Preview
THE
x MIC HELS*
1
I I M
250 Ed English Drive
Bldg 3, Suite A
The Woodlands, Texas 77385
281-210-1595 Phone oe Michels
281-823-7484 Fax joe. Michels@MichelsFirm.com
September 10, 2020
Hon. Kristin Bays
Judge, 284" District Court
31 N. Main, Suite 201
Conroe, Texas 77301
Re: Cause No. 20-08-09746; Todd Y ounghlood, M.D., etal v. David P. Ellent, PLLC, et al;
Dear Judge Bays,
The 6 physician Plaintiffs in this matter (“Doctors”) strenuously object to any further TRO relief
in this lawsuit. The Plaintiffs have already been subject to a TRO for 27 days in the Haris County
case. Exhibit 1. Seeking a second TRO would violate TRCP 680, which forbids any contested
TRO for more than 28 days. A new TRO is both legal and factually unsupportable.
Any New TRO Is Legally Unsupportable
Both the Texas Supreme Court and the 14th Court of Appeals hold that extending a TRO in
violation of Rule 680 is an abuse of discretion subject to immediate mandamus. In In re 2500 West
Loop, Inc., the 14th Court of appeals held that obtaining second TRO which, combined with an
earlier TRO against the same parties by a different judge, which enjoins a party for more than 28
days from performing the same acts was improper. In West Loop, the first ancillary judge issued a
TRO, a second ancillary judge extended it 14 days, and the trial court judge then extendedit
another 14 days. The 14th Court of Appeals granted mandamus because the second extension was
an abuseof discretion.
All TROs must comply with the time limits in Rule 680. Inre Tex. Nat’] Res. Conservation Cont n,
85 S.W.3d 201, 204 (Tex. 2002). It states in relevant part:
Every temporary restraining order... shall expire by its terms within such time after
signing, not to exceed fourteen
days, as the court fixes, unless within the time
so fixed the order, for good cause shown, is extended for a like period or unless
the party against whom the order is directed consents that it may be extended for a
longer period. The reasons for the extension shall be enteredof record. No more
Hon Kristen Bays Page 2 of 3
September 10, 2020
than one extension may be granted unless subsequent extensions are
unopposed.
TEX. R. Civ. P.680 (emphasis added).
“The short duration Rule 680 allows for temporary restraining orders is a critical
safeguard against the harm occasioned by a restraint on conduct that has yet
to be subject to a truly adversarial proceeding.”
Tex. Nat’l Res., 85 S.W.3d at 206.
A party can obtain a TRO for 14 days, which may be extended only once for an additional 14 days.
No other extensions may be granted unless it is unopposed. A non-consensual TRO for more than
28 days is unlawful and deprives the enjoined party from due process because the lower standard
of proof required fora TRO. A TRO that has the same effect on a party as an earlier TRO
cannot be used to circumvent the 28-day limitation. In re 2500 West Loop, Inc.
Genesis’s request for a new TRO is intended to violate rule 680.
A New TRO is Factually Unsupportable.
The Harris County TRO enjoined the Doctors from: (1) practicing medicine anywhere in the world
other than at Genesis Medical Group, where they were employed at the time, (2) soliciting any
Genesis employees to leave, and (3) soliciting any Genesis patients. The sole basis for the TRO
was the existence of their fiduciary duty as employees. Exh. 1, page 2.
Each Doctor’s Employment Agreement (“Contract’) allowed them to terminate employment if
they gave 30 days’ notice, identified Genesis’s breaches, and Genesis did not cure the breach. See
Exhibit 2, Stephen Fillman’s Contract, §9, page 11.! The Doctors gave written notice on July 31
(Exhibit 3), the breaches were not cured in 30 days, and they gave written notice of termination on
August 31 (Exhibit 4).
Each Doctor’s employment ended on August 31, 2020.
Sections 10(c & d) forbids each Doctor from; (1) competing within a defined radius of any Genesis
office where they provided medical care at least one day a week, (2) solicit any of Genesis’s
employees, and (3) solicit any of Genesis’s patients.
However, each Doctor’s Contract had an “Opt-Out Clause” which allowed them to; (1) compete
with Genesis at any location, (2) solicit any of Genesis’s employees, and (3) solicit any of
Genesis’s patients IF they opened their own practice that is not affiliated with any existing
practice. Exhibit 2 at §10(e ), page12.
