versus vacation publications is whether the covenant not to compete is enforceable because that essentially undergirds all of the other common law state tort claims in this case with respect to the sexual harassment claim there is no dispute that there was a final judgment that was entered by defendants on our sexual harassment claim and i think maybe there had been some confusion because the case was profiled per se by my plaintiff and then later consolidated as this court is held routinely and i also should say that my client didn't get the ten days notice under rule fifty that the court was going to grant summary judgment on her sexual harassment to follow that motion to dismiss not the corporate defendant but the individual defendants was that ever officially granted what happened with that you know those that i don't think i think you have to remember that  my client file that case pro se and that is sort of sad over there and then when it gets consolidated but no the court never formally and on the actual twelve piece that you agree the individual shouldn't be defendants in the rason going yeah i can see that but the corporate defendant is absolutely proper in this case and so i just wanted to address an issue that came up in an america all of the t g for shorts vacations ago they argued that the dismissal was appropriate under judge hanks an initial conference order which related to rule four and that basically had some standard language that said if you don't file the return of service within one hundred twenty days your case could be dismissed so v g argued that my client sexual harassment claims were properly business under that order because she didn't file the return of service but the important factor to remember is that the t g actually answer the lawsuit within sixty days so there was no service issue on them in fact they can see that and then the other fact is that under rule four am you can't dismiss a claim for prejudice which is what the  reconsideration i want to turn to the covenant not to compete in this case as the court as well one of the challenges you make is that there was no geographic restriction right what i don't see how you what would a reasonable restriction be for a company like the cations to go that's an internet based business with a global certainly a national customer base i mean the usual geographic restriction would be you know within fifty miles of houston but that makes no sense or that would protect only a small fraction of vacation to goes customer base so for a global company with a global customer base what would be a reasonable geographic restriction if any i think you have there has to be a reasonable have been from houston and they're all in new york in california going on the internet and then they should be able to poach all these customers she met through the company which is at odds with the entire reason texas allows these covenants i think that there there may be some misconception with the court is that the model that the competing business was basically that my client and her husband were soliciting people who they knew personally so this is not an inbound sort of you know kind of  getting thousands of leads from all over the world and so that's a distinction i don't know what a reasonable geographical the restriction would be for a worldwide a company it just seems to me the old views on this in the law don't really account for an internet based company and i do think there's some district court decisions that have started to recognize that but i can say and this particular is one judge ellison said a restriction on the western hemisphere was reasonable afterglow but he found that was reasonable for a for this type of business with a global client because and i don't know that that would be necessarily reasonable in this case but i think that the other in provision of the covenant not to compete which is also equally important is the i think it was sixty one which basically for it from engaging in any business with anybody who had ever been a client of the t g in the prior three years so let's say she wanted to move to san francisco to sell insurance she couldn't do that if  she was going to sell to a client d t g and so i think the texas supreme court has routinely held that anything that acts as an industry wide prohibition isn't reasonable and i think that's exactly what happens is in this situation now i know that just cos that's a dress your issue that appellant absolutely did cite a couple of cases with regard to this global issue and most importantly i think they relied on and reported decision  into teano which basically said that sometimes it if there is no geographical restriction that if it's sufficiently narrowly tailored that that would be appropriate and in that case they limited solicitation to the employees actual clients but that doesn't apply here basically they've limited her from doing any business anywhere in the world with any client that had ever worked or bought travel from d t g whether directly or indirectly so basically she's precluded from doing any type of business in the travel industry whatsoever and from doing it anywhere in the world and so what i would point out also to the court is that not only is there no  geographical restriction but it's overly broad with respect to the actual scope of the codes eighteen months right yeah we're not arguing it isn't a lobster now yeah it's the it's done it's well done and over but i guess it goes to the claims of the time right right and so i also would point out to the court that in the thirteen a case in the in the footnotes they basically distinguish and limit that case in the fowler case which was decided by the texas supreme court almost had an identical provision to this which prohibited a party from entering any contract directly or indirectly with any claim of the company and the texas supreme court code that that was unreasonable per se and so basically  on on her after mulling interference and because no one's going to come back to that it was an undisputed fact that she'd agreed to continue to work i think that she  yes i think that that's true but the reason that she did that was because she had already done the work for commissioned customers so that she didn't want to lose those commission probably would think he's got briefs on two different cases the adage that there are two sides to every story is an understatement in this case but what that underscores is that the state law claims against mr nazario are so replete with factual issues that summ assumptions or conclusions that are often repeated by counsel that are just not supported by the evidence on each of these claims if one of these assumptions falls the entire claim falls there are three of these assumptions that again are repeated throughout the briefing that are most significant first