injunction finding that the restrictive covenants contained in mr roy hilly is an employment agreement which were overbroad at the time it was entered into and determined to be ambiguous in two thousand and eighteen november and twenty one dollars which clearly makes clear what the restrictions are and reduces the scope to two years and and where the parishes are clearly delineated on the front end then those are to be deemed unforeseeable in this case in granting the preliminary injunction we believe that the court effectively replaced twenty three thousand nine hundred and twenty one with general contractor boilerplate language referencing general contract principles were addressed did not involved even ambiguous agreements in fact there is no case that we could find where an employer was allowed to testify as to its intent are we and i understand where that comes from and we were placed in a bit of a pickle afterwards the opponent said that because we didn't dispute the ambiguity after the november th hearing  agreement ambiguous it's interesting because it kind of gets into this interplay of in general the notion is when there's an ambiguity you can bring in other evidence but then you have this notion of contra preference and how that that fits in and ya'll have obviously differing views on so my experience with contract interpretation is it's kind of a a list you start up here you look at the contract that's where you start and then you go down the list of ways that you resolve concerns harmonizing one paragraph with another in baba blah and then at the very bottom is when you get into the ambiguity being and still unresolved and yet contra preference and you have the notion of looms over this entire proceeding in fact one of the contract principals again it's in there against public policy one of the contract principals noted general contract was noted by my opponents and of strictly construed against the employer we did not cite this case in our brief because it was on published judge clement dealt with a similar issue in when she was on there is no way that mr avila who could have determined on the front end of what he was getting into and i'm not talking about the reforms rewritten version i'm talking the initial version well you know the initial version did list a bunch of parishes so when he at least be on notice that those parishes  a virgin including but not limited to ok but including but not limited to even to a non lawyer would mean at least these i don't count how many there were but at least these ten let's say say if i'm wondering where can i work when i leave brock i know it can't be in those ten parishes i don't know what else it might in compass well i say that maybe if there's an th hour and i'm saying ten i didn't count him but  where you turn up the telephone with you contacted or where you emailed within the last year of your employment with brought in this was done nine years prior so  are their parishes listed in the agreement certainly i can't dispute that they believe it says what it says but there is nothing to indicate at the time you entered into the agreement that he would be restricted from those parishes perhaps if he worked there in the last full year is employment with brock he may be restricted to those persons but at the time he entered into the claim but there's no way even to an ordinary person the parishes were including but not limited to as applicable so only to the extent if he would have worked in those parishes within the last full year of his employment ok he would have been restricted let's let's take away what what restrictions you know that those may have been ok but as apple doesn't know where you know what he's not is not to know where he was going to work or where he was going to send emails or where he was going to telephone but when he doesn't know when he signs the contract that in the year before he leaves wherever he's worked within those parishes that's  i don't know what work means your honor that's a separate issue but i will i will grant your point in that regard that that when he when you write when he signs the contract he will know in the last in the last year if he's working now would also challenge that those parishes a listed but as a judge claim in order to do poor decision he doesn't know that the one hundred mile radius is an applicable in fact he doesn't even know that this agreement is not govern under texas law which is what they said it and what they said it isn't what he testified to you one stayed up all night wondering what he was signing and terrified that even know what i did miles from the parish was and so on it was just another day in the neighborhood he signed the deal and that's and so given that why can't the trial judge consider the evidence of what brock's intent was because of nine hundred and twenty one because it's against public policy because a person who wants a job ok who needs who has decided that they're going to go to that company they're going to go to that company is in a completely different position than someone who's signing just a regular run of the mill contract ok these people they they they are forcing these people and that's one of the reasons why these contracts are strictly construed against the employer is they that sign this contract and you get hired if once again if if the i think this dichotomy was shown when you see that they they brought to testify a general counsel from from who a former general counsel who at the time was their general counsel who testified what the intent of the company was when he wanted to determine what he was not allowed to do if that's the case respectfully i said why didn't they they put that in their agreement so what i would what i would say in addition that form i don't want to move off of this but i do want to note that the customer of the former general counsel and inserted it into what it purported to be a non competition agreement related to the indirect or direct interest as  manager or employee which the district court took to mean what we just don't believe under two hundred and thirty nine to anyone and it's it the fact that it's against public policy the fact that it must be strictly construed against the employee her and the fact that this employer drafted this agreement we simply do not believe that this agreement is enforceable against mr kelley as an employee and one of the questions thank you  judge clement that you hit the nail right on the head with your questions of judge change i'm sorry with your questions earlier st of all this is a procedural issue did judge gravels properly follow the procedure to get to the not fighting that they're not fighting that so if it's a big us then we get into the area i was talking about which is which one comes st contre preferential or the ability to consider parole evidence in