1 Only one Doctor’s Contract is attached, but all the Doctors’ Contracts have the same clause.
Hon Kristen Bays Page
September 10
(e) Notwithstanding the restrictions contained in Sections 10(c) and 10(d), Employee may,
during the Restricted Period, open his own practice which is not a part of, or affiliated
with, any other existing practice or hospital entity
The Doctors formed a new Professional Association, Woodlands Diagnostic Clinic, P.A. They are
all owners of it. All the Doctors will practice medicine at Woodlands Diagnostic. Woodlands
Diagnostic is not affiliated with any other practice. The Doctors previous practice, Northwest
Diagnostic Clinic (now called WDC Holdco or “Holdoo’), will be Woodlands Diagnostic’s
landlord at new location. Holdco has not been a medical practice since December 10,
Since that date it has had no employees, provided no medical care, and no one has seen any patients
on its behalf. Its only ongoing business will be that of landlord.
SUMMARY
ach Doctor s Contract allow them to practice at their new location free from all restraints that
might otherwise limit their practice because they terminated their employment and created a new
practice not affiliated with any existing practice.
The Doctors strongly oppose the Court’s consideration of any imposing the same or similar
restrictions as the Harris County TRO.
No TRO is permissible under the facts here.
Yours Truly,
8/13/2020 1:19:45 PM
Marilyn Burgess - District Clerk
Harris County
Envelope No: 45356928
2020-48506 / Court: 165 By: THOMAS, LISA E
Filed: 8/13/2020 1:19:45 PM
Pgs-5
CAUSE NO.
TRORX
DAVID P. ELLENT, P.L.L.C. IN THE DISTRICT COURT OF STBNX
d/b/a GENESIS MEDICAL CASO
GROUP,
Plaintiff,
Vs. HARRIS COUNTY, TEXAS
WOODLANDS DIAGNOSTIC
CLINIC, P.A., MARIA
CHARRON, M.D., STEPHEN
FILLMAN, M.D., WILLIAM
FRIDLEY, M.D., PATRICK
OGIDAN, M.D., SHARON
OGIDAN, M.D., and TODD
YOUNGBLOOD, M.D.,
Defendants. JUDICIAL DISTRICT
ORDER GRANTING TEMPORARY RESTRAINING ORDER
On this day, the Court considered Plaintiff David P. Ellent, P.L.L.C. d/b/a Genesis
Medical Group’s (“Genesis”) Application for Temporary Restraining Order.
Based upon facts set forth in the original petition and supporting declaration, and
based upon notice to Defendant of this application, the Court finds and concludes that
Genesis can demonstrate a probable right to recovery under each cause of action pled
against Defendants. From the evidence presented, it appears that the Defendants are
employed as Physicians by Genesis, a group practice entity. The Defendants entered into
Employment Agreements with Genesis, the terms of which last until December 2021,
Exhibit 1
except for Defendant Dr. Charron, whose term expired in December 2020. In the
Employment Agreements, among other things, the Defendants agreed that all patients and
accompanying files and medical records belonged to Genesis.
It further appears that Defendants, as employees and agents of Genesis, owed
Genesis fiduciary duties.
It appears that beginning in May 2020, Defendants created a new medical entity to
compete with Genesis. Throughout July and August 2020—while still employed by, and
getting paid by, Genesis—it appears that Defendants took substantial actions to compete,
including: (i) soliciting and interviewing Genesis’s staff for a position with Defendants’
new, competing medical practice, (ii) informing patients during appointments of the new
practice location (via handwritten stick notes to avoid leaving evidence of their actions),
and how the patients could schedule an appointment with Defendants’ new practice, (iii)
posting signs on their Genesis office door soliciting and urging patients to schedule their
next appointments with Defendants’ new practice. It appears that the contents of these
signs go far beyond what Texas Medical Board Rules require.
On July 31, 2020, Defendants issued Genesis “Notices of Good Reason” in which
the Defendants threatened to terminate their Employment Agreements unless Genesis
cured its alleged breaches. Defendants did not, however, inform Genesis of any of the
above activities. Nor did Defendants explicitly terminate their Employment Agreements,
but instead made that termination contingent on Genesis’s failure to cure the alleged
breaches by the announced August 30, 2020 deadline. Genesis responded by, among
other things, explaining what actions it has taken to address the Physicians’ complaints
2
(without admitting that those complaints evidenced material breaches of the Employment
Agreements), and by offering to cure any remaining outstanding issues, to which it
requested further clarification from the Defendants. Defendants have not responded.
