hundred six at that time she was hired in atlanta georgia and signed and non competition agreement with p s s in atlanta georgia and that's time she went to work for p s s in atlanta employed in the states of georgia and we see anna the following is the territory of the area of restriction for a ploy eased employed in georgia and we see and the territorial in both being and speed of that paragraph fifteen come ask you the initial phrase which was within the geographic area described below so then when you go through the geographic area described below says it's in the states of georgia an easy and geographical area means the following counties and then in handwriting all commies here by included so when you look to the twelve month period language in both of those clauses in both of those paragraphs that language is subordinate to the prior phrase which is within the geographic area described below and i think you're honest question highlights  fact that this clause is difficult to understand because i'm here talking about subordinates praising the subordinates of one language to one word or another that's what our that's what contract reason we argue that is number one we believe the contract is ambiguous both for the reason that i just argued as well as the fact that the word employed which is the subject of what's in the briefs the word employed can either be a verb or a noun dictionary definition could be either it could either mean hired or it could mean the state of being employed and there's no way of telling from looking at the language in which stance it is meant so you have to really to   and which might apply to an employee anywhere that employee might be assigned are void boy not enforceable void and five years later in the case of jared against hamilton the georgia court of is void from the beginning the actual word of the jerk or just is it invalidates the provision and the entire agreement and you have to assume the p s s which drafted the contract and the work in georgia one of the agreement to be binding us cut to the chase what are you asking us to do your honor we're asking you to set aside the permanent injunction which is based on finding that the non computer agreement applied in the via because not complete agreement if it was valid at all was only valid in georgia so that to the extent that the district court opinion the district court order was premised on a finding that the non competing agreement was binding in the vada it was wrongly decided as a matter of law must be set aside if you used a bunch of minutes i'm not trying to come in here you said you're co counsel want to talk also or you want to save time for rebuttal ok i'll save the rest of you i have a few more succeed in other words yes says less likely to succeed and its claims why is that an abuse of discretion well your honor as mr scott just explained the argument with respect to the finding of  likelihood of success with respect to the quoting for breach of contract and if we disagree with that then basically is there anything left well if you disagree with that then yes there is something left right first of all preliminary injunction that was entered by the district judge in this case the only finding of who are pro bowl injury in there is a recitation of the provision of the employment agreement that stipulates if you will that a violation of the agreement would constitute irreparable injury and then the judge goes on to say there you know we presume irreparable injury exists there was no independent finding by the court in the order granting the problem in our injunction  is correct that there needs to be a finding and that there seemed to be such a finding in his or order but for whatever reason it didn't get basically transported or ported over to the written order but that happened so we stuck with the written order however it seemed to me that if this case is governed by florida law which it would appear to be under the no that a conflict of law principles that florida law has a presumption in it of irreparable harm in cases like this not unlike we find in the federal law in the trademark statutes or in the copyright cases so why wouldn't that serve legal foundation for irreparable harm in this case well i suppose and i apologize your honor florida law was really not particularly examined or addressed in the court below for whatever reason but it seems to me that the standard in the required finding a very reputable injury is a procedural matter rather than a substantive matter and should be analyzed under secret violation and i'm not sure if that's where that presumption would arise under florida law but it's certainly our position that there is no appropriate finding of a trade secret violation here we've got a customer list that admittedly was prepared by ms d but she still she has testified without contradiction that she hand wrote from memory and list of names and addresses and that that was input  calendar into the system over there even judge jones the district judge but wove found that the names and addresses are not necessarily trade secrets on their own he made a finding that we feel the  simply the names and addresses of customers created from the memory of judy do not constitute a trade secret and in addition the other two matters that the court referenced in its findings regarding trade secrets were their purchasing histories for two customers and back order report but again while it's one contradicted that she downloaded those documents is also one contradicted that she destroyed them and there's no evidence that those documents were actually used in some way on behalf of injury let me go back to that for a second is there some rule caister something that i'm having trouble putting my fingers on that says that you can't use the oral findings to supplement the written findings i mean because he parses through this to reparable injury thing pretty carefully know when there is in fact a written order that is entered by the court that is the ruling and that is final findings rather than comments that are made verbal at the hearing that occurred and i apologize that i didn't have those keys in this court in one nine hundred eighty the court made very clear that the balance of hardships has to be addressed regardless of which of those standards is being used and at least there must be a finding that the balance of hardships do tip in favor of the party seeking the injunction now you know we certainly have arguments to present regarding why the balance of hardships favors misdeed because he still although frankly that's argument that should have been considered and evaluated by the court below it should have  to a finding in order to support the entry of a pulmonary injunction i was trying to interrupt you but you said you want to save some time i understand that and i appreciate that i just want to briefly go over the scope of the injunction and then  the injunction that was actually entered by the court below was relying on nevada law under nevada law it must be reasonable in its scope and duration and certainly that's the one many other states as well and it's got to be only to the extent that it's reasonably clearly overbroad that would not be an area in which she would be competing in any way with p s s and there's no legitimate interest in prohibiting that additionally the evidence that was presented was that he still had contact with these one hundred fourteen customers customers that she was contacting for them and developed a relationship with through the benefit of p s s p s s has no legitimate interest in prohibiting that and with that i'd like to reserve the rest of our time thank you your hon good morning my name is don gilbert i'm with a lot from of them are craig and phoenix arizona and we represent p s s world medical there are a few issues that i would like to to take up with you and some of them you've already raised counsel the first one is standard of review because i think in this case it has a it is critically important obviously to have the judge's decision is viewed clearly the standard is abuse of discretion with respect to findings that is a question clearly erroneous findings otherwise there accepted and i believe although this wasn't raised quite the way the court raised it that if there is a missing finding but there is a record that supports the finding