Nirmal Joshi, M.D. v. Apollo Medical Group, LLC Nirmal Joshi, M.D. v. Ayman Elfar, M.D. and Candido Guiao, M.D. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 05 2017, 9:03 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
James D. Johnson Reed S. Schmitt
Spencer Tanner Bingham Greenebaum Doll LLP
Jackson Kelly PLLC Evansville, Indiana
Evansville, Indiana
Raymond T. Seach
Riley Bennett Egloff LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nirmal Joshi, M.D., October 5, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1612-CT-2842
v. Appeal from the Vanderburgh
Superior Court, Indiana
Apollo Medical Group, LLC, Commercial Court
Appellee-Plaintiff The Honorable Richard G.
D’Amour, Judge
Trial Court Cause No.
82D07-1611-CT-5833
Nirmal Joshi, M.D.,
Third-Party Plaintiff
v.
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Ayman Elfar, M.D. and
Candido Guiao, M.D.,
Third-Party Defendants
Baker, Judge.
[1] Dr. Nirmal Joshi is a member-manager of Apollo Medical Group, LLC
(Apollo). After Dr. Joshi began allegedly undermining Apollo’s relationships
with current clients, usurping future business opportunities, directing Apollo’s
emails to his own personal address, keeping Apollo’s physical mail from the
other member-managers, and taking Apollo’s website down and refusing to put
it back up, Apollo filed a complaint and sought a temporary restraining order
and preliminary injunction against Dr. Joshi. The trial court granted a
preliminary injunction. Dr. Joshi now appeals that order, arguing, among other
things, that a provision in Apollo’s operating agreement that permitted the
member-managers to compete with the company sanctioned his conduct in this
case. We disagree, find no errors with respect to the trial court’s order, and
affirm.
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Facts
[2] Apollo was formed on June 7, 2013, as an Indiana member-managed limited
liability company (LLC) to provide anesthesia staffing services to hospitals and
surgical centers around the country. The company has three member-
managers: Drs. Joshi, Ayman Elfar, and Candido Guiao. Each physician
owns a one-third interest in Apollo. During the relevant period of time, Drs.
Elfar, Joshi, and Guiao were also practicing anesthesiologists at Deaconess
Hospital in Evansville.
[3] Apollo operates under an Amended and Restated Operating Agreement (the
Operating Agreement), which has an effective date of January 1, 2016.
Pursuant to the Operating Agreement, the “business and affairs of the
Company shall be managed by its Members.”1 Appellant’s App. Vol. II p. 56.
Each manager was required to “exercise business judgment in participating in
the management of the business operations and affairs of the Company.” Id. at
57.
[4] The Operating Agreement further specifies that the member-managers “shall
incur no liability to the Company or to any of the Members as a result of
engaging in any other business or venture, whether or not competitive,
1
The Operating Agreement distinguishes between “Managers” and “Members,” though each of the three
doctors in this case qualify as both. A “Manager” “means the one or more managers elected by the Members
pursuant to this Operating Agreement . . . but initially means [Drs. Elfar, Joshi, and Guiao], who shall have
the title of Managing Partners.” Appellant’s App. Vol. II p. 53. “‘Member’ means each of the Initial
Members, Additional Members and Substituted Members who are, at any relevant time, a Member of the
Company.” Id. at 54.
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disclosed or undisclosed.” Id. The member-managers were permitted to have
other employment: “A Manager shall not be required to have the management
of the Company as his or her sole and exclusive function, and may have other
business interests and may engage in other activities in addition to those
relating to the Company.” Id.
[5] In the months leading up to the lawsuit, Apollo had service contracts with four
surgical centers: Kissing Camels Surgery Center (Kissing Camels) in Colorado;
Kentuckiana Medical Center (KMC) in Indiana; Riverview Surgery Center
(Riverview) in Indiana; and SurgeCenter of Louisville in Kentucky. Apollo
also had contracts with Bolder Anesthesia Management (Bolder), which
provides managerial and administrative services to Apollo, including assistance
in the recruitment of anesthesiologists, staff scheduling, billing, and collections.