Accordingly, the Court finds that Genesis has established a probable right to relief
against Defendants. It appears that Defendants, in violation of both their Employment
Agreements and fiduciary duties to Genesis, have been taking concrete steps to
compete—including soliciting employees and patients of Genesis while still employed by
Genesis—that go far beyond what is permissible under the law.
Additionally, the evidence shows that unless Defendant is restrained, the harm will
be imminent and irreparable. Defendants’ solicitation of Genesis’s office staff and
patients in violation of Defendants’ contractual and fiduciary duties impairs Genesis’s
employee and patient goodwill.
Accordingly, the Court GRANTS Plaintiff's application for temporary injunction.
It is ORDERED, ADJUDGED, AND DECREED that:
a That Physician Defendants and anyone acting in concert with any of
them immediately cease and desist from engaging in the private
practice of medicine other than as provided in the Employment
Agreements for the remainder of the initial, fixed term of the
Employment Agreements.
That Physician Defendants and anyone acting in concert with any of
them immediately cease and desist from soliciting business from any
patient with whom any Physician Defendant has had material contact
on behalf of Genesis, for the purpose of providing any professional
medical services.
That Physician Defendants and anyone acting in concert with any of
them immediately cease and desist from soliciting any physicians,
nurses, staff, and other office personnel of Genesis to leave their
employment with Genesis.
That the Physician Defendants and anyone in concert with them
immediately cease and desist from putting the signs contained in
Exhibit F to Plaintiff's petition up in their offices, or encouraging or
soliciting patients to schedule appointments at Defendants’ new
practice location. This provision does not prevent the doctors was
from giving the patients: (i) the address of their new practice; and
(ii) how the patients can obtain copies of their medical records, or
how the patients can have their medical records transferred.
It is further ORDERED, ADJUDGED AND DECREED that Defendants be given
notice of and appear at the hearing on the motion of Plaintiffs Application for
Temporary Injunction before the Honorable Ursula Hall , onthe 27th
day of August 2020, at 4:000’clock _p.m. in the courtroom of the _165th
District Court of Harris County, Texas, then and there to show cause, if any there be, why
a temporary injunction should not be issued as requested by Plaintiff.
It is further ORDERED, ADJUDGED AND DECREED that Plaintiff execute
and file with the Clerk a bond in the amount of $ 1,000.00
The Clerk of the above and entitled court shall forthwith, on the filing by Plaintiff
of the bond hereinafter required, and on approving same according to law, issue a writ of
injunction in conformity with the law and the terms of this order.
This order shall expire on August 27 , 2020, at 11:59 p.m.
SIGNED on this the__ th day of August 2020, at o'clock __.m
Signed:
8/13/2020
4:31 PM
Paha guid
JUDGE PRESIDING
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is effective December >
2018, and is between David P. Ellent, P.L.L.C. d/b/a Genesis Medical Group
(“Employer”), and Stephen Fillman, MD (“Employee”).
WHEREAS, Employer is a single member professional limited liability company
organized under the laws of the State of Texas and is engaged in the practice of medicine
in Houston, Texas and the surrounding area;
WHEREAS, Employee is licensed to practice medicine in the State of Texas;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties agreed:
1 Employment and Term. Employer hereby employs Employee, and Employee
hereby accepts employment from Employer upon the terms and conditions herein
specified. The effective date of this Agreement shall be on the day, month, and
year first written above (“Effective Date”). Subject to earlier termination as
provided herein, Employee’s employment with Employer shall commence on the
Effective Date and shall continue for three (3) years thereafter (the “Initial Term’’).
Following the Initial Term, and subject to earlier termination as provided herein,
Employee’s employment with Employer will automatically renew, without any
further action by Employer or Employee, for successive one-year terms (each such
one-year term, a “Renewal Term”), unless either party provides written notice of
non-renewal to the other party at least ninety (90) days prior to the expiration of
the Initial Term or then-current Renewal Term, as applicable.
Duties of Employee.
