                                                                            FILED
      MEMORANDUM DECISION
                                                                       Aug 11 2016, 5:46 am

      Pursuant to Ind. Appellate Rule 65(D), this                           CLERK
                                                                        Indiana Supreme Court
      Memorandum Decision shall not be regarded as                         Court of Appeals
                                                                             and Tax Court
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark D. Boveri                                            David R. Pruitt
      Krieg DeVault LLP                                         Brian E. Casey
      Mishawaka, Indiana                                        Barnes & Thornburg LLP
                                                                South Bend, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Janowiak,                                        August 11, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A04-1512-PL-2154
              v.                                               Appeal from the St. Joseph County
                                                               Superior Court.
                                                               The Honorable Steven Hostetler,
      Watcon, Inc.,                                            Judge.
      Appellee-Plaintiff.                                      Cause No. 71D07-1510-PL-353




      Friedlander, Senior Judge

[1]   Michael Janowiak appeals the trial court’s grant of a preliminary injunction

      enjoining him from soliciting orders from customers of his prior employer and

      from divulging any of his prior employer’s confidential information.

      Concluding that the grant of the preliminary injunction was proper, we affirm

      and remand, in part, with instructions.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016    Page 1 of 21
[2]   Janowiak presents four issues for our review, which we consolidate, reorder,

      and restate as:

              1. Whether the trial court erred in granting a preliminary
                 injunction in favor of Watcon.
              2. Whether the trial court erred in its conclusions.


[3]   Watcon, Inc. is a company headquartered in South Bend that provides water

      treatment services and related products for industrial, commercial, and

      institutional customers. In late 1988, Janowiak began working for Watcon as a

      field engineer, providing sales and service to Watcon customers. On December

      1, 1988, Janowiak and George Resnik, as President of Watcon, entered into a

      contract (the Agreement) which contains clauses regarding non-competition,

      confidentiality, and non-solicitation. Janowiak worked for Watcon from 1988

      to September 1, 2015, with access to its customer list, customer contact

      information, customer order history, and price lists. He was also one of

      Watcon’s most successful sales representatives, acquiring new accounts and

      increasing his sales each year.


[4]   On September 1, 2015, Janowiak tendered to Watcon a letter terminating the

      Agreement between the two parties, effective September 15, 2015. Thereafter

      on September 1, 2, and 3, Janowiak performed his duties as a field engineer on

      Watcon’s behalf soliciting and obtaining orders for Watcon products and

      services. On September 2, 2015, Watcon’s attorney sent a letter to Janowiak

      and his attorney demanding that Janowiak return all of Watcon’s equipment,


      Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 2 of 21
      devices, and supplies as well as all other materials relating to Watcon’s business

      by September 4, 2015.


[5]   On September 8, 2015, Janowiak signed a Sales Employment Agreement with

      Momar, Inc., a Georgia corporation with a water treatment division called

      Aquatrol. Although executed on September 8, the agreement went into effect

      on September 1, 2015. Prior to hiring Janowiak, Momar was not selling

      Aquatrol products in the territory in which Janowiak had sold Watcon

      products. Upon commencing employment with Momar, Janowiak solicited

      business from some of his Watcon customers and sold to them Aquatrol

      products and services that directly compete with those of Watcon. At the

      injunction hearing, Janowiak stipulated to and testified that, as a sales

      representative for Momar, he has solicited customers that he previously

      serviced for Watcon. The evidence showed he had solicited at least eight of his

      Watcon customers since he had begun selling Aquatrol products and services in

      his employment with Momar. Janowiak further acknowledged that within two

      weeks of leaving Watcon, he was filling orders for Momar products for at least

      two companies he serviced as a representative of Watcon. He also testified that

      he would not stop soliciting orders for Momar products from Watcon

      customers unless court-ordered to do so.


[6]   On October 16, 2015, Watcon filed a complaint against Janowiak for damages,

      preliminary injunction, and permanent injunction. A hearing was held on

      Watcon’s request for a preliminary injunction on November 16, 2015. The

      parties submitted proposed findings and conclusions, and, on November 24,

      Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 3 of 21
      2015, the court issued findings of fact and conclusions of law granting a

      preliminary injunction in favor of Watcon. This appeal ensued.



