INTRODUCTION

Plaintiff, Bodyworks Rehabilitation and Therapy, Inc. (Bodyworks), brought this lawsuit against defendant, Cameron Radford (Cameron), in connection with an employment contract containing a covenant not to compete (covenant). Shortly after Cameron left Bodyworks' employment, he started an alternative medicine practice. Bodyworks filed its Complaint on 21 February 2003 claiming breach of contract and tortious interference with prospective contracts. In his Answer filed 2 March 2003, Cameron motioned for summary judgment on the breach of contract claim, pursuant to N.C. R. Civ. P. 56. This Court should grant the motion as there is no genuine issue of material fact the covenant is unenforceable in North Carolina.

STATEMENT OF THE CASE (FACTS)

Defendant Cameron Radford graduated from the Well-Being School of Massage Therapy in Charlotte, North Carolina in 1998.  Cameron also holds a B.A. degree from UNCG in Sports Medicine. He has been licensed to practice massage therapy since 1998 under N.C. Gen. Stat. § 90-621 (2003) and has maintained annual continuing education requirements.  See N.C. Admin. Code tit. 21, r. 30.0701 (Feb. 2003). Prior to joining Bodyworks, Cameron had significant work experience in the sports medicine industry. He worked as a trainer at a Greensboro high school, with a professional sports team, and as a personal trainer.  On 25 January 1999, Cameron was employed by Bodyworks as a Licensed Massage and Bodywork Therapist (LMBT). Cameron signed a covenant not to compete with Bodyworks which broadly prohibits him from “…being connected in any manner” with a competitor for 18 months in Wake, Durham, and Orange counties. Bodyworks employed two LMBT's, three physical therapists, two occupational therapists; a neurologist and chiropractor were associated with the corporation.  Massage therapy had been and continues to be an auxiliary service of Bodyworks. See Affidavit of Jaden Bailey. Bodyworks' referral form shows massage as an “additional service” to their basic practice areas of chiropractic, physical, and occupational therapy.  See Exhibit C.  Bodyworks offers elective massage packages (similar to a spa membership) as well as therapeutic treatment.

Cameron opened an alternative medical practice, Rebound and Recover Therapeutic Massage, Inc. (Rebound), on 1 November 2002 after giving notice of termination to Bodyworks on 1 October 2002. Most of Cameron's clients from Bodyworks followed him to Rebound.  The practice is located in Wake County and specializes in injury recovery and sports medicine using rehabilitative massage therapy.  While other LMBT's practice in Wake County, see Affidavit of Crandell Ford, Cameron uses his combined formal education in both massage therapy and sports medicine to provide unique complementary treatment to patients suffering from chronic pain or repetitive motion injuries.  See Affidavit of Marsha Jamison, M.D., M.P.H. This service cannot be obtained from other local massage therapists. Id.  As a result of Cameron's departure from Bodyworks, medical patients referred to Cameron at Rebound are seen within four business days rather than twelve at Bodyworks. Id.

Bodyworks filed its Complaint on 21 February 2003 asserting contract claims for monetary and injunctive relief. The Complaint alleges Cameron obtained knowledge and information regarding the operation of a massage therapy business from Bodyworks and that Rebound offers the same massage services that were and continue to be offered by Bodyworks. Cameron's Answer asserts the covenant is unenforceable in that its enforcement would violate public policy because: 1) it would harm the public health; and 2) it does not seek to protect a legitimate business interest of Bodyworks.

QUESTION PRESENTED

Whether the Court should grant defendant's motion for summary judgment on plaintiff's breach of contract claim (breach of covenant not to compete) when there exists no genuine issue of material fact the contract is unenforceable as a matter of law.

ARGUMENT

Summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56. “The burden of establishing a lack of any triable issue resides with the movant.”  Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992).  The defendant may meet this burden by proving an essential element of the opposing party's claim is nonexistent.  Id. at 63, 414 S.E.2d at 342.  Cameron will prove Bodyworks claim for breach of contract fails for lack of an essential element.

