Dr. Gregory A. May v. Advanced Cardiology Consultants

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dr. Gregory A. May, Respondent,

v.

Advanced Cardiology Consultants, P.C.; Dr. Lew A.
Rowe; and Theresa Rowe; Appellants.

Appellate Case No. 2019-002114

Appeal From Florence County
Michael G. Nettles, Circuit Court Judge

Unpublished Opinion No. 2022-UP-213
Submitted March 1, 2022 – Filed May 18, 2022

AFFIRMED

Allan R. Holmes, Sr., and Rebecca Jane Wolfe, both of
Gibbs & Holmes, of Charleston, for Appellants.

Mark W. Buyck, III, of Willcox Buyck & Williams, PA,
of Florence, for Respondent.

PER CURIAM: Advanced Cardiology Consultants, P.C., Dr. Lew A. Rowe, and
Theresa Rowe appeal the grant of summary judgment to Dr. Gregory May, arguing
the circuit court erred in holding a restrictive covenant (the Covenant) contained in
the employment contract between Advanced Cardiology and Dr. May was not
enforceable. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities: Baugh v. Columbia Heart Clinic, P.A., 402 S.C. 1, 12, 738 S.E.2d 480,
486 (Ct. App. 2013) (stating "the interpretation of an unambiguous contract is a
question of law, as is the question of whether a non-competition clause is
reasonable" and applying de novo review); Milliken & Co. v. Morin, 399 S.C. 23,
36, 731 S.E.2d 288, 295 (2012) (stating that when a contract is unambiguous, the
appellate court must apply the contract's plain language); Baugh, 402 S.C. at 12,
738 S.E.2d at 486 ("[R]estrictions on competition 'are generally disfavored and
will be strictly construed against the employer.'" (quoting Rental Unif. Serv. of
Florence, Inc. v. Dudley, 278 S.C. 674, 675, 301 S.E.2d 142, 143 (1983))); Faces
Boutique, Ltd. v. Gibbs, 318 S.C. 39, 42, 455 S.E.2d 707, 708 (Ct. App. 1995) ("A
restriction against competition must be narrowly drawn to protect the legitimate
interests of the employer."); Baugh, 402 S.C. at 12, 738 S.E.2d at 486 (stating that
in order to be enforceable, a restriction on competition must be "(1) supported by
valuable consideration; (2) necessary to protect the employer in some legitimate
interest; (3) not unduly harsh and oppressive in curtailing the employee's legitimate
efforts to earn a livelihood; and (4) otherwise reasonable from the standpoint of
sound public policy"); Faces Boutique, 318 S.C. at 42, 455 S.E.2d at 709 ("If a
covenant not to compete is defective in one of the above referenced areas, the
covenant is totally defective and cannot be saved."); Poynter Invs., Inc. v. Century
Builders of Piedmont, Inc., 387 S.C. 583, 588, 694 S.E.2d 15, 18 (2010) ("[T]he
restrictions in a non-compete clause cannot be rewritten by a court or limited by
the parties' agreement, but must stand or fall on their own terms."). We hold the
Covenant was unenforceable because by its plain language, it restrained Dr. May
from having any position with a business entity, including a hospital, engaged in
the practice of cardiology; such a restriction was not necessary to protect
Advanced Cardiology's interests and was unduly harsh and oppressive in curtailing
the legitimate efforts of Dr. May to earn a livelihood.

AFFIRMED.1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.