                                1. Preliminary Injunction
[7]   The grant or denial of a preliminary injunction rests within the sound discretion

      of the trial court, and appellate review is limited to whether there was a clear

      abuse of that discretion. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784

      N.E.2d 484 (Ind. 2003). In granting or refusing a preliminary injunction, the

      trial court is required to make special findings of fact and state its conclusions

      thereon. Barlow v. Sipes, 744 N.E.2d 1 (Ind. Ct. App. 2001), trans. denied; Ind.

      Trial Rule 52(A). On appeal, we must determine if the findings support the

      judgment. Barlow, 744 N.E.2d 1. The findings or judgment shall not be set

      aside unless clearly erroneous. T.R. 52(A). Findings of fact are clearly

      erroneous when the record lacks evidence or reasonable inferences from the

      evidence to support them. Barlow, 744 N.E.2d 1. A judgment is clearly

      erroneous when a review of the record leaves us with a firm conviction that a

      mistake has been made. Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164 (Ind.

      Ct. App. 2008). Due regard shall be given to the opportunity of the trial court

      to judge the credibility of the witnesses. T.R. 52(A). On appellate review, we

      consider the evidence only in the light most favorable to the judgment and

      construe findings together liberally in favor of the judgment. Barlow, 744

      N.E.2d 1.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 4 of 21
[8]    To obtain a preliminary injunction, the moving party has the burden of showing

       by a preponderance of the evidence that: (1) the movant lacks adequate

       remedies at law, thus causing irreparable harm pending resolution of the

       substantive action; (2) the movant has at least a reasonable likelihood of success

       at trial; (3) the threatened harm to the movant outweighs the potential harm to

       the nonmovant from the granting of an injunction; and (4) the requested relief is

       not contrary to the public interest. Apple Glen Crossing, LLC, 784 N.E.2d 484. If

       the movant fails to prove any of these requirements, the trial court’s grant of an

       injunction is an abuse of discretion. Id. As to the requirements for a

       preliminary injunction to issue, Janowiak challenges only the trial court’s

       determination that Watcon has a reasonable likelihood of success at trial.


                             A. Likelihood of Success at Trial
[9]    Janowiak raises two issues that bear on the likelihood of Watcon’s success at

       trial: (1) whether the Agreement is reasonable and (2) whether the Agreement

       is unenforceable because of a prior, material breach.


                               (1) Reasonableness of Agreement
[10]   Covenants not to compete are in restraint of trade and are not favored by the

       law. Gleeson, 883 N.E.2d 164. These covenants are strictly construed against

       the employer and are enforced only if reasonable. Id. To be reasonable, the

       agreement’s covenants (1) must protect legitimate interests of the employer and

       (2) must contain reasonable terms with regard to time, geography, and types of

       prohibited activity. Id. The employer bears the burden of showing that the


       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 5 of 21
       covenant is reasonable and necessary in light of the circumstances; that is, the

       employer must demonstrate that the employee has gained a unique competitive

       advantage or ability to harm the employer in order for the employer to be

       entitled to the protection of the noncompetition agreement. Id.


[11]   The trial court concluded that Watcon has two legitimate, protectable interests

       in this case: customer relationships and confidential information, including

       “customer ordering preferences, product history and contact information.”

       Appellant’s App. pp. 10, 9 (Conclusion No. 1). Janowiak does not contest the

       trial court’s determination that these are legitimate interests worthy of

       protection. Instead, he challenges the trial court’s determination that the

       Agreement’s terms are reasonable.


                                                (a) Paragraph 3

[12]   Janowiak first argues that the terms of paragraph 3(A) of the Agreement are

       overbroad with regard to the type of activity prohibited. Paragraph 3(A) states:

               3. The Seller further agrees:
                       (A) To maintain in strict confidence all details, plans,
               formulas, lists of customers and other information pertaining to
               the Companys’ [sic] business and technical data as may come to
               him by virtue of his efforts to sell the products of the Company
               and, in the event of the termination of this agreement, not to
               divulge the foregoing to any existing or prospective competitor of
               the Company and not to act in any way as competitor of the Company
               in the territory granted unto him for a period of two years after such
               termination.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 6 of 21
       Id. at 14 (emphasis added). Janowiak claims that the italicized portion of

       paragraph 3(A) is overbroad because it prohibits him from working for a

       competitor of Watcon not just in sales and service but in any capacity. We

       note, however, that except for the phrase “for a period of two years after such

       termination,” the trial court struck this portion of paragraph 3(A), thereby

       eliminating the allegedly unreasonable terms. Thus, we need not address this

       argument.