(a) Practice Commitment. Beginning on the Effective Date, Employee shall
engage exclusively in the full time private practice of medicine at
Employer’s offices within the greater Houston area as are agreed between
Employer and Employee, and at such hospitals as are agreed between
Employer and Employee. Employee’s “full time private practice of
medicine” shall include a minimum of forty (40) office hours per week and
such other hours as are necessary to provide appropriate patient care.
Employee shall maintain courtesy staff memberships on the medical staff
of all hospitals as agreed between Employer and Employee. Employee
PROVIDE! ITLALS
Exhibit 2
shall comply fully with all bylaws, rules and regulations of the medical
staffs of such hospitals. Employee shall discharge all administrative and
professional responsibilities required of members of such courtesy staff.
Employee shall remain in good standing with all required state and local
medical societies and shall maintain an unrestricted license to practice
medicine in the State of Texas.
(b) Duties. Employee shall provide appropriate care and supervision of his or
her patients. Employee shall conduct his or her professional and
administrative duties in such a manner as may be required by any standard,
ruling, or regulations of any federal, state, or local governmental agency
and perform such administrative services for Employer as deemed
necessary by Employer. Employee shall follow all guidelines and
procedures of Employer. Employee shall always exercise Employee’s own
independent medical judgment concerning the best interest and most
appropriate care of Employee’s patients. Employee shall not engage
directly or indirectly in any other business or occupation related to the
active practice of medicine without the prior written consent of Employer.
In the event that any business or occupation conducted by Employee with
prior consent of Employer becomes a business line of Employer, Employee
shall terminate those outside business relationships and perform said
business or occupation solely for Employer.
(c) Managed Care. From time to time, Employer may enter into managed care
or network agreements with third party payers, employers, or
governmental entities that may require Employer and/or Employee to
engage in utilization review or peer review activities. Employee shall fully
cooperate in such activities and will comply with any and all requirements
of any managed care or network agreement to which Employer becomes a
party. If required by any managed care entity or network, Employee shal!
execute the agreement individually and if possible as a duly authorized
agent of Employer after authorization by Employer is given, but shall not
be liable under such agreement except for his or her professional errors and
omissions. Employee shall not enter into any managed care contracts
individually without Employer’s prior written consent. Employee shall
have no authority to, and shall not, execute agreements binding Employer
unless Employee has been duly authorized to do so by Employer.
(d) Assignment of Right to Bill. As a condition of Employee’s employment
hereunder, Employee hereby assigns to Employer any current and future
right Employee might have from time to time to bill and receive payment
4
PRACTICE INITIALS
2
from any third-party payer, including, without limitation, any managed-
care payer and the Medicare/Medicaid programs, for professional services
rendered under this Agreement. Employee acknowledges that Employer
shall submit these billings and all of Employee’s professional services
rendered under this Agreement in Employer’s own name unless required
otherwise by a third-party payer, in which event such services shall be
billed under Employee’s name with the understanding and agreement that
all fees generated from such billings shall belong to Employer.
(e) Notice. Employee shall notify Employer within 24 hours of the occurrence
of any of the following: (i) any action taken to restrict, suspend, or revoke
Employee’s license to practice medicine or otherwise terminate
Employee’s Drug Enforcement Administration (“DEA”) Number; (ii) any
action taken to restrict, suspend, or revoke Employee’s medical staff
and/or clinic privileges at any hospital; (iii) any suit brought against
Employee for malpractice or any event that Employee believes may give
rise to a suit for malpractice; (iv) any notice of a restriction, including any
exclusion, of Employee’s ability to participate in any federally-funded
healthcare program including Medicare and Medicaid; or (v) any other
situation that might adversely affect Employee’s ability to carry out any of
his or her duties and obligations under this Agreement.
@ Compliance. Employee shall, at all times. comply with the applicable
terms of this Agreement, all guidelines, policies, and procedures of
Employer, and all applicable federal, state, and local laws, rules,
regulations, licensing requirements, and standards, including requirements
for participation in the Medicare Program. Employee shall also comply
with applicable provisions of the Health Insurance Portability and
Accountability Act of 1996 and regulations thereunder as amended from
time to time (collectively, “HIPAA”). Employee will only use or disclose
personal health information (“PHI”), as that term is defined in HIPAA,
which is received by Employee under this Agreement, as required (i) under
this Agreement, (ii) by Employer pursuant to the HIPAA rules, or (iii) by
law. Employee shall use appropriate safeguards to prevent any misuse of
PHI, take appropriate action to ensure that other persons appropriately
safeguard and use PHI, report any known improper disclosure or use of
PHI to Employer, and return to Employer all PHI upon the termination of
this Agreement for any reason.
