[Cite as Wigton v. Univ. of Cincinnati Physicians, Inc.,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DR. MICHAEL D. WIGTON, : APPEAL NO. C-210305 TRIAL NO. A-2004481 Plaintiff-Appellant, :

vs. : O P I N I O N.

: UNIVERSITY OF CINCINNATI PHYSICIANS, INC., :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 6, 2021

Eberly McMahon Copetas LLC, Theodore C. Copetas and David A. Eberly, for Plaintiff- Appellant,

Frost Brown Todd LLC, Deborah S. Adams and Simon Y. Svirnovskiy, for Defendant- Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} This noncompete dispute arises between a Cincinnati-based hand surgeon,

plaintiff-appellant Dr. Michael Wigton, and his former employer, defendant-appellee

University of Cincinnati Physicians, Inc. (“UCP”). Although this case poses questions about

the enforceability of Dr. Wigton’s noncompete provision under Ohio law, the issue we

confront today is whether the trial court applied the appropriate standard to the parties’

cross-motions for summary judgment. Given the procedural posture of this case, the trial

court should have applied the familiar summary judgment standard, but it instead

improperly elevated the burden on Dr. Wigton, requiring him to prove entitlement to relief

by clear and convincing evidence. We accordingly reverse the trial court’s judgment and

remand for further proceedings.

I.

{¶2} Fresh out of medical school, Dr. Wigton entered an employment agreement

with UCP in January 2016, which contained a noncompete provision. The noncompete

prevents Dr. Wigton from practicing medicine, performing procedures, or rendering

professional services in his specialty within ten miles of any location where he worked

within the preceding 12 months. The noncompete lasts for 18 months following the

termination of his employment. After four years with UCP, Dr. Wigton left for the greener

pastures of Beacon Orthopedics and Sports Medicine (“Beacon”).

{¶3} Seeking clarity on the status of his noncompete, a few months before Dr.

Wigton would begin at Beacon, he filed suit against UCP for a declaratory judgment, but he

also sought various forms of relief, including a preliminary injunction, a permanent

injunction, and damages. Although the complaint requested injunctive relief, Dr. Wigton

never filed a motion for a preliminary or permanent injunction (atypical for a noncompete

case, and the source of later procedural confusion). Instead, he moved for summary

2 OHIO FIRST DISTRICT COURT OF APPEALS

judgment, prompting UCP to respond with its own motion for summary judgment

(although UCP filtered its analysis through the preliminary injunction standard, rather than

summary judgment). The trial court granted UCP’s motion, analyzing this matter under the

preliminary injunction standard, which obligated Dr. Wigton to prove his claim by clear and

convincing evidence. After evaluating the record, the trial court granted UCP’s motion for

summary judgment and denied Dr. Wigton’s, prompting the instant appeal.

{¶4} On appeal, Dr. Wigton presents three assignments of error challenging the

denial of his motion for summary judgment, the entry of summary judgment for UCP, and

the trial court’s refusal to modify his noncompete.

II.

{¶5} We begin with Dr. Wigton’s first and third assignments of error, which we

discuss together for convenience’s sake. Dr. Wigton’s first assignment of error challenges

the denial of his motion for summary judgment, and his third assignment of error maintains

that, when considering UCP’s motion, the trial court failed to construe the facts in the light

most favorable to himself.

{¶6} Generally, a noncompete is enforceable only 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.” Raimonde v. Van Vlerah,

,

(1975). We can consider nine factors as a part of this inquiry:

(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 seeks to stifle the

employee’s inherent skill and experience; (6) whether the benefit to the

3 OHIO FIRST DISTRICT COURT OF APPEALS

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.

.

{¶7} Given the stakes involved concerning access to medical care, Ohio courts

review noncompetes for physicians with a critical lens: “Restrictive covenants are disfavored

in the law, and ‘[t]his measure of disfavor is especially acute concerning restrictive

covenants among physicians, which affect the public interest to a much greater degree.’ ”

Castillo-Sang v. Christ Hosp. Cardiovascular Assoc., LLC, 1st Dist. Hamilton No. C-

200072,

, quoting Ohio Urology, Inc. v. Poll,

,

(10th Dist. 1991). Noncompete restraints on physicians are,

therefore, “strictly construed in favor of professional mobility and access to medical care

and facilities.”

Nevertheless, “covenants not to compete in the medical profession are

not per se unenforceable, and will be upheld if they are reasonable.”

That said, we only

enforce noncompete restraints on physicians “to the extent necessary to protect an

employer’s legitimate interests; if there is no legitimate interest to be protected, the

noncompete is unreasonable.”

{¶8} This is a peculiar noncompete case where the physician was not attempting to

“steal” patients or misappropriate trade secrets. At this stage, it is undisputed that Dr.

Wigton was engaged in no effort to steer patients from UCP to Beacon (and the record

confirmed the implausibility of any such aspirations given the nature of his practice) and

Dr. Wigton p0ssessed no confidential information of UCP that he could exploit against UCP,

as the trial court confirmed: “the record does not establish that Dr. Wigton was privy to

4 OHIO FIRST DISTRICT COURT OF APPEALS

protected business information that he could use against UCP while at Beacon.” See id. at

¶ 31 (emphasizing the hospital’s “scant evidence in the record which would support its

contention that Castillo-Sang possessed trade secrets or other protected confidential

information”). Generally, noncompete restraints are only enforceable when the employee

possesses protected business information (such as trade secrets or customer lists) that she

can use against her former employer. See Brentlinger Ents. v. Curran,

,

(10th Dist. 2001) (“Generally, the only business interests which

have been deemed sufficient to justify enforcement of a noncompete clause * * * are

preventing the disclosure of the former employer’s trade secrets or the use of the former

employer’s proprietary customer information to solicit the former employer’s customers.”).