                                                (b) Paragraph 9

[13]   Janowiak also asserts that paragraph 9 of the Agreement is overbroad as to the

       type of activity prohibited because it forbids him to sell any products to

       customers of Watcon, including those not in competition with a product of

       Watcon. Paragraph 9 provides:

               9. The obligations imposed upon the Seller by Paragraph 2, and
               clause (A) of Paragraph 3 above, shall continue in effect
               regardless of the means or circumstances by which either this
               agreement or the active solicitation of orders in such territory
               may be terminated. For a period of two (2) years after the
               termination of this agreement, by mutual consent or otherwise,
               the Seller promises that he will not, directly or indirectly, solicit orders
               from the users of the Companys’ [sic] products in said territory, provided
               that, if the applicable law of such territory fixes a shorter period
               of restraint, such shorter applicable statutory limitation shall be
               deemed to fix the maximum limit of such restraint.
       Id. at 16 (emphasis added).


[14]   In making this argument, Janowiak overlooks paragraph 2 of the Agreement,

       which is referenced in paragraph 9 and which provides:

       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 7 of 21
               2. The Seller will attempt to find purchasers in such territory for
               such water treatment, water softening and other mechanical
               devices for the treatment of water and other products of the
               Company and to promote the business of the Company in
               conformity herewith and not to sell in such territory competitive
               products or to promote businesses in competition with the
               products and business of the Company. Nothing herein contained,
               however, shall be construed to prevent the Seller from selling and
               promoting products and business not competitive with those of the
               Company.
       Id. at 14 (emphasis added).


[15]   We are mindful that contracts are to be read as a whole, and courts should

       construe the language in a contract so as not to render any words, phrases, or

       terms ineffective or meaningless. State Farm Fire and Cas. Co. v. Riddell Nat’l

       Bank, 984 N.E.2d 655 (Ind. Ct. App. 2013), trans. denied. Further, courts should

       attempt to harmonize the provisions of a contract rather than interpret the

       provisions as conflicting. Id.


[16]   Accordingly, when the italicized portion of paragraph 9 is read in conjunction

       with the italicized portion of paragraph 2, it is clear that the Agreement limits

       Janowiak, upon his departure from Watcon, from soliciting orders from

       Watcon’s customers only for products that are in direct competition with the

       products sold by Watcon. This is a reasonable limitation on the type of activity

       in which Janowiak may engage in order to protect the legitimate interests of

       Watcon as determined by the trial court and unchallenged by Janowiak. Thus,

       the provision is reasonable and enforceable.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 8 of 21
                                       (2) Prior Material Breach
[17]   Janowiak next contends that Watcon is not reasonably likely to succeed at trial

       due to its prior, material breaches of the Agreement. After receiving all the

       evidence at the injunction hearing, the trial court determined that “Watcon has

       substantially complied with all the terms of the Watcon Agreement” and

       “Watcon did not materially breach the Watcon Agreement.” Appellant’s App.

       p. 9 (Finding No. 27), p. 10 (Conclusion No. 2). Janowiak challenges the trial

       court’s Conclusion No. 2 and argues that Watcon breached by prematurely

       terminating the Agreement and by failing to pay Janowiak his commission.


[18]   A breach by the employer may prevent enforcement of a noncompetition

       agreement. Central Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).

       Such a breach, however, must be material. Steve Silveus Ins., Inc. v. Goshert, 873

       N.E.2d 165 (Ind. Ct. App. 2007). A material breach is one that goes to the

       heart of the contract, and whether a breach is material is generally a question of

       fact for the trier of fact. Id.


[19]   In support of his argument, Janowiak points to Watcon’s demand that he return

       all company material and equipment by September 4, 2015. He maintains that

       this action by Watcon breached the Agreement by “effectively terminat[ing] it

       prematurely” because he could no longer perform his duties. Appellant’s Br. p.

