tracy miller violated the nine compete agreements provided as part of the five million dollar asset purchase agreement it's our position that the district court erred when it found that the millers did not violate the restrictive covenant actions that are really wholly of related business for instance its terms would preclude the millers from him directly assisting any person who invests in any in venture  no no your honor and here's why the intent of the parties was that the millers would be out of the fuel additive business and that they would not provide assistance that could somehow turn into competition me moving a friend into a home is not the type of activity that at the restrictive covenants court were intended to prohibit and that the problem with the district court's opinion is that it fails to give effect to the intent of the parties as the district court stated the blakemore family in e t products wanted to buy the millers business and they wanted to buy them out of the business they paid five million dollars in exchange for the business and the miller's agreement that they would not be involved in the fuel additive business including terms like directly or indirectly are routinely included in even one competes in the employment context it was entirely appropriate to include them in a sale of a business contacts what the court found of the appropriate standard in looking at the intent of the parties when considering the enforceability of the restrictions the court did a complete one eighty then when that was interpreted new restrictions in determining whether or not a violation had occurred all of a sudden the court began into earth strictly construing the restrictions against iti products the district court's decision to construe those restrictions strictly strict purchase agreement expressly provides no rule of strict construction shall be applied against any party and of course the district court did exactly the opposite the district court strictly construed the restrictions against e t products when determining whether or not a violation exists the district court's decision to apply that standard is contrary to in the law if you look at the opinion the district court includes a quote from fogle v shah stating that the restriction should be strictly construed against the covenant t but if you read focal b shah the quote that the district court is relying upon is talking about restriction its logical extreme the excess that extremely broad language of this restrictive covenant would prohibit exactly the hypothetical that she gave you about providing assistance in the nature of moving into a new home if the person who is receiving that assistance is engaged in the fuel additive business and that can't possibly be a reasonable construction of this language under indiana law you have to be some boundaries yes you are going for a broad restrictive covenant but it's got to be reasonably construed and it has to have some boundaries yes your honor i would agree it has we're not asking that it be strictly construed against the millers w that's what you want for the period both before the fall of two thousand and twelve and after the fall of two thousand and twelve because the millers stopped assisting coons and petroleum solutions after you come off as your distributor up until that point they were entitled to because you can't get relief for anything the millers did when petroleum solutions was acting as your distributor but that's just an absurd  restrictive covenants not to compete here so what we're really talking about is the period after the fall of two thousand and twelve going forward when it appears that petroleum solutions was getting into the fuel additive business the millers didn't have any connection with them after that you're under several responses to that line of questioning first we're not asking you to strictly construe of you know professional advice and training to kone's the buyer of petroleum solutions while it was acting as your client's distributor that can't possibly be a violation they were acting as our distributor your honor the facts of this case demonstrate exactly why a restriction assisting somebody that is even acting as a distributor for our own products is appropriate within a couple of months somebody who had no experience and the fuel additive business is up and running and directly competing with us they've sold nearly a million dollars of fuel additive that th distributor well so you know for you to argue that what the millers they did during the time that petroleum systems continue to act as your distributor somehow violated and not compete when it actually but your honor it's not it's important that the court look at all of the violations together all of these violations became connected in the fall of two thousand and twelve when doug miller took it upon himself to let john coombs know that tom patton a former e t product salesman who dug miller knew was restricted by none compete and suggesting that he was available for hire he hired him and tom patton then started competing directly with the team products calling on iti products customers out in the market with the with the goal of out so many cheap products and selling them at a deep discount in order to  distributor he didn't distribute the huge amount of fuel additives does the record indicate whose fuel attitudes they were the ones that he manufactured as forbidding him from distributing competition competitors for fuel additives even if he is not manufacturing fuel additive correct yes your honor again and what do blending packaging marketing in something fuel additives that accurately describe exactly what eighty products was doing but when we got to the restrictive covenants it wasn't just restricted to the business it went beyond  honor i think it is because if you they were required to be involved at all for they would be a direct competitor anyway again it the intent of the parties was that the miller's not accept the five million dollars from the blackmore family and their investors and then turn around and in across the parking lot set up somebody to start competing with them they did not want the millers out there in the business they needed to be out of the business as the indiana courts found in full the shop and individual should be entitled to sell their assets for a premium and in order to get that premium they should be able to offer a non compete and that's exactly what happened in this case if i could try to move your focus a little bit i'm