8/9/2018 5:29 PM Chris Daniel - District Clerk Harris County Envelope No. 26656149 By: Jacob Blessing Filed: 8/9/2018 5:29 PM CAUSE NO. 2018-24328 § § § § § § § § § § PLAINTIFF, V. INPATIENT CONSULTANTS OF TEXAS, PLLC D/B/A TEAMHEALTH DEFENDANT. IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS ist ric t C ler k TOMAS G. RIOS, M.D. 189TH JUDICIAL DISTRICT is Da TO THE HONORABLE JUDGE OF THIS COURT: nie l D COUNTER-PLAINTIFF’S ORIGINAL COUNTERCLAIM AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION hr COMES NOW Inpatient Consultants of Texas, PLLC (“IPC” or “Defendant/Counter- of C Plaintiff”) and files this, its Original Counterclaim, Application for Temporary and Permanent e Injunction, and in support thereof would respectfully show the Court as follows: Defendant/Counter-Plaintiff intends to conduct discovery under Level 2 of Texas Rule of op y 1. O ffic I. DISCOVERY CONTROL PLAN C Civil Procedure 190.3 and affirmatively pleads that this suit is not governed by the expedited- ial actions process in Texas Rules of Civil Procedure 169 because Defendant/Counter-Plaintiff Un of fic requests injunctive relief. 2. II. CLAIM FOR RELIEF Defendant/Counter-Plaintiff seeks monetary relief over $200,000 but not more than $1,000,000. 4834-5818-4806 v4 III. PARTIES 3. Counter-Plaintiff, Inpatient Consultants of Texas, PLLC, is a Michigan professional limited liability with certain operations in Harris County, Texas. Counter-Defendant Tomas G. Rios, M.D. is an individual residing in Harris County, ist ric t C ler k 4. Texas. As the Plaintiff in this case, he has already made a general appearance. IV. JURISDICTION The Court has subject-matter jurisdiction over the lawsuit because the amount in l D 5. Da nie controversy exceeds this Court’s minimum jurisdictional requirements. Venue is proper in Harris County, Texas under Texas Civil Practice & Remedies Code hr 6. is V. VENUE of C section 15.002(a)(1) and (3) because it is the county in which all or a substantial part of the e events or omissions giving rise to the claims occurred and because Counter-Defendant resided in VI. FACTS IPC provides services to short-term and long-term acute care hospitals, skilled nursing C 7. op y O ffic Harris County, Texas at the time the causes of action accrued. fic ial facilities, nursing homes, assisted living facilities, adult care homes, and hospices, including Un of providing hospitalist physicians to hospitals in the Houston, Texas area, specifically in the Houston Texas Medical Center. 8. IPC and Dr. Rios entered into an employment agreement in August 2014 (the “Agreement”). Pursuant to the Agreement, Dr. Rios was to provide Hospitalist Services in the Houston Texas Medical Center, specifically at Baylor St. Luke’s Hospital and Kindred Hospital. During the term of the Agreement, IPC was informed about care and safety concerns relating to 2 4834-5818-4806 v4 Dr. Rios’ services. IPC investigated the concerns and attempted to work to resolve the issues with Dr. Rios; however, Dr. Rios refused to participate in the resolution steps designed to address the aforementioned concerns. As a result of Dr. Rios' refusal to do so, he voluntarily abandoned his employment with ist ric t C ler k 9. IPC and, thereby, terminated the Agreement. 10. The Agreement includes an Agreement Not to Compete (the “Non-Compete”), which l D continues one year following the termination of the Agreement. See Ex. A, the Agreement, § nie 3.4. The Non-Compete provides that Dr. Rios shall not directly or indirectly enter into, engage, Da participate or allow Dr. Rios’ name to be used in or in connection with any business or activity, hr is that is in competition in any manner whatsoever with the Hospitalist Operations of IPC in the C Restricted Territory. Id. The Non-Compete further provides that Dr. Rios shall not promote or e of assist, financially or otherwise, manage, or invest in any person, firm, association, partnership, ffic corporation or other entity engaged in any Hospitalist Operations for a period of one year after op y O the termination of the Agreement in the Restricted Territory. Id. “Restricted Territory” is C defined as (i) those Facilities in the Texas Med Center practice from or at which Dr. Rios has ial provided services on behalf of Company, (ii) any Facilities at which Company has paid or fic arranged for Employee to be credentialed, obtain privileges or join the medical staff. Id. at Un of Schedule 1.1. The Non-Compete is supported by consideration and is ancillary to an otherwise enforceable agreement. 11. The term of the Agreement ended effective April 20, 2018, when Dr. Rios abandoned his employment. Thus, the Non-Compete is in effect until April 20, 2019, or until Dr. Rios’ buys out of the Non-Compete. The Agreement provides for a Buy-Out of the Non-Compete, but Dr. 3 4834-5818-4806 v4 Rios has not bought out of the Non-Compete, nor even made an attempt to buy out of the NonCompete. 