       17. In addition, he contends that Watcon breached the Agreement by failing to

       pay him commissions he claims he is owed for the period of September 1-15,

       2015.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 9 of 21
[20]   The evidence at the injunction hearing showed that on September 1, 2015,

       Janowiak tendered to Watcon a letter terminating the Agreement, effective

       September 15, 2015. Resnik testified that when he asked Janowiak what he

       was going to do upon his departure from Watcon, Janowiak responded that

       Resnik should contact Janowiak’s lawyer. Resnik testified that this response

       “made [him] think that [Janowiak] was up to something, maybe going to work

       for a competitor.” Tr. p. 20. In addition, Janowiak testified at the hearing that

       during his employment at Watcon, he had access to and developed confidential

       information for the company. This confidential information includes the name

       and contact information for the customer’s contact person. Resnik testified that

       “one of the hardest things in our industry is to get an initial contact name,

       somebody to talk to at the business as you’re going to get a potential customer”

       and that “sometimes it takes a couple years to even find out who the person is

       you’ve got to talk to.” Id. at 16, 19. On September 2, 2015, Watcon’s attorney

       sent a letter to Janowiak demanding the return of all company equipment,

       materials, and supplies by September 4, 2015. Resnik testified this action was

       taken due to Janowiak’s unwillingness to discuss his future employment plans

       and his referral of all inquiries to his attorney. Janowiak testified that without

       this equipment, he was unable to perform his duties at Watcon and that

       Watcon had not paid him his commissions.


[21]   The trial court made findings based upon and consistent with this evidence. See

       Appellant’s App. pp. 5-6 (Finding of Fact Nos. 7-14). The court then

       concluded that Watcon did not materially breach the Agreement:


       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 10 of 21
               [T]he Court finds, for purposes of the Motion for Preliminary
               Injunction, that Watcon did not materially breach the Watcon
               Agreement. Watcon’s actions were appropriate under the
               circumstances. Janowiak chose not to honestly and openly
               discuss his intentions with Watcon. It was perfectly reasonable
               for Watcon to seek to protect its confidential information by
               demanding that Watcon’s materials be immediately returned.
               Further, it is not unreasonable for Watcon to believe that
               Janowiak (who was not an employee) would end up owing to
               Watcon an amount greater than the amount of unpaid
               commissions. The Court also notes that the Momar Agreement
               was effective as of September 1, 2015, which is during the period
               for which Janowiak claims to be entitled to commissions from
               Watcon. That being said, the Court does not make any
               determination as to whether or not Janowiak may be owed such
               unpaid commissions from Watcon.
       Id. at 10-11 (Conclusion No. 2).


[22]   First, Janowiak has made no showing that these alleged breaches are material,

       which is a required element. Additionally, with regard to the unpaid

       commissions, the employment agreement between Janowiak and Momar was

       entered into evidence at the hearing. Although the agreement was executed on

       September 8, 2015, paragraph 3 of the agreement states that Janowiak’s

       employment with Momar commenced on September 1, 2015, the day he gave

       his notice to Watcon and prior to the termination of his agreement with

       Watcon on September 15, 2015. Furthermore, Janowiak testified, and exhibits

       confirmed, that he submitted orders from Watcon customers for

       Momar/Aquatrol products on September 14, 2015. These events all occurred

       before Watcon allegedly failed to pay Janowiak his September commission.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 11 of 21
[23]   Second, we observe that paragraph 9 of the Agreement provides, “The

       obligations imposed upon the Seller by Paragraph 2, and clause (A) of

       Paragraph 3 above, shall continue in effect regardless of the means or

       circumstances by which either this agreement or the active solicitation of orders

       in such territory may be terminated.” Id. at 16. Thus, upon termination of the

       Agreement by any means, Janowiak is to adhere to the non-compete and non-

       solicitation clauses. See Krueger, 882 N.E.2d 723 (where provision of contract

       called for survival of non-compete agreement despite termination of contract,

       Supreme Court held provision enforceable even in face of breaches by

       employer). The trial court’s conclusion that Watcon did not materially breach

       the Agreement is not clearly erroneous.


[24]   Furthermore, in light of the reasonableness of the terms of the Agreement and

       the trial court’s conclusion that Watcon did not materially breach the

       Agreement, the trial court’s conclusion that Watcon has proven a reasonable

       likelihood of success at trial is not clearly erroneous.