is the assumption that mr do not for you ever acquired any confidential information of the bones to vacations to go and second that he actually used that information in the operation of his cruise one franchise the evidence that vacations to go provided its employee this is an offer you with confidential information does not prove that she shared it with her husband missing from the record is any evidence that the cruise one franchise followed any types of computer leads or internet based leads the vacations to go operates on it was a family friend based business there is certainly some evidence showing that it was they were trying to to keep her involvement quiet because she's on the original papers creating the business and then don't they try to to take her off of it and there's the back dating issue and that all seems like they are trying to hide her involvement well there there and that goes to the second assumption is that that somehow mr not for knew that his wife was committing tortious conduct and that he intended to harm vacations to go with that i think addressing the jury to conclude that yes he was aware of the non compete and he hired a lawyer to review it because he was trying to prevent his wife from violating any type of duty or contract he wanted to make sure they were operating within the law and i think that the evidence before this court shows that this is an unfair it was there certainly a genuine issue of fact as to what was she actually played in the believe that the e mail actually came from mr can offer you it was a screen shot that did not show any customer names it just showed dollar amounts for dollar sales and no customer no customers identified on that whatsoever it was just a screenshot the showed how many dollars she had sold she clearly had some terrible hunt this didn't shift i mean the evidence shows she had some involvement because whether she going to the training session she was cruising on when she requested two days later her family leave she was required to attend a time in session  and yes i believe the evidence does show that but the evidence also shows that she didn't look a single sale she didn't get certified by any of the cruise lines and she didn't actually service any bookings at all who worked on the business until life he's got years of experience in direct sales anyway but each time one of the systems is is confidential proprietary in another cell the cruise one booking system is vastly different than the vacations to go system and in fact the  those affidavits even talk about how their system is so special and proprietary it's different from everybody else's so whatever training misses can offer you perceive from vacations to go wouldn't carry over to cruise when anyway the third significant assumption that is made is that every single one of mr didn't offer his cruise one bookings would have otherwise gone to v g and that's really incredible it's an incredible assumption to make a jury could reasonably believe that the cruise when customers  just as likely to have booked their travel through expedia travelocity american express or any one of the plethora of booking options out there at this point makes the district court's award of damages most troubling  awarded as damages all of the trouble it related commissions that cruise won the cruise one franchise had ever aren't even the ones that mr downer for you sold to himself the summary judgment record lacks any evidence to support an inference that those bookings would have gone to d t g but for the crazy one franchise the houston supreme court i mean the houston court of appeals first court of appeals case in gladly versus their starter components is very similar very on point in that case the claimant tried to gain the revenue from one hundred percent of the defendant sales and the court found that there was no evidentiary basis for the assumption that all of the defendant sales would have otherwise gone to the plaintiff that's exactly what we have in this case there is absolutely no evidence to support the conclusory opinion that the t g would have otherwise earned all of those commissions if you end up prevailing on some or all of your claims here and we send some of the case back what's going to happen given the restrictions on traditional discovery that's in the court's scheduling order i mean what do you see happening back in the district court if the case ends up there well we're hoping that the courts if the court does remain and then with the sun on instruction to the judge with respect to discovery this is not a rule fifty fifty sixty issue this is just a pure abuse of discretion issue at the very beginning of this case before my client was even a party judge hughes entered in or discovered he basically threw twenty six out the window and he said if you want to send  designed to to to further so in compliance with that case management order mr can offer you filed a motion for discovery and ask to the courts for permission to do a little bit of discovery on the claims that have been asserted against him couple of hearings where the judge was pushing you know you know a lot there were there was a lot of document production coming from the do not rio's nothing coming from the other side and and again this really isn't a real fifty sixty issue it's just a pure abuse of discretion for  the judge did not allow the defendant to do any discovery in this case for that reason we would ask that the courts reverse and remand with instructions to the court on perhaps you know maybe some proportionality i'd like  good morning judges may it please the court george gibson from nathan summers jacobs on behalf of the apple meat they cations to go i'm going to go straight to the primary issues that the appellant's addressed to your honor first of all with regard to the sexual harassment claim our argument was not merely based on judge hanks is case management or that is one argument we put in our briefs but the i think the stronger argument than the person argument is that she filed this pro se sexual harassment claim and in actually did not even plead and then did not provide any evidence that the employer even if you believe even if you take for granted on summary judgment that she was harassed that she never provided any evidence that the employer failed to take prompt action in fact if you look at her affidavit which is you move for summary judgment on the ground because of the procedural history and then she gets reassigned but then more harassment from a new manager i does not however see the high rate is that she is that the evidence showed that she was moved away from the people that were harassing her and then she now there's no evidence or affidavit and say that well and the harassment continued or that it was somehow inadequate what the what the company did you know obviously the