this list of contract interpretation rules i can actually question for you swap twenty four again so does that mean that that was the case i just cited also stands for the proposition  and i'll just read this is from there's a quote from the case non competition agreements competition agreement is a contract between parties and should be construed according to the general rules of inter interpretation of contracts and louisiana code tw lines the laws in particular the ones were said within a radius well so actually struck out including but not limited to and then we struck out any municipalities within the parishes so that was how it was reformed the judges ask everybody f code articles and one of them in particular two thousand and fifty six states in case of doubt that can't otherwise be resolved so that comes st a provision in a contract must be central parish were which is not a listed parish but yet reach into orleans parish or st bernard parish or st james st charles east baton rouge in particular was the big one and direct traffic by managing a pache employees and he also couldn't physically go into those parishes and perform work that was in competition with brock so that was her basic testimony and the court accepted that as the intent of the parties  opportunity to testify about what she believed the agreement met he offered no testimony and that he said he was concerned only about compensation so he didn't he didn't he didn't say one way or the other so the court is left with from very clear perish and include a peerage and shout across the line come to you know my new company and ignore brock you know so i think that's where the judge finally ended up is it made sense that you can be able to  particularly in this era of texting and whatever he should be able to kind of loop around the barrier by standing on the other end of it that's exactly right and treasure gravels added in his in his ruling  a reference to civil code article two thousand and forty nine and so this is again one of the one of the twelve articles that the supreme court said you look at for contract construction and this is what it states and in quotes a provision susceptible of different meanings must be interpreted with a meaning that gives it that renders it effective and not ineffective so if mr religio was able to stand in the line of ascension parish and bark orders across the lawn to somebody that's working at a plant whether it be physically phone text email then that would that would render the central useless and that was another part of the testimony that provided and the judge accepted because it's common sense it makes sense and it makes the agreement effective what about solicitation meet seems like mr rove helio was pretty high up in brock before he went to apache and so it would seem that it would cover a lot of things what he did in addition sort of managing the company would also be talking to customers and things like that so how does that intersect with the an enforceable non solicitation clause ok so his his he was hired to manage operations in the state of louisiana and that again is that's testimony by t trying because she was the one that hired them or she was involved in the hiring process with mr really at the time that he left the company she was his title was vice president of operations for the eastern region of brock services now that covers more than than louisiana that covers taxes the easy anna in the south the south area least he knew when he was working for brock that he was going to be working in all the parishes from bases centrally from lake charles all the way across the state all the way down south in the in the parishes listed in the actual agreement there are three of them that are in northern louisiana we know that most of his work dealt with the southern part of the reason and according to mr tran he was responsible for the entire state of louisiana so that technically all those other three parishes apply as well and that's exactly what judge gravels fat as far as him not being i don't think to answer the question that was posed earlier not being able to know what he was to do that for the year prior it's time that he that he signed the agreement that just doesn't hold any water mr really knew that he was going to manage operations and he testified that he went into the plants on a regular basis he was on the road an awful lot he was going to these pla reports and this is back in january early february timeframe of the january timeframe for sure that he had been meeting with customers and i can tell you an example just in particular a fellow named dennis white with performers contractors  office was in his baton rouge parish they were discussing for on behalf of brock in august of two thousand and eighteen they were discussing beaumont work which is a big exxon facility in boma so that's an hour and bro expense reports he's meeting with customers for the purpose of getting works to soliciting work when he went to patchi we have his expense reports that show that he's meeting with the very same individual dennis white with performance contract have other examples that were put into the record as well triad electric as your argument is very specific it's not that he wasn't engaged with customers that were shall we call shared but rather that because seven point two is specific and is an enforceable you can't bootstrap that into seven dollars and include that in the injunction so how do you respond to that that well we've cited cases th was soliciting customers is a part of competition it's very often that you have non competition provisions and non school station for business provisions in these agreements and if one happens not to be valid maybe the other will be valid and you and you enforce it to the extent that you can enforce it in this case the non competition provision is valid and it does by definition includes soliciting of customers particularly mr regalia because that was what his job was if you look at it matter whether it's a preexisting customer as opposed  to i don't know going to a as you say a ball game and just trying to meet other people and hope that they'll come and use your company that's one kind of solicitation versus you have a long standing customer and you're just trying to get more business from that customer does that difference matter in the non competition provision encompasses his inability it's restricts him from talking to customers and customers if he dealt with personally and or just brought customers in general  customer yes which you've been talking about yes he's been raised in ellis you game and all that it can also mean the world is your oyster and you just go out and try to find a brand new client that has never used rock has never used apach e is a new customer a new potential customer and try to solicit them are