[6] In 2016, Drs. Elfar, Joshi, and Guiao partnered with Gary Pilibosian to form a
separate entity called AMG Management Services, LLC (AMG). AMG was
formed to provide management, administrative, and other non-physician
services to Apollo’s clients. Each of AMG’s four members owns a one-quarter
interest in and is a member-manager of AMG.
[7] Dr. Joshi did not want Pilibosian to share in AMG’s business but could not
convince either Dr. Elfar or Dr. Guiao to cut him out. In September 2016, Dr.
Joshi told Drs. Elfar and Guiao that he intended to divert business away from
AMG in an attempt to limit Pilibosian’s financial benefit and that if the other
members did not agree with him, he would funnel any new business to a new
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company and that “Apollo would be dead.” Id. at 103. Drs. Elfar and Guiao
objected to the plan and told Dr. Joshi that they would not participate in a
scheme to cheat Pilibosian.
[8] Unbeknownst to Apollo, Dr. Joshi then began to actively undermine Apollo’s
business. He contacted KMC and Kissing Camels and misrepresented Apollo’s
current status, telling them that he had been removed as a manager of Apollo.
He also told Kissing Camels that Apollo had licensure issues in Colorado that
could harm Kissing Camels, which was untrue. As a result of Dr. Joshi’s
interactions with KMC and Kissing Camels, both entities terminated their
contracts with Apollo in October 2016. Around this time, Drs. Guiao and Elfar
learned that Dr. Joshi had also reached out to Riverview, telling it that Apollo
was breaking up, that it should make contingency plans for anesthesia services,
and that it could move its business to Dr. Joshi if it wanted to. Dr. Joshi also
told Drs. Guiao and Elfar that he has withheld at least one request for proposal
sent to Apollo by a prospective client for his own purposes.
[9] Around this same time, Dr. Joshi also hijacked Apollo’s mail, emails, and
website. Beginning in September 2016, Dr. Joshi diverted communications
from the company’s website server to his own personal server, eventually taking
the website offline. He also directed Apollo’s emails to be sent to his personal
email address. Apollo’s counsel demanded that Dr. Joshi restore Apollo’s
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website and allow it access to its email; Dr. Joshi refused to do so. 2 Dr. Joshi
also prevented Apollo from accessing its mail, which is sent to a private
mailbox to which only he had access. He refused Apollo’s demands for access
to its mailbox.
[10] In October 2016, counsel for Apollo wrote a letter to the three member-
managers, stating that, notwithstanding the right to compete provided by the
Operating Agreement, member-managers “owe a duty of loyalty and fidelity
and truthfulness” to one another and that, at the least, the member-managers
could not compete with Apollo without first disclosing such an intent. Id. at
119-20. If the member-manager did intend to compete with Apollo and
disclosed that intent to the other member-managers, that person would have to
“go a separate way.” Id. at 122.
[11] On October 19, 2016, Dr. Joshi’s counsel sent a letter to counsel for Apollo,
stating that Dr. Joshi “has an unfettered right to engage in activities that are
competitive with Apollo, a right which he intends to exercise. If Apollo or any
of its Members disagrees with this analysis, please notify me immediately.”
Appellant’s App. Vol. III p. 38. On October 20, 2016, counsel for Drs. Elfar
and Guiao sent a letter to Dr. Joshi’s counsel, making it clear that they did not
believe Dr. Joshi had a right to coopt Apollo’s business for himself:
2
According to the trial court, Dr. Joshi finally gave Apollo the necessary information to render Apollo’s
email and website accessible again after the November 23, 2016, hearing in this matter. Appealed Order p. 5.
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Dr. Joshi has no such right to compete and Apollo will not
memorialize any such agreement. Both Apollo and AMG are
member-operated LLCs. . . . There is no provision in the Apollo
Operating Agreement that allows a Member to compete against
other Members for Apollo’s business. In Mr. Wallace’s letter, he
correctly noted that all of the Members of Apollo and AMG have
a fiduciary duty to each other. This duty includes the duty of
loyalty, duty of honesty, and the duty of good faith. The
agreement specifically provides that a manager must “exercise
business judgment in participating in the management of the
business operations and affairs of the Company.”
Id. at 16-17.