There are five essential elements of a covenant not to compete and all must exist to enforce the contract.  See Triangle Leasing Co. v. McMahon, 327 N.C. 224, 228, 393 S.E.2d 854, 857 (1990). Public policy is one of the five essential elements. Id. A covenant not to compete is unenforceable if against public policy. See id.; Precision Walls, Inc. v. Servie, 152 N.C. App. 630, 636, 568 S.E.2d 267, 272 (2002). The covenant is void as a matter of public policy if it creates a substantial question of potential harm to public health, see Statesville Med. Group, P.A. v. Dickey, 106 N.C. App. 669, 672-73, 418 S.E.2d 256, 258-59 (1992); Nalle Clinic Co. v. Parker, 101 N.C. App. 341, 344, 399 S.E.2d 363, 365-66 (1991); Iredell Digestive Disease Clinic, P.A. v. Petrozza, 92 N.C. App. 21, 27-28, 373 S.E.2d 449, 453 (1988), aff'd per curiam, 324 N.C. 327, 377 S.E.2d 750 (1989), or it is not reasonable and necessary to protect a substantial interest of the employer. See Brooks Distrib. Co. v. Pugh, 91 N.C. App. 715, 718-19, 373 S.E.2d 300, 303 (1988), rev'd on other grounds, 324 N.C. 326, 378 S.E.2d 31 (1989); Manpower of Guilford County, Inc. v. Hedgecock, 42 N.C. App. 515, 521, 257 S.E.2d 109, 114 (1979). The question whether the covenant violates public policy is a matter of law for this Court to decide.  See Beasley v. Banks, 90 N.C. App. 458, 460, 368 S.E.2d 885, 886 (1988).

Cameron is a Medical Professional Who Provides Unique and Valuable Services

North Carolina defines a medical professional as “[A]ny person licensed or certified to provide health care services to natural persons…” N.C. Gen. Stat. § 58-39-15(17) (2003). Massage therapists must be licensed in North Carolina, see N.C. Gen. Stat. § 90-621, and are expressly included in the definition of health care provider.  See N.C. Gen. Stat. § 90-410 (2003). Legislatures in other states also recognize massage therapists as valid health care practitioners.  See Michael H. Cohen, Holistic Health Care: Including Alternative and Complementary Medicine in Insurance and Regulatory Schemes, 38 Ariz. L. Rev. 83, 92 (1996); Massage Therapy Training Inst., L.L.C. v. State Bd. of Therapeutic Massage, 65 S.W.3d 601, 607 (Mo. Ct. App. 2002). The North Carolina Supreme Court last addressed whether the act of massage therapy represents medicine in 1903. See State v. Biggs, 133 N.C. 729, 46 S.E. 401 (1903). The Biggs court narrowly limited medicine to those who practice with knife and drugs but recognized massage as an alternative medical treatment.  Id. at 741-42, 46 S.E. at 404-05; State v. MacKnight, 131 N.C. 717, 723-24, 42 S.E. 580, 582 (1902).  Ordinary massage was rejected as a form of health care because it did not require intellectual skill, advanced knowledge, or specialized instruction; and no evidence was given that massage had the ability to cure diseases or injuries.  See Smith v. Keator, 21 N.C. App. 102, 106, 203 S.E.2d 411, 415 (1974), aff'd, 285 N.C. 530, 206 S.E.2d 203 (1974). But cf. State v. Barnes, 29 N.C. App. 502, 503, 224 S.E.2d 661, 662 (1976) (implying medical massage is different from ordinary massage by noting ordinance prohibiting massage does not apply to licensed medical practitioners or their agents).  Licensure requirements established in 1998, see Act of Nov. 6, 1998, 1998 N.C. Sess. Laws 230 (codified as N.C. Gen. Stat. § 90-621), scientific research, see Senior Notes, The Fort Worth Star-Telegram, October 21, 2002, at 2002 WL 100526998; Dr. Cherkin, et al., Randomized Trial Comparing Traditional Chinese Medical Acupuncture, Therapeutic Massage, and Self-care Education for Chronic Low Back Pain, Archives of Internal Medicine, 161, 1081 (April 2001), and case law, see Matthews v. Petroleum Tank Serv., Inc., 108 N.C. App. 259, 262, 423 S.E.2d 532, 534 (1992) (recognizing massage as a valid medical treatment for pain relief), McDonald v. Taylor, 106 N.C. App. 18, 24, 415 S.E.2d 81, 84 (1992) (holding medical expenses include therapies by licensed healthcare providers under chapter 90), now refute this view.  State regulations require massage therapists to function as alternative medical practitioners by: meeting specific educational and licensure requirements; see N.C. Admin. Code tit. 21, r. 30.0201 (Feb. 2003), maintaining education requirements; see N.C. Admin. Code tit. 21, r. 30.0701, inquiring as to the health status of each client; identifying contraindications for massage; and referring clients to other health care practitioners as appropriate.  See N.C. Admin. Code tit. 21, r. 30.0501 (Feb. 2003).   Like other medical practitioners, massage therapists may be sued for malpractice, see David M. Studdert et al., Medical Malpractice Implications of Alternative Medicine, 280 JAMA 1610-15 (1998), and are subject to disciplinary action. See N.C. Admin. Code tit. 21, r. 30.0905 (Feb. 2003).  Use of alternative medicine including massage is so prevalent, see Michael H. Cohen, supra, at 104, federal law established a national research center to study its effectiveness. See 42 U.S.C. § 287c-21 (2003). Scientific research has shown massage therapy is effective for: treating stress and back pain; injury recovery; boosting immune function; speeding recovery from some illnesses and surgery; lowering blood pressure; and easing symptoms of arthritis. See Senior Notes, at 2002 WL 100526998; Dr. Cherkin, et al., supra, at 1081.

