*1 attempted instigate Officer Burton Rebecca WASHEL Hi-Tek Hair speed or
stop, disobey any and he did not d/b/a. Body Nails, Appellant-Plaintiff, & following illegal further traffic laws his Southport turn onto Road as he drove to at which he stop. location wished to BRYANT, Appellee-Defendant. Glenda Nonetheless, say person we cannot that a No. 53A04-0110-CV-450. knowing police who has admitted to that a officer stop wishes effectuate traffic Court of Appeals of Indiana. can, adequate justification, without choose June 2002. stop. the location of the As Woodward urges cognizant us to "be that there are
police/citizen encounters which citizens
may not be comfortable stopping selected,"
where an officer Brief of Appel- cognizant
lant at we must also be
dangers police that could await officer
stopping where the citizen selects. The
evidence is sufficient to show Wood-
ward knowingly intentionally fled from
Officer using Burton a vehicle. His con-
viction is affirmed.
Conclusion
Woodward's earlier waiver of trial by
jury upon was effective transfer from one
room Superior of the Marion erimi- Court another,
nal division to and the court did
not err him trying to the court. The
evidence support was sufficient to his con- resisting
viction of law enforcement.
Affirmed. NAJAM, JJ.,
BAILEY and concur. *2 Berry, Berry A. A. &
Thomas Thomas IN, Associates, Attorney for Bloomington, Appellant. Robertson, provided Wash- Beggs, Bunger & J.
William IN, adequate legal remedy el and de- Attorney Appellee. Bloomington,
nied Washel's OPINION interlocutory appeal This ensued. *3 NAJAM, Judge. AND DECISION DISCUSSION extraordinary An anis THE OF CASE STATEMENT granted should Washel, Hair Hi-Tek Rebecca d/b/a great only sparingly. caution and with used ("Washel!"), her former Body sued & Nails Carstens, Means & Co. v. 428 N.E.2d F.W. the Bryant, to enforce employee, Glenda 251, (Ind.Ct.App.1981). 260 The determi provision in non-competition terms a in grant deny preliminary nation to or a employment agreement. Following their junction equi rests within the trial court's trial court denied Washel's hearing, the table discretion and that determination will permanent in- request preliminary for only upon be reversed an abuse of that junctive interlocutory app In this Pub. discretion. Northern Indiana Ser eal,1 challenges Washel that decision and (Ind.Ct. Dozier, 977, 989 vice v. 674 N.E.2d following the restated issue: wheth raises App.1996). er the court erred when determined at was that Washel's law in deny Discretion to request and denied her for re- junction is measured several factors: Hef. (1) plaintiff's whether the remedies at law inadequate, causing irreparable are harm
We reverse.
pending
ac
resolution
substantive
(2)
tion;
AND PROCEDURAL
plaintiff
whether
has at least
FACTS
trial;
a reasonable
likelihood of
at
HISTORY
success
(8)
inju
plaintiff's
whether
threatened
stylist
a hair
Bryant worked as
for
ry outweighs
potential
harm to the
salon, Hi-Tek,
beauty
pursuant
Washel's
resulting
granting
defendant
from the
employment agreement,
pro-
to an
(4)
injunction;
public
whether
vided,
part,
open
could not
interest will be disserved. Ed Bertholet &
within
competing shop
ten miles for two
Assocs.,
361,
Stefanko,
Inc. v.
690 N.E.2d
years
employment
from the date she left
(Ind.Ct.App.1998).
at Hi-Tek. That
also con-
tained
determining
In
whether
the trial
$5,000
subjected
breaching party
discretion,
court
its
we
also
abused
must
every
agreement. Bryant
violation of the
findings
look to the trial
of fact and
court's
5, 2001,
resigned on March
and about a
findings
determine
support
whether
a hair
opened
month later she
salon within
the court's decision. McGlothen v. Heri
approximately three
of Hi-Tek.
miles
Servs., L.L.C.,
tage Einvtl.
705 N.E.2d
complaint against Bryant,
filed a
(Ind.Ct.App.1999).
We will
seeking damages along
preliminary
findings
set aside the trial court's
unless
permanent
they
clearly
Findings
relief. Follow-
are
Id.
erroneous.
ing hearing,
clearly
the trial court found that the
are
erroneous when the record
locutory appeal
right pursuant
as a matter of
appeals,
part,
1. Because Washel
least
request
from the trial court's denial of her
14(A)(5).
Appellate
to Indiana
Rule
preliminary injunction,
brings
she
this inter-
fore, utilizing
parties'
intention
or reasonable inferences
lacks
facts
difficulty by
this
applying
consider the evi-
address
them.
Id. We
support
"plain,
clause is
com-
light
most favorable to
only
dence
justice"
plete
efficient to the ends of
to-
findings
and construe
judgment
anticipated remedy
since the
liberally
judgment.
parties
in favor of the
gether
breaches;
(Ind.Ct.
address such
while the
744 N.E.2d
Sipes,
Barlow v.
=
understands Washel's desire to termi-
App.2001).
nate
business within ten miles
denying
injune-
Washel's
years,
a permanent
gm n
relief,
tive
the trial court entered detailed
for: two.
injunction would
both
deprive
of Law.
Findings of Fact and Conclusions
*4
of
of
and
are
Findings twenty through twenty-two
Ewan?
the‘benefit
thew-7169075?—
which was
in
contained
bargain
-
ateql
interest:
particular
of
Emp
their
Agreement:
“We.”
paragraph
20.
K. of Defendant's
”em?“
injunction
extraordinary equi-
nent
Proposed Findings
an
of
of Fact
Tender
§
?
P
by
table
that is not favored
the
.
C onelusions of
Order,
law;
fact,
in
the
in
court finds the law
Item?
that "Plaintiff's remedies at law
argues
tually
dy
.I
y
di
£
&
avat1"aw
CY
nC1ans
.reme
adequate
in
action are
because
this
such
injunction,
pvgr a'tn
‘When
precise
maintains
records of de-
plaintiff
y
waITagt—
F
production output during
fendant's
the
dhqulgated dimaggs gagseor in a valid
(5)
past
years
longer
five
or
and because
songzct 12;
'
iiveeirizzu'éiees-
provides
the 1996
a fixed sum
Contract
The court
finds
thereof[;]"
damages
of
for each violation
.22'
that.
prove
that her remedies at law
.
failed
concurs;
this court
imadequate given
are
the terms
her
of
.
many
21.
covenants not
Unlike
Bryant[.]
contract with
1.30
in
Employment Agreement
the
compete,
.
that
the trial
an
the case at bar also includes
addition-
co'ntend§
001.1115
in-
denied
for
provision,
al
famed.when.1t
.h'er
-
junctive relief.
“Spec n lca n y,
clause;
bar,
parties
in the case at
the
‘Washel as-
liquidated
that
the
damage? pr?“—
difficulty measuring
of
recognized the
sex-ts
sion,
injunction,
absent
accompanying
confidentiality
damages
any
of
breach of
an
provide
her with an
does not
mutually
competing
or
businesses and
agree.
at
must
law. We
agreed
any
that
violation thereof would
Hquidated damages,
pur-
parties'
agreement
for
the
The
contem
qualify
states,
injunctive remedy
damages
plates
of
is to
an
when
pose
which
address
pertinent part:
[noneom-
difficult to estimate or caleu-
in
"Should this
are
late;
petition] provision
against
from all
enforced
parties
should benefit
be
promises
[Bryant]
any proceeding,
parties
in
bargained
of their
mutual
that
Employment Agreement,
Agreement agree
in their
this
no bond shall
not
just
promises addressing
posted by
their re-
in order to obtain
[Washel]
those
be
when,
injunction
Appellant's App.
spective duties of conduct
addi-
an
order."
tion,
damages
then
they
liquidated
intended to ad- 388. The
specifically
agree
that because
provides:
parties
dress the
of such
breach
"The
6
any
violation of Provisions
including
liquidated damages provi-
may
sion;
Agreement
and 7 of this
calculating damages for Bryant's
difficult
Agreement
prove,
parties stipulate
Employment
breach of the
viola
is,
fact,
measure;
subject the
there-
tion of Provision 6 or 7 shall
difficult to
purposes.
liquidated
dam-
liquidated damages of different
breaching party to
$5,000
age
quantify
clause was intended to
violation." Id.
for each
agreement
for violations of the
after-
cost
findings take an either-
The trial court's
the-fact,
injunctive remedy
while the
was
equi-
respect
legal
approach
prevent
meant to
future violations of
is,
findings suggest
That
table relief.
Thus,
agreement.
agree
we
with Washel
must choose between the
that,
[liquidated] damage clause was
"[the
mutually
they
as if
were
two remedies
operate
intended to
tandem with
The court concluded in its find-
exclusive.
injunction
Ap-
of it."
of
instead
Brief
permanent
twenty-one
that "to
ing
pellant
deprive both Washel
would
negotiated
Bryant of the benefit of their
Further,
right
re
bargain"
contingent upon
lief is not
the text of
clause,
agree.
cannot
legal
We
agreement.
long
It
been the law
has
Rather,
injunctive relief would
to disallow
seeking
injunc
that an action
Indiana
deprive Washel of the benefit
is, therefore,
equity
tion lies in
derived
compete.
covenant not to
Nowhere does
from the common law.
Tel.
Central Union
imply
liqui-
state or
State,
Co.
Ind.
N.E.
*5
be the
rem-
damages
(1887);
dated
shall
exclusive
Mahan,
Ind.App.
v.
124
Sluder
edy.
661,
187,
(1954);
121 N.E.2d
R.H.
140
Martin,
Revenue,
Dept.
Inc. v. Indiana
of
interpreting
unambiguous
In
an
(Ind.Tax 1986);
475
Daugherty
512 N.E.2d
contract,
give
to the
of
effect
intentions
we
Allen,
228,
729 N.E.2d
(Ind.Ct.App.
285
parties
expressed
as
in the four cor
the
2000).
It
within
province
is
the
of our
Country
Art
ners of the document.
courts, using both common law and chan
L.L.C,.
Mortgage Corp.,
v. Inland
Squire,
cery jurisdiction,
injunctive
grant
to
relief.
885,
(Ind.Ct.App.2001).
745 N.E.2d
889
Co.,
208, 12
Central Union Tel.
110 Ind.
Clear, plain, unambiguous terms are con
right
injunctive
N.E. at 136. The
to
relief
clusive of that intent.
Id. We will neither
context,
in
employment
arises
as in this
unambiguous provisions
construe clear and
case,
remedy
when
law is inade
agreed upon by
not
provisions
nor add
quate.
liquidated damages
The
in
clause
parties.
meaning
Id. The
of a contract is
parties' agreement
does not obviate
from an
of
be determined
examination
right
Washel's
relief.
provisions,
all of its
not from a consider
.
We
conclude that
the trial
words,
phrases,
ation of individual
or even
read alone.
paragraphs:
(emphasis
finding
liquidated damages,
Id.
court's
added).
case,
alone,
parties' agree
standing
provided
In this
Washel with an
provided
adequate legal remedy
clearly
ment both
was
errone
and,
noted, contemplated
Although
have
injury gen
as we
ous.
mere economic
injunction.
erally
The trial court concluded that
a
does not warrant
of
injunction,2
the liquidated damages
provides
preliminary
clause
the trial court has
adequate remedy,
duty
with an
but
determine
legal
whether
money
remedy
relief serve
is as full and
as the
supreme
recently
identify any injury beyond purely
2. Our
reiterated that
failed
injury
injury.
economic
does not warrant
Id. But
there
mere
in-
economic
here
is more
Family
junctive
injury, namely,
Indiana
and Soc.
than economic
the violation of
Co.,
Walgreen
prior agreement
engage
specific
Servs. Admin. v.
769 N.E.2d
©
158,
case,
(Ind.2002).
conduct.
Walgreens
In that
Servs.,
loss,
disproportionate
may
Paul v. I.S.I.
to the
Inc.,
breach,
(Ind.Ct.App.
result
from the
the courts will
726 N.E.2d
2000).
treat
remedy
adequate only
penalty
A
is
the sum as
rather than as
legal
liquidated damages."
plain
complete
as
Gershin v. Dem
where
ming,
words,
685 N.E.2d
practical
(Ind.Ct.App.
adequate-or,
other
as
1997).
remedy
An unenforceable
justice
of
is no
and efficient to the ends
and its
contrast,
remedy at all.
