Opinion

Dr. Safadi & Assocs., Inc. v. McColley

2023 Ohio 1234

Court: Ohio Court of Appeals
Filed: Apr 14, 2023
Status: Published
On the bench: Zmuda
Cited by: 0 cases
Authority: More cited than 23.1%

integrated, written agreement does not permit evidence of “antecedent understandings and negotiations” to vary or contradict the writing

How later courts described this case

integrated, written agreement does not permit evidence of “antecedent understandings and negotiations” to vary or contradict the writing

Written by the judges who cited it.

The opinion

[Cite as Dr. Safadi & Assocs., Inc. v. McColley, 2023-Ohio-1234.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

Dr. Safadi & Associates, Inc. Court of Appeals No. L-22-1182

Appellant Trial Court No. CI0202202687

Dana M. McColley, C.N.P. DECISION AND JUDGMENT

Appellee Decided: April 14, 2023

*****

Roman Arce and Franceska N. Edinger, for appellant.

Jared J. Lefevre and Charles E. Hatch, for appellee.

*****

ZMUDA, J.

{¶ 1} This matter is before the court upon the appeal of appellant, Dr. Safadi &

Associates, Inc.,1 challenging the judgment of the Lucas County Court of Common Pleas,

denying Dr. Safadi’s request for a permanent injunction and granting judgment in favor

of appellee, Dana M. McColley, C.N.P. on each of appellant’s claims. For the reasons

that follow, we affirm.

For ease of discussion, we refer to appellant as “Dr. Safadi.”

I. Background and Procedural History

{¶ 2} In 2016, McColley accepted a position with Dr. Safadi to provide nurse

practitioner services to Dr. Safadi’s allergy and immunology practice. Dr. Safadi is the

sole physician in the practice and he employs physician assistants and nurse practitioners

to provide almost all of the direct patient care. McColley had prior experience, working

in an emergency room as a nurse and for a family practice as a certified nurse practitioner

(C.N.P.). As part of the employment agreement with Dr. Safadi, the parties negotiated a

non-solicitation/non-competition provision, as follows:

8.1 The Employee acknowledges and agrees that prior to her

employment under this Agreement that she did not have any experience

working with patients with allergy or immunology problems and as a result

of this employment, will receive training that would enable her to compete

with the Employer’s practice if this Agreement is terminated. The

Employee further acknowledges and agrees that as a result of this

employment, she will obtain knowledge of trade secrets, patients, patients’

needs, and medical information, et al., which, if used by her subsequent to

her termination, could endanger Employer’s ability to properly and

profitably function. Finally, the Employee acknowledges and agrees that as

a result of this employment, she will be afforded the opportunity to meet

and ingratiate herself with the Employer’s patients, which, in the event of

the termination of this Agreement, would provide her with the opportunity

to appropriate goodwill belonging to the Employer. Therefore, in the event

of the termination of this Agreement by either party for any reason, the

Employee agrees that she will not do any of the following as an employee,

agent, partner, member, shareholder, consultant or in any other capacity, for

a period of three (3) years from the date of termination within thirty (30)

miles of any office operated by the Employer at the time of termination:

8.1.1 Directly or indirectly provide services involving the medical

field of allergy or immunology to anyone or solicit, on behalf of anyone,

patients with allergy or immunology problems; and

8.1.2 Use or divulge any information obtained while she was an

Employee, including but not limited to, names of patients, patients’ needs,

patients’ addresses or other contact information, any medical information

whatsoever concerning any patient and/or any and all other knowledge in

the nature of “trade secrets” of Employer.

{¶ 3} In early 2022, McColley sought out a new position, intending to leave Dr.

Safadi’s practice. McColley submitted her resume to The Toledo Clinic on May 2, 2022,

after hearing of an opening in the practice of Dr. Christopher Perry, D.O. McColley

confided in her friend and coworker, Meghan Simpson, regarding her job search. In a

text exchange, prior to her meeting with Dr. Perry, McColley expressed concern

regarding the non-compete provision of her employment agreement.

