Nicholas D. Pappas, III, M.D. Versus Hand Surgical Associates, Ltd.

NICHOLAS D. PAPPAS, III, M.D. NO. 22-CA-407

VERSUS FIFTH CIRCUIT

HAND SURGICAL ASSOCIATES, LTD. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 824-191, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

March 29, 2023

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Stephen J. Windhorst

AFFIRMED IN PART; GRANT OF DECLARATORY JUDGMENT
VACATED; REMANDED WITH INSTRUCTIONS
JGG
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
NICHOLAS D. PAPPAS, III, M.D.
Leslie W. Ehret
Benjamin M. Castoriano
David I. Courcelle

COUNSEL FOR DEFENDANT/APPELLANT,
HAND SURGICAL ASSOCIATES, LTD.
Philip A. Franco
Timothy M. Brinks

GRAVOIS, J.

Defendant/appellant, Hand Surgical Associates, Ltd. (“HSA”), appeals a

judgment rendered on April 7, 2022 in favor of plaintiff, Dr. Nicholas D. Pappas,

III, which granted a preliminary injunction and a declaratory judgment in favor of

Dr. Pappas, ruling that non-competition covenants contained in an Employment

Agreement the parties entered into on or about October 1, 2014 (with an effective

date of January 1, 2015) (the “Employment Agreement”) were unenforceable upon

Dr. Pappas’s resignation from HSA in 2021.

On appeal, HSA contends that the trial court erred in granting the

preliminary injunction in favor of Dr. Pappas, arguing that the judgment is not

supported by the provisions of the Employment Agreement. HSA also argues that

the trial court erred in granting the declaratory judgment in favor of Dr. Pappas,

finding the non-competition covenants to be unenforceable, when only the

preliminary injunction proceeding was properly before the court in the summary

proceeding conducted by the court. Finally, HSA argues that the trial court erred

in granting the preliminary injunction because (1) Dr. Pappas failed to show

irreparable injury, and (2) the court failed to require Dr. Pappas to furnish any

security for the preliminary injunction.1

For the following reasons, we affirm the trial court’s grant of a preliminary

injunction in favor of Dr. Pappas. However, we vacate that portion of the

judgment which grants a declaratory judgment in favor of Dr. Pappas. We further

remand the matter for the trial court to fix security for the issuance of the

preliminary injunction and for further proceedings consistent with this opinion.

1
As pointed out infra, in brief, Dr. Pappas concedes that he should furnish security for
the granting of the preliminary injunction.

22-CA-407 1

PROCEDURAL HISTORY

On January 7, 2022, Dr. Pappas filed a “Verified Petition for Declaratory

Judgment, Preliminary Injunction, Permanent Injunction and Damages” against

HSA, seeking (1) a judgment declaring the non-competition covenants contained in

the Employment Agreement are no longer in effect and unenforceable against him,

(2) preliminary and permanent injunctions prohibiting the enforcement of the non-

competition covenants, and (3) damages for his lost income resulting from HSA’s

attempt to enforce the non-competition covenants. Dr. Pappas also sought

attorney’s fees and costs. A hearing on the preliminary injunction was set for

February 7, 2022.

On February 2, 2022, HSA filed an exception of no cause of action,

asserting that the petition failed to state a cause of action because as a matter of

law, the non-competition covenants at issue herein continued in effect for a period

of two years following the end of Dr. Pappas’s employment with HSA in 2021. In

its exception, HSA argued that the clear terms of the Employment Agreement

stated that the non-competition clauses in the Employment Agreement were

“independent of any other provision” and that they “shall survive the termination

of this Agreement.”2 Plaintiff filed an opposition to the exception. A hearing on

the exception was set for the same date as the hearing on the preliminary

injunction, February 7, 2022.3

Following the hearing on February 7, 2022 on the preliminary injunction and

the exception, the trial court took the matter under advisement and gave the parties

2
Section 14.6 provides:
Physician agrees that these covenants shall be construed as agreements
independent of any other provision of this Agreement and shall survive the
termination of this Agreement. Physician further agrees that the existence of any
claim, complaint or cause of action by Physician against the Company shall not
constitute a defense to the enforcement by the Company of these covenants.
3
The exception of no cause of action was denied and is not assigned as error in this
appeal.

