William T. DEVOS, M.D., and Donald R. Simmons, M.D.
The CUNNINGHAM GROUP, LLC, and Cunningham Pathology, LLC.
from Jefferson Circuit Court (CV-18-903526)
[Copyrighted Material Omitted]
L. Gordon, Jason E. Gilmore, and Lindan J. Hill of Gordon,
Dana & Gilmore, LLC, Birmingham, for appellants.
Christian King, Wesley B. Gilchrist, Christopher C. Yearout,
and Amaobi J. Enyinnis of Lightfoot, Franklin & White,
L.L.C., Birmingham, for appellees.
Haden and Robert V. Baxley of Balch & Bingham LLP,
Birmingham, for amicus curiae Will Hill Tankersley, in
support of the appellants.
T. DeVos, M.D., and Donald R. Simmons, M.D. (hereinafter
referred to collectively as "the doctors"), appeal
from a preliminary injunction entered in the Jefferson
Circuit Court ("the trial court") in an action
filed against them by The Cunningham Group, LLC, and
Cunningham Pathology, LLC. The doctors separately appeal from
the trial court's order denying their request to increase
the amount of the surety bond for the imposition of the
and Procedural History
to the complaint, the doctors had been employed by The
Cunningham Group from April 30, 2007, until August 31, 2018,
when the doctors terminated their employment without prior
notice. The Cunningham Group, also identified in the
complaint, other pleadings, and documents in the record as
"Services LLC," provided pathology and cytology
services for Brookwood Baptist Medical Center through an
agreement with Cunningham Pathology. The doctors entered into
employment agreements with Services LLC on April 30, 2007, in
which they agreed that, if they provided Services LLC less
than 12 months' notice of their termination of their
employment, they would pay Services LLC an amount equal to
one year's annual salary. The doctors also agreed that,
for a period of two years after the termination of
employment, they would not directly or indirectly
"(i) solicit any payor contracts from any payor of
[Cunningham Pathology] with whom Employee had material
contact during Employee's employment with Services LLC,
or otherwise interfere with the relationship with any such
payor, except to provide services in Employee's
capacity as a physician in compliance with Section 20(a)
hereof and so long as such solicitation does not, in
[Cunningham Pathology's] sole discretion, interfere
with the Company's relationship with such payor,
"(ii) solicit, induce, influence or otherwise
interfere with any referral sources of [Cunningham
Pathology] or any Affiliate of [Cunningham Pathology], with
whom the Employee has had
material contact during Employee's employment with
"(iii) solicit, induce or influence for the purposes
of providing pathology services, any person or entity,
including but not limited to a hospital, ambulatory surgery
center, medical group, or physician, that is or has been a
customer or client of [Cunningham Pathology] and with whom
Employee had material contact during Employee's
employment with Services LLC, unless in each case the
Employee obtains the prior written consent of [Cunningham
"(iv) solicit, induce, influence or interfere with any
other person or entity with whom [Cunningham Pathology] has
a business relationship to discontinue, modify or reduce
the extent of such relationship with [Cunningham
Agreement, Section 20(d).
September 5, 2018, The Cunningham Group and Cunningham
Pathology (hereinafter referred to collectively as
"Cunningham") sued the doctors seeking damages and
injunctive relief. Cunningham asserted that Cunningham
Pathology is an express third-party beneficiary of the
doctors' employment agreements with Services LLC.
Cunningham asserted claims of breach of contract and breach
of fiduciary duty and sought to enforce the restrictive
covenants contained in the employment agreements. Cunningham
also filed a motion seeking a preliminary injunction to
prohibit the doctors from violating the nonsolicitation
provisions of the employment agreements. Cunningham asserted,
among other things, that since they terminated their
employment with Services LLC the doctors had formed a new
pathology business and had been soliciting Brookwood's
business in violation of the nonsolicitation provisions of
the employment agreements.
September 5, 2018, the trial court issued a temporary
restraining order. On September 14, 2018, the doctors filed a
motion to dissolve the temporary restraining order and a
response in opposition to Cunningham's request for a
a hearing on September 17, 2018, the trial court, on October
4, 2018, entered an order granting Cunningham's motion
for a preliminary injunction. The trial court specifically
stated that it would "not address the enforceability of
the non-compete and non-solicitation clauses" contained
in the employment agreements because those "matters
concern the ultimate merits of the case." After
providing a lengthy factual summary, the trial court found as
"Conclusions of Law
... [I]t is well settled that a plaintiff seeking a
temporary restraining order or preliminary injunction has
the burden of proving all of the following:
"1. That without the injunction the party would suffer
"2. That the party has no adequate remedy at law;
"3. That the party has at least a reasonable chance of
success on the ultimate merits of the case; and,
"4. That the hardship imposed on the party opposing
the preliminary injunction would not unreasonably out-weigh
the benefit accruing to the party seeking the injunction.
See, e.g., Holiday Isle, LLC v. Adkins, 12 So.3d
1173, 1176 (Ala. 2008).
"The standards for granting a preliminary injunction
are interchangeable with the standards of granting a
temporary restraining order. The Court now turns its
attention to applying the aforementioned standards to the
facts of the case at bar.