{¶ 4} Soon after applying, McColley interviewed with Dr. Perry. Dr. Perry is

board certified in otorhinolaryngology, commonly referred to as ear, nose, and throat

(ENT), and facial plastic surgery. After this meeting, McColley followed up with Terri

Gingery, the office manager for human resources at The Toledo Clinic, providing notice

of the non-compete provision in her employment agreement with Dr. Safadi. McColley

emailed Gingery on May 9, 2022, and provided a copy of Dr. Safadi’s non-compete

provision. She indicated her attorney wished to “understand how the Toledo Clinic

foresees addressing the non-compete provision, because I am directly liable for any

breach of the non-compete clause.” She requested The Toledo Clinic attorneys contact

her attorney to discuss the issue.

{¶ 5} On May 12, 2022, McColley resigned her position with Dr. Safadi and gave

the 90-day notice required under the Employment Agreement. However, after

discussion, the parties mutually agreed that McColley’s last day would be June 8, 2022.

{¶ 6} On May 17, 2022, The Toledo Clinic extended a written offer of

employment to McColley. On that same date, Terri Gingery emailed McColley,

welcoming her to the practice and providing forms McColley needed to sign as part of

the hiring process.

{¶ 7} Following this offer, McColley exchanged text messages with Meghan

Simpson regarding the non-compete. On May 23, 2022, McColley told Simpson she

needed to decide whether to risk “30-40 grand” in legal fees, should Dr. Safadi pursue

legal action, or to re-apply for other jobs. McColley and Simpson discussed the situation,

and McColley stated, “Well [Dr.] Perry said that I can’t work there and do nothing

allergy. [I]t just wouldn’t work.”

{¶ 8} That same day, McColley notified Dr. Safadi that she had accepted a

position with The Toledo Clinic ENT, effective June 20, 2022, working for Dr. Perry.

{¶ 9} Once McColley had given notice to Dr. Safadi, she exchanged text messages

with Dr. Perry regarding the non-compete provision. Dr. Perry indicated:

I haven’t heard anything from [Dr.] Safadi yet. Just wanted to give

you a heads up though. You should be receiving an employment contract

soon. Also, you should receive another contract that spells out what would

happen in the worst case scenario in the unlikely event that [Dr.] Safadi

sues and wins your case. But the bottom line is that you will not be liable

for any damages or attorney fees past this point.

The Toledo Clinic ultimately entered into a written agreement with McColley, providing

for a legal defense “of any breach of contract claim brought against you by Dr. Safadi &

Associates, Inc. (“Former Employer”) with respect to the non-compete and non-

solicitation provisions” within Dr. Safadi’s Employment Agreement.

{¶ 10} On June 14, 2022, Dr. Safadi filed a verified complaint in the Lucas

County Court of Common Pleas, seeking injunctive relief and monetary damages,

alleging a breach of the non-competition and non-solicitation agreement by McColley.

Dr. Safadi also filed a motion for a temporary restraining order. On June 15, 2022,

McColley filed a brief in opposition to a temporary restraining order. The trial court

granted the motion for a temporary restraining order on June 16, 2022, temporarily

preventing McColley from commencing her employment with The Toledo Clinic ENT.

{¶ 11} On June 30, 2022, McColley filed an answer to the verified complaint,

asserting defenses that included a lack of breach of contract, in that the non-competition

agreement did not “apply to services in the medical field of otolaryngology (ENT).”

Alternatively, McColley asserted that the non-competition agreement “is unreasonable

and unenforceable under Ohio law in its scope, length, and geographic restriction.”

{¶ 12} On July 1, 2022, the parties agreed to consolidate hearing on the

preliminary injunction with a trial on the merits, and the matter was tried to the court

pursuant to Civ.R. 65(B)(2). In an order issued July 5, 2022, the trial court denied Dr.