(g) Participation. Employee shall actively participate in, and cooperate with,
Employer in connection with the development and imp}ementation of a
Preview
THE x MIC HELS* 1 I I M 250 Ed English Drive Bldg 3, Suite A The Woodlands, Texas 77385 281-210-1595 Phone oe Michels 281-823-7484 Fax joe. Michels@MichelsFirm.com September 10, 2020 Hon. Kristin Bays Judge, 284" District Court 31 N. Main, Suite 201 Conroe, Texas 77301 Re: Cause No. 20-08-09746; Todd Y ounghlood, M.D., etal v. David P. Ellent, PLLC, et al; Dear Judge Bays, The 6 physician Plaintiffs in this matter (“Doctors”) strenuously object to any further TRO relief in this lawsuit. The Plaintiffs have already been subject to a TRO for 27 days in the Haris County case. Exhibit 1. Seeking a second TRO would violate TRCP 680, which forbids any contested TRO for more than 28 days. A new TRO is both legal and factually unsupportable. Any New TRO Is Legally Unsupportable Both the Texas Supreme Court and the 14th Court of Appeals hold that extending a TRO in violation of Rule 680 is an abuse of discretion subject to immediate mandamus. In In re 2500 West Loop, Inc., the 14th Court of appeals held that obtaining second TRO which, combined with an earlier TRO against the same parties by a different judge, which enjoins a party for more than 28 days from performing the same acts was improper. In West Loop, the first ancillary judge issued a TRO, a second ancillary judge extended it 14 days, and the trial court judge then extendedit another 14 days. The 14th Court of Appeals granted mandamus because the second extension was an abuseof discretion. All TROs must comply with the time limits in Rule 680. Inre Tex. Nat’] Res. Conservation Cont n, 85 S.W.3d 201, 204 (Tex. 2002). It states in relevant part: Every temporary restraining order... shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be enteredof record. No more Hon Kristen Bays Page 2 of 3 September 10, 2020 than one extension may be granted unless subsequent extensions are unopposed. TEX. R. Civ. P.680 (emphasis added). “The short duration Rule 680 allows for temporary restraining orders is a critical safeguard against the harm occasioned by a restraint on conduct that has yet to be subject to a truly adversarial proceeding.” Tex. Nat’l Res., 85 S.W.3d at 206. A party can obtain a TRO for 14 days, which may be extended only once for an additional 14 days. No other extensions may be granted unless it is unopposed. A non-consensual TRO for more than 28 days is unlawful and deprives the enjoined party from due process because the lower standard of proof required fora TRO. A TRO that has the same effect on a party as an earlier TRO cannot be used to circumvent the 28-day limitation. In re 2500 West Loop, Inc. Genesis’s request for a new TRO is intended to violate rule 680. A New TRO is Factually Unsupportable. The Harris County TRO enjoined the Doctors from: (1) practicing medicine anywhere in the world other than at Genesis Medical Group, where they were employed at the time, (2) soliciting any Genesis employees to leave, and (3) soliciting any Genesis patients. The sole basis for the TRO was the existence of their fiduciary duty as employees. Exh. 1, page 2. Each Doctor’s Employment Agreement (“Contract’) allowed them to terminate employment if they gave 30 days’ notice, identified Genesis’s breaches, and Genesis did not cure the breach. See Exhibit 2, Stephen Fillman’s Contract, §9, page 11.! The Doctors gave written notice on July 31 (Exhibit 3), the breaches were not cured in 30 days, and they gave written notice of termination on August 31 (Exhibit 4). Each Doctor’s employment ended on August 31, 2020. Sections 10(c & d) forbids each Doctor from; (1) competing within a defined radius of any Genesis office where they provided medical care at least one day a week, (2) solicit any of Genesis’s employees, and (3) solicit any of Genesis’s patients. However, each Doctor’s Contract had an “Opt-Out Clause” which allowed them to; (1) compete with Genesis at any location, (2) solicit any of Genesis’s employees, and (3) solicit any of Genesis’s patients IF they opened their own practice that is not affiliated with any existing practice. Exhibit 2 at §10(e ), page12. 