also concerned selling fuel additives in a thirteen state area and one province candidate time now well i have two questions first can i look at what your  was doing at the time of the nine compete there seems to be some significant authority that i'm not even allowed to walk at that and i'm concerned about and secondly if i can look at look at the intent of the fire is the relevant area of inquiry where the buyer or where the seller was selling is not relevant the cases relied upon by the ny times are all that where they're talking about restricting it to the buyer's current area of work those are all in the employment context and those are matter at issue here and if you do consider the intent of the blakemore's the the materials that they provided to their investors were all about the fact that e t products had th excess capacity in the blakemore families related entity a fleet cam was already had a head of significant contract with cummins and they were able they were selling in two hundred thirty six countries i think all over all over the u competing entity it's a claim against the millers who aren't getting anything in any benefit from from whatever competition petroleum solutions is engaged in now the issue of damages was not at issue in the summary judgment we were moving for partial summary judgment hoping to leave the issue of damages for trial but in response to your question your honor the damages are whatever damages flowed from the  v products lost the sale of fuel additives to petroleum solutions than that last profit is an element of damage that they're entitled to recover from the millers and all you are asking for it is point  good morning my name is david pruitt and i represent doug and tracy miller in this case mr profile it's on my mind may i ask you a question about who is intent i can look at to determine the is that it does say that in that case your honor but there is also case law that is that is out there that says that it should not be based on subjective and when you say out here out there in state of india in the state of indiana i don't have that  follow up on the discussion that we've had thus far and i'd like just to talk about our concerns with the with the overpressure of the not compete and judge roberts here points i think we have questions about the over breath  king i had a couple of examples with painting a building also followed in kind of that was prescribed by the not compete as it's worded and we certainly understand that in the sa business context these are given more deference in the employment context there's no dispute about that we are not asking for a rewrite of of not compete law in indiana but full does stand for the proposition that there do have to be limits and here as to the activity restriction what's happened is there is not a nexus between the legitimate business interests that were purchased and the conduct that's prescribe so that's why in our opinion the the activity restriction is overbroad and similarly to the geographic restriction when you have a situation where at the time of purchase thirteen states were at issue one province of canada was at issue and there was no business being done in in broad i think if i could your your honor i proceed in a couple of ways in that in that respond to your answer question the language of the agreement here is critically important and so i think when we look at the recycle of the business that's found on supplemental pentax fifty seven business is defined as business of blending packaging marketing and selling chemical fuel additive products and then there's a comma and then it's with us primary focus on diesel fuel additives so i think the problem here is that there hasn't been sufficient focus on the entirety of that kind of that clause because there's simply no evidence even today in the then it would be my my position respectfully that it's not conduct that would be reached by this not compete clause and then as to the lease issue that you've raised that lease was entered into in two thousand and twelve when the business was sold to mr coon by todd miller and so at that time there wasn't a violation of the lease so i believe i guess the remedy there would be to require doug miller to breach a leas to then become in compliance with the non compete in so i don't i don't think that that would be a reasonable interpretation of the conduct in the lease at issue  compete profession you still have the overall issue of whether patrolling solutions even today would fall within the clause that's at issue here in their side of the business but leaving that aside their eyes we do need to  correct the record on that your honor i believe in appellant's brief there's a reference to a dispute with tom patton and that led to the discussion that's that's at issue here if we look at supplemental appendix one meeting mr blakemore said it would help us out if you would go ahead and sell the building for two hundred fifty thousand dollars to try to resolve this matter and that's what mr miller did so he ended up selling it to john coons for that price and now it's again being turned around on him because it was it was requested by mr blakemore to try to resolve the dispute now they're trying to say well that's a violation so so they did terminate the property they did at that time that the bid the property was sold in april of two thousand and fifteen and that's that's reflected in supplemental pending one seventy six year old but from the fall of two thousand twelve when eighty cut petroleum solutions off has its distributor to that point in time the lease that was still in place right your honor that it had been entered into in january first two thousand and twelve and it continued forward involved in getting advice in that context exactly or exactly yes so i think that the problem and i believe it was it was picked up in in the earlier discussion was if taken to its logical extreme doug miller had violated his not compete the moment he signed it back in two thousand and eleven because nothing a change in either two thousand and eleven when he continued to operate petroleum solutions so this idea that he's file aiding the not compete by serving is distributor or is just it doesn't it just doesn't hold together now that that doesn't make any sense as a matter of law but the real pressure point in this case is the post's fall of two thousand and twelve period after petroleum solutions was cut off at that point it's my understanding it's undisputed the millers were no longer