[12] In addition to sending the letter to Dr. Joshi, Drs. Elfar and Guiao took other
steps to protect Apollo’s business interests. They notified Bolder that all
communications regarding Apollo’s management should go through them.
They also caused Apollo to pass a corporate resolution removing Dr. Joshi as a
signatory on Apollo’s bank account and requiring that he have the consent of
another member-manager to solicit prospective clients for or on behalf of
Apollo and to transact any business with existing clients or employees of
Apollo.
[13] These efforts failed to deter Dr. Joshi from the path he was on. Consequently,
on November 18, 2016, Apollo filed a complaint3 and a motion for a temporary
3
The complaint includes nine counts against Dr. Joshi, including breach of fiduciary duty, conversion,
breach of contract, intentional interference with Apollo’s existing and prospective clients, trade libel, and
violations of the Indiana Computer Trespass Act.
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restraining order and preliminary injunction against Dr. Joshi.4 On November
23, 2016, the trial court held a two-hour oral argument on both the motion for a
temporary restraining order and the motion for a preliminary injunction. On
December 1, 2016, the trial court granted a preliminary injunction. In a
detailed and thorough sixteen-page order, the trial court found as follows:
17. . . . Dr. Joshi has never affirmatively stated he does not
plan to start a competing business. Nor has Dr. Joshi
affirmatively stated that he did not solicit any of Apollo’s
current clients to send Apollo a notice of cancellation of
their contract with Apollo in order that those clients would
be available to be his clients when he starts his competing
business. Nor has Dr. Joshi affirmatively stated that he
has never withheld from the other members one or more
requests for proposal sent to Apollo by prospective clients.
18. . . . [T]his Court must draw the reasonable inference that
Dr. Joshi, while still a member-manager of Apollo, has
actively sought to lure current and/or prospective clients
away from Apollo for the purpose of diverting those clients
to his own, soon-to-be, competing business.
Appealed Order p. 4-5. The trial court assumed for argument’s sake that the
Operating Agreement permitted Dr. Joshi to compete with Apollo, but
nonetheless found his argument unpersuasive:
. . . [T]here is a difference between “engaging in . . . other
[competitive] business[es] or venture[s] . . .” and usurping
4
Dr. Joshi filed a third-party complaint against Drs. Elfar and Guiao, but that pleading is not at issue in this
appeal.
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corporate opportunity from the current business, Apollo. In
other words, a person can engage in other competitive business
without “appropriat[ing] to his own use a business opportunity
that in equity and fairness belongs to the corporation.” McLinden
v. Coco, 765 N.E.2d 606, 615 (Ind. Ct. App. 2002). . . . In this
case, Dr. Joshi did not merely engage in a competitive business.
Rather, while still a member-manager of Apollo, Dr. Joshi
sought to keep prospective clients away from Apollo by
withholding requests for proposal which rightfully belonged to
Apollo. Furthermore, Dr. Joshi, while still a member-manager
of Apollo, has actively sought to usurp Apollo’s current clients.
Again, contracts, including operating agreements, are to be
interpreted to effectuate the intent of the parties and . . . it seems
apparent to this Court that [the sections of the Operating
Agreement related to competition] were intended to be
“moonlighting” provisions, meaning the doctors could
“moonlight” on their own time and keep their profits without
being subjected to liability. . . . [T]his Court currently finds no
evidence to support the proposition that these modifications were
intended to allow a manager-member to withhold and usurp
property from Apollo, including requests for proposals and client
lists, in the name of (or under the guise of) “competition.”
Id. at 11-12 (some internal citations omitted).
[14] The trial court granted Apollo’s request for a preliminary injunction, ordering
as follows: (1) Dr. Joshi must provide to Apollo originals of all emails and
documents belonging to Apollo and/or relating to Apollo’s business; (2) Dr.
Joshi shall not interfere with operation of Apollo’s website and email system;
(3) Dr. Joshi may not access Apollo’s bank accounts other than to carry out
Apollo’s ordinary course of business; (4) Dr. Joshi shall not communicate with
any person or entity who is an Apollo customer other than to carry out Apollo’s
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ongoing business (and he may not suggest he is no longer involved with
Apollo’s business, suggest that the customer send business to him or his own
business, or make derogatory statements about Apollo); (5) Dr. Joshi shall not
disclose to third parties any confidential information of Apollo; and (6) Dr.
Joshi shall provide Apollo with a duplicate key to Apollo’s mailbox. Dr. Joshi
now appeals.
Discussion and Decision
I. Standard of Review
[15] To obtain a preliminary injunction, the movant must show (1) a reasonable
likelihood of success on the merits; (2) the remedies at law are inadequate and
there will be irreparable harm during the pendency of the action; (3) the
threatened injury to the movant from denying the motion outweighs the
potential harm to the nonmovant from granting the motion; and (4) the public
interest would not be disserved by granting the injunction. E.g., Hannum Wagle
& Cline Eng’g, Inc. v. Am. Consulting, Inc., 64 N.E.3d 863, 873 (Ind. Ct. App.
2016).
[16] In reviewing a trial court’s ruling on a motion for preliminary injunction, we
must determine whether the evidence supports the trial court’s factual findings
and whether the findings support the judgment. Id. at 874. In considering the
findings of fact, we must determine whether they were clearly erroneous; in
other words, when a review of the record leaves us with a firm conviction that a
mistake has been made. Id. We will consider only the evidence favorable to
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the judgment and all reasonable inferences to be drawn therefrom, and will
neither reweigh the evidence nor reassess witness credibility. Id. We apply a de
novo standard of review to the trial court’s conclusions of law. Avemco Ins. Co.
v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind. Ct. App. 2004).
[17] In this case, the trial court held oral argument but did not hold an evidentiary
hearing; Dr. Joshi argues that we should review the case de novo as the order
was based on a paper record. We decline Dr. Joshi’s invitation to apply a de
novo standard of review to the trial court’s order. He has not directed our
attention to any case in which a de novo standard of review was applied to a
trial court’s preliminary injunction ruling; instead, prior cases are consistent in
holding that we must apply a “limited and deferential appellate standard of
review . . . to trial court rulings on motions for preliminary injunction.” State v.
Econ. Freedom Fund, 959 N.E.2d 794, 801 (Ind. 2011). This is a highly
contentious case involving hotly disputed facts, and we will not second-guess
the trial court’s preliminary resolution of these factual disputes. Dr. Joshi does
not argue that there is no evidence supporting the trial court’s factual findings;
instead, he directs us to his own evidence establishing the contrary of the facts
found by the trial court. We decline this request to reweigh the evidence as we
review the trial court’s order.
II. Preliminary Injunction
[18] Dr. Joshi raises a number of arguments, which we consolidate and restate as
follows: (1) the trial court erred by determining that Apollo established a
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reasonable likelihood of success on the merits; (2) the trial court erred by
finding that the threatened injury to Apollo outweighed the potential harm to
Dr. Joshi; and (3) the trial court erred by finding that public interest would not
be disserved by granting the preliminary injunction.
A. Likelihood of Success on the Merits
[19] Dr. Joshi first argues that the trial court erred by finding that Apollo established
a reasonable likelihood of success on the merits of its claims. He does not
explicitly address each claim alleged by Apollo against him, instead focusing on
the breach of fiduciary duty claim.
[20] Dr. Joshi relies on the provision in the Operating Agreement authorizing the
member-managers to compete with Apollo, contending that this provision
sanctioned his actions. As noted above, the Operating Agreement states that
the member-managers “shall incur no liability to the Company or to any of the
Members as a result of engaging in any other business or venture, whether or
not competitive, disclosed or undisclosed.” Appellant’s App. Vol. II p. 56.
And the member-managers were permitted to have other employment: “A
Manager shall not be required to have the management of the Company as his
or her sole and exclusive function, and may have other business interests and
may engage in other activities in addition to those relating to the Company.”
Id. Dr. Joshi contends that these provisions modified his common law
fiduciary duties to the company.
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[21] As a general rule, “common law fiduciary duties, similar to the ones imposed
on partnerships and closely-held corporations, are applicable to Indiana LLCs.”
Purcell v. S. Hills Invs., LLC, 847 N.E.2d 991, 997 (Ind. Ct. App. 2006). These
duties include an obligation to act “fairly, honestly, and openly” with the LLC.
Id. at 999. LLC members and managers are, however, permitted to modify,
negate, and/or limit their duties, including fiduciary duties, by drafting their
operating agreement accordingly. Ind. Code § 23-18-4-4(a).
[22] Dr. Joshi contends that the provisions of the Operating Agreement permitting
competition and other business interests negated his common law fiduciary
duties to Apollo. We disagree. While it is true that LLC members and
managers may modify or negate their fiduciary duties, we can only conclude
that those duties are so fundamental and paramount to the smooth operation of
companies that any modification or negation of fiduciary duties must be
explicit. Here, no such explicit modification or negation of Dr. Joshi’s
fiduciary duties to Apollo is included in the Operating Agreement.
[23] But even if we accepted for argument’s sake that the Operating Agreement did,
in fact, modify Dr. Joshi’s fiduciary duties, we agree with the trial court that it
did not go so far as to sanction his conduct in this case. The Operating
Agreement did permit him to have other business interests, but that permission
does not extend to conduct that actively undermines the LLC. Moreover, the
Operating Agreement also contains a provision requiring that the member-
managers must “exercise business judgment in participating in the management
of the business operations and affairs of the Company.” Id. at 57. Therefore,
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even when engaging in other business interests and competing with Apollo, Dr.
Joshi is still explicitly required to exercise his business judgment with respect to
Apollo’s affairs.
[24] Additionally, the Operating Agreement permits “competition,” but that term
does not go as far as Dr. Joshi claims. “Competition” would arguably include
the act of competing with Apollo for new business,5 but we simply cannot
conclude that it would include the act of undermining and sabotaging Apollo’s
current business relationships. And it would certainly not include a right to
hijack Apollo’s website, email, and mail. In other words, that Dr. Joshi is
permitted to compete with Apollo and engage in other business interests does
not mean that he is permitted “to withhold and usurp property from Apollo,
including requests for proposals and client lists, in the name of (or under the
guise of) ‘competition.’” Appealed Order p. 12.
[25] In sum, we do not find that the Operating Agreement explicitly modified or
negated Dr. Joshi’s fiduciary duties to Apollo. But even if it did, the
modification did not sanction his behavior in this case. The trial court found
that Dr. Joshi committed the following acts: (1) he threatened the other
member-managers that “Apollo would be dead” if they did not agree to cut
Pilibosian out of AMG, id. at 3; (2) he solicited Kissing Camels and KMC to
5
Even if competition for new business is permitted under the Operating Agreement, it would still have to be
done fairly and openly. Therefore, Dr. Joshi’s alleged action of withholding requests for proposal that
rightfully belonged to Apollo would not be allowed.
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cancel their contracts with Apollo; (3) he told Riverview that Apollo was
breaking up and that it could move its business to his new business venture;
(4) he refused to share Apollo’s mail or email with the other member-managers;
(5) he took Apollo’s website offline and refused to assist in bringing it back
online; and (6) he has “actively sought to lure current and/or prospective clients
away from Apollo for the purpose of diverting those clients to his own, soon-to-
be, competing business,” id. at 5. We decline Dr. Joshi’s invitation to reweigh
the evidence or second-guess the trial court’s factual findings, as there is
substantial evidence in the record supporting them. The trial court did not err
by concluding that under these facts, Apollo is reasonably likely to succeed on
the merits of its claim for breach(es) of fiduciary duty. 6
B. Weighing of Harms
[26] Next, Dr. Joshi argues that the trial court erred by finding that greater harm
would result to Apollo from the denial of injunctive relief than to Dr. Joshi
were the injunctive relief improperly granted. Initially, we note that Dr. Joshi
discusses the “equities” of the case as a general term and focuses on his
contention that Drs. Elfar and Guiao were also competing with Apollo. This
6
Dr. Joshi argues that the trial court erred by interpreting the Operating Agreement provisions at issue as
moonlighting provisions. In affirming the trial court’s conclusion that Apollo is reasonably likely to succeed
on the merits of its claims, we have not relied on the trial court’s framing of the provisions as moonlighting
provisions.
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argument misses the mark as it does not properly address the weighing of harms
element of a preliminary injunction claim.