judge did not give the ten day notice and kind of the strange at it was not i mean is not addressed in your direct i absolutely agree judge it's not but however i think that on review it's also incumbent on the appellant's to there's a number of cases that say that you know they've got to be able to show your hono here at this level at least that there was some evidence that they needed to be on a present to raise a fact issue they did not file a motion for a new trial they did not follow a motion for consideration to let judge hughes know that hey there's this substantial claim out there that you didn't address that we would have had an opportunity and then even here at this level they have not presented any evidence that what the company actually did was somehow even if you assume the harassment occur that that's not the only element  them to show that we didn't do anything to address it and that in fact the evidence shows the opposite that we did attempt to address it and were never given the opportunity because shortly after that she went on if emily and that will dovetail into into that argument she you know counsel i believe conceded that because it's in the joint chronology where both sides agreed to certain piece of evidence that she was offered f m l a and she said either you can you can you can continue earning money we're not required to pay a fine to lay participants who said you can continue to preserve your commissions and earn them if you just monitor and she didn't and so that ability to monitor those clients was taken away there was nothing  really you know that was forcing her requiring her to work it was an option that was provided to her and i think that's now been conceded and the only claim that they have about that somehow she was terminated for  way is this e mail that was sent to her husband who happened to be a client of the t j so he got an automatic e mail where one of the sales rep didn't word her status exactly right we put in the record that you know that she was not on choose not terminated shoes on leave and the one person who sent an e mail to michael did offer you know said you know something to the effect of she's not with the company anymore and you know that was wrong and we've that you've been in correct but she we put in the deposition testimony that you know she never called us up and said you know what's my status in fact she had just at the same time gotten from thane allen an e mail that's in the record that specifically said we're go we're going to take away your supervisory rights are these clients for me to make sure the clients are properly serviced you haven't been doing that but you're going to remain on if emily i mean it was an affirmative statement to her as to what her status was and to say that somehow she misunderstood that she was terminated i think that the fifth circuit in that case looked at a very broad restriction on on competition and and said that because there were marketing efforts in this it was countrywide it wasn't world wide in that case but it was countrywide and it even said that you know to the extent that it is number one their marketing efforts and sales their nationwide and number two that the that you know that because the the sales efforts were you know nets in that scope just because you know there wasn't a sale there were certainly marketing efforts was enough to impose a broad and wide restriction it wasn't just fifty miles from harris county it just really depends on what was the restriction in that case was it was it nationally it was national and in this particular case there was one that said and customers that are around the world and apparently and i don't know the reasons for this the employee in that case just backed off of the world to the customers around the world or whatever the reason is there any evidence in this case of what where our clients were coming from or even we have occasion to go as clients generally are or from in terms of a e mail website's toll free numbers all had to do with global inquiries that did involve carrying an offer and this is really critical for this summary judgment appeal is that all of those facts are undisputed is that is that in her disputing affidavit she did not say no i never had contacts won't wasn't she did not say no i did not have access to the one eight hundred number to the to the web based so all that it is in these  but in terms of where her customers actually came from we don't know if we have that statement in the record that seeking watch and that she she got contacts from the worldwide out from the website and also the one eight hundred number  i would refer you to mr hankers affidavit that's the that's the primary place for that evidence is that's undisputed line that have come up with various but each one of those when you look at it depends on the facts of the case and that's kind of you know one of the issues there is no hard and fast rule and this court and other federal courts in taxes that are interpreted in this court space ruling and others don't say that the absence of a geographical restriction is deadly and it's automatically know that's not the case and in fact the tina case the reason why we cited is because it talks about how well you can imply it and in the court's order which follows you know i think word for word the contract it does restrict solicitation of customers that had been customers of the t g for three the prior three years and so there is a linkage in the restriction that the judge put in to customers and various cases like what to tino which was cited earlier said is that if there is a linkage to customers that you  know that serves the basis as a limiting factor for geography especially as your honor pointed out in this day and age where and i think there's probably going to be more law on this that we're marketing is worldwide by and by the very nature of the internet some of these cases are going to have to be revamped our standards are going to have to be read value and because it doesn't fit you know what's going on in commerce these the true that there's only one customer of the t g v who then booked travel with the cruise one franchise we put on evidence of one customer that as i understand it books travel through p t g and then they said if you want to if you're going to book future travel make sure that you switch  it switched here like for princess cruises for it's out i don't know if that's the one that was in the record but for one of those cruise lines make sure you switch your agent to us or else if you've got a princess cruise lines is going to automatically go to the t g that's how i understand that evidence there was one that  tranquility base enterprises was not even an entity it was it was a sole proprietorship which he and his wife were partners and so under texas law if we have a good that becomes a