involved in getting any kind of advice or for assistance in that sense and that the only basis for the claim from that point forward is the lease so there i believe there be true to issues your honor and they both relate to alleged conduct by doug miller tracy miller is also defended in this case and the reason that he's in the case the basis for that is software training that he provided to petroleum solutions in two thousand and twelve and so that's that's the only reason that he's been in the case now when we return to the to the issues after terminations of the relationship we really have two issues i believe that have been identified by the of helen and i believe one of them is the lease this issue of the lease and the second one is this sale of the property for two hundred fifty thousand dollars and so post two thousand and twelve those are the two issues that we really have to address and so we have a preexisting lease that was entered into before there was any dispute and and then somehow to me i don't have a case for your honor but that's a seat simply seems to be an untenable position to place a party where they didn't have a role in and creating the issues there  case which involved in the covenant t and that are common in torah in that case that the one who owed the duty of non competition kicking out the holder of the non compete from the property and then leasing it to a competitor so that was affirmative conduct on the part of the person who owed the duty the right my understanding of that case your honor was mr coon generate into as a seller entered into  be two thousand and seven and then ultimately that it was in two thousand and twelve that there was conduct that led to a new lease at that time being entered into that with a competitor with a competitor exactly that that serves as a basis  that lawsuit to find a violation of the non compete right we've got a preexisting lease here that was in no way a violation of the non compete during the time that the parties for working together  know i think i think that's right so that's the way to distinguish it was affirmative conduct on the part of mr coombs to then lease to a coeditor based on the agreement the court found that that was a violation i think that is different respectfully from the situation that we have here a year or so those are the two issues then then we've already discussed this issue of the sale of the business which again was an effort to try to resolve the issues between the parties and so again issue respectfully doesn't seem to be a fair result but it is it agreed that petroleum solutions did get into the fuel additives business as a producer a blender and marketer after being cut off as distributor i believe that there is evidence that mr coon says something in time he did blend fuel additives i don't believe that the record would show that it ever became a primary focus which is the part of the clause that that follows the comma and so i you know what as as the record stands here whether they whether they're selling you know fuel additives doesn't address the issue of whether there's been a primary focus of the fuel additives so i think that's problematic based on the facts of this case so i don't i don't want to belabor the issues i'm happy to answer any other questions but at this time doug and tracy miller would ask that you affirm the judgment of the district expand the miller's rights by arguing that the agreement was on enforceable there's been a lot of well i don't i don't view that as an expansion of rights it's just a different grounds for firmaments it would be an expansion of rights because if they if you findings on an forcible then if the products were to find additional violations they would be without a remedy the special my taishan is still open but there's been a lot of focus upon the fall of two t almost a no harm no foul approach to what occurred while they were while petroleum solutions were simply distributing eighty products fuel additives assistance that they provided took them right up to the point of being a competitor this the non competing agreement terrorism right up to that point or did they cross that line well i mean if you're i'm just were allowed to be out there training everyone to become a fuel additive or begin to become a fuel additive distributor or manufacturer and as long as they brought him up to that point and once they actually started doing it then it was no no harm again this is this is what none competes are made up there was irreparable harm that occurred when the millers were providing this assistance in two thousand and twelve but the millers themselves operated petroleum systems for a full year before they sold to cones yes were they in violation for that period no your honor that wasn't the intent of the parties that the millers were not able to act as if as a distributor for e t products because e products had a full arsenal to be able to prohibit the millers from going beyond simply serving as a distributor once the millers saw petroleum solutions to kuhn's that when the assistance was prohibited they were providing assistance to a third party and that's what the and the intent of the parties was that they're not out there creating new competition for e t products they pay five million dollars for the right to keep them out of the business for five years this is not this is not an employment context this isn't the new salesman first day on the job and the employer says sign this non compete agreement or you're fired this was giving him them five million  stay out of the business and now it would result in an undeserved forfeiture your honor if if all of a sudden now you're saying the millers are allowed to keep their five million dollars while at the same time creating competition for e t products that's it's against public policy to allow them to do that with respect to the the lease and for by signing the line the line of the letter of credit because crews did have credit suppression of his own giving him the one hundred thousand as a one hundred thousand dollars discount these are all independent violations when he acting as his banker as his creditor is his last or he has an opportunity every single month when that agreement or when the payment is due to offer them a debt financial assistance in the end i mean in the simply act acting as a last or period was enough to constitute a violation of a non competing appreciate your time and we would ask you to affirm the court's finding that the nine compete isn't forcible but