Safadi’s request for an injunction, dissolved the temporary restraining order issued June

16, 2022, and found in favor of McColley on Dr. Safadi’s claims, ordering Dr. Safadi’s

complaint dismissed. The trial court’s order indicated a written opinion would follow.

{¶ 13} On August 4, 2022, the trial court entered an opinion and judgment entry,

providing findings of fact and conclusions of law. Among other facts, the trial court

found that Dr. Safadi’s practice and Dr. Perry’s ENT practice involve separate fields, and

that Dr. Safadi and Dr. Perry held different board certifications, Dr. Safadi in pediatrics

and allergy and immunology and Dr. Perry in the ENT specialty and in facial plastic

surgery. The trial court also determined that there was very little overlap between Dr.

Safadi’s and Dr. Perry’s practice that involved the treatment of allergy patients, and Dr.

Perry used different methods and treatments. As a result, Dr. Perry would need to train

McColley for six months before she could provide any services to The Toledo Clinic

ENT patients.

{¶ 14} After addressing the law governing non-competition agreements, both

generally and for medical services, the trial court found the non-competition agreement

was unreasonable as to the geographic restriction, without consideration of reasonable

terms that would preserve the parties’ bargain. The trial court then found that Dr. Safadi

failed to demonstrate that McColley breached her Employment Agreement by accepting

employment with Dr. Perry and The Toledo Clinic ENT, with no analysis regarding this

finding. The trial court entered judgment in favor of McColley as to Dr. Safadi’s verified

complaint.

{¶ 15} Dr. Safadi filed a timely appeal from the judgment.

II. Assignments of Error

{¶ 16} Dr. Safadi argues three assignments of error on appeal:

(1) The trial court erred by depriving [Dr. Safadi] of the benefit of

the pre-hire bargain reached with [McColley] because during pre-hire

negotiations for an Employment Agreement, [McColley] agreed to a three-

year post-employment restriction on her providing “services in the medical

field of allergy or immunology,” and not just a two-year restriction on her

joining a medical practice “that specializes solely in allergy treatment or

immunology,” as proposed by [McColley] and her attorney during pre-hire

negotiations.

(2) The trial court erred by concluding that [Dr. Safadi] does not

have a legitimate business interest to protect because: (1) the trial court

mistakenly applied the legal standard applicable to restrictive covenants on

physicians, (2) [McColley’s] employment with the Toledo Clinic entails

providing “services involving the medical field of allergy or immunology,”

using skill, experience, training, and confidential information [McColley]

acquired solely by virtue of her employment with [Dr Safadi], and (3)

under applicable law, each of the relevant factors to be considered favor

enforcement of the non-compete provision agreed to and accepted by

[McColley].

(3) The trial court erred: (1) by concluding that the geographic reach

of the non-compete provision is unreasonable, and (2) even if the

geographic scope is unreasonable, by failing to determine a lesser

geographic restriction that would protect [Dr. Safadi’s] legitimate business

interests without imposing undue hardship on [McColley] or injuring the

public.

III. Analysis

{¶ 17} The trial court’s ruling was two-fold, finding both an unreasonable non-

compete provision and finding that McColley did not breach the Employment

Agreement. While the trial court addressed the reasonableness of the non-compete

provision first, before finding that McColley did not breach the agreement, we look to the

language of the agreement first, as a threshold matter, to determine whether McColley’s

subsequent employment with Dr. Perry violated the terms of that agreement.

A. Breach of Contract

{¶ 18} In the first assignment of error, Dr. Safadi argues that the trial court denied

him the benefit of the bargain because McColley agreed to a restriction on her post-

employment work in providing “services in the medical field of allergy or immunology.”

In support, he relies on the negotiations between the parties, and more specifically, Dr.

Safadi’s rejection of McColley’s proposed language that clarified restrictions against

joining a practice “that specializes solely in allergy treatment or immunology.”

1. Contract interpretation is subject to de novo review.

{¶ 19} The first assignment of error presents an issue of contract interpretation.

