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All American Healthcare, L.L.C. v. Dichiara

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

ALL AMERICAN HEALTHCARE, L.L.C. AND NELSON J. CURTIS, III, D.C.
v.
BENJAMIN DICHIARA, D.C.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 759-750, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ALL AMERICAN HEALTHCARE, L.L.C. AND NELSON J. CURTIS, III, D.C. John A. Venezia, Julie O'Shesky

          COUNSEL FOR DEFENDANT/APPELLEE, BENJAMIN DICHIARA, D.C. David K. Theard

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg

          MARC E. JOHNSON, JUDGE

         AFFIRMED.

         MEJ

         RAC

         HJL

         Plaintiffs/Appellants, All American Healthcare, L.L.C. and Nelson J. Curtis, III, D.C. (hereinafter collectively referred to as "All American"), appeal the granting of a partial summary judgment in favor of Defendant/Appellee, Benjamin Dichiara, D.C., and dismissal of their claims for breach of the employee non-solicitation agreement with prejudice from the 24th Judicial District Court, Division "A". For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The following facts are pertinent to this appeal.

         According to the pleadings, Dr. Benjamin Dichiara began working for All American as a licensed chiropractor in August of 2009. Dr. Curtis was the sole member of All American and used the limited liability company for payroll purposes. Dr. Dichiara began his employment working in All American's Covington office, and subsequently operated the company's New Orleans location. On October 14, 2009, Dr. Dichiara entered into a "Professional Employment Agreement" (hereinafter referred to as the "2009 Employment Agreement") with All American Medical and Chiropractic, LLC, through its duly authorized representative, Dr. Curtis. The 2009 Employment Agreement contained various provisions pertaining to Dr. Dichiara's employment and termination, specifically, defining the terms of employment, a non-compete clause, and a non-interference clause. According to the 2009 Employment Agreement, the agreement was binding between the parties for two years from the date of execution.

         On January 15, 2014, Dr. Dichiara signed a document entitled "NON-COMPETITION AND NON-INTERFERENCE AGREEMENT FOR ALL AMERICAN MEDICAL & CHIROPRACTIC" (hereinafter referred to as the "2014 Employment Agreement"). The 2014 Employment Agreement referred to the parties to the agreement as the practice, Dr. Curtis, and the professional, Dr. Dichiara. The two-page 2014 Employment Agreement stated, in pertinent part:

a. Noncompete: For the duration of the Term and for 24 months thereafter, the Professional will not become employed by, or own or control any interest in, or act as an officer, director, consultant or adviser, to any person, firm, partnership, company, or corporation carrying on or engaged in a business in Tangipahoa Parish, St. Tammy Parish, Livingston Parish, Jefferson Parish, ...

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