Case law in several other states recognizes massage as health care or alternative medicine.  See Washington Physicians Serv. Ass'n v. Gregoire, 147 F.3d 1039, 1042 (9th Cir. 1998), cert. denied, 525 U.S. 1141 (1999) (upholding state law requiring health care maintenance organization to cover massage therapy); Albright v. Union Bankers Ins. Co., 105 F. Supp. 2d 1330, 1333 (S.D. Fla. 2000) (holding medical insurance policy covers massage therapy); Gamata v. Allstate Ins. Co., 978 P.2d 179, 188 (Haw. Ct. App. 1999) (recognizing therapeutic massage to be covered by insurance); State v. Bain, 295 P.2d 241, 243 (Mont. 1956) (affirming lower court conviction of individual for practicing medicine without a license by using massage); State ex rel. Great Lakes Coll., Inc. v. State Med. Bd., 280 N.E.2d 900, 902 (Ohio 1972) (noting medical board exercises authority over massage therapy as branch of medicine); Myrick v. Bd. of Pierce County Comm'rs, 677 P.2d 140, 145 (Wash. 1984) (recognizing massage given for treatment is a medical concern); J. S. K. Enters., Inc. v. Lacey, 492 P.2d 600, 607 (Wash. Ct. App. 1971) (holding massage therapy to be one of the oldest and most useful forms among the healing arts).

Cameron meets the statutory definition of a medical professional.  See N.C. Gen. Stat. § 58-39-15(17).  He is a licensed, see N.C. Gen. Stat. § 90-621, healthcare provider. See N.C. Gen. Stat. § 90-410. His combined educational credentials in sports medicine and massage required more formal study than necessary to be a licensed nurse or clinical laboratory scientist. Cameron provides medical massage, see Barnes, 29 N.C. App. at 503, 224 S.E.2d at 662, as complementary treatment, see Matthews, 108 N.C. App. at 262, 423 S.E.2d at 534; McDonald, 106 N.C. App. at 24, 415 S.E.2d at 84, not ordinary massage. See Smith, 21 N.C. App. at 106, 203 S.E.2d at 415. He complies with state regulations regarding continuing education requirements and the health of his patients. See N.C. Admin. Code tit. 21, r. 30.0201; N.C. Admin. Code tit. 21, r. 30.0701; N.C. Admin. Code tit. 21, r. 30.0501; N.C. Admin. Code tit. 21, r. 30.0905. The alternative medicine practiced by Cameron has proven effective in treating injuries and disease. See Senior Notes, at 2002 WL 100526998; Dr. Cherkin, et al., supra, at 1081. Consistent with North Carolina statutes, regulations, and case law, this Court should find Cameron is a medical professional.

