive
covenants are “necessary for the protection of the Practice’s business, trade secrets
and confidential information and to prevent damage or loss to the Practice as a result
of actions taken by the Employee.”
{¶46} To the extent that the noncompete agreement seeks to protect the
identified “confidential” information, it is designed to prevent unfair competition.
However, nothing in the record establishes that the noncompete agreement, as
written, is necessary to protect this information. The noncompete agreement is for
two years and seeks to prevent Dr. Maccarone from practicing “individually, in
partnership, or through a corporation or any other entity as a proprietor, owner, or
manager, employee, stockholder, consultant, independent contractor, or otherwise, in
the practice of facial and/or body cosmetic medicine, or liposuction.” Thus, the
noncompete agreement seeks to prevent her from practicing cosmetic medicine in any
capacity, which is broader than necessary to protect the identified “confidential”
information. Further, there is nothing in the record to establish why it is necessary to
enforce the noncompete agreement for two years to protect the “confidential”
information.
{¶47} The trial court modified the noncompete agreement to be limited to the
term of the agreement that Dr. Maccarone has already complied with (approximately
six months). MMBI does not point to any evidence in the record or cite to any
authority to show that such a finding was an abuse of discretion. Rather, it argues that
“[h]aving to practice outside the 15-mile radius for two years is [a] small inconvenience
compared to benefits she obtained.” This argument does not establish why a two-year
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OHIO FIRST DISTRICT COURT OF APPEALS
noncompete agreement is reasonable and necessary, rather than the six-month
restriction.
5. Whether the Agreement Seeks to Stifle the Employee’s Inherent Skill
and Experience
{¶48} The agreement seeks to stifle Dr. Maccarone’s skill and experience
regarding the practice of cosmetic surgery, but not general surgery.
6. Whether the Benefit to the Employer is Disproportional to the
Detriment to the Employee
{¶49} Regarding this factor, MMBI appears to argue that the benefit to MMBI
would be preventing Dr. Maccarone from “treating patients that MMB[I] competes
for,” and “padding the bottom line of MMB[I]’s competitors by earning them facility
and anesthesia fees for procedures that would not otherwise be performed.”
{¶50} Notably, nothing about the noncompete agreement, in and of itself,
would prevent Dr. Maccarone from treating MMBI’s patients outside the noncompete
area. Rather, it seems that the nonsolicitation agreement would be the restriction in
the employment agreement that provides this benefit, and the nonsolicitation
provision does not appear to be at issue for purposes of the preliminary injunction.
Nevertheless, from a general business perspective, MMBI would certainly benefit from
not having to compete with Dr. Maccarone within the restricted area.
{¶51} On the other hand, the detriment to Dr. Maccarone is that she is unable
to perform cosmetic surgery anywhere close to her home and is fully excluded from
competing in the market that she trained and invested in.
7. Whether the Agreement Bars the Employee’s Sole Means of Support
{¶52} The noncompete agreement does not bar Dr. Maccarone’s sole means of
support. She testified that she has limited general surgery privileges at TriHealth and
general and cosmetic privileges at the Hillsboro hospital (Highland District Hospital).
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OHIO FIRST DISTRICT COURT OF APPEALS
Additionally, she has been able to perform a few liposuctions at an office adjacent to
her new office and can continue to do so, subject to the availability of that office.
8. Whether the Skills that the Agreement Seeks to Restrain Were
Actually Developed During the Employment
{¶53} The restrictive covenants in the employment agreement expressly state,
“The purpose of the above covenants are to protect the Practice from the irreparable
harm it will suffer if Employee competes in its territory after having been employed by
the Practice and introduced to its referring physicians and patients, and after learning
the Practice’s special medical procedures, business procedures, office and practice
policies and its employed physicians and/or taught to Employee in the course of the
Employee’s employment relationship.”
{¶54} While the employment agreement does not expressly define
“employment relationship,” Section 1 of the employment agreement is entitled
“Employment Relationship,” and sets forth the expectations for “employment by the
Practice,” which “shall begin on or about October 1, 2022 and continue for two years.”
Thus, the “employment relationship” referenced in the restrictive covenants refers to
Dr. Maccarone’s employment term with MMBI that began upon completion of the
fellowship and does not include Dr. Maccarone’s fellowship term with MMBI.
{¶55} Rather, the fellowship term was covered by the “Fellowship Agreement”
in the record, which contains its own restrictive covenants. The restrictive covenant
in the fellowship agreement that is relevant here (“the fellowship noncompete
restriction”) states,
In so far [sic] as the Fellow is privy to the patient demographics,
marketing strategies, and confidential business details, a restrictive
covenant is imposed to protect the interests of [MMBI]. The fellow
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OHIO FIRST DISTRICT COURT OF APPEALS
employee shall be prohibited from starting a cosmetic Facial and/or
body cosmetic practice for 2 years from our main office . . . as well as
our satellite office . . . and within 15 miles distance as the crow flies from
each office. . . . This 2 year restriction begins upon completion of the
Fellowship year or upon leaving the Fellowship during the Fellowship
year.