Because this issue presents a question of law, we review the trial court’s judgment

relative to breach of the contract, applying de novo review. Amalgamated Transit Union,

AFL-CIO, Local 697 v. Toledo Area Regional Transit Authority, 2020-Ohio-6655, 164

N.E.3d 569, ¶ 25 (6th Dist.), citing St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio

St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 38.

{¶ 20} The law governing contract interpretation is well-settled. Beverage

Holdings, LLC v. 5701 Lombardo, LLC, 159 Ohio St.3d 194, 2019-Ohio-4716, 150

N.E.3d 28, ¶ 13. We must “give effect to the intent of the parties, and we presume that

the intent of the parties is reflected in the plain language of the contract.” Id., citing

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶

11. Where the terms within the agreement are clear and unambiguous, we will not

“create a new contract by finding an intent not expressed in the clear and unambiguous

language of the written contract.” Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86

Ohio St.3d 270, 273, 714 N.E.2d 898 (1999), citing Alexander v. Buckeye Pipe Line Co.,

53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).

2. The express terms of the non-compete provision address specialty

and not treatment in restricting subsequent employment.

{¶ 21} In this case, Dr. Safadi focuses on the terms of the non-compete provision,

which prohibit McColley from working for a period of three years, within 30 miles of any

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of Dr. Safadi’s offices, and “directly or indirectly [providing] services involving the

medical field of allergy or immunology to anyone[.]” We find no ambiguity in these

terms, and therefore, do not consider the parties’ prior negotiations to explain these terms.

“If no ambiguity appears on the face of the instrument, parol evidence cannot be

considered in an effort to demonstrate such an ambiguity.” (Citation omitted) Shifrin v.

Forest City Enterprises, Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992); see also

Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913

N.E.2d 410, ¶14, quoting Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433,

440, 662 N.E.2d 1074 (1996) (integrated, written agreement does not permit evidence of

“antecedent understandings and negotiations” to vary or contradict the writing)

(additional citation omitted).

{¶ 22} Dr. Safadi argues that the prohibition involving the “medical field of

allergy or immunology” bars McColley’s employment with Dr. Perry’s ENT practice,

because the ENT practice sees and treats patients with allergies. As support for this

position, Dr. Safadi relies on the texts and emails of McColley and Dr. Perry, voicing

concern regarding the non-compete provision, as well as Dr. Perry’s testimony of

overlapping areas of his ENT practice and Dr. Safadi’s allergy and immunotherapy

practice. Based on these overlapping areas, and bolstered by evidence of concern, Dr.

Safadi argues that, because Dr. Perry’s ENT practice also treats allergy patients within

his own specialty, McColley’s employment with Dr. Perry violates the noncompete

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provision. Our analysis, however, is limited to the terms included in the Employment

Agreement.

{¶ 23} In construing the terms based on treatment, Dr. Safadi contends the non-

compete language includes any type of practice that might provide overlapping care with

the “medical field of allergy or immunology.” The agreement, in this case, contains

terms that do not address overlapping care, similar fields, or even allergy treatment.

Instead, the clear language limits McColley’s employment after separation from directly

or indirectly providing her services “involving the medical field of allergy or

immunology.” Thus, we must consider what is meant by the phrase “provide services

involving the medical field of allergy or immunology.”2

{¶ 24} In considering this phrase, we give common words in the agreement “their

ordinary meaning unless manifest absurdity results or unless some other meaning is clear

from the face or overall contents of the agreement.” Cincinnati Ins. Co. v. Anders, 99

Ohio St.3d 156, 2003-Ohio-3048, 789 N.E.2d 1094, ¶ 34, citing Alexander at paragraph

two of the syllabus; Shifrin, 64 Ohio St.3d at 638, 597 N.E.2d 499.

