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DuSablon v. Jackson County Bank

Court of Appeals of Indiana

September 23, 2019

Mathew R. DuSablon, Appellant-Defendant,
Jackson County Bank, Appellee-Plaintiff.

          Appeal from the Jackson Superior Court The Honorable Bruce A. MacTavish, Special Judge Trial Court Cause No. 36D01-1802-MI-15

          ATTORNEY FOR APPELLANT Jason M. Smith Smith Law Services, P.C.

          ATTORNEYS FOR APPELLEE Debra A. Mastrian Suzannah W. Overholt Elizabeth S. Traylor SmithAmundsen LLC.

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] In two notices of appeal filed with our Court, [1] Mathew R. DuSablon stated that he was appealing the trial court's entry of a preliminary injunction, the court's subsequent conversion of that preliminary injunction into a permanent injunction, an order in which the trial court found DuSablon to be in contempt, a September 2018 sanctions order, and an October 2018 sanctions order. DuSablon asserted that Indiana Appellate Rules 14(A)(1) and 14(A)(5) provided that he may appeal each of those various interlocutory orders as a matter of right. DuSablon's counter-claims against plaintiff Jackson County Bank (the "Bank") remain pending in the trial court.

         [¶2] DuSablon purports to raise two issues for our review. However, we conclude that DuSablon has not secured appellate jurisdiction. There is no final judgment, as his counter-claims remain pending in the trial court. The preliminary injunction, which may have supported interlocutory review as of right under Appellate Rule 14(A)(5), no longer exists. And neither permanent injunctions nor contempt findings, without more, are bases for appellate review under Appellate Rule 14(A).

         [¶3] This leaves the two sanctions orders. The October 2018 sanctions order superseded the September 2018 sanctions order, and we agree with DuSablon that the October order is appealable as of right under Appellate Rule 14(A)(1) as an order for the payment of money. However, DuSablon raises no actual argument on appeal regarding the payment of money under that order, to say nothing of an argument supported by cogent reasoning and citations to the record. Accordingly, there is nothing for this Court to review. We therefore dismiss this appeal.[2]

         Facts and Procedural History[3]

         [¶4] On February 28, 2018, the Bank filed its complaint against DuSablon on the ground that he was in violation of a noncompete agreement with the Bank. The Bank sought a preliminary and permanent injunction. DuSablon moved to dismiss the Bank's complaint, which the trial court denied, and filed counterclaims against the Bank.

         [¶5] In August, after a fact-finding hearing on the Bank's request for a preliminary injunction, the trial court found as follows:

         1. [The Bank] is an Indiana state chartered bank that provides consumer banking services to customers as well as investment services . . . .

         2. In September 2007, [the Bank] hired DuSablon as an Investment Representative to provide investment services to [the Bank's] customers.

         3. On September 12, 2007, DuSablon executed the Agreement, which includes provisions barring DuSablon from disclosing confidential [Bank] information, requiring the return of [Bank] property upon his termination, barring competition for a reasonable period of time within a reasonable geographic area after termination, and prohibiting him from soliciting and diverting employees, certain customers, and prospective customers of [the Bank].

         4. Specifically, the Agreement provides that:

DuSablon covenants and agrees not to enter the employment of, or perform any advisory or consulting service for, or make a substantial investment in, any branch, office or satellite of a financial services business, investment services business, or a financial institution . . . which branch, office or satellite is located in any county in which [the Bank] has a branch or office for a period of twelve (12) months from the date of termination of employment with [the Bank], irrespective of who terminated the employment or why it was terminated.

(Agreement, Section 1.)

         5. The Agreement further provides that:

DuSablon agrees that he will not directly or indirectly at any time during the Business Protection Period solicit or induce or attempt to solicit or induce any employee of [the Bank] to terminate his or her employment, representation or other association with [the Bank].

(Agreement, Section 2(b).[)] The Agreement defines "Business Protection Period" as the time DuSablon was employed by [the Bank] and for a period of twelve (12) months after such employment ends. (Agreement, Section 2(a).)

         6. [The Bank] has offices in the following counties (the "Restricted Area"): Jackson, Lawrence, Jennings, Monroe and Bartholomew.

         7. DuSablon's responsibilities as an employee of [the Bank] included pursuing new business on [the Bank's] behalf, developing investment relationships with current and prospective customers of [the Bank], and selling insurance and financial products for [the Bank's] benefit.

         8. To accomplish these tasks, DuSablon relied upon direct marketing and referrals from [the Bank], [the Bank's] ...

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