"A. Irreparable Harm
The Court finds that Cunningham will suffer irreparable
harm should [the doctors] be unrestrained in [their]
solicitation of Cunningham's clients. Irreparable
[harm] is defined as an injury that cannot be adequately
measured or compensated by money and is therefore often
considered remediable by injunction. Black's Law
Dictionary (10th ed. 2014). The evidence at the
preliminary injunction hearing revealed that [the doctors]
have not only formed another pathology company, but have
also distributed order forms in the lab at Brookwood
hospital. Although the evidence did not show that [the
doctors] interacted with any of Cunningham's employees,
the solicitation of Brookwood's pathology business
alone is enough to show that Cunningham will suffer
irreparable harm should that practice continue.
"[The doctors] acknowledged that they would `have
substantial contacts with customers, suppliers, advertisers
and patients' of Cunningham and would `have access to a
substantial amount of Proprietary Information.'
[Employment Agreement,] § 20(a)(A)-(B). Additionally,
[the doctors] agreed that they are `capable of obtaining
gainful, lucrative and desirable employment' that does
not violate the restrictions contained within the
Employment Agreement.... § 20(a)(D).
"B. Adequate Remedy at Law
The Court finds that Cunningham does not have an adequate
remedy at law. An adequate remedy at law is defined as a
legal remedy (such as an award of damages) that provides
sufficient relief to the petitioning party, thus preventing
the party from obtaining equitable relief. Black's
Law Dictionary (10th ed. 2014). `[A] conclusion that
the injury is irreparable necessarily shows that there is
no adequate remedy at law.' Water Works & Sewer
Bd. of the City of Birmingham v. Inland Lake Investments,
LLC, 31 So.3d 686, 692 (Ala. 2009) (citing and quoting
Fleet Wholesale Supply Co. v. Remington Arms Co.,
846 F.2d 1095, 1098 (7th Cir. 1988)).
"Plaintiffs have established they will suffer
irreparable harm should [the doctors] be permitted to
solicit Brookwood and other customers in violation of their
respective non-solicitation agreements, and, absent a
preliminary injunction, Plaintiffs have shown that there is
no adequate remedy at law.
"C. Likelihood of Success on the Ultimate Merits
of the Case
The third element of a preliminary injunction requires the
party seeking the injunction to have a reasonable chance of
success on the ultimate merits of the case
(Cunningham's Breach of Contract Claim). SouthTrust
Bank of Alabama, NA v. Webb-Stiles Co., 931 So.2d 706,
709 (Ala. 2005); White[ v. John, 164 So.3d 
at 1116-17 [(Ala. 2014)]. To satisfy this element,
Plaintiffs `need not show with absolute certainty that they
will prevail on the merits,' Bd. of Dental
Examiners of Ala. v. Franks, 507 So.2d 517, 520
(Ala.Civ.App. 1986), but only that there is `at least a
reasonable chance of success.' Lott v. E. Shore
Christian Ctr., 908 So.2d 922, 927 (Ala. 2005)
"[The doctors] have a valid contract with Cunningham;
however, the ultimate decision for this Court is whether
said contract is void ab initio or is enforceable.
Consequently, the evidence establishes, and the Court
finds, that Plaintiffs have a reasonable chance of success
to prevail on their claims for breach of the
non-solicitation agreements. See Digitel Corp. v.
Deltacom, Inc., 953 F.Supp. 1486, 1497 (M.D. Ala.
"D. Hardship Imposed
The fourth element of a preliminary injunction requires the
hardship imposed upon the defendant by the injunction would
not unreasonably outweigh the benefit to the plaintiffs.
White, 164 So.3d at 1117.
"[The doctors] expressly agreed that they are capable
of finding `gainful, lucrative and desirable
employment' that does not violate the restrictions
contained within the Employment Agreement. Plaintiffs'
Exs. 2 and 18, § 20(a).
"Moreover, the evidence shows that [the doctors] each
received significant annual salaries of at least $250,000
over the previous ten years. The hardships of a preliminary
injunction will not unreasonably outweigh the benefit
accruing to Plaintiffs and the equities weigh in favor of
issuing a preliminary injunction.
"It is therefore ORDERED, ADJUDGED, and DECREED as
"1. Upon posting a $25,000 surety bond with the
Jefferson County Circuit Court Clerk, by the Plaintiffs,
this Preliminary Injunction shall issue against [the
doctors], restraining and prohibiting each from directly or
indirectly soliciting clients or customers of Cunningham
Pathology, LLC, including physicians or physician groups
affiliated with clients or customers of Cunningham, in
accordance with [the doctors'] Employment Agreements
with The Cunningham Group LLC.
"Specifically, [the doctors], individually and through
Red Mountain Pathology, LLC, and their officers, agents,
servants, employees, or attorneys, are hereby restrained
and prohibited from directly or indirectly:
"(a) Soliciting Brookwood, its parent corporation
Tenet Healthcare Corporation, or any physicians or practice
groups affiliated or located on the Brookwood campus and
associated medical or professional office buildings in
relation to pathology or cytology services;
"(b) Placing requisition forms at Brookwood Medical
Center, associated medical or professional office
buildings, or any part thereof;
"(c) Sending correspondence in any form, including
faxes, emails, letters, and text messages, to any physician
or officer at Brookwood about the potential for providing
future pathology or cytology services; and,
"(d) Entering into, or attempting to enter into, any
contractual agreement with Brookwood for the provision of
pathology or cytology.
"2. The Clerk of the Court is hereby ORDERED and
DIRECTED to receive that amount alluded to, supra.
3. Additionally, [the doctors] are restrained and
prohibited from directly or indirectly, individually and
through Red Mountain Pathology, LLC, and their officers,
agents, servants, employees, or attorneys, restrained and
"(e) Soliciting any other client or customer of
Cunningham, that client or ...