The parties do not address any argument to the “directly or indirectly” language. The

language is not defined within the agreement. “Direct” has been defined as “marked by

the absence of an intervening agency, instrumentality, or influence,” with “indirect”

meaning “not direct, as deviating from a direct line or course.” Merriam Webster’s

Collegiate Dictionary, 10th Ed. (1996), 328; 593. Applying these meanings to the record,

it could be said that McColley provided direct care to Dr. Safadi’s patients, while

employed there, and Dr. Safadi provided indirect care as the collaborating physician,

supervising and reviewing McColley’s work. Because the parties make no attempt to

argue the meaning of “directly or indirectly,” relative to the applicability of the non-

compete provision of the agreement, we need not address such argument in this appeal.

12.

{¶ 25} The phrase “the medical field of allergy and immunology” is not defined

within the agreement. However, based on context, the term, “field,” means “an area or

division of an activity.” Merriam Webster’s Collegiate Dictionary, 10th Ed. (1996), 433;

see also Merriam-Webster’s Medical Desk Dictionary (1993), 242 (defining “field” as

“an area of division of an activity”).

{¶ 26} The phrase, “medical field,” moreover, specifies the “area or division” of

“allergy and immunology.” “Allergy” is the “medical practice concerned with allergies.”

Merriam-Webster’s Medical Desk Dictionary at 22. “Immunology” is “a science that

deals with the immune system and the cell-mediated and humoral aspects of immunity

and immune responses,” and an immunologist is “a specialist in immunology.” Id. at

328.

{¶ 27} Finally, the terms of the non-compete provision prohibit McColley from

providing services “involving the medical field of allergy or immunology.” The term

“involve,” as used in the agreement, has been defined as “to have within or as part of

itself: include; to require as a necessary accompaniment: entail.” Merriam Webster’s

Collegiate Dictionary at 617.

{¶ 28} Considering the language as a whole, and based on the meaning of the

terms comprising the restriction, the phrase “involving the medical field of allergy or

immunology” denotes a specialty. A “specialist” is “a medical practitioner who limits his

practice to a particular class of patients (as children) or of diseases (as skin diseases) or of

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technique (as surgery); esp: a physician who is qualified by advanced training and

certification by a specialty examining board to so limit his practice.” Merriam Webster’s

Medical Desk Dictionary at 664; see also Merriam-Webster’s Collegiate Dictionary at

1128 (“specialize” means “to concentrate one’s efforts in a special activity, field, or

practice”).

3. Dr. Safadi’s practice differs from Dr. Perry’s practice.

{¶ 29} In challenging the trial court’s judgment, finding no breach of the

agreement, Dr. Safadi argues that the non-compete provision bars McColley from

treating allergy patients within 30 miles, for three years. Much of the testimony cited by

Dr. Safadi, in support, demonstrates that a small part of Dr. Perry’s ENT practice

involves seeing allergy patients and prescribing treatments also prescribed within the

sphere of immunotherapy. Had the agreement prohibited McColley from treating allergy

patients within 30 miles, for three years, the non-compete provision would have barred

McColley’s employment from this and numerous other practices that might see and treat

allergy patients. McColley recognized this fact in her testimony, stating:

I think it comes down to wording as far as allergy patients. If that

was the case, then I wouldn’t be able to see patients in the emergency room

setting, I wouldn’t be able to see patients in Urgent Care settings, because

allergy symptoms are a chief complaint there. My family practice, allergies

are a very common, chronic condition in which family practice providers

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have to manage. So I think that comes – it’s hard to interpret. This was a

complete different specialty, it was in the field – or medical specialty of

otolaryngology, it was not specifically the field of allergy and immunology.

I did not apply to – I believe at one point in time I did see that Toledo

Clinic allergy department was hiring, I never applied or reached out in

regards to that position.

{¶ 30} Here, the evidence demonstrated Dr. Perry’s practice involves a different

specialty, ENT and facial plastic surgery. Dr. Perry contrasted his practice from Dr.

Safadi’s practice, denying his practice competes with Dr. Safadi’s practice for patients.

