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BM Medical Management Service, LLC v. Turner

Court of Appeals of Texas, Fifth District, Dallas

January 10, 2017

BM MEDICAL MANAGEMENT SERVICE, LLC, Appellant
v.
MICHAEL TURNER, Appellee

         On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-04199-J.

          Before Justices Myers, Evans, and Richter [1]

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         BM Medical Management Service, LLC appeals the trial court's denial of BM's application for a temporary injunction against Michael Turner. In one issue on appeal, BM Medical contends the trial court erred by denying the temporary injunction because BM Medical proved it had a cause of action against Turner, a probable right to the relief sought, and a probable, imminent, and irreparable injury. We affirm the trial court's order denying the temporary injunction.

         BACKGROUND

         BM Medical provides diagnostic laboratory testing for physicians. On October 1, 2014, BM Medical hired Turner as a business development manager for the company. Turner's job was to sell the company's testing services to physicians. Turner signed an employment agreement containing a noncompetition provision and provisions for protection of BM Medical's confidential information. The noncompetition provision prohibited Turner for one year following his termination from being employed by a competing business, soliciting BM Medical's clients with whom he worked or had contact as an employee, and from recruiting or hiring BM Medical's employees during that period. The agreement also prohibited Turner from disclosing BM Medical's confidential information and required him to deliver to BM Medical at the termination of his employment all papers or data relevant to BM Medical's confidential information.

         Before being hired by BM Medical, Turner's previous professional business had been in the oil and gas industry. In that business, he often worked with physicians who were investors in the oil and gas projects. Turner had been friends with Parham Berari, a medical distributor, for about a year before he went to work for BM Medical.

         When Turner started working for BM Medical, he was given a user name and password to access the company's online portal. Turner used the online portal for his own client list and to submit his commission numbers. BM Medical's witnesses testified that the portal also contained the company's complete customer list (more than 1600 customers), physician information including the types and frequency of tests ordered by each doctor, and patients' test results. The portal also contained the customer contracts and the pricing information for the company's services. The company's witnesses testified that Turner's access to the portal gave him access to this confidential information. Turner testified that he was not given any training on how to use the portal. Turner testified he did not have access to the client list or to the database about the clients and that none of the information he saw on the portal provided him any advantage in selling the company's products. Turner stated he was "not a very tech savvy guy" and was hardly ever on the portal. [2]

         On an evening in February 2016, the CEO called Turner at his home and told him he was terminated. Turner's termination became effective March 17, 2016. Turner had the company's laptop computer with him, and he did not immediately return it. Turner went to work for a competing laboratory testing company, Gulfstream, in early March, 2016.

         BM Medical filed suit against Turner on April 1, 2016 for breach of contract, tortious interference with contracts and prospective business relations, unfair competition through misappropriation, and unjust enrichment. BM Medical also applied for an injunction prohibiting Turner from disclosing or using BM Medical's confidential information, retaining BM Medical's materials, soliciting BM Medical's clients, recruiting, hiring, or communicating with BM Medical's employees, destroying any documents or data relevant to this case, defaming BM Medical or its employees, or violating the nondisclosure and noncompetition provisions of Turner's employment agreement with BM Medical.

         On April 14, 2016, the trial court entered a temporary restraining order against Turner that prohibited Turner from disclosing or using BM Medical's confidential information, soliciting its clients, and recruiting its employees. The order also prohibited Turner from retaining any property or materials of BM Medical.

         On April 29, 2016, Turner took the laptop computer issued to him by BM Medical to the Apple Store to get his personal photographs removed from the computer. The store's employee downloaded the pictures from the computer onto a flash drive for Turner. Turner then returned the computer to BM Medical. Turner testified that the only times he had used the computer since his termination were when he accessed his girlfriend's résumé and his employment agreement and when he took the computer to the Apple Store. He testified that the flash drive contained no information from the computer other than his personal photographs. He also testified that he had no documents or electronic files related to BM Medical's business. After he returned the computer, BM Medical had the computer forensically examined. Both sides referred to a forensic examiner's report regarding the computer, but the report is not in the record and neither side used it at the hearing.

         On May 16, 2016, the trial court held a hearing on BM Medical's application for a temporary injunction. Turner and two witnesses for BM Medical testified at the hearing. At the conclusion of the hearing, the trial court denied the application for temporary injunction.

         TEMPORARY ...


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