Since Cameron is a Medical Professional Who Provides Unique and Valuable Services in Furtherance of the Public Health, the Covenant Violates Public Policy

No precedent exists in North Carolina holding a covenant not to compete enforceable between a medical professional and his or her employer.  See Statesville Med. Group, P.A., 106 N.C. App. 669, 418 S.E.2d 256; Nalle Clinic Co., 101 N.C. App. 341, 399 S.E.2d 363; Iredell Digestive Disease Clinic, P.A., 92 N.C. App. 21, 373 S.E.2d 449. Cf. Beam v. Rutledge, 217 N.C. 670, 673, 9 S.E.2d 476, 478 (1940) (upholding covenant not to compete between physician business partners on equal terms and noting that “cases arising out of the conventional relation of master and servant, or employer and employee, are not wholly applicable to a situation like the present.”).  A covenant not to compete is invalid as against public policy if it creates a substantial question of potential harm to public health. See Statesville Med. Group, P.A., 106 N.C. App. at 672-73, 418 S.E.2d at 258-59; Nalle Clinic Co., 101 N.C. App. at 344, 399 S.E.2d at 365-66; Iredell Digestive Disease Clinic, P.A., 92 N.C. App. at 27-28, 373 S.E.2d at 453.

Cameron provides unique complementary treatment to patients suffering from chronic pain or repetitive motion injuries that cannot be obtained from other LMBTs, see Affidavit of Marsha Jamison, M.D., M.P.H., due to his combined educational experience. The health, recovery, and long term prognosis of many patients would be adversely affected if Cameron were no longer allowed to treat their injuries. Id. There is no precedent for enforcing a covenant not to compete between a medical professional and his or her employer in North Carolina and especially where enforcement would present a substantial question of harm to public health, see Statesville Med. Group, P.A., 106 N.C. App. 669, 418 S.E.2d 256; Nalle Clinic Co., 101 N.C. App. 341, 399 S.E.2d 363; Iredell Digestive Disease Clinic, P.A., 92 N.C. App. 21, 373 S.E.2d 449.  Cf. Beam, 217 N.C. at 673, 9 S.E.2d at 478. The facts in this case demonstrate a substantial question of potential harm to public health.  It is not clear Cameron's clients could find health care treatment of the same quality elsewhere.  The public is entitled to protection from potential harm and the covenant should be declared unenforceable.

Since Bodyworks Has No Legitimate Business Interest,
the Covenant Violates Public Policy

Public policy prohibits covenants not to compete where the purpose is to prevent competition rather than protect a legitimate business interest of the employer. See Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 778, 501 S.E.2d 353, 356 (1998). A covenant is void “if it is greater than is required for the protection of the promisee or if it imposes an undue hardship upon the person who is restricted.”  Wilmar, Inc. v. Liles, 13 N.C. App. 71, 75, 185 S.E.2d 278, 281 (1971), cert. denied, 208 N.C. 305, 186 S.E.2d 178 (1972). See also Manpower of Guilford County, Inc., 42 N.C. App. at 521, 257 S.E.2d at 114 (holding covenants invalid if wider in scope than necessary).  A covenant is wider in scope than necessary when the defendant is barred from employment in any capacity or prevented from participation in ownership, management or control of a competing business.  See Wallace Butts Ins. Agency, Inc. v. Runge, 68 N.C. App. 196, 199, 314 S.E.2d 293, 296 (applying Georgia law and holding no legitimate business interest exists where former employee would be compelled to seek employment completely alien to his life's work or move outside area); Faces Boutique v. Gibbs, 455 S.E.2d 707, 709 (S.C. Ct. App. 1995) (holding no legitimate business interest exists if the covenant prevents defendant from associating with any business which has some overlap with former employer). No legitimate business interest exists if no confidential information or trade secrets are necessary to compete. See Cox, 129 N.C. App. at 779, 501 S.E.2d at 356-57.

The covenant is wider in scope than necessary as it broadly prohibits Cameron from “…being connected in any manner” with a competitor. Strictly construed, the covenant prohibits Cameron from working in any capacity at an organization that offers any form of massage (including health care providers, hospitals, spas, etc.). Enforcement would impose undue hardship by forcing him to seek employment alien to his life's work.  Cameron was not in a position of authority at Bodyworks and did not have access to trade secrets nor did he acquire any trade secrets. His management skills and knowledge of massage therapy are the result of prior formal education and experience. Moreover, defendant contends he is not even in competition with Bodyworks due to the uniqueness of service he provides and the fact that massage is an auxiliary service for Bodyworks.  The court should not enforce the covenant as it is over broad, Cameron did not leave Bodyworks with any trade secrets that he could use to harm them, and he is not even competing for the same clients. Bodyworks does not have a legitimate protectable business interest.

CONCLUSION

For all the foregoing reasons, the defendant's Motion for Summary Judgment should be granted. Respectfully submitted, this the 1st day of April, 2003.

By: _____________________________ Attorney for Defendant Cameron Radford