not to compete is patently unforeseeable as written and three movement has requested the district court to reasonably reform that covenant and enter a preliminary injunction there on company in this case because if the district courts approach and assessing preliminary injunction in the context of initially an enforceable ringback covenant not to compete any party that created in effect a new rule for how can any party ever establish that they're likely to prevail on the merits of enforcing an on in forcible company how can any missions and the evidence submitted by my client jekyl who need to show that there is no issue of material fact that would lend itself to being a need over  and i in my proposed a covenant not to compete in suggesting that it be a limited to any customer that mr calhoun written provided that mr calhoun shall not perform industrial utility vehicle services that i think we can all agree is  could differ i think for purposes of appeal i've decided it makes the most sense to request for information as i did below and with the answer your question your honor your for your initial question the the customers are  identification of any customers in the injunction which is you know something that some of the courts have suggested you may need under certain that you have to actually  identify the customers that you cannot do business with or solicit but in web there was no identification of customers and also your honor points to the supreme court case covenant not to compete at the preliminary injunction stage that had no geographical imitation and the reasoning was that given the nature of the employer's business the which was nationwide and given that the company not to compete with the limited to the customers that this former employer recall a and serviced it would enforceable it's reasonable right because you're actually catering  limited to the customers mr feldman interacted with in the record there was sufficient evidence for the district court minimally to enter a covenant in new mexico and in oklahoma and then you know kind of equivocation to you i did work in other states but it was insignificant my point was this the did the district court clearly eared when it found it impossible d to reform even if the district court thought it would only be reasonable to limit it to a certain geographic scope the record established that there was plenty of evidence there for with from which the district court contact custom ones with who he has had contact as long as they were custom trucks customers as well and that they ensure that new a competitor what you were doing for my cost my clients for our customers that's on ask which is want which is mr calhoun cannot perform or provide industrial utility vehicle solicit customers of your former employer the way that the covenant is actually drafted if it doesn't talk about solicitation meaning if i reach outward a g c customer think it says you shall not perform so regardless of whether mr calhoun picks up the phone and actively solicits or a b c customer picks up the phone and says mr calhoun i would like you to do business and you learned that could be a formulation that the court believes is more reasonable than what i'm suggesting the reason i believe it's it's reasonable to protect it mr tell coon from performing and providing industrial utility vehicle services such as the very logic th animates the protection of goodwill and the break poor that's been established by the former employee with the customer for instance mr calhoun established a relationship with rock service through my clients to me and it doesn't it there's no principle distinction between mr calhoun picking up the phone after he leaves check the economy and think hey here's an industrial utility vehicle service and i can save you some money from the customer roc picking up the phone and bank hey i see you're a new place i want to do business with you the end result is the same mr tell who the david your honor that in two thousand and eleven rock service was doing business of some kind with custom truck mr calhoun wasn't with custom truck in two thousand and eleven how can he personally to veer to that that mr calhoun did solicit him through of e mail communication to try to save them some money which certainly needs it's moving a party to action and if you take those facts and couple them with a reasonably reform months for evidence your general and unfortunately mr tell who has been soliciting my clients customers unimpeded since june of two thousand and one team were coaching the year  like to make really relates to the observation judge jolly just shared about riemann and i do not agree the remainder is appropriate but for different reasons i don't believe there has been  any any showing of abuse of discretion in this court were to remember this case that would mean that the the appellant would prevail on the appeal and there's a basis for a man i don't believe many months but the period of an extended period of time to obtain is injunction hearing well that's just the way things should be out with the courts calendar to mr mr cronkite's credit he did request hearing about a month earlier than was i happened to sit on an operating room table with the hearing was actually scheduled and it was it was moved back a month to to accommodate the health issue but other than that it were we're talking two or three months after the lawsuit was  opinion that if there was new evidence that had to be presented to the court he would consider it but the judge judge hanks overruled or denied a request for injunctive relief based on the record that was developed manager for example unfairly leverage contacts what should have happened before it came to this court don't pay me should have been should have accepted what i viewed as a clear invitation from judge hanks to develop the record it's already june st twenty thousand two hundred and sixty seven months after the injunction hearing and not one deposition has been taken there is no more evidence of bailable to this court same judge hanks specifically said before he didn't say before you go to appeal but it's clear in the order if there is evidence that needs to be presented bring it to me they didn't do  he didn't do exactly what judge hank said he needed to do but they're standing there standing on the record before the court right now in support of a request for injunctive relief which simply isn't enough and it's definitely not enough to show the judge hanks abused his discretion there you have to say that it is clear that judge banks went to the issue of the injunction said if you come back to me with more evidence our modified the non compete race is a point in and it can't be it can't be reformed to present a simple ban on solicitation of customers because that's not in the agreement terms grave observed moments ago so position is very very clear and direct there isn't enough in the record before this court to show that there's any abuse of discretion on judge hanks court and it would have been incumbent upon the haining to develop a record before bringing it to this court there was plenty of time to do that and it didn't happen so i would i would i would say i would that hearing felt that there