STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-653
BILLEDEAUX HEARING CENTER, L.L.C.
VERSUS
KATIE URBAN-KINGSTON
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2015-0726L HONORABLE MARILYN C. CASTLE, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Jimmie C. Peters and Marc T. Amy, Judges.
AFFIRMED.
“PETERS, J., would increase the attorney fee award for work performed on appeal from $750.00 to $2,500.00.”
Robert N. Aguiluz 8702 Jefferson Highway, Suite B Baton Rouge, LA 70809 (225) 952-2005 ATTORNEY FOR APPELLANT: Katie Urban-Kingston
Kevin S. Frederick Frederick Law Firm P.O. Box 52880 Lafayette, LA 70505 (337) 269-5143 ATTORNEY FOR APPELLEE: Billedeaux Hearing Center, LLC COOKS, Judge
Billedeaux Hearing Center, LLC (Billedeaux) and Katie Urban-Kingston
(Katie) entered into an employment agreement dated May 19, 2014, which
contained a “Confidentiality/Nonuse/Noncompetition/Nonsolicitation” clause. The
agreement also contained a severability clause and provided for recovery of
attorney fees and costs in the event the employer had to seek judicial enforcement
of the contractual provisions. The contract defined the specific areas of Louisiana,
Arkansas, Texas and Mississippi which are covered by the agreement. Billedeaux
filed a Motion for a Temporary Restraining Order seeking to enjoin Katie from
engaging in employment for a competitor in two parishes in Louisiana prohibited
in the agreement.
The trial court issued a Temporary Restraining Order (TRO) on February 13,
2015, without bond, directing Katie:
[T]o refrain from carrying on or engaging in a business similar to Billedeaux Hearing Center, LLC, including but not limited to her employment or business relationship with Williamson Hearing Center, or any other business engaged in marketing, selling, testing for, fitting, manufacturing, adjusting, cleaning, repairing, and servicing hearing aids/instruments and providing related patient/customer services within [the listed Louisiana parishes] ….
The TRO also set a show-cause hearing for March 2, 2015, concerning the
issuance of a preliminary injunction and award of attorney’s fees and costs.
The trial court held a hearing on the appointed date. The parties stipulated
to the following facts: 1) Katie received training from Billedeaux and had access to
its materials while employed there; 2) Katie was employed by Williamson Hearing
Center (Williamson) at the time of the hearing; 3) Williamson is in direct
competition with Billedeaux in Baton Rouge, East Baton Rouge Parish and
Denham Springs, Livingston Parish, Louisiana. Katie asserted as her defense to the issuance of a preliminary injunction that the non-compete agreement was
overly-broad. The trial court noted that the only issue before the court was
whether Billedeaux and Williamson were in competition in the two parishes in
which Katie was employed at the time. Noting that the parties had already
stipulated to those facts, the trial court rejected Katie’s assertions and found the
non-compete clause of the agreement valid. The trial court rendered judgment in
open court on March 2, 2015, in favor of Billedeaux and issued a preliminary
injunction against Katie affecting East Baton Rouge and Livingston Parishes,
Louisiana and awarded Billedeaux attorney’s fees in the amount of $6,056.30,
based on the evidence presented. All costs were assessed against Katie. She did
not file a motion for new trial nor did she appeal the ruling granting the
preliminary injunction and awarding attorney fees. Judgment was signed on
March 25, 2015.
On March 9, 2015, seven days after the trial court rendered judgment ordering
the preliminary injunction, Katie filed an Answer, Exception of Prematurity,
Exception of No Cause of Action, Exception of Unauthorized Use of Summary
Proceedings, and a Reconventional Demand. A hearing on those exceptions was
set for April 27, 2015. Additionally, on April 21, 2015, Katie filed a Motion to
Dissolve Preliminary Injunction and Related Money Judgment. On April 27, 2015,
the trial court overruled Katie’s exceptions and denied her motion to dissolve the
injunction. Judgment denying Katie’s motion to dissolve and overruling her
exceptions was signed on May 14, 2015, as was the order of appeal. Katie appeals
the trial court’s judgment denying her motion and exceptions. Billedeaux filed an
Answer to Appeal seeking an award of attorney fees and costs incurred defending
this appeal in accordance with the contractual provision in its employment contract
2 with Katie.
