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Menna v. Romero2/28/2001
ON APPELLANTS' MOTION FOR REHEARING
Opinion by:Alma L. López, Justice Dissenting opinion by: Sarah B. Duncan, Justice
REVERSED AND REMANDED IN PART; AFFIRMED IN PART
Appellant's motion for rehearing is granted. This court's opinion and judgment dated January 5, 2000 are withdrawn, and this opinion and judgment are substituted.
This is an accelerated, interlocutory appeal of an order granting a temporary injunction and an order denying appellant's motion to stay proceedings pending arbitration and to refer the case to arbitration. For reasons stated in this opinion, we reverse the trial court's order denying the motion to stay proceedings and for referral to arbitration, but we affirm the order granting the temporary injunction. The cause is remanded to the trial court for further proceedings consistent with this opinion.
Background
The parties to this dispute are insurance agents and agencies, each of whom markets medical malpractice insurance to physicians, surgeons, and hospitals. The parties had an arrangement whereby Romero's agency solicited clients and submitted them to Menna's agency, as broker, for application to a malpractice carrier for coverage. Litigation between the two parties was resolved by an agreement signed on August 6, 1998. The agreement provided, inter alia, an agreement to continue their business relationship and a covenant not to compete clause by Menna concerning any of Romero's clients for a period of two years from the expiration of any policy covered by the agreement. The agreement also contains an arbitration clause.
As it became time to renew the policies affected by the agreement, the dispute erupted again. On March 31, 1999, Romero filed a petition alleging tortious interference with the contract, breach of contract, libel and slander, and seeking recovery of attorney's fees. Romero also sought injunctive relief and obtained a temporary restraining order prohibiting Menna from directly or indirectly contacting and soliciting business involving the provision of insurance coverage from any doctor listed in the 1998 agreement. The order also restrained Menna from not issuing policies to the doctors on the list and from taking any action to cancel such policies. The hearing on a temporary injunction was originally set for April 12, 1999, but was reset for April 21, 1999. On April 20, 1999, Menna filed a response denying the allegations and requesting that all claims be referred to binding arbitration. On that same day, Menna also filed a motion for continuance of the preliminary injunction hearing.
At the injunction hearing on April 21, the trial court heard and denied the motion for continuance. Romero limited his request for injunctive relief to requiring all contact by Menna with the listed physicians about their insurance policies be made through Romero until a final judgment resolves the current dispute. After hearing testimony from four witnesses, the court issued a temporary injunction, finding that Romero had presented a prima facie case on three causes of action: libel and slander, breach of contract, and tortious interference with contract. The court further found that, if Menna's actions were not restrained, there was a probability of injury for which there was no adequate remedy at law, specifically loss of business, loss of good will, loss of commissions, and loss of reputation in the context of these causes of action. Bond was set at $1,000.
During the lunch recess on the day of the injunction hearing, Menna filed a plea to the jurisdiction, a motion to abate, and a "subject to" original answer. Menna subsequently filed a motion to stay proceedings pend
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