1 Only one Doctor’s Contract is attached, but all the Doctors’ Contracts have the same clause. Hon Kristen Bays Page September 10 (e) Notwithstanding the restrictions contained in Sections 10(c) and 10(d), Employee may, during the Restricted Period, open his own practice which is not a part of, or affiliated with, any other existing practice or hospital entity The Doctors formed a new Professional Association, Woodlands Diagnostic Clinic, P.A. They are all owners of it. All the Doctors will practice medicine at Woodlands Diagnostic. Woodlands Diagnostic is not affiliated with any other practice. The Doctors previous practice, Northwest Diagnostic Clinic (now called WDC Holdco or “Holdoo’), will be Woodlands Diagnostic’s landlord at new location. Holdco has not been a medical practice since December 10, Since that date it has had no employees, provided no medical care, and no one has seen any patients on its behalf. Its only ongoing business will be that of landlord. SUMMARY ach Doctor s Contract allow them to practice at their new location free from all restraints that might otherwise limit their practice because they terminated their employment and created a new practice not affiliated with any existing practice. The Doctors strongly oppose the Court’s consideration of any imposing the same or similar restrictions as the Harris County TRO. No TRO is permissible under the facts here. Yours Truly, 8/13/2020 1:19:45 PM Marilyn Burgess - District Clerk Harris County Envelope No: 45356928 2020-48506 / Court: 165 By: THOMAS, LISA E Filed: 8/13/2020 1:19:45 PM Pgs-5 CAUSE NO. TRORX DAVID P. ELLENT, P.L.L.C. IN THE DISTRICT COURT OF STBNX d/b/a GENESIS MEDICAL CASO GROUP, Plaintiff, Vs. HARRIS COUNTY, TEXAS WOODLANDS DIAGNOSTIC CLINIC, P.A., MARIA CHARRON, M.D., STEPHEN FILLMAN, M.D., WILLIAM FRIDLEY, M.D., PATRICK OGIDAN, M.D., SHARON OGIDAN, M.D., and TODD YOUNGBLOOD, M.D., Defendants. JUDICIAL DISTRICT ORDER GRANTING TEMPORARY RESTRAINING ORDER On this day, the Court considered Plaintiff David P. Ellent, P.L.L.C. d/b/a Genesis Medical Group’s (“Genesis”) Application for Temporary Restraining Order. Based upon facts set forth in the original petition and supporting declaration, and based upon notice to Defendant of this application, the Court finds and concludes that Genesis can demonstrate a probable right to recovery under each cause of action pled against Defendants. From the evidence presented, it appears that the Defendants are employed as Physicians by Genesis, a group practice entity. The Defendants entered into Employment Agreements with Genesis, the terms of which last until December 2021, Exhibit 1 except for Defendant Dr. Charron, whose term expired in December 2020. In the Employment Agreements, among other things, the Defendants agreed that all patients and accompanying files and medical records belonged to Genesis. It further appears that Defendants, as employees and agents of Genesis, owed Genesis fiduciary duties. It appears that beginning in May 2020, Defendants created a new medical entity to compete with Genesis. Throughout July and August 2020—while still employed by, and getting paid by, Genesis—it appears that Defendants took substantial actions to compete, including: (i) soliciting and interviewing Genesis’s staff for a position with Defendants’ new, competing medical practice, (ii) informing patients during appointments of the new practice location (via handwritten stick notes to avoid leaving evidence of their actions), and how the patients could schedule an appointment with Defendants’ new practice, (iii) posting signs on their Genesis office door soliciting and urging patients to schedule their next appointments with Defendants’ new practice. It appears that the contents of these signs go far beyond what Texas Medical Board Rules require. On July 31, 2020, Defendants issued Genesis “Notices of Good Reason” in which the Defendants threatened to terminate their Employment Agreements unless Genesis cured its alleged breaches. Defendants did not, however, inform Genesis of any of the above activities. Nor did Defendants explicitly terminate their Employment Agreements, but instead made that termination contingent on Genesis’s failure to cure the alleged breaches by the announced August 30, 2020 deadline. Genesis responded by, among other things, explaining what actions it has taken to address the Physicians’ complaints 2 (without admitting that those complaints evidenced material breaches of the Employment Agreements), and by offering to cure any remaining outstanding issues, to which it requested further clarification from the Defendants. Defendants have not responded. Accordingly, the Court finds that Genesis has established a probable right to relief against Defendants. It appears that Defendants, in violation of both their Employment Agreements and fiduciary duties to Genesis, have been taking concrete steps to compete—including soliciting employees and patients of Genesis while still employed by Genesis—that go far beyond what is permissible under the law. Additionally, the evidence shows that unless Defendant is restrained, the harm will be imminent and irreparable. Defendants’ solicitation of Genesis’s office staff and patients in violation of Defendants’ contractual and fiduciary duties impairs Genesis’s employee and patient goodwill. Accordingly, the Court GRANTS Plaintiff's application for temporary injunction. It is ORDERED, ADJUDGED, AND