[27] The trial court found that the weighing of harms favored an injunction:
1. Email access, mail access, and website functionality.
Apollo is greatly harmed by not having access to its email and/or
mail, and is also greatly harmed by not having a functioning
website. Conversely, the harm to Dr. Joshi in ordering him to
share the email, mail, and to bring Apollo’s (the company for
which Dr. Joshi is currently a member-manager) website back
online is extremely minimal. Therefore, the equities are clearly
in favor of the injunction.
2. Dr. Joshi’s attempted usurpation of Apollo’s current and prospective
clients.
Dr. Joshi’s attempted usurpation of Apollo’s current and
prospective clients has greatly devastated Apollo. In September
2016, Apollo had contracts with four clients to provide medical
services. At the time of this Order, two of those clients who
worked closely with Dr. Joshi had already given notice of
termination to Apollo and it appears Apollo could potentially
lose a third client. Conversely, Dr. Joshi is not greatly harmed
by being enjoined to do what the law already requires.
Therefore, the balance of the equities greatly favors the
injunction.
Appealed Order p. 12 (italics original). Dr. Joshi does not direct us to any
errors in the trial court’s analysis on this point, and we find none. We agree
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with the trial court that the weighing of harms favors Apollo and the granting of
an injunction.
C. Public Interest
[28] Dr. Joshi also argues that the trial court erroneously determined that the public
interest is served by the injunction. First, Dr. Joshi argues that “the trial court
should not be allowed to do one party’s bidding, prior to adjudication on the
merits.” Appellant’s Br. p. 29. As Apollo points out, however, this is precisely
what preliminary injunctions are designed to do. In all cases, the grant or
denial of a motion for preliminary injunction necessarily requires the trial court
to determine which party is entitled to relief or, as cynically put by Dr. Joshi, do
one party’s bidding. This argument is unpersuasive.
[29] Second, Dr. Joshi argues that by granting the injunction, the trial court is
curtailing the freedom of LLCs to modify fiduciary duties and that this course
of action disserves the public interest. We disagree. As noted above, the trial
court’s ruling does not undercut the right of LLCs to modify the fiduciary duties
of their members or managers. Instead, the trial court found that Dr. Joshi’s
conduct in this case went beyond the conduct sanctioned by the Operating
Agreement, thereby potentially violating his duties to the company. As Apollo
notes, the trial court’s order “prohibit[ed] Dr. Joshi from converting Apollo’s
business records [] and . . . stopp[ed] him from diverting Apollo’s current and
prospective clients for himself.” Appellee’s Br. p. 36. We find that the trial
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court did not err by concluding that prohibition of this conduct serves the public
interest.
D. Remedy
[30] Finally, Dr. Joshi argues that the remedies fashioned by the trial court’s
preliminary injunction order fail to preserve the status quo. See Hannum Wagle,
64 N.E.3d at 883 (observing that the purpose of a preliminary injunction is to
preserve the status quo as it existed before a controversy, pending a
determination on the merits); Kuntz v. EVI, LLC, 999 N.E.2d 425,432 (Ind. Ct.
App. 2013) (noting that the “status quo” is the last, actual, peaceful, and non-
contested status that preceded the pending controversy).
[31] The portions of the order about which Dr. Joshi complains are the provisions
requiring him to (1) refrain from communicating with any former, current, or
future customer of Apollo except for the purpose of conducting Apollo’s
ongoing business interests; and (2) turn over to Apollo all originals of all emails
and documents belonging to Apollo and/or relating to Apollo’s business. Dr.
Joshi does not articulate how these two provisions of the order fail to maintain
the status quo—meaning the status that preceded the pending controversy.
[32] Before the pending controversy, Dr. Joshi was (presumably) not actively
undermining Apollo’s relationships with current clients or attempting to usurp
future Apollo business. Also, he had not diverted Apollo’s email to himself or
kept Apollo’s physical mail away from the other member-managers. Therefore,
the trial court’s order on these issues merely maintained the status quo as it
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existed before the current controversy arose. We find no error with respect to
the remedies fashioned by the trial court.
[33] The judgment of the trial court is affirmed.
Brown, J., and Pyle, J., concur.
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