{¶56} Notably, under the terms of the fellowship agreement, the fellowship
noncompete restriction began on October 3, 2022 (the final day of the Fellowship
year), and thus expired on or around October 3, 2024. The complaint was filed just
shy of expiration of the fellowship noncompete restriction on September 16, 2024, and
the trial court granted the preliminary injunction after expiration of the fellowship
noncompete restriction on January 30, 2025.
{¶57} We note that the employment agreement begins by stating, “This
Agreement supersedes all prior agreements among the parties related to the subject
matter hereof.” Therefore, it is not clear whether the fellowship noncompete
restriction would still be enforceable. However, the enforceability of the fellowship
noncompete restriction is not before this court, so we need not make any
determinations on this issue.
{¶58} Nevertheless, it is notable that the fellowship agreement does not state
that the fellowship noncompete restriction is necessary based on any training
imparted to Dr. Maccarone during her fellowship. And because the restrictive
covenants in the employment agreement only apply to things learned by or taught to
Dr. Maccarone during the two-year employment term with MMBI, any skills that she
acquired during the fellowship would not be skills “actually developed during the
employment,” as the “employment” at issue did not begin until after the fellowship
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OHIO FIRST DISTRICT COURT OF APPEALS
was over.
{¶59} On appeal, MMBI argues that it “opened every aspect of the practice to”
Dr. Maccarone, and Dr. Mandell-Brown taught her “how to consult effectively with a
patient about an elective procedure with options, a far more collaborative consultation
compared to a general surgeon who meets with a patient with a medically necessary
surgery.” Further, it is alleged that Dr. Mandell-Brown taught Dr. Maccarone “the full
panoply of cosmetic procedures and [Dr. Mandell-Brown’s] unique approaches to
augmentation, facelifts, injections, liposuction, and anesthesia.”
{¶60} In the referenced testimony, Dr. Mandell-Brown testified that he taught
Dr. Maccarone his “unique method of consultation” during her fellowship. Further,
Dr. Mandell-Brown testified that he taught Dr. Maccarone his “unique” surgical
approaches to breast augmentation and face lifts during her fellowship.
{¶61} Beyond that, Dr. Mandell-Brown testified about his admittedly
nonoriginal approach to injections but did not specify who he taught these skills to, or
when. Regarding liposuction, Dr. Mandell-Brown testified that he teaches the
“fellows” to screen patients who really shouldn’t have the procedure. He also testified
about his post-liposuction care but said he was not sure that the approach “differed
that much” from his competitors. He further testified about his “long-term follow up
care and regular in-person office visits,” and said that this differs from “some” of his
competitors that either see patients virtually for follow-up care or have patients seen
by staff for follow-up care, rather than the doctor. However, he did not testify as to
who he taught these postoperative-care techniques to, or when. Further, he testified
that he learned that Dr. Maccarone does postoperative care different from him as she
“does a virtual Facetime follow up with her patient.” Notably, his testimony appears
to indicate that this was how Dr. Maccarone was doing postoperative care during her
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OHIO FIRST DISTRICT COURT OF APPEALS
employment with MMBI, as he said he learned about her use of FaceTime from
another fellow. He said, “I found out because my last fellow, a patient that I gave her,
was supposed to follow my protocol, didn’t come in to examine the patient. She did it
Facetime. I said that’s not how I do it. You’re supposed to follow me. Well, that’s how
Dr. Maccarone does it.”
{¶62} Regarding anesthesia, he testified that he started the use of IV sedation,
rather than general anesthesia, for facelifts and rhinoplasty in the area when he “first
came to town.” However, he also said that only “40 or 50 percent” of the practices in
the area still do it under general anesthesia. This suggests that 50 to 60 percent of
other practices in the area also now use this approach to sedation. Further, he did not
testify as to who he taught these skills to, or when. Lastly, regarding tummy-tuck
sutures, Dr. Mandell-Brown testified that he teaches “the fellows” about the sutures.
{¶63} Thus, the referenced testimony does not establish any skills “actually
developed” by Dr. Maccarone during her employment term with MMBI, rather than
during the fellowship term.
{¶64} This is supported by Dr. Mandell-Brown’s testimony in response to a
question from the trial court about why enforcement of the noncompete would be
unfair, in which he testified heavily about how it is unfair for fellows to be allowed to
compete “in [his] backyard.” He said training his own competition would be “cutting
off [his] own throat.” Thus, the testimony clearly shows that MMBI is concerned about
the use of skills that Dr. Maccarone developed during the fellowship, not skills
developed during the subsequent employment.
{¶65} This is further supported by Dr. Maccarone’s testimony, in which she
indicated that during the term of her employment as an associate, they each treated
their own patients, unless they were covering for each other. Additionally, in her
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OHIO FIRST DISTRICT COURT OF APPEALS
supplemental affidavit submitted in support of the temporary injunction—which was
also admitted as an exhibit at trial—, she avers, “After I completed the MMB[I]
fellowship program, I have had very limited involvement or exposure to any of Dr.