general partnership a joint venture those meet those are mean the same thing under texas law and both of them own it both of them had a full rights to control it and the evidence that we put on was for example the application that was submitted to franchise agreement accrues want they both signed it as partners well she obviously took the entire range screen shot that included the customer names and the numbers they did each on the customer name not what they sent to cruise one and remember we only got this from our subpoena to cruise one and so it's cruise one did get the sales numbers and according to the document i've seen not those not the customer names but she had access to all that and she says you did she referred to  she she has disputed that she used any customer's image to be fair to the evidence that she put on she disputed that she used any of her customers in soliciting customers for cruise one but i don't think that that's i don't think that's the test respectfully i think that what the test is is that we're using information that was developed for example her sales at vacations to go in order to show cruise one hey look at what i can sell and  the you know the all the references they're made to the various e mails in your honour's you've already referred to that where they were clearly trying to they were telling cruise one yes karen is an owner but not on looming days like today three days after she says you know said i need a family i have to take care of michael she left and went to train for this new business and then when she got back she had two weeks from the time she left to submit the proper paperwork for a family and she did that i think the date was like july twenty fifth roughly and she said in there i've got to be with him i'm going to do all these things for him clearly that just wasn't true because she'd already left i would leave evidence shows that that was all pretext to set up a competing business they were using her sales at vacations to go in order to induce cruise one to let them do it she had been extensively trained at vacations to go cliff they give a strong case to support all this the problem is your sense of the plaintiff on all these claims to get summary judgment as a plaintiff especially on some of these claims that that have an intent requirement it's just highly unusual to say as a matter of law you have to find for the plaintiff in all these elements including that their state of mind was was torturous interference or all these other things so how do you get a get around that high standard i understand that judge and that's a that's a good point i would the way i would say it is that it's also true that you can't defeat a summary judgment with a shammy affidavit in other words if the documents show that you were indeed partners and you were indeed using vacations to go information and you were indeed setting up a competing business which we believe that the i mean i believe that the   mails and the franchise agreement show is a you can't just avoid that and create a fact issue by signing a affidavit he just says i didn't i didn't ever compete that's i think that's just not enough to raise a fact issue because i agree it's  text of the actual evidence and then you look at their affidavits and then just say no we didn't do that is not it's that's i believe that's a sham affidavit and that's not enough to raise a fact but the core didn't find didn't strike the plaintiffs i guess on these claims counterclaim defendants affidavits and that wasn't the finding of the did not the district you're exactly right however but to when looking at the summary judgment to know you look at all the reasons that could be used to support the affidavit i mean scuse me  affirmed in rebuttal i just want to dress a few issues i think it's important to sort of take a global view of the case and understand that we are in the summary judgment context and well as discuss the pointed out they may have a strong case on some of these claims there is a fact issue on every single one of them the affidavit that karen supplied in this case was not a sham affidavit she essentially said that she didn't have any confidential information she didn't have any customer list in the last paragraph or affidavit said she didn't do any so with cruise wanted till after employment entered and all of the sales that she generated for cruise one where the result of her own personal contacts and were not obtained from any sales lists or other confidential information from b t g and that she didn't in particular have any specialized training from d t g that she used in those situations that she has been selling for years and relied on her past experience to get customers and that creates a genuine issue of material fact on all of their tort claims because she claims she didn't appropriate confidential information from the company now i wanted to just touch briefly on the on the sexual harassment claim it's really not our burden to come forward to put on summary judgment evidence after we file or pleading especially when we have no notice that there is actually the court is going to grant a summary judgment but as i pointed out in our brief is that the two particular instances where there was inappropriate touching crew to create a matter create a genuine issue of material  on a hostile work environment and then as the court has also pointed out that there was this initial harassment in august and they moved her but those accommodations as stated in my client's affidavit were insufficient because she was still subject to harassment from the i and there was other separate incidents later in january even after the accommodation which is ultimately why she saw it out needle council so there is a definitely an issue of fact on sexual harassment  and not be in violation of any breach of duty an employee can form a company while still employed planning to compete there's nothing wrong with that they're tearing your lip over that right but that's not a breach in and of itself just owning a occasions from the cruise lines of agreeing to manage and train people didn't happen till january twenty fifteen and later she wasn't working this cruise one franchise although she signed off on the agreement because they made it as part of the level   these are two conflicting public policies and there's nothing against public policy of mr or mrs danoff real wanting to open a mom and pop travel business their travel agency is a full service agency th services families friends personal referrals people from the daughter's dance class the only overlapping customer as judge taken some pointed out was a woman who was referred by another monitor daughter's dance class personal referral he wasn't  supports a finding in favor of the non movement summary judgment is inappropriate for that reason we ask that the court reverse