those different in this sphere yes that's different what he what he did for profit the year prior to him leaving the company was to manage the operations to go out and do business with customers to seek new business from customers within the parishes that are listed and that's would prohibit some from now going out and even trying to get new customers in those and those parishes on behalf of apache now we've we've said that from the very beginning there are no restrictions on mr regalia working for patchy in ascension parish and going any to any of those any of the places in this entire world stuff listed in that agreement and you can seek out any new business that's outside of those parishes so if he were to get business from dow for instance chemical in alaska and we didn't you know that's not part of the restrictive parish we were able to rule very quickly because this injunction ends on september three so what is the practical effect of anything we do in kind of others and put another way why are we here we've been asking that question o and i would like to get a cup of coffee from but that's a very good question doesn't it and another month and i think we mentioned our brief that at that point that the jurisdiction of this court is is finished so there's no more jurisdiction  goes back to what i mean let's say we rule before september rd what impact does that have on the rest of the case well is there a rest of the case are you all seeking something besides this injunction that will and september  injunction made and the case goes on yes either way we rule the case goes on well i mean it's important to rule in our favor on him violating the agreement and maintaining the injunction in place through september rd because that's exactly what should happen and judge to gravel's as i said earlier he did it by the book to each point from a legal standpoint and then he looked at the evidence and he found based upon the evidence of all those expense reports of mr avila go was in the parish that he should not have been and mind you judge that at the original hearing mr hilliard testified that he was only working in the central parish and the judge made the assumption that he was not going out to any of the other par they were restricted and that's where he based his decision and i want to clarify that mr mr hughes the basic decision not to not to grant a preliminary injunction he did not make any decision on the ultimate meaning of the contract he did not ever say that that contract was an enforceable at that at that hearing not one time so that needs to be corrected and the record the judge merely said i am not ruling in your favor on this motion for d is really regardless of how we rule unless we somehow say this case is just impossible or something like that but almost regardless of how we rule the case goes back for merits of the damages that's obviously our ruling would have impact on that i get that but your position is then whether we sustain the injunction or or put a set aside the injunction or whether it becomes moot you're going to trial for damages well for the time that he do with the issues that are before the court today but but the broader view of it as this case doesn't go away and and the company brock services definitely needed the relief that was provided by judge brothers i didn't at the  very st hearing bring any extra evidence because my reading my reading of the agreement along with the stipulations that were made by by mr resilient which the stipulations were pretty simple that  at that time and reading the agreement it meant that he was in ca elation of the agreement a judge to gravel's through curveball and said i'm reform in the agreement but then under the reformation there are some ambiguous st for different interpretations it's ambiguous they're all legal i was it that's also a good point is that his four different interpretations all comply with the strict reading of nine hundred and twenty one there are just different ways of reading it which require the extrinsic evidence to come in and find the intent of the parties so we didn't we didn't offer any testimonial evidence that at that st hearing but he didn't say i expect that that will happen in the future we've been f have moved their business from brock to apache which we believe is directly related to mr really of violating this agreement and directly related to the evidence that we've already put into and to the record before judge or gravels there are multiple examples of which is one way to quantify it and in the case of work that we lost in beaumont which is a which was through this performance contractors deal it's in the millions of dollars multimillions of dollars over the short period of time just because these these contracts once you get them yet once you get a taste that they stick with the new contractor for a while your foot in the door and that's it that's a huge deal if they do well we're going to get it for you know a few into the future so this thank you i do want to know at the outset right off the bat there employer we did not hear twenty three thousand nine hundred and twenty one even addressed they run two general contract principles that we see as a public policy against these types of agreements th their employer the drafter of the agreement if they want to all of this that there is this these these reasons for mr related stop saying general contract principles don't apply i'm saying that's what twenty four did not unambiguous i do want to note the damage claim the damage claim they are seeking damages for a year against mr rogelio for aid an agreement that was both overbroad and later reformed and then found to be a months later judge gravel after their argument says oh oh wait we're going to step out a round if they don't want customer solicitation then they don't include it if customer solicitation is within the non competition agreement number one put it there number and it was it was overbroad to be given out for the trade secrets fraud and whatever else it was listings listing a long list of other things that would not i'm sure you think your kind and you are not as right suggesting otherwise i'm just saying those are still in play paid you know what i'm going to do i'm going to draft in the us agreement that no one can figure out on the front end and indirect or direct interest which the district court took to mean as work and then the district court found that to be ambiguous you don't get to say that and say because i cuz it's ambiguous you no longer take into account the restrictions of non twenty one and die right into twenty three in two general contract principles and that's mostly evident when you look at the general contract principle that says you've got to find your interpret these things to where they're effective will win with the employee ever win thank you