that find necessary to support the judgment are accepted if the record will support it and there was if there is a missing element but it's in the record below what are you talking about your being abstract i'm sorry my understanding is that there was an argument that well the court orally obviously made it clear that he had found instances of irreparable harm that there was an absence of a finding in the formal order and i believe if the finding were necessary on a question of fact if it's in the record the agreement that provides for periods in breach to extend the end of the injunction and this case is that issue another six months or so for example the court informally enter until february and ran it for eighteen months from the procedural matter and you were begging for a larger but your response to going to give a slightly longer answer than perhaps you're expecting i believe you have to start the whole analysis of this case with the choice of law provision in the contract you cannot interpret a contract without first deciding what law applies to it and in in this situation the forum court looks to the agreement to see what law the parties are specified here they specify florida   the court did not but the court went through the process the court recognized florida law and recognized that the nevada had an interest in the application of law in that form it seemed that the only thing the court kind of my  you first look to see what law the party selected they selected florida you see this florida have a reasonable relationship to the transaction yes it does that is where julie de but she still was interviewed that's where she lived when she was hired yes it does that is  the the corporate headquarters and center of employment for all of the employees of p s that's world medical so you clearly have a substantial relationship and you have one of the parties to the contract with a clear interest in having a lot of  is an appropriate choice because florida law bears a connection to the transaction then the question is does the application of florida law offend nevada law and in this case no one is arguing that this contract isn't  on how this ought to come out strangely enough in an instruction case i think the facts are paramount but in this case the court is clearly finding that my client suffered from a disloyal employee who was surreptitiously employed and committed to work with a competitor and engaged in disloyal activities that put the competitor in a position of entry into this particular market and put them in a position where they were able to take depending on how far the down the time continuum you are from an initial eighty five percent over ninety two percent of the business that had been serviced by this particular representative of my clients  so there's an enormous loss here in a clear need to stop the interference with those customer relationships and that goodwill and to start the process of capturing the rights that my current client had under the contract itself i think the other argument that the that caligari has made about georgia law is is simply one that when you read the contract you should reach the conclusion that the contract was only intended to apply in ga you cannot i don't believe fairly read that contract and reach that conclusion it clearly contemplates that this is a person who has been hired with the possibility of working in a number of locations that refers given different titles may be placed in different locations and the contract is against the factual backdrop that g g battista can see when she was sent for training in ga she did not know where she was going to work and there would be absolutely no reason to suspect that with no intention of placing her in ga the parties would have contracted for only her contract only coverage ga and further since this is the contract they were using as their form with all of their employees there's no reason to suspect that that is a contract that was intended to cover only employees working in georgia there are a couple of other issues that them were raised primary argument of the appellant's but i think on the record before you first the cases don't support what they're saying second you need to bear in mind that the plaintiffs in this case  client they sued my client asking for an injunction and then they didn't pursue it and then my client notified them and it's in the record that they were notified in november that we were definitely speaking injunction and asked for an accelerated process so i find the allegations somewhat unfair about the late the cases that they cite don't support it in any event there is no case that comes close to the time periods in the facts of this case that they've  specifically the guilder case which is the whole p g a case when the golf clubs had groups and there was a question of whether those were the right groups that case was a case that involved more than seven months between analyzing the claim and talking about it and then finally bringing suit seven months was not an excessive delay the a c l u case which was cited for the proposition that three months delay is excessive actually when you read the case it said the the plaintiffs the question of hardship the sun micro systems case clearly says that we have to show the likelihood of success on the merits which the court clearly found and the possibility of irreparable injury which the court both presumed and i believe on the record found the florida statute has been called to your attention but if you want to talk about balancing the hardship the record is replete with the judge considering the impact of the injunction thousand dollars as a bonus for leaving she was guaranteed thirty nine thousand dollars of salary she was given the opportunity to earn commissions against that to better it and indeed of her and she was offered a fifty thousand dollars bonus if she achieved a level in bringing over my client's business that was six hundred thousand dollars of profit which is something that would be less than all of the business that she had been doing while she was with my client so she stood to make  over two hundred thousand dollars she is still employed by caligari her husband is employed by calendar she doesn't have to give the money back just because she's been enjoying so in terms of hardships i am sorry but i can't see it and that particularly true when these are hardships that are brought upon her by her own violation of her contract will obligations and her promises and her duty of breaches of her duty of loyalty the things that she did to my client she can hardly now complain that having been called to account because of those in some manner prejudice is fair and should be weighed into balance anything else not unless they're questions like your her it's in the record p s assessor if you want to job with us get up to atlanta within forty eight hours it will be a job for you there she goes up to atlanta she interviews that's where she signs the contract now georgia is  there is one coming out of colorado kind of the same thing here it's a colorado there was a transaction in colorado the headquarters in colorado they said that's enough of a substantial relation that's what and now that a supreme court uses is the very strongly that if you don't have a clear definition of the location the geographic location that is ascertainable at the time the contract is signed not the end of the employee's employment the you are graffiti apply to any place the employer has subsequently assigned it's void that's what the georgia case will say so you have to assume that p s s which is hiring people in georgia intended to make their contracts  s employee employed that is hired in georgia and that's the only contract where you have that handwritten language all counties included everywhere else that's blank if their argument is correct that wouldn't have to be filled in that was field then because p s s wanted to make that contract binding in georgia because when she started work she started working in the warehouse delivering products to versailles their customers they wanted a contract their customers in georgia they wanted a contract that if they had to sue her not six years later but a month later if they had to sue her to stay away from the georgia customers they needed a contract that was in forcible and into the georgia case