APPEAL FROM THE HAMILTON SUPERIOR COURT. The Honorable William J. Hughes, Judge. The Honorable William P. Greenaway, Magistrate. Cause No. 29D03-1207-PL-7011.
ATTORNEYS FOR APPELLANT: HAMISH S. COHEN, KYLE W. LeCLERE, Barnes & Thornburg LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: ELIZABETH ZINK-PEARSON, Pearson & Bernard PSC, Edgewood, Kentucky.
RILEY, Judge. MATHIAS, J. concurs. CRONE, J. concurs in result without separate opinion.
STATEMENT OF THE CASE
Appellant-Plaintiff, Nightingale Home Healthcare, Inc. (Nightingale), appeals the trial court's summary judgment in favor of Appellees-Defendents, Carey Helmuth (Helmuth) and Physiocare Home Healthcare, LLC (Physiocare), concluding that Helmuth's ten-day break in employment with Nightingale served as the starting point of his Limited Non-Competition and Non-Disclosure Agreement (Non-Compete Agreement).
Nightingale raises three issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court properly found, as a matter of law, that a ten-day break in employment more than two years ago marked the commencement of Helmuth's Non-Compete Agreement.
FACTS AND PROCEDURAL HISTORY
Nightingale is an Indiana corporation engaged in the business of providing in-home healthcare, hospice care, and private duty care to Indiana residents. On January 24, 2008, Helmuth commenced his employment with Nightingale as a patient advocate, promoting Nightingale's home healthcare services in the community and to facilities and physicians who were in a position to refer patients. As a condition of his employment, Helmuth was required to enter into a Non-Compete Agreement, which protects Nightingale's proprietary
and confidential information and geographically restricts Helmuth's ability to unfairly compete with Nightingale for a period of two years after separation from the company. Every Nightingale employee signs a Non-Compete Agreement, and it is known and understood bye all employees that such agreements are an essential term and condition of their employment.
On October 16, 2009, Nightingale terminated Helmuth's employment for " substandard work" and " violation of company policies." (Appellant's App. p. 250). After his termination from Nightingale, Helmuth ceased to receive compensation, benefits, or perform tasks for the company. He began the process to collect unemployment compensation benefits. However, based on conversations between Nightingale and Helmuth following his termination, Nightingale offered " to revoke his termination" and have him " return to work in his prior position subject to the [Non-Compete Agreement] and the prior terms and conditions of his employment." (Appellant's App. p. ...