was enough in the record to substantiate judge hanks in this case is not saying i'm not going to do it but he said i need to see more and there's not enough here for me for that page i can recite it to the court it says in short respectfully denying the request for injunctive relief and again i don't believe you carry the burden likelihood of success and i don't believe you carry the burden with respect irreparable harm in this matter and here it is your honor if you're free if there is further discovering this matter to come back to me i will look at it and i can consider injunctive relief at that time but a dis time based on the record and  state of discovery it's respectfully denied i read that verbatim and i think it's a well reasoned position in making a decision not to grant extraordinary relief in the situation  he he was demoted substantially significant loss of income the other support his family this is back in the last crisis we had hurricane arguing houston and left because he was demoted and left and the court took that to that into consideration too there's a lot of d a lot of material in exercising discretion that the court will take into consideration before it decides whether to gran only the only evidence to support the breach of the agreement is there are two things there's a speculation limits to shaffer's affidavit that i that i shared with you earlier about presentation and the nd part is the  exchange between between mr calhoun and a representative from from another company the name the name of which you skate through right now when you're talking about a price quote and the potential to say money that if it cost a dues anything and i'm going to be clear i don't believe this is a solicitation other texas law the athens case that's been cited by both sides but that's the i clearly think you're correct but i think it's something you've said before there's a case that you actually offered is not published but next are broadcasting vs time warner back in two thousand and thirteen you spoke to construing this type of contract under texas law consider and how the court should consider the contract of a whole affording each part of the contract be affected deserve so that's exactly i would that's probably my best argument is something you wrote twelve years six fed appendix opinion just shocking you would be you would be disappointed with if i didn't throw back something somebody on the panel said some point but sounds like we don't know all that well but percent but there is nothing in the record we have an undeveloped record the judge hanks a district court specifically said if you have something bring it back then i would argue i'll take that one step further  he would he would not consider all of the evidence or something in the evidence that would have substantiated a grant of injunctive relief then it's from it but what it's incumbent upon the appellant to present the record to the court with this core is not incumbent upon calhoun to present their record for him and that's what they didn't do in this court i believe the appeal was premature because all they had to do was follow what judge hanks basically pleaded with them to do on the record give me more evidence give me something else to consider but based on this time i respectfully deny the request so i don't know what more judge hanks could have done to prevent this from happening and then for them not to act on it we've had sixty seven months of the district court denied any and the evidence you're hearing there the requests for an evidence you're hearing and in the district court so there was never request the district court set the hearing as it as it was when we appear in court that they record will clearly establish that nobody need me as well didn't but i don't think you'll see in the record any request or any statement or any objection on this to cronkite's part that you're doing this wrong i have to put on my witness i don't believe that that's in the record at all the judge dictated how the hearing was going to proceed and we followed through and since officers of the court judge graves mentioned earlier on in the argument the slipknot solicitation provision dealt with employees not customers this is a customer situated regardless whichever way it would have applied and so i don't believe the evidence in this case even if you if you just looking at that one e mail which is all you have before the court right now it doesn't rise to the level of solicitation in athens and the last thing i want to notice i have some time left to share with the court there's question whether or not texas law is clear whether the reformation as  in that case we have a situation where the district court did grant and reformation at the injunction hearing but with the developed record if i could if i could on one principle today it would be the reformation is not appropriate in this case because of the development in the record of the shortcomings in the development of the record at the bistro court we're speaking we're talking about reversing a district court other than the beauty of discretion standard which is which is critical in my argument when all the district court didn't this case was exercise discretion and reasonable discretion if you have more evidence bring it to me well they didn't like what i think and in fact the district court allow extreme and brawl no solicitation agreement everybody seems to agree is and then the district court and obligation to reform the contract when it seems to be unquestionably unenforceable as written because there wasn't enough evidence did because they did not satisfy their burden at this point remanding would equate to the abuse of discretion and i don't believe that those who are did in this case you have to charge the appellant with the responsibility of developing the record before we were met before we reverse a case on an abuse of discretion standard that is well reasoned and clearly follows the law he the district court was doing its job at the time and analyze the case with what was before it you can't i would argue to the court you can't reverse this record for doing what the district court is charged to do and reward the appellant for not coming forward with a clean record of where the where the problems were where the solicitation was where the competition was coming from who established a good will the shoes of the district court my argument is no that shouldn't happen here the district court should have been entitled to judge the case what was before it and they should have put the evidence before the court court has seen how he handled the hearing he initially told everyone i'm going to take proves on the record i'm going to take testimony your honor he asked me counselor you have no evidence that mr it's futile i have serious concerns that if we leave than for a nd evidence you're hearing we're going to face the same exact circumstances just in a different way and what the judge did say at oral hearing but not in the order evidence that you have to fit into any of that because i frankly and i don't believe there is an interest to enter when there injunction or injunction on this case so that's what i didn't do it because it wasn't actually in the order