Mandell-Brown’s surgeries.” She further said, “Dr. Mandell-Brown does not have any
‘unique or customized’ surgical skills or approaches, to my knowledge. My own skills,
techniques, and practices are significantly different than Dr. Mandell-Brown, as I
developed my core surgical skills, my interactions with patients, and my techniques
over the eight years of general surgical experience.”
{¶66} Therefore, the record does not reveal that the skills at issue were actually
developed during the employment at issue, which is Dr. Maccarone’s employment as
an associate, not as a fellow.
{¶67} Further, to the extent that MMBI is claiming these techniques are “trade
secrets” that need protection, the record fails to support this. Under R.C. 1333.61(D),
‘Trade secret’ means information, including the whole or any
portion or phase of any scientific or technical information, design,
process, procedure, formula, pattern, compilation, program, device,
method, technique, or improvement, or any business information or
plans, financial information, or listing of names, addresses, or
telephone numbers, that satisfies both of the following:
(1) It derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use.
(2) It is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶68} Nothing in the record indicates any efforts to maintain the secrecy of
these claimed “unique” techniques. See generally Hanneman Family Funeral Home
& Crematorium v. Orians, 2023-Ohio-3687, ¶ 15 (stating that, among other things, a
party claiming trade secrets must “take some active steps to maintain its secrecy.”).
9. Whether the Forbidden Employment is Merely Incidental to the Main
Employment
{¶69} The forbidden employment is not merely incidental to the main
employment. Rather, the noncompete agreement seeks to prevent Dr. Maccarone
from engaging, “individually, in partnership or through a corporation or any other
entity as a proprietor, owner, manager, employee, stockholder, consultant,
independent contractor, or otherwise, in the practice of facial and/or body cosmetic
medicine, or liposuction.” Thus, the noncompete agreement seeks to restrain the exact
employment at issue, which is the practice of cosmetic medicine.
10. The Record Supports that Dr. Maccarone is Likely to Succeed on the
Merits as the Record Supports the Trial Court’s Determination that the
Noncompete Agreement is Unreasonable
{¶70} Based on consideration of the evidence within the context of the
Raimonde factors, the record supports that the noncompete agreement is greater than
required for the protection of MMBI. Therefore, the record supports the trial court’s
determination that the noncompete agreement, as written, is unreasonable.
Consequently, the trial court’s determination that there is a substantial likelihood that
Dr. Maccarone will succeed on the merits is also supported by the record.
B. Irreparable Harm
{¶71} MMBI further challenges the trial court’s finding that Dr. Maccarone
would be irreparably harmed “if her noncompete promise was enforced” where such a
finding “relied on the speculative notion that Dr. Maccarone would lose her surgical
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OHIO FIRST DISTRICT COURT OF APPEALS
skills if the agreement was enforced.”
{¶72} At the hearing, Dr. Maccarone was asked why it was important for a
surgeon to be active. She answered,
That’s actually why the hospitals require case logs to begin with
because surgeons who aren’t active or performing surgery can begin to
lose their skills and efficiency, quality, all those things. Typically, in an
informal way, taking more than six months away from operating for a
surgeon is –requires some kind of remediation or reentry.
She further said it potentially impacts patients as it “contributes to safety, quality,
[and] efficiency.”
{¶73} The evidence presented by Dr. Maccarone established that she has been
denied privileges at area hospitals in cosmetic surgery as she did not have the proper
certification. The only hospital that she was able to obtain privileges from was a
hospital in Hillsboro, which is over an hour away. She is also able to perform
liposuction procedures at a practice adjacent to her new practice but is “limited by the
amount of usage that he has for his practice.” She is in the process of obtaining
privileges at a private surgery center in Dayton; however, she testified that her patients
have “expressed hesitation to have their surgery there because it’s so far.”
{¶74} Because of her limited options, she is seeking to be able to complete
surgeries at local surgical centers, similar to Dr. Mandell-Brown’s practice, which is
also a surgical center (and presumably where she conducted surgery during her
employment with MMBI). However, she is restricted from doing so because of the
noncompete agreement.
{¶75} Given the evidence in the record that Dr. Maccarone’s ability to practice
cosmetic surgery is being stifled and that such inactivity can cause loss of skill, this
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OHIO FIRST DISTRICT COURT OF APPEALS
court cannot conclude that the trial court abused its discretion in finding that Dr.
Maccarone would be irreparably harmed in the absence of the preliminary injunction.
C. Harm to Third Parties and Public Interest
{¶76} MMBI does not present any argument challenging the trial court’s
findings on the absence of harm to third parties or the public interest.
VI. Conclusion
{¶77} Based on the foregoing, we hold that the trial court did not abuse its
discretion when granting Dr. Maccarone’s request for a preliminary injunction as the
trial court’s decision was not unreasonable, arbitrary or unconscionable. Therefore,
we overrule the assignment of error and affirm the judgment of the trial court.
Further, we dismiss the appeal of Dr. Mandell-Brown for lack of standing.
Judgment affirmed and appeal dismissed in part.
KINSLEY, P.J., and NESTOR, J., concur.
35