22-CA-407 2

time to file post-trial briefs. The trial court rendered a judgment on April 7, 2022,

containing the following decretal language:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the Verified Petition for Declaratory Judgment and Preliminary
Injunction, filed by the plaintiff, Nicholas D. Pappas, III, M.D., and
against the defendant, Hand Surgical Associates, LTD, be and is
hereby, GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the Noncompetition Provision set forth in Section 14
of the Employment Agreement is unenforceable.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the determination of Attorney’s Fees and Court
Costs that the prevailing party may recover under Section 16.4 of the
Employment Agreement, be and is hereby RESERVED for future
resolution.4

(Emphasis in original.)

FACTS

Dr. Pappas, a board certified hand surgeon, entered into the Employment

Agreement with HSA on or about October 1, 2014 (with an effective date of

January 1, 2015), which was attached to his verified petition and introduced into

evidence at the hearing on February 7, 2022. The Employment Agreement

contained sixteen “Sections,” setting forth various employment terms and

conditions, such as compensation, benefits, insurance, and other employment

matters not at issue in this appeal. Section 13 of the Employment Agreement

provided for conditions precedent to the termination of the agreement. Section 14

of the Employment Agreement, containing numerous sub-parts, sets forth the non-

competition covenants between the parties that are at issue here.

Pursuant to the Employment Agreement, Section 4.1, Dr. Pappas performed

services at LSU two days per week. In late 2017, Dr. Pappas told HSA that he

wanted to discontinue his work arrangement with LSU. The parties agreed that

4
Section 16.3, rather than Section 16.4, provides for attorney’s fees and court costs to the
prevailing party.

22-CA-407 3

this would happen in July of 2018. Dr. Pappas points out that a clause in Section

13 of the Employment Agreement (specifically Section 13.1.5, quoted infra in

footnote 9) states that the Employment Agreement would automatically terminate

upon the expiration or termination of HSA’s agreement with LSU. It is Dr.

Pappas’s position that upon termination of HSA’s agreement with LSU, he entered

into a new, unwritten, at-will employment agreement with HSA in which he

accepted a reduced salary of $300,000.00 per year5 and the terms of his

employment changed in that he no longer had any obligation to perform services at

LSU.

On October 22, 2021, Dr. Pappas resigned from HSA. The resignation was

preceded by some events, which included HSA’s furloughing of Dr. Pappas

without pay in early 2020 during the beginning stages of the COVID-19 pandemic

quarantine, an increased call schedule that he found onerous, and Dr. Pappas’s

taking medical leave in 2021 to recuperate from hand surgery. Dr. Pappas testified

that he was informed that HSA would “vigorously” litigate the non-competition

covenants. He testified at the hearing that while two surgical groups were

interested in offering him employment as a hand surgeon in the restricted area,6

they would not offer him a position until the risk of litigation with HSA was

resolved. He testified that because he had a young family, a newly purchased

home, and had left previous, more lucrative employment out of state to return to

the New Orleans area to be near family, he filed this suit against HSA, feeling that

he would suffer irreparable injury if the non-competition covenants contained in

5
Dr. Pappas’s previous salary under the Employment Agreement was $350,000.00 per
year.
6
The Employment Agreement provides that the restricted area is the following parishes
of Louisiana: Jefferson, Orleans, St. Charles, St. Bernard, Tangipahoa, St. Tammany,
Terrebonne, Lafourche, and Plaquemines.

22-CA-407 4

the Employment Agreement were enforced to preclude him from employment in

the restricted area.

ASSIGNMENTS OF ERROR

Improper grant of preliminary injunction

In his petition, Dr. Pappas sought a preliminary injunction against HSA,

preventing it from enforcing the non-competition covenants contained in the

Employment Agreement pending a full resolution of his request for a declaratory

judgment and a permanent injunction, asserting that the non-competition covenants

were unenforceable. On appeal, HSA argues that the trial court erred in granting

the preliminary injunction sought by Dr. Pappas against HSA in this case.

A preliminary injunction is essentially an interlocutory procedural device

designed to preserve the status quo between the parties pending a trial on the

merits. Wechem, Inc. v. Evans, 18-743 (La. App. 5 Cir. 5/30/19), 274 So.3d 877,

884, writ denied, 19-01176 (La. 10/15/19), 280 So.3d 600. The primary purpose of

injunctive relief is to prevent the occurrence of future acts that may result in

irreparable injury, loss, or damage to the applicant. Id. A preliminary injunction is

a summary proceeding and merely requires a prima facie showing of a good

chance to prevail on the merits. McCord v. West, 07-958 (La. App. 5 Cir. 3/25/08),

983 So.2d 133, 140, citing Bank One, Nat. Ass’n v. Velten, 04-2001 (La. App. 4

Cir. 8/17/05), 917 So.2d 454. In making a prima facie showing, the plaintiff is

required to offer less proof than is necessary in an ordinary proceeding for a

permanent injunction. Vartech Sys., Inc. v. Hayden, 05-2499 (La. App. 1 Cir.

12/20/06), 951 So.2d 247, 255, n.8, citing State through Louisiana State Bd. of

Examiners of Psychologists of the Dep’t of Health and Human Services v.

Atterberry, 95-0391 (La. App. 1 Cir. 11/9/95), 664 So.2d 1216, 1220.

The principal demand is determined on its merits only after a full trial under

ordinary process, even though the hearing on the summary proceedings to obtain

22-CA-407 5

the preliminary injunction may touch upon or tentatively decide merit issues.

McCord v. West, 983 So.2d at 140, citing Smith v. West Virginia Oil & Gas Co.,

373 So.2d 488, 494 (La. 1979). Accordingly, the fact that a preliminary injunction

is granted in one litigant’s favor does not preclude a different result on the merits.

Id.

Although the judgment on a preliminary injunction is interlocutory, a party

aggrieved by a judgment either granting or denying a preliminary injunction is

entitled to an appeal. La. C.C.P. art. 3612.7 Appellate review of a trial court’s

issuance of a preliminary injunction is limited. The issuance of a preliminary

injunction addresses itself to the sound discretion of the trial court and will not be

disturbed on review unless a clear abuse of discretion has been shown. Neill Corp.

v. Shutt, 20-0269 (La. App. 1 Cir. 1/25/21), 319 So.3d 872, 878, citing Hill v.

Jindal, 14-1757 (La. App. 1 Cir. 6/17/15), 175 So.3d 988, 1002, writ denied, 15-

1394 (La. 10/23/15), 179 So.3d 600.

Non-competition agreements are regulated by La. R.S. 23:921. A non-

compete agreement is a contract between the parties who enter it, and is to be

construed according to the general rules of contract interpretation. Smith v. Com.

Flooring Gulf Coast, L.L.C., 19-0502 (La. App. 4 Cir. 10/9/19), 2019 WL

5073582, at *5. The common intent of the parties is used to interpret a contract.

Restored Surfaces, Inc. v. Sanchez, 11-529 (La. App. 5 Cir. 12/28/11), 82 So.3d

524, 528; La. C.C. art. 2045. When the words of a contract are clear and explicit

and lead to no absurd consequences, no further interpretation may be made in

search of the parties’ intent. Id.; La. C.C. art. 2046. A contract or document is

7
La. C.C.P. art. 3612(B) provides:
An appeal may be taken as a matter of right from an order or judgment relating to
a preliminary or final injunction, but such an order or judgment shall not be
suspended during the pendency of an appeal unless the court in its discretion so
orders.

22-CA-407 6

ambiguous when its written terms are susceptible to more than one interpretation,

there is uncertainty as to its provisions, or the parties’ intent cannot be ascertained

from the language used. All Am. Healthcare, L.L.C. v. Dichiara, 18-432 (La. App.

5 Cir. 12/27/18), 263 So.3d 922, 928.

Louisiana has a strong public policy disfavoring non-competition

agreements between employers and employees. This policy is based on the state’s

desire to prevent an individual from contractually depriving himself of the ability

to support himself and consequently becoming a public burden. Such agreements

are in derogation of the common right, and must be strictly construed against the

party seeking their enforcement. USI Ins. Servs., LLC v. Tappel, 09-149 (La. App.

5 Cir. 11/10/09), 28 So.3d 419, 423-24, writ denied, 09-2697 (La. 2/26/10), 28

So.3d 271. (Internal citations omitted.) Ambiguous terms in employment

agreements and non-competition clauses found therein will be construed against

the employer who drafted them. Id. at 425.

Though this case concerns non-competition covenants, the parties placed at

issue more generally the meanings of various provisions in the entire Employment

Agreement, rather than whether the terms of the non-competition covenants

contained therein complied with La. R.S. 23:921. In other words, the parties do

not dispute the application or validity of the particular defined terms of the non-

competition covenants (i.e., “Restricted Activity,” “Restricted Area,” “Restricted

Period”8), but rather disagree as to whether the Employment Agreement was

8
Section 14.1.2 provides:
Physician also covenants that he/she shall not directly or indirectly engage in any
Restricted Activity within the Restricted Area during the Restricted Period. For
the avoidance of doubt, the covenant described in this Section 14.1.2 shall not
apply in areas outside of the Restricted Area.
Section 14.1.3 provides:
As used herein, “Restricted Period” means the period of two (2) years following
the date of termination of Physician’s employment with the Company
(“Termination Date”).

22-CA-407 7

terminated in July of 2018, when HSA’s agreement with LSU terminated, and

what specific terms governed Dr. Pappas’s continued employment at HSA after

termination of the Employment Agreement as a result of termination of HSA’s

agreement with LSU.

It is Dr. Pappas’s position that as per the explicit terms of the Employment

Agreement, Section 13.1.5, the Employment Agreement automatically terminated

upon termination of HSA’s agreement with LSU in July of 2018,9 and that

thereafter, he was employed pursuant to a new, unwritten, at-will employment

agreement. He argues that other provisions contained in the Employment

Agreement referencing his “employment,” such as the non-competition covenants

found in Section 14, and specifically Section 14.1.2, necessarily mean that his

employment under the Employment Agreement ceased in July of 2018 upon

termination of HSA’s agreement with LSU. He argues that review of the

Employment Agreement in its entirety clearly establishes that the parties did not

contemplate in the Employment Agreement Dr. Pappas’s remaining employed at

HSA after termination of the Employment Agreement. In other words, multiple

provisions in the Employment Agreement expressed the parties’ expectation that

termination of the Employment Agreement and the ending of Dr. Pappas’s

employment with HSA would be co-extensive,10 and the Employment Agreement

9
Section 13.1, entitled “Termination,” provides:
Either party may terminate this Agreement at will at any time, with or without
cause, by providing the other party with thirty (30) days written notice thereof. In
addition, this Agreement shall automatically terminate upon the occurrence of any
of the following events:
***
13.1.5 Upon the expiration or termination of the LSU Agreement; provided,
however, that the Company shall notify Physician of the termination of the
LSU Agreement promptly upon the Company learning of such
termination.
(Emphasis added.)
10
This position is based in part upon the “wind up” provision in Section 13.2 that the
parties did not initiate or follow upon termination of the LSU Agreement.

22-CA-407 8

does not provide specific terms for the scenario of Dr. Pappas’s continued

employment at HSA after termination of the Employment Agreement.

In response, it is HSA’s position that the Employment Agreement was

simply orally amended by the parties in July of 2018 only as to Dr. Pappas’s salary

and his obligation to provide services to LSU (and thus was not terminated in July

of 2018), and thus the non-competition covenants contained in the Employment

Agreement remained enforceable for two years after Dr. Pappas ended his

employment with HSA in October of 2021. Alternatively, HSA argues that the

non-competition covenants contained in the Employment Agreement survived the

2018 termination of the Employment Agreement, as per Section 14.6 (quoted

supra in footnote 2), and remained enforceable for two years after Dr. Pappas’s

resignation from employment at HSA in October of 2021. HSA argues that Dr.

Pappas’s interpretation of the Employment Agreement leads to the absurd result

that the non-competition covenants were only effective until July of 2020 and

expired during the term of Dr. Pappas’s continued employment with HSA and

prior to the ending of his employment at HSA in October of 2021.

This Court has carefully reviewed the entire record and the transcript of the

February 7, 2022 hearing. Two witnesses testified: Dr. Pappas and Dr. Eric

George, the principal owner of HSA. Each testified regarding their impressions of

the meaning and effect of certain provisions of the Employment Agreement. The

Employment Agreement was introduced into evidence, as were numerous emails

between the parties showing their communications at different times while Dr.

Pappas worked at HSA, concerning Dr. Pappas’s request to end the LSU

agreement, the events and consequences of the 2020 furlough of Dr. Pappas, and

Dr. Pappas’s taking medical leave from HSA during 2021, among other things.

Upon review, we find that the record as a whole supports a determination that

when HSA’s agreement with LSU terminated in July of 2018, the Employment

22-CA-407 9

Agreement automatically terminated according to the explicit terms of Section

13.1.5 thereof. Dr. George even admitted as much on the stand in his testimony at

the hearing. We also find that the Employment Agreement as a whole was written

to view termination of the Employment Agreement and termination of Dr.

Pappas’s employment with HSA as co-extensive events, which did not in fact

occur, as Dr. Pappas remained employed by HSA after HSA’s agreement with

LSU was terminated in July of 2018, but under different salary and working

conditions. Therefore, the parties’ intent regarding what specific terms would

govern Dr. Pappas’s continued employment at HSA after July of 2018 cannot be

determined from the text of the Employment Agreement.

Regarding the survival provisions appertaining to the non-competition

covenants contained in the Employment Agreement, Dr. Pappas does not contest

that the non-competition covenants survived for a period of two years following

termination of the Employment Agreement as a result of termination of HSA’s

agreement with LSU in July of 2018 (i.e., from July of 2018 to July of 2020), but

no further. As such, Dr. Pappas argues that the non-competition covenants were

no longer enforceable against him as of July of 2020, which is before his

employment at HSA ended and before he filed this suit. Upon review, in light of

our findings herein that the Employment Agreement terminated in July of 2018

and that the Employment Agreement did not contemplate Dr. Pappas’s continuing

to work at HSA after termination of the Employment Agreement under different

terms and conditions, as set forth above, we cannot say, at this juncture, that we

disagree with Dr. Pappas’s arguments in this regard.

As stated above, a prima facie case is something less than a preponderance

of the evidence. Upon review, we find that the record as a whole, at this juncture,

supports the trial court’s finding that Dr. Pappas has presented a prima facie case

in support of his request for a preliminary injunction and thus is entitled to a

22-CA-407 10

preliminary injunction against HSA, preventing the enforcement of the non-

competition covenants contained in the Employment Agreement pending

determination of the merits of the case. Thus, we find that the trial court did not

abuse its discretion in granting the preliminary injunction. The declaratory

judgment and the permanent injunction should be determined in ordinary

proceedings after a trial on the merits and by a preponderance of the evidence.

This assignment of error is without merit.

Improper grant of declaratory judgment

Next, HSA argues that the trial court erred as a matter of law by rendering a

declaratory judgment, finding the non-competition covenants unenforceable,

because a declaratory judgment determination employs ordinary proceedings,

when the only matter set for hearing was the preliminary injunction, which is a

summary proceeding.11

HSA is correct in its argument that preliminary injunctions are heard in

summary proceedings, declaratory actions proceed by ordinary process, and these

matters may only be cumulated and heard together upon express agreement of the

parties. Singleton v. E. Baton Rouge Par. Sch. Bd., 22-0667 (La. App. 1 Cir.

9/16/22), 353 So.3d 164, 173-74. As the court said therein:

A preliminary injunction is essentially an interlocutory order issued in
summary proceedings incidental to the main demand for permanent
injunctive relief. Dalke v. Armantono, 2009-1954 (La. App. 1st Cir.
5/7/10), 40 So.3d 981, 987. In some cases, the merits of an action
may be decided during an interlocutory proceeding; this is only when
the parties have expressly agreed to submit the case for final decision
at the hearing on the rule for a preliminary injunction. Zachary
Mitigation Area, LLC v. Tangipahoa Parish Council, 2016-1675 (La.
App. 1st Cir. 9/21/17), 231 So.3d 687, 692.

Id. at 173, n.21.

11
We recognize that the exception of no cause of action was set and heard at the same
hearing, but the exception practice is not germane to the assignment of error on appeal and thus
is not discussed herein.

22-CA-407 11

The record is clear that only the preliminary injunction, and not the

declaratory judgment action, was set for hearing on February 7, 2022, and that the

parties did not agree, expressly or otherwise, to expand the hearing to include the

merits of the action (declaratory relief and permanent injunction). First, this is

evidenced by the Rule to Show Cause found at p. 13 of the record, which sets the

request for preliminary injunction (and no other request for relief) for hearing on

February 7, 2022. This is also evidenced by the Rule to Show Cause found on p.

36 of the record, which sets the peremptory exception of no cause of action for

hearing “on the same date as the preliminary injunction hearing scheduled for

February 7, 2022 … .”

At the hearing on February 7, 2022, the transcript reflects that when the case

was called, the judge specifically said “We are here today in reference to the

exceptions [sic] of no cause of action and a petition for an injunction.” Prior to

plaintiff’s counsel calling a witness at the hearing, the judge asked: “Are you on a

declaratory judgment -- preliminary injunction? That’s what I’m asking. What are

you arguing at this point for the record?” Counsel for plaintiff answered:

“Preliminary injunction, your honor.”

Later near the end of the hearing, Mr. Franco, counsel for defendant HSA, in

response to the judge’s question as to whether he had any objection to calling Dr.

Pappas as a rebuttal witness, said “Yes, sir. There’s objections. This is a

preliminary injunction hearing. We’ve heard things at [sic] nauseam. And I think

they’ve put on their case.” Moments later, the judge stated that he would take the

matter under advisement and allowed both parties to file post-trial briefs.

Dr. Pappas’s post-trial brief clearly states in the first paragraph that the post-

hearing memorandum was submitted in support of his application for a

“preliminary injunction.” Dr. Pappas’s brief concludes with the statement that he

“has made a prima facie showing he will prevail on the merits, and he has shown

22-CA-407 12

he will suffer irreparable injury if the Court does not enter the requested

preliminary injunction. Dr. Pappas therefore respectfully requests the Court: (1)

enter a preliminary injunction prohibiting Defendant, Hand Surgical Associates,

Ltd. (“HSA”), from enforcing the noncompetition provision contained in his long-

expired 2014 Employment Agreement with HSA, and (2) award him his

reasonable attorney’s fees and costs incurred in obtaining the requested

preliminary injunction.”

HSA filed a post-trial brief “in opposition to the motion for preliminary

injunction,” arguing that Dr. Pappas was not entitled to a preliminary injunction

because he had failed to show that he would sustain irreparable injury absent the

injunction, and also failed to make a prima facie showing that he would prevail on

the merits of the case.

The above record excerpts clearly show that only the preliminary injunction

was before the trial court on February 7, 2022. The parties clearly did not

expressly agree to hear or decide the request for a declaratory judgment, and at all

points, the parties were clear that only the preliminary injunction request had been

heard.

Specific language in the judgment of April 7, 2022, however, indicates that

the trial court ruled on the request for declaratory judgment, in addition to the

request for preliminary injunction. In the judgment’s first paragraph, the court

states:

On February 7, 2022, this matter came before this Court for
hearing on a Verified Petition/or Declaratory Judgment, Preliminary
Injunction, Permanent Injunction, and Damages filed by the plaintiff,
Nicholas D. Pappas, III, M.D., and against the defendant, Hand
Surgical Associates, LTD.
Further, the judgment’s decretal language states:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the Verified Petition for Declaratory Judgment and Preliminary
Injunction, filed by the plaintiff, Nicholas D. Pappas, III, M.D., and

22-CA-407 13

against the defendant, Hand Surgical Associates, LTD, be and is
hereby, GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that the Noncompetition Provision set forth in Section 14
of the Employment Agreement is unenforceable.
(Emphasis in original.)

Comparing the language employed by the trial court in the introductory

paragraph of the judgment (“… this matter came before this Court for hearing on a

Verified Petition/or Declaratory Judgment, Preliminary Injunction, Permanent

Injunction, and Damages”) with the decretal language (“IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the Verified Petition for

Declaratory Judgment and Preliminary Injunction, … is hereby, GRANTED.”)

strongly suggests that the trial court granted the declaratory judgment, when that

action was not properly before the court at that time procedurally, or by express

agreement of the parties, as discussed above. Accordingly, finding merit to this

assignment of error, we vacate the declaratory judgment granted by the trial court

in its April 7, 2022 judgment.

Lack of showing of irreparable injury

Next, HSA argues that the trial court erred in finding that Dr. Pappas would

suffer irreparable injury if the preliminary injunction was not granted.

In general, a party seeking the issuance of a preliminary injunction must show that

he will suffer irreparable injury if the injunction does not issue. USI Ins. Servs.,

LLC v. Tappel, supra, 28 So.3d at 424.

Irreparable injury means the petitioner cannot adequately be compensated in

money damages or suffers injuries which cannot be measured by pecuniary

standards. Bernhard MCC, LLC v. Zeringue, 19-529 (La. App. 5 Cir. 9/9/20), 303

So.3d 372, 377, writ denied, 20-01172 (La. 12/8/20), 306 So.3d 434. As pointed

out previously, the primary purpose of injunctive relief is to prevent the occurrence

of future acts that may result in irreparable injury, loss, or damage to the applicant.

22-CA-407 14

Wechem, Inc. v. Evans, supra, 274 So.3d at 884. The trial court has great

discretion in determining whether a preliminary injunction is warranted; thus, the

trial court’s ruling will not be disturbed on appeal absent a clear abuse of

discretion. Bernhard MCC, LLC v. Zeringue, supra, 303 So.3d at 378.

Upon review, we find no abuse of the trial court’s discretion in finding that

Dr. Pappas proved irreparable injury pending trial on the merits of the injunction.

Dr. Pappas testified that he works in a highly specialized field with limited

opportunities for employment, and with no guarantee that jobs would be available

elsewhere. Dr. Pappas testified that he left a more lucrative job in South Carolina

in order to move back to the New Orleans area to be with family, and enforcing the

non-competition covenants against him would likely require moving his family,

which now includes a young child, away from the restricted area in order to find

employment, a factor that cannot be compensated with money. Dr. Pappas further

argues that while defendant asserted that he could find a job in St. John the Baptist

Parish, which is nearby and not within the restricted area defined by the non-

competition covenants, HSA presented no evidence that a job in Dr. Pappas’s

highly specialized field was in fact available there. This assignment of error is

without merit.

Security for issuance of preliminary injunction

Finally, HSA argues that the trial court erred in failing to fix security after

issuance of the preliminary injunction, which requires this Court to vacate the

preliminary injunction and remand the matter for the fixing of security.

As noted earlier, in brief, Dr. Pappas concedes that La. C.C.P. art. 361012

requires that the applicant furnish security after the issuance of a preliminary

12
La. C.C.P. art. 3610 provides, in pertinent part:
A temporary restraining order or preliminary injunction shall not issue unless the
applicant furnishes security in the amount fixed by the court, except where
security is dispensed with by law. The security shall indemnify the person

22-CA-407 15

injunction. He asks that this Court maintain the preliminary injunction, and simply

remand the matter for the trial court to fix security therefor.

HSA argues, however, that this Court has consistently held that “when the

trial court’s judgment does not set the amount of security to be furnished, the better

approach is to vacate the injunction,” citing Advanced Collision Servs., Inc. v.

State, Dep’t of Transp., 93-470 (La. App. 5 Cir. 1/25/94), 631 So.2d 1245, 1247,

and Holley v. Holley, 17-325 (La. App. 5 Cir. 11/20/17), 232 So.3d 717, 727.13

Upon review, we find that these cases cited by HSA are distinguishable from

the instant case. In Holley v. Holley, 232 So.3d at 727, this Court reversed the

grant of a preliminary injunction not only for the failure of the trial court to set a

bond, but also after finding that the trial court committed errors of law in the

application of the Louisiana Relocation Act, La. R.S. 9:355.1, et seq., therefore

providing separate and independent grounds to reverse the grant of the preliminary

injunction. Further, in Advanced Collision Servs., Inc. v. State, Dep’t of Transp.,

631 So.2d at 1247, this Court likewise found an additional, independent basis upon

which the trial court erred in granting the preliminary injunction. Thus, a remand

for setting security on an otherwise reversed preliminary injunction would have

been meaningless.

In the instant case, it is possible that the trial court did not order plaintiff to

furnish security for the preliminary injunction because the trial court additionally

granted the declaratory judgment. We have, however, vacated the declaratory

judgment. Under these circumstances, given that we affirm the grant of the

wrongfully restrained or enjoined for the payment of costs incurred and damages
sustained. …
13
In brief, HSA represents this quote as coming from Holley v. Holley, supra ((“While
other circuits have held that … a remand may be appropriate, … this Circuit has consistently
found that the language provided in La. C.C.P. art. 3610, requiring security for the issuance of a
preliminary injunction, is mandatory.”)). However, that language is found in Cochran v. Crosby,
411 So.2d 654, 655 (La. App. 4 Cir. 1982), which is cited by Advanced Collision Servs., Inc. v.
State, Dep’t of Transp., 631 So.2d at 1247, not by Holley v. Holley.

22-CA-407 16

preliminary injunction, we find that vacating the preliminary injunction on the

basis of the security issue alone is not required, and that a remand simply for fixing

of security best serves the interests of justice and the efficient administration of

justice. Accordingly, this assignment of error has merit. We decline to vacate the

preliminary injunction on this ground; however, we remand the matter for the trial

court to fix security for issuance of the preliminary injunction. See Liberty Bank &

Tr. Co. v. Dapremont, 00-2146 (La. App. 4 Cir. 12/12/01), 803 So.2d 387, 392.

See also Ard v. GrrlSpot, LLC, 19-0312 (La. App. 4 Cir. 10/23/19), 2019 WL

5432098.

DECREE

For the foregoing reasons, the judgment of the trial court granting the

preliminary injunction against HSA is affirmed; the judgment of the trial court

granting the declaratory judgment is vacated; and the matter is remanded for the

trial court to fix security for the issuance of the preliminary injunction and for

further proceedings consistent with this opinion.

AFFIRMED IN PART; GRANT OF
DECLARATORY JUDGMENT VACATED;
REMANDED WITH INSTRUCTIONS

22-CA-407 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
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22-CA-407
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
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