12. Dr. Rios is currently in violation of the Non-Compete by working and/or being associated ist ric t C ler k with IPC’s competitors, including Baylor St. Luke’s Hospital and Kindred Hospital Houston. Specifically, Dr. Rios formed a new entity, Rios Healthcare Associates, PLLC, and Dr. Rios announced that Rios Healthcare Associates is the “newest hospitalist services provider at St Further, IPC is informed and believes that Dr. Rios misrepresented to one of IPC's clients nie 13. l D Luke’s.” Da that IPC would no longer be seeing patients at the client's facility and told IPC's client that it C The foregoing actions by Dr. Rios are in direct violation of his Non-Compete of 14. hr is should send all the unassigned and/or St. Luke Hospital patients to him. ffic e obligations. Therefore, IPC requests the Court to immediately issue a temporary restraining O order, and then a temporary injunction, preventing Dr. Rios violation of the Non-Compete. op y VII. COUNT 1 - BREACH OF CONTRACT Defendant/Counter- Plaintiff incorporates paragraphs 1 through 14 herein by reference. 16. IPC and Dr. Rios entered into a valid and enforceable contract. Dr. Rios breached that Un of fic ial C 15. contract by violating his Non-Compete obligations. The breach of the contract is a direct and proximate cause of injuries to IPC. IPC seeks recovery of its attorneys’ fees as a result of having to bring this action. 4 4834-5818-4806 v4 VIII. APPLICATION FOR TEMPORARY RESTRAINING ORDER1 17. IPC’s application for temporary restraining order is authorized by Texas Civil Practice & Remedies Code § 65.011(1), (2), (3), and (5). IPC is entitled to all of the relief requested and an injunction enforcing the Non-Compete. 19. IPC asks this Court to prevent Dr. Rios from violating the Non-Compete. Specifically, ist ric t C ler k 18. IPC asks this Court to prevent Dr. Rios from practicing or providing services at Baylor St. l D Luke’s Hospital, Kindred Hospital, and any other facility where Dr. Rios provided services on It is probable that IPC will recover from Dr. Rios after a trial on the merits because IPC is 20. Da nie behalf of IPC. hr possesses evidence that undisputedly establishes that Dr. Rios breached the Agreement and is in If IPC’s application is not granted, harm is imminent because Dr. Rios will continue to ffic 21. e of C violation of the Non-Compete. op y O violate the Non-Compete, interfering with IPC’s business operations. IPC has no adequate remedy at law because damages are irreparable and incalculable. 23. IPC is willing to post bond. Un of fic ial C 22. IX. REQUEST FOR TEMPORARY INJUNCTION 24. IPC asks the Court to set its application for temporary injunction for a hearing and, after the hearing, issue a temporary injunction against Dr. Rios. 1 IPC has moved to compel arbitration of Dr. Rios' claims against IPC; however, the Agreement's arbitration provision specifically permits IPC to seek injunctive relief in this Court for Dr. Rios' violation of the Non-Compete. See Article 4, Section 4.2(iii). 5 4834-5818-4806 v4 25. IPC has joined all indispensable parties under Texas Rule of Civil Procedure 39. X. REQUEST FOR A PERMANENT INJUNCTION 26. IPC asks the Court to set its request for a permanent injunction for a full trial on the ist ric t C ler k merits and, after the trial, issue a permanent injunction against Dr. Rios. XI. CONDITIONS PRECEDENT 27. All conditions precedent to IPC’s claims for relief have been performed or have occurred. l D PRAYER nie For these reasons, Defendant/Counter-Plaintiff IPC asks that the Court issue citation for is Da Tomas G. Rios, M.D. to appear and answer, and that IPC be awarded a judgment against Dr. hr Rios for the following: of ffic c. Actual Damages; e b. Permanent Injunction; C a. Temporary Injunction; op y O d. Exemplary Damages; e. Prejudgment and post judgment interest; ial C f. Court costs; fic g. Reasonable and necessary attorneys’ fees; and Un of h. All other relief to which IPC is entitled. 6 4834-5818-4806 v4 Respectfully submitted, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ A Professional Corporation /s/ Kali M. Hyde ist ric t C ler k By: Da nie l D Bradley E. Chambers Texas Bar No. 24001860 bchambers@bakerdonelson.com Kali M. Hyde Texas Bar No. 24083234 khyde@bakerdonelson.com 1301 McKinney Street, Suite 3700 Houston, Texas 77010 713.650.9700 - Telephone 713.650.9701 - Facsimile O ffic e of C hr is /s/ Timothy B. McConnell Timothy B. McConnell Tennessee Bar No. 019136 tmcconnell@bakerdonelson.com 265 Brookview Centre Way, Ste 600 Knoxville, Tennessee 37919 865.549.7000 - Telephone 865.525.8569 - Facsimile Pro Hac Admission Pending Un of fic ial C op y Attorneys for Defendant 7 4834-5818-4806 v4 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on August 9, 2018, the foregoing was served on counsel for Plaintiff pursuant to the Texas Rules of Civil Procedure. Un of fic ial C op y O ffic e of C hr is Da nie l D ist ric t C ler k /s/ Kali M. Hyde Kali M. Hyde 8 4834-5818-4806 v4