DECREED that: a That Physician Defendants and anyone acting in concert with any of them immediately cease and desist from engaging in the private practice of medicine other than as provided in the Employment Agreements for the remainder of the initial, fixed term of the Employment Agreements. That Physician Defendants and anyone acting in concert with any of them immediately cease and desist from soliciting business from any patient with whom any Physician Defendant has had material contact on behalf of Genesis, for the purpose of providing any professional medical services. That Physician Defendants and anyone acting in concert with any of them immediately cease and desist from soliciting any physicians, nurses, staff, and other office personnel of Genesis to leave their employment with Genesis. That the Physician Defendants and anyone in concert with them immediately cease and desist from putting the signs contained in Exhibit F to Plaintiff's petition up in their offices, or encouraging or soliciting patients to schedule appointments at Defendants’ new practice location. This provision does not prevent the doctors was from giving the patients: (i) the address of their new practice; and (ii) how the patients can obtain copies of their medical records, or how the patients can have their medical records transferred. It is further ORDERED, ADJUDGED AND DECREED that Defendants be given notice of and appear at the hearing on the motion of Plaintiffs Application for Temporary Injunction before the Honorable Ursula Hall , onthe 27th day of August 2020, at 4:000’clock _p.m. in the courtroom of the _165th District Court of Harris County, Texas, then and there to show cause, if any there be, why a temporary injunction should not be issued as requested by Plaintiff. It is further ORDERED, ADJUDGED AND DECREED that Plaintiff execute and file with the Clerk a bond in the amount of $ 1,000.00 The Clerk of the above and entitled court shall forthwith, on the filing by Plaintiff of the bond hereinafter required, and on approving same according to law, issue a writ of injunction in conformity with the law and the terms of this order. This order shall expire on August 27 , 2020, at 11:59 p.m. SIGNED on this the__ th day of August 2020, at o'clock __.m Signed: 8/13/2020 4:31 PM Paha guid JUDGE PRESIDING EMPLOYMENT AGREEMENT This Employment Agreement (this “Agreement”) is effective December > 2018, and is between David P. Ellent, P.L.L.C. d/b/a Genesis Medical Group (“Employer”), and Stephen Fillman, MD (“Employee”). WHEREAS, Employer is a single member professional limited liability company organized under the laws of the State of Texas and is engaged in the practice of medicine in Houston, Texas and the surrounding area; WHEREAS, Employee is licensed to practice medicine in the State of Texas; NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties agreed: 1 Employment and Term. Employer hereby employs Employee, and Employee hereby accepts employment from Employer upon the terms and conditions herein specified. The effective date of this Agreement shall be on the day, month, and year first written above (“Effective Date”). Subject to earlier termination as provided herein, Employee’s employment with Employer shall commence on the Effective Date and shall continue for three (3) years thereafter (the “Initial Term’’). Following the Initial Term, and subject to earlier termination as provided herein, Employee’s employment with Employer will automatically renew, without any further action by Employer or Employee, for successive one-year terms (each such one-year term, a “Renewal Term”), unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. Duties of Employee. (a) Practice Commitment. Beginning on the Effective Date, Employee shall engage exclusively in the full time private practice of medicine at Employer’s offices within the greater Houston area as are agreed between Employer and Employee, and at such hospitals as are agreed between Employer and Employee. Employee’s “full time private practice of medicine” shall include a minimum of forty (40) office hours per week and such other hours as are necessary to provide appropriate patient care. Employee shall maintain courtesy staff memberships on the medical staff of all hospitals as agreed between Employer and Employee. Employee PROVIDE! ITLALS Exhibit 2 shall comply fully with all bylaws, rules and regulations of the medical staffs of such hospitals. Employee shall discharge all administrative and professional responsibilities required of members of such courtesy staff. Employee shall remain in good standing with all required state and local medical societies and shall maintain an unrestricted license to practice medicine in the State of Texas. (b) Duties. Employee shall provide appropriate care and supervision of