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Americare Healthcare Services, LLC v. Akabuaku

Court of Appeals of Ohio, Tenth District

July 11, 2013

Americare Healthcare Services, LLC, Plaintiff-Appellee,
Ngozi Akabuaku et al., Defendants-Appellees, Asha M. Hussein, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 09CVH-11-17125).

Johrendt & Holford, and Andrew Mills Holford, for appellant.



{¶ 1} Defendant-appellant, Asha M. Hussein, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion for reconsideration filed by plaintiff-appellee, Americare Healthcare Services, LLC, and thereby granting appellee's motion for injunctive relief. For the reasons that follow, the judgment of the trial court is affirmed.


{¶ 2} Appellee is in the business of providing home healthcare services and medical staffing to individuals, nursing homes, hospitals, medical providers, and other medical professionals. On November 16, 2009, appellee filed a complaint seeking injunctive relief and money damages against appellant, Ngozi Akabuaku, Wilson Anosiekwu, and Ngozi Akabuaku, dba The Angels Home Health Care Service ("Angels"). Appellee also filed a motion seeking a temporary restraining order and a preliminary and permanent injunction.

{¶ 3} As is relevant here, the complaint alleged Akabuaku, who was employed with appellee from 2005 to December 4, 2008, and appellant, who was employed with appellee from January 14, 2004 until January 11, 2009, were in violation of non-compete and non-disclosure agreements ("non-compete agreements") executed as a condition of their employment with appellee. The complaint alleged appellant signed non-compete agreements in multiple years, and the pertinent portions of the non-compete agreements are as follows:

2. Covenants of Nondisclosure. Employee agrees that he/she will not use at any time whether during or subsequent to this Agreement any Confidential Information for his/her own purposes, other than in connection with his/her regular activities for or on behalf of the Company. Employee further agrees to refrain from intentionally, directly or indirectly using, disclosing, disseminating, or publishing to or with any person, firm, company, organization or entity any Confidential Information. Employee acknowledges and agrees that the sale, unauthorized use, disclosure or dissemination of the Company's Confidential Information obtained by the Agent during his/her relationship with the Company constitutes unfair competition and in violation of this Agreement.
4. Covenant Not To Compete. Employee agrees that for a period of two (2) year[s] following the date of the termination of this Agreement, he/she will not solicit or have any contact with any of the Company's Clients, current Patients or Potential Client, whether or not such contact is initiated by a Client, Patient or Potential Client, to provide home health care services and/or ancillary or allied health services. Employee further agrees that he/she will not, in any manner, assist any other person, entity or organization in soliciting or contacting, directly or indirectly, for his/her own benefit or that of any other person, entity or organization, any Client, Patient, or Potential Client of the Company. Employee acknowledges that any attempt to solicit, contact, call on or take away any of the Company's Clients or Potential Clients either for herself or for any person, entity or organization, is considered unfair competition and therefore in violation of this Agreement.

{¶ 4} After an evidentiary hearing, the trial court granted the motion for injunctive relief against Akabuaku. The trial court determined (1) the non-compete agreements were valid and enforceable, (2) Akabuaku violated the non-compete agreements, and (3) Akabuaku was tortiously interfering with appellee's other noncompete agreements. The trial court also found (1) the restraints of the non-compete agreements were reasonable and did not exceed what is reasonably required for appellee's protection, (2) the non-compete agreements did not impose an undue hardship on Akabuaku, and (3) the non-compete agreements' two-year period is typical. With respect to appellant, the trial court concluded appellant did not sign the January 2007 noncompete agreement, and, thus, as to her, the agreement was not enforceable.

{¶ 5} Akabuaku filed an appeal of the trial court's judgment and this court affirmed in Americare Healthcare Servs., Inc. v. Akabuaku, 10th Dist. No. 10AP-777, 2010-Ohio-5631. Thereafter, because the decision, with respect to appellant, was not a final order, appellee filed a motion for reconsideration regarding the trial court's decision denying injunctive relief as to appellant. In the motion for reconsideration, appellee argued the trial court failed to consider evidence that, regardless of whether or not she signed the 2007 non-compete agreement, appellant admitted signing the 2005 noncompete agreement prohibiting the same conduct.

{¶ 6} The trial court agreed that it failed to consider evidence regarding the 2005 non-compete agreement when it ruled on the request for injunctive relief Therefore, the trial court granted appellee's motion for reconsideration and granted appellee's request for injunctive relief against appellant.


{¶ 7} This appeal followed, and appellant brings the following two assignments of error ...

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