Indeed, this is why noncompete caselaw focuses on preventing unfair competition, not

simply ordinary competition.

(“The prevention of ordinary

competition is not a legitimate business interest that can be protected by a restrictive

covenant * * * Ohio courts have refused to enforce covenants not to compete against

physicians where there is no legitimate business interest to protect.”).

{¶9} From that jumping off point, however, the trial court obligated Dr. Wigton to

prove his claim by clear and convincing evidence, ultimately determining that he fell short.

It concluded that UCP’s position as a nonprofit academic hospital provided a legitimate

business interest in deterring defections like Dr. Wigton’s and that UCP invested in Dr.

Wigton’s training. We take no position on the merits of these conclusions because they were

assessed under an incorrect standard, but we do point out that in considering a physician’s

training, a court should not simply evaluate whether a doctor received training (as all

doctors do) but whether the doctor’s “expertise was increased * * * more than would have

been through experience as [a physician] in solo practice,” id. at ¶ 28, and/or whether the

training provided by the hospital facilitates some type of unfair competition.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} On the question of the appropriate standard, in Castillo-Sang, we recently

held that a party seeking to invalidate a noncompete restriction must prove the

unreasonableness of the restriction by clear and convincing evidence—but this arose in the

context of injunctive relief. Castillo-Sang, 1st Dist. Hamilton No. C-200072, 2020-Ohio-

6865, at ¶ 16. When a party seeks a preliminary injunction or permanent injunction, they

“must ordinarily prove the required elements by clear and convincing evidence.” Procter &

Gamble Co. v. Stoneham,

,

(1st

Dist. 2000), cause dismissed,

,

(2001).

{¶11} But Dr. Wigton bypassed the injunction route pursued in Castillo-Sang and

filed a motion for summary judgment on his request for a declaratory judgment. Although

it may be uncommon for parties to seek summary judgment in a noncompete setting

without a concomitant injunction motion, this represents an appropriate method of

resolving a complaint for a declaratory judgment, just as in any contract dispute. Civ.R. 56

(“A party seeking * * * a declaratory judgment may move with or without supporting

affidavits for a summary judgment in the party’s favor * * * .”); see Stover v. State Farm Ins.

Co.,

,

(3d Dist. 1998), cause dismissed,

,

(1999) (reversing denial of summary judgment on

complaint for declaratory judgment, and ordering trial court to enter summary judgment for

the appellant); Fahncke v. Fahncke,

,

(3d

Dist.), appeal not allowed,

,

,

(reviewing de novo motion for summary judgment on complaint for declaratory judgment).

{¶12} Under the summary judgment standard, Dr. Wigton and UCP are only

entitled to summary judgment if “(1) there is no genuine issue of material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) it appears after construing

the evidence most strongly in the nonmoving party’s favor that reasonable minds can come

6 OHIO FIRST DISTRICT COURT OF APPEALS

to but one conclusion.” State ex rel. AWMS Water Solutions, L.L.C. v. Mertz,

,

,

. When assessing cross-motions for

summary judgment “[e]ach motion must be considered individually and separately,

construing the evidence most strongly in favor of the party against whom the motion under

consideration was filed. * * * If neither movant is so entitled, both motions must be

denied.” United States Fid. & Guar. Co. v. Rains, 1st Dist. Hamilton No. C-790073,

, *1 (Apr. 16, 1980), citing Williams v. First United Church of Christ,

,

(1974).

{¶13} The clear and convincing standard has no place in this analysis because it

presupposes a weighing of the evidence, which a trial court should not undertake at

summary judgment. By engaging in the injunctive relief analysis, the trial court placed too

heavy a thumb on the scales by requiring Dr. Wigton to carry his burden by clear and

convincing evidence. See Murray v. Accounting Ctr. & Tax Servs., Inc.,

,

,

(6th Dist.) (applying ordinary summary

judgment standard in a noncompete dispute where the parties filed cross-motions for

summary judgment on the employee’s complaint for a declaratory judgment).

* * *

{¶14} Accordingly, we sustain Dr. Wigton’s first assignment of error—insofar as it

challenges the application of the preliminary injunction standard here—and third

assignment of error in full. We determine that the remainder of Dr. Wigton’s first

assignment of error, asserting that UCP has no legitimate business interest in his

noncompete, is premature and therefore moot. We also determine that Dr. Wigton’s second

assignment of error, challenging the trial court’s refusal to modify his noncompete, is

rendered moot by our holding here. On remand, the trial court should consider the

Raimonde analysis as applied in the context of physician noncompetes and evaluate the

7 OHIO FIRST DISTRICT COURT OF APPEALS

record at hand under the summary judgment standard. We remand for further proceedings

consistent with this opinion.

Judgment reversed and cause remanded. ZAYAS, P. J., and WINKLER, J., concur. Please note:

The court has recorded its entry on the date of the release of this opinion

8