his or her patients. Employee shall conduct his or her professional and administrative duties in such a manner as may be required by any standard, ruling, or regulations of any federal, state, or local governmental agency and perform such administrative services for Employer as deemed necessary by Employer. Employee shall follow all guidelines and procedures of Employer. Employee shall always exercise Employee’s own independent medical judgment concerning the best interest and most appropriate care of Employee’s patients. Employee shall not engage directly or indirectly in any other business or occupation related to the active practice of medicine without the prior written consent of Employer. In the event that any business or occupation conducted by Employee with prior consent of Employer becomes a business line of Employer, Employee shall terminate those outside business relationships and perform said business or occupation solely for Employer. (c) Managed Care. From time to time, Employer may enter into managed care or network agreements with third party payers, employers, or governmental entities that may require Employer and/or Employee to engage in utilization review or peer review activities. Employee shall fully cooperate in such activities and will comply with any and all requirements of any managed care or network agreement to which Employer becomes a party. If required by any managed care entity or network, Employee shal! execute the agreement individually and if possible as a duly authorized agent of Employer after authorization by Employer is given, but shall not be liable under such agreement except for his or her professional errors and omissions. Employee shall not enter into any managed care contracts individually without Employer’s prior written consent. Employee shall have no authority to, and shall not, execute agreements binding Employer unless Employee has been duly authorized to do so by Employer. (d) Assignment of Right to Bill. As a condition of Employee’s employment hereunder, Employee hereby assigns to Employer any current and future right Employee might have from time to time to bill and receive payment 4 PRACTICE INITIALS 2 from any third-party payer, including, without limitation, any managed- care payer and the Medicare/Medicaid programs, for professional services rendered under this Agreement. Employee acknowledges that Employer shall submit these billings and all of Employee’s professional services rendered under this Agreement in Employer’s own name unless required otherwise by a third-party payer, in which event such services shall be billed under Employee’s name with the understanding and agreement that all fees generated from such billings shall belong to Employer. (e) Notice. Employee shall notify Employer within 24 hours of the occurrence of any of the following: (i) any action taken to restrict, suspend, or revoke Employee’s license to practice medicine or otherwise terminate Employee’s Drug Enforcement Administration (“DEA”) Number; (ii) any action taken to restrict, suspend, or revoke Employee’s medical staff and/or clinic privileges at any hospital; (iii) any suit brought against Employee for malpractice or any event that Employee believes may give rise to a suit for malpractice; (iv) any notice of a restriction, including any exclusion, of Employee’s ability to participate in any federally-funded healthcare program including Medicare and Medicaid; or (v) any other situation that might adversely affect Employee’s ability to carry out any of his or her duties and obligations under this Agreement. @ Compliance. Employee shall, at all times. comply with the applicable terms of this Agreement, all guidelines, policies, and procedures of Employer, and all applicable federal, state, and local laws, rules, regulations, licensing requirements, and standards, including requirements for participation in the Medicare Program. Employee shall also comply with applicable provisions of the Health Insurance Portability and Accountability Act of 1996 and regulations thereunder as amended from time to time (collectively, “HIPAA”). Employee will only use or disclose personal health information (“PHI”), as that term is defined in HIPAA, which is received by Employee under this Agreement, as required (i) under this Agreement, (ii) by Employer pursuant to the HIPAA rules, or (iii) by law. Employee shall use appropriate safeguards to prevent any misuse of PHI, take appropriate action to ensure that other persons appropriately safeguard and use PHI, report any known improper disclosure or use of PHI to Employer, and return to Employer all PHI upon the termination of this Agreement for any reason. (g) Participation. Employee shall actively participate in, and cooperate with, Employer in connection with the development and imp}ementation of a