LAW AND ANALYSIS
Katie asserts three assignments of error and identifies two assignments as
“procedural” and one as “merits.” Billedeaux asserts that because Katie did not
appeal the judgment granting the preliminary injunction within the applicable
delay period we are without jurisdiction to consider the issues raised by Katie on
appeal.
Louisiana Code of Civil Procedure Article 3612 (C) provides for a fifteen-day
period “from the date of the order or judgment” to appeal the issuance of the
preliminary injunction. Further, “[a]n appeal is taken by obtaining an order
therefor, within the delay allowed, from the court which rendered judgment.”
La.Code Civ.P. art. 2121 (emphasis added). The trial court granted the preliminary
injunction on March 2, 2015, in open court and awarded attorney fees to
Billedeaux on that date as well. Katie had fifteen days from that date to file a
motion for appeal under the express provisions of La.Code Civ.P. art. 3612. No
appeal of that order was taken. Thus, we are without jurisdiction to consider the
trial court’s granting of the preliminary injunction and award of attorney fees.
Likewise, because Katie filed her exceptions after the hearing and rendering of
judgment issuing the preliminary injunction we are without jurisdiction to address
the exceptions. Louisiana Code of Civil Procedure Article 928 provides for the
“time of pleading” these exceptions. Louisiana Code of Civil Procedure Article
2593 (emphasis added) expressly provides “Exceptions to a contradictory motion,
rule to show cause, opposition, or petition in a summary proceeding shall be filed
prior to the time assigned for, and shall be disposed of at, the trial.” Exceptions to
summary proceedings must be filed prior to the time assigned for trial. Kyle v.
3 Johnson, 01-2482 (La. App. 1 Cir. 5/10/02), 818 So.2d 979.
We also find the trial court properly denied Katie’s Motion to Dissolve the
preliminary injunction. The trial court on initial review of the Motion to Dissolve
the preliminary injunction found the filing was procedurally improper. Louisiana
Code of Civil Procedure Article 3607 provides in pertinent part:
An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days’ notice to the adverse party, or such shorter notice as the court may prescribe. The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.
We note Katie was entitled to file her motion to dissolve at any time after the
issuance of the preliminary injunction. Be that as it may, the trial court eventually
decided to rule on the merits of the motion. Katie presented no new change of
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-653
BILLEDEAUX HEARING CENTER, L.L.C.
VERSUS
KATIE URBAN-KINGSTON
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2015-0726L HONORABLE MARILYN C. CASTLE, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Jimmie C. Peters and Marc T. Amy, Judges.
AFFIRMED.
“PETERS, J., would increase the attorney fee award for work performed on appeal from $750.00 to $2,500.00.”
Robert N. Aguiluz 8702 Jefferson Highway, Suite B Baton Rouge, LA 70809 (225) 952-2005 ATTORNEY FOR APPELLANT: Katie Urban-Kingston
Kevin S. Frederick Frederick Law Firm P.O. Box 52880 Lafayette, LA 70505 (337) 269-5143 ATTORNEY FOR APPELLEE: Billedeaux Hearing Center, LLC COOKS, Judge
Billedeaux Hearing Center, LLC (Billedeaux) and Katie Urban-Kingston
(Katie) entered into an employment agreement dated May 19, 2014, which
contained a “Confidentiality/Nonuse/Noncompetition/Nonsolicitation” clause. The
agreement also contained a severability clause and provided for recovery of
attorney fees and costs in the event the employer had to seek judicial enforcement
of the contractual provisions. The contract defined the specific areas of Louisiana,
Arkansas, Texas and Mississippi which are covered by the agreement. Billedeaux
filed a Motion for a Temporary Restraining Order seeking to enjoin Katie from
engaging in employment for a competitor in two parishes in Louisiana prohibited
in the agreement.
The trial court issued a Temporary Restraining Order (TRO) on February 13,
2015, without bond, directing Katie:
[T]o refrain from carrying on or engaging in a business similar to Billedeaux Hearing Center, LLC, including but not limited to her employment or business relationship with Williamson Hearing Center, or any other business engaged in marketing, selling, testing for, fitting, manufacturing, adjusting, cleaning, repairing, and servicing hearing aids/instruments and providing related patient/customer services within [the listed Louisiana parishes] ….
The TRO also set a show-cause hearing for March 2, 2015, concerning the
issuance of a preliminary injunction and award of attorney’s fees and costs.
The trial court held a hearing on the appointed date. The parties stipulated
to the following facts: 1) Katie received training from Billedeaux and had access to
its materials while employed there; 2) Katie was employed by Williamson Hearing
Center (Williamson) at the time of the hearing; 3) Williamson is in direct
competition with Billedeaux in Baton Rouge, East Baton Rouge Parish and
Denham Springs, Livingston Parish, Louisiana. Katie asserted as her defense to the issuance of a preliminary injunction that the non-compete agreement was
overly-broad. The trial court noted that the only issue before the court was
whether Billedeaux and Williamson were in competition in the two parishes in
which Katie was employed at the time. Noting that the parties had already
stipulated to those facts, the trial court rejected Katie’s assertions and found the
non-compete clause of the agreement valid. The trial court rendered judgment in
open court on March 2, 2015, in favor of Billedeaux and issued a preliminary
injunction against Katie affecting East Baton Rouge and Livingston Parishes,
Louisiana and awarded Billedeaux attorney’s fees in the amount of $6,056.30,
based on the evidence presented. All costs were assessed against Katie. She did
not file a motion for new trial nor did she appeal the ruling granting the
preliminary injunction and awarding attorney fees. Judgment was signed on
March 25, 2015.
On March 9, 2015, seven days after the trial court rendered judgment ordering
the preliminary injunction, Katie filed an Answer, Exception of Prematurity,
Exception of No Cause of Action, Exception of Unauthorized Use of Summary
Proceedings, and a Reconventional Demand. A hearing on those exceptions was
set for April 27, 2015. Additionally, on April 21, 2015, Katie filed a Motion to
Dissolve Preliminary Injunction and Related Money Judgment. On April 27, 2015,
the trial court overruled Katie’s exceptions and denied her motion to dissolve the
injunction. Judgment denying Katie’s motion to dissolve and overruling her
exceptions was signed on May 14, 2015, as was the order of appeal. Katie appeals
the trial court’s judgment denying her motion and exceptions. Billedeaux filed an
Answer to Appeal seeking an award of attorney fees and costs incurred defending
this appeal in accordance with the contractual provision in its employment contract
2 with Katie.
LAW AND ANALYSIS
Katie asserts three assignments of error and identifies two assignments as
“procedural” and one as “merits.” Billedeaux asserts that because Katie did not
appeal the judgment granting the preliminary injunction within the applicable
delay period we are without jurisdiction to consider the issues raised by Katie on
appeal.
Louisiana Code of Civil Procedure Article 3612 (C) provides for a fifteen-day
period “from the date of the order or judgment” to appeal the issuance of the
preliminary injunction. Further, “[a]n appeal is taken by obtaining an order
therefor, within the delay allowed, from the court which rendered judgment.”
La.Code Civ.P. art. 2121 (emphasis added). The trial court granted the preliminary
injunction on March 2, 2015, in open court and awarded attorney fees to
Billedeaux on that date as well. Katie had fifteen days from that date to file a
motion for appeal under the express provisions of La.Code Civ.P. art. 3612. No
appeal of that order was taken. Thus, we are without jurisdiction to consider the
trial court’s granting of the preliminary injunction and award of attorney fees.
Likewise, because Katie filed her exceptions after the hearing and rendering of
judgment issuing the preliminary injunction we are without jurisdiction to address
the exceptions. Louisiana Code of Civil Procedure Article 928 provides for the
“time of pleading” these exceptions. Louisiana Code of Civil Procedure Article
2593 (emphasis added) expressly provides “Exceptions to a contradictory motion,
rule to show cause, opposition, or petition in a summary proceeding shall be filed
prior to the time assigned for, and shall be disposed of at, the trial.” Exceptions to
summary proceedings must be filed prior to the time assigned for trial. Kyle v.
3 Johnson, 01-2482 (La. App. 1 Cir. 5/10/02), 818 So.2d 979.
We also find the trial court properly denied Katie’s Motion to Dissolve the
preliminary injunction. The trial court on initial review of the Motion to Dissolve
the preliminary injunction found the filing was procedurally improper. Louisiana
Code of Civil Procedure Article 3607 provides in pertinent part:
An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days’ notice to the adverse party, or such shorter notice as the court may prescribe. The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.
We note Katie was entitled to file her motion to dissolve at any time after the
issuance of the preliminary injunction. Be that as it may, the trial court eventually
decided to rule on the merits of the motion. Katie presented no new change of
circumstances to support her motion to dissolve. She relied on the same arguments
she made in opposition to the issuance of the preliminary injunction, i.e. that the
trial court could not issue a preliminary injunction without a showing of irreparable
harm and that the provisions in the agreement are over-broad. Louisiana Revised
Statute 23:921(H) (emphasis added) expressly provides:
Any agreement covered by Subsection B, C, E, F, G, J, K, or L of this Section shall be considered an obligation not to do, and failure to perform may entitle the oblige to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.
It is well established jurisprudentially that a preliminary injunction may be issued
without a showing of irreparable harm when “an employee enters into an
agreement with his employer not to compete, pursuant to LSA-R.S. 23:921, and
fails to perform his obligation under such an agreement ….” Vartech Systems, Inc.
4 v. Hayden, 05-2499, p. 7 (La.App. 1 Cir. 12/20/06), 951 So.2d 247, 255.
Additionally, the employment agreement between Katie and Billedeaux provided:
“The Company shall also be entitled to injunctive relief without the necessity of
providing irreparable harm or the posting of bond or security.” Neither the
applicable statute nor the employment agreement support Katie’s argument and
indeed expressly state that the injunction may issue without any showing of
irreparable harm.
We also reject Katie’s assertion that the agreement is over-broad and therefore
invalid. The agreement contains a severability clause and thus, the trial court could
reform the contract, if necessary, to enforce its prohibition in the two parishes in
which Katie admits she was employed by a company in direct competition with
Billedeaux in violation of the agreement. See, Henderson Implement Co., Inc. v.
Langley, 97-1197 (La.App. 3 Cir. 2/4/98), 707 So.2d 482.
The contract between Billedeaux and Katie provides for the recovery of
reasonable attorney fees and costs to the prevailing party:
In the event of any legal action against Employee arising out of the breach or violation of any obligation or prohibition set forth in this Section 7 or otherwise in this Agreement, in addition to any other remedy provided for by applicable law, the Company shall be entitled to collect from Employee its reasonable attorney’s fees, damages and costs.
Billedeaux answered Katie’s appeal seeking attorney fees and costs arising out of
this appeal. We are not asked to address the attorney fees awarded in the trial court
at the issuance of the preliminary injunction because Katie elected not to appeal
that ruling. Under the express terms of the employment contract at issue
Billedeaux is entitled to its reasonable attorney fees and costs for any legal action
against the employee as specified in the contract. Katie argues there has been no
5 trial on the merits adjudicating whether the contract at issue is in fact valid and
binding and suggests we must defer any award of contractual attorney fees until the
matter is finally concluded. Billedeaux, at this stage, is the successful party on
appeal. The legal steps taken by Plaintiff to defend against the appeal were
connected to enforcement of the employment contract and by its express terms
Billedeaux is entitled to attorney fees. We hereby award to Billedeaux the sum of
$750.00 as attorney fees for the work performed on appeal.1 Because we affirm the
trial court ruling, all costs of this appeal are assessed against Katie.
1 Although Plaintiff presented evidence below upon which the trial court based its award of attorney fees, no such evidence was presented to this court that would aid us in determining a greater amount to award.