Dr. Perry explained:

I would also like to point out that Dr. Safadi’s practice is completely

different from mine. The education is different, he goes through internal

medicine or pediatrics residency, followed by an allergy and immunology

fellowship. My training was in, as I said, ENT and facial plastic surgery,

and a small part of my training is in allergy. Allergists work in a lot of

different areas that I don’t work in, they do chemical testing, drug testing.

And a part of what an allergist immunologist does is work with the immune

system, which, I don’t have any – I don’t do any work in that arena as well.

Dr. Perry also addressed the training that McColley would require, despite her prior

experience with Dr. Safadi.

15.

She has experience as a nurse practitioner, but she’s working in a

completely different field, as we’ve established, a completely different field

of medicine. And so she’s – she’s gonna require some extensive training.

And so, for me being the owner of my practice, it’s an investment, and

that’s why I’m here, because I’m willing to make the investment in her, I

think she’s worth the investment. For me to hire her and train her, it’s

gonna take six months of time, and during that time I pay her salary but

she’s not making – she’s not seeing patients, she’s not making any money.

So, yeah, ENT is a very broad field, completely different than an allergy

and immunology, and so it’s going to take a considerable amount of my

time to train her, to get her up to speed before she’s gonna, in my opinion,

be ready to see patients. I have a very high standard in my practice.

{¶ 31} In emphasizing the difference between Dr. Safadi’s allergy and

immunology practice and his own specialty, Dr. Perry acknowledged that immunology is

a small part of his ENT practice. But he also testified that he is not considered an

allergist or immunologist, and he refers patients to allergists when the patient has

“allergies to chemicals or drugs or foods or if they have immune problems.” Because

“[t]here’s many types of allergies that I don’t treat,” Dr. Perry testified his allergy

patients represent “a small subset of allergic diseases.” The allergy testing he performs,

moreover, is limited to “inhalant allergies or airborne allergies.”

16.

{¶ 32} Dr. Perry testified that he also receives referrals from allergists, and has

received referrals from Dr. Safadi’s practice in the last five years, including referrals

from McColley3 during her employment with Dr. Safadi. As to the type of case that is

referred, Dr. Perry indicated:

Well, if patients aren’t getting better. If they have structural

problems with their nose or sinus. If they have a deviated septum or nasal

polyps. If they need surgery. If they have ear problems that require

surgery or ear tubes or tonsils problems that require surgery. So there’s a

lot of reasons why allergists refer patients to ENT.

{¶ 33} Despite the differences in Dr. Safadi’s and Dr. Perry’s respective practices,

Dr. Safadi argues McColley’s employment would violate the Employment Agreement

because she will treat allergy patients in her new employment, in violation of the non-

compete provision. Because the non-compete provision contains terms regarding

specialty and not treatment, the fact that McColley may treat allergy patients within Dr.

Perry’s practice is irrelevant. Limiting the restriction as provided in the express terms of

the parties’ agreement, McColley’s employment with Dr. Perry’s ENT practice involves

Dr. Perry admitted he sought out information on McColley’s professional reputation and

he noted the quality of her work within patient files, noting “she did a great job of

curating her thoughts and providing – a good job of, I think, providing care up to a

certain point with patients[.]” Dr. Perry also testified that he did not solicit McColley to

apply for the position and he met her for the first time at her employment interview.

17.

providing services within the medical field of ENT, and not the medical field of allergy

and immunology.

4. The scope of practice for a CNP is limited by statute.

{¶ 34} Dr. Safadi next argues that McColley will be able to use her training and

experience from his practice in her new practice with Dr. Perry. Because the non-

compete provision is defined in terms of medical specialty and not allergy treatment, this

argument presumes that, even though Dr. Perry has an ENT practice, McColley would be

permitted to provide patient care in the allergy and immunology field. Based on the clear

law governing the scope of practice for a nurse practitioner in Ohio, Dr. Safadi’s

argument lacks merit.

{¶ 35} In some states, such as Delaware and New Mexico, a nurse practitioner

may prescribe, diagnose, and treat patients without a supervising physician, and may

even maintain a private practice. See, e.g., 24 Del. Code. Ann. 1902(b) (providing a

nurse practitioner is “an expanded scope of nursing licensed as an independent licensed

practitioner * * * performing acts of advanced assessment, diagnosing, prescribing, and

ordering”); N.M.Stat. Ann. 61-3-23.2 (permitting nurse practitioners in New Mexico to

“practice independently and make decisions regarding health care needs of the individual,

family or community and carry out health regimens, including the prescription and

distribution of dangerous drugs and controlled substances”). Ohio is not one of those

states.

18.

{¶ 36} In Ohio, a nurse practitioner’s scope of practice is limited by R.C.

4723.43(C) and R.C. 4723.431, which requires a nurse practitioner to operate “in

collaboration with one or more physicians” according to the standard care arrangement

entered into with each physician. See also Ohio Adm.Code Ann. 4723-8-01 et seq.

(governing scope of practice and requirements for the standard care arrangement). In this

case, McColley’s standard care arrangement with The Toledo Clinic ENT identified Dr.

Perry as the collaborating physician, with the scope of services defined as “primary care

& ENT.”

{¶ 37} In arguing McColley’s employment will require her to treat allergy

patients, Dr. Safadi interprets the non-compete provision more broadly than written,

beyond services that involve or include or entail the allergy and immunology specialty as

provided within the non-compete provision of the agreement. He also ignores the limited

scope of McColley’s practice, with the scope extending only to practice in collaboration

with her supervising physician as specified by her standard care arrangement with Dr.

Perry. Aside from Dr. Safadi’s testimony that both he and Dr. Perry practice in the field

of allergy and immunology, the evidence demonstrates the two doctors have different

specialties. McColley’s practice, therefore, is necessarily limited to the ENT specialty.

5. McColley did not breach the Employment Agreement by taking a position

with Dr. Perry’s ENT practice.

{¶ 38} Dr. Perry practices in a different medical field than the field of allergy and

immunology, and McColley’s practice is statutorily limited to the scope defined within

19.

her standard care agreement. Therefore, having carefully considered the language of Dr.

Safadi’s Employment Agreement, and more specifically, the language of the non-

compete provision within that agreement, we find the prohibition applies only to

employment with an allergy and immunology practice. While Dr. Safadi seeks to

construe the language more broadly, to encompass all allergy and immunology patients,

this language was not included in the parties’ agreement. We, therefore, find the trial

court did not err in finding McColley did not breach the non-compete provision of her

Employment Agreement with Dr. Safidi. The first assignment of error, accordingly, is

not well-taken.

B. Reasonableness of the Non-Compete Restrictions

{¶ 39} In the remaining two assignments of error, Dr. Safadi argues the trial court

erred in applying an incorrect standard in addressing the reasonableness of the restrictions

on competition, and in finding the geographic range of the non-compete provision

unreasonable without also addressing a lesser restriction to preserve the parties’

agreement. These remaining assignments of error address the relief sought by Dr. Safadi

for an alleged breach of the Employment Agreement.

{¶ 40} Dr. Safadi sought permanent, injunctive relief to prevent McColley’s

employment with Dr. Peters during the three-year period of restriction within the

Employment Agreement. To prevail on the claim for a permanent injunction to enforce

the non-compete provision, Dr. Safadi needed to “show that [his practice] is likely to

20.

suffer irreparable harm as a result of [McColley’s] breach of that clause.” Gimex

Properities Corp., Inc. v. Reed, 2022-Ohio-4771, 205 N.E.3d 1 (6th Dist.), ¶ 63, quoting

Brentlinger Enterprises v. Curran, 141 Ohio App.3d 640, 646, 752 N.E.2d 994 (10th

Dist.2001). Having found no breach of the Employment Agreement, consideration of the

reasonableness of the non-compete provisions is unnecessary.4 Dr. Safadi’s second and

third assignments of error, therefore, are deemed moot.

IV. Conclusion

{¶ 41} Having found substantial justice has been done, we affirm the judgment of

the Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.