if Bryant has
prompt
remedy
administration-as
only a single
by open
committed
violation
Daugherty,
ther a justice. the ends of See id. which to serve agreement's liquidated legal remedy adequate clause is not an full, practical, because is not as ade- Daugherty held in previously We have and efficient as the reme- quate, damages, absent an in- Stefanko, Therefore, dy. the trial court erred when junction, may legal provide adequate an adequate it found that Washel had rem- inapposite. But these cases are request at law and denied her edy Daugherty, we did not address an em- permanent preliminary re- but a suit for defama- ployment agreement lief. against Daugherty, tion a dentist his correctly employee. former We reversed Reversed. preliminary
the trial court's BAKER, J., concurs. because the dentist's calculable, giving him an were MATTINGLY-MAY, J., dissenting with Daugherty, at law. 729 N.E.2d at separate opinion. Daugherty already prof- 286. There had MATTINGLY-MAY, Judge, dissenting. alleged defamatory speech, fered the there was no indication from the dentist properly I believe the trial court denied (other supposition) than unfounded Hi-Tek's relief and *7 would continue to defame him. Daugherty that determined Here, Bryant operating is a business on a Bryant's employment clause in contract daily basis that is in violation of the em- Any injury was valid. Hi-Tek has suf- will, ployment agreement, and she without might purely fered or suffer is economic. an continue to do so. in injunction, accordingly Unlike I would affirm.
Daugherty, this violation is not a "one- Family In Indiana and Social Services may, in retrospect, time" violation Co., Walgreen Administration v. quantified money damages at trial. (Ind.2002), supreme N.E.2d 158 our court pre- recently injunc- the trial court denied a an reversed of Stefanko liminary plaintiff prevented imple- because the tion the State from harm, certain irreparable menting emergency failed to demonstrate cost-contain- discussion, and, following thorough emergency we ment measures. The rules Stefanko, affirmed on that basis. 690 would have decreased the Medicaid reim- pharmacies drugs we went on bursement rates to Then, dicta, N.E.2d 364. they to the issue of an and would have adequate legal dispensed paid address explanation, pharmacies dispensing drugs. Id. Without we sum- less for (Ind.Ct.App.2000), reh'g rule general N.E.2d court noted supreme The inju- suffering mere economic (the party denied, that a denied essential ele transfer relief injunctive be- of a contract action are ry not entitled ments breach of is make the damages are sufficient to cause contract, defendant's the existence It thereof, at 906. further Slip op. damages). whole. Nor party breach does or fail- "imminent business loss noted that duty by the breach of a tort itself estab Id. n. 4. injury." of economic ure is form injury that must be demonstrated lish See, support e.g., a tort action. Man There, testimony pharmacies offered Mangold Dept. gold ex rel. Indiana of losses, economic in addition to the Resources, Natwral 756 N.BE.2d might close. There was pharmacies some (a (Ind.2001) negligence plaintiff must testimony recipi- that some Medicaid also defendant, duty plaintiff by owed to show However, light would be harmed. ents duty by allowing breach of conduct to fall that alternative sources of other evidence care, applicable below the standard of services were available pharmacy compensable injury proximately caused work to the benefi- would ensure the State breach). services, access to ciaries had sufficient Walgreens court determined supreme token, fact vio- By the same injury beyond pure- identify any "failed her and Hi- agreement lated the between enough to injury, which is not ly economic cannot, alone, standing prove Tek Hi-Tek ... dam-
justify injunctive post-trial relief likely suffered or would suffer non-eco- any ages adequately compensate would violation. A injury nomic as result of the at trial." injuries Walgreens prevail should not, agreement "violation" of an without Id. more, "injury." majority attempts distinguish The injuries, Because Hi-Tek's whether for us on the Waigreen from the case before violations,1 past appear or future to be identify "Walgreens basis that failed economic, I trial purely believe the court injury injury beyond purely economic did not abuse its discretion when essen more than economic ... here there is [blut at law tially found that Hi-Tek's remedies injury, namely, prior the violation of a therefore adequate. were engage specific not to con- properly denied her that a duct." I would decline to hold relief, standing I would affirm. prior agreement," "violation of a alone, type represents the of non-economic
"injury" that would a basis for provide analysis improp- relief. Such injury
erly equates the violation with the
vel non that flows from the violation.
The breach of contract does that must be
itself establish bring an action for breach of
shown See, eg., Rogier v. American
contract.
Testing Engineering Corp., Still, damages provision liquidated
1. The scope of a "violation" is left unclear. damage undoubted- liquidated from each violation is allows Hi Tek to recover contract violation," $5,000.00 for "each ly only economic. majority's that the and I share the concern