                           B. Terms of Temporary Injunction
                                        (1) Addition of Terms
[25]   Janowiak claims that in its preliminary injunction order the trial court added

       terms, thereby improperly expanding the parties’ non-solicitation covenant.

       Specifically, in Paragraph 9, as set out above, Janowiak agreed to refrain from

       directly or indirectly soliciting orders from users (i.e., his Watcon customers).




       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 12 of 21
       In its order, the court enjoined Janowiak from taking any action to “solicit or

       accept orders” from Janowiak’s Watcon customers. Id. at 12 (emphasis added).


[26]   The trial court did not improperly expand the parties’ agreement. The trial

       court’s prohibition of Janowiak “accepting” orders is encompassed in the ban

       on his “indirect” solicitation of orders as agreed to by the parties in paragraph

       9. Additionally, reading the contract as a whole as we are obliged to do, see

       Riddell Nat’l Bank, 984 N.E.2d 655, we observe that in paragraph 2 of the

       Agreement Janowiak agreed not to sell competitive products in his Watcon

       territory. So whether Janowiak accepts or solicits an order, the end result is the

       same: he is selling competitive products in his Watcon territory (and to his

       Watcon customers) in contravention of the Agreement. The trial court properly

       set forth the terms of the preliminary injunction and did not abuse its discretion.


[27]   Janowiak also asserts that the trial court improperly added words to the

       Agreement by enjoining him from soliciting or accepting orders from his

       Watcon customers “for products and/or services that compete with the

       products and services provided by Watcon.” Appellant’s App. p. 13.

       Particularly, he contends the trial court’s order inappropriately narrows the

       restriction set forth in paragraph 9 of the Agreement in which he promised to

       refrain from directly or indirectly soliciting orders from his Watcon customers

       in his Watcon territory.


[28]   In a prior argument, Janowiak claimed that the terms of paragraph 9 were

       overbroad because the provision restricting the solicitation of sales is not limited


       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 13 of 21
       to sales of products competitive with Watcon. See Discussion Section

       1.A.(1)(b), supra. There we concluded that if the Agreement was read as a

       whole, paragraphs 9 and 2 make it clear that the Agreement limits Janowiak

       from selling competing products and/or services to his Watcon customers.

       Thus, the court did not improperly add terms to the Agreement as a result of

       the language it used in its order. Rather, it properly stated the intent of the

       parties as evidenced by their Agreement, specifically paragraphs 9 and 2. The

       trial court did not abuse its discretion.


                                      (2) Insufficient Evidence
[29]   Next, Janowiak argues that the trial court improperly enjoined him from

       divulging Watcon’s confidential information because there was no evidence

       that he had done so. As agreed to by the parties, the trial court enjoined

       Janowiak from divulging “any and all details, plans, formulas, lists of

       customers and other information pertaining to Watcon’s business and technical

       data.” Appellant’s App. p. 13.


[30]   At the hearing on the preliminary injunction, Janowiak testified that during his

       tenure at Watcon, he had access to and developed confidential information for

       the company, including customer contact information and order history. He

       also testified that he considered that information to be valuable to Watcon and

       that he would not share the information with a competitor. He further testified,

       however, that once he began working for Momar, a competitor of Watcon, he

       targeted customers that he had previously serviced for Watcon and solicited

       orders from them using his “memory” and “previous knowledge.” Tr. p. 95.
       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 14 of 21
       In addition, when asked whether he would continue to solicit his Watcon

       customers unless prohibited from doing so by the court, Janowiak replied,

       “Yes.” Id. at 97. This evidence plainly shows that Janowiak revealed and

       utilized Watcon’s confidential information — at the very least, Watcon’s

       customer list. What’s more, Janowiak testified that he would continue with

       such action until a court forbid him from doing so. We find no error in the trial

       court’s order.


                                          (3) Trial Rule 65(D)
[31]   Next, Janowiak maintains that the preliminary injunction issued by the trial

       court does not comply with Indiana Trial Rule 65(D). Trial Rule 65(D)

       requires that “[e]very order granting temporary injunction . . . shall be specific

       in terms.” The trial court enjoined Janowiak from soliciting or accepting orders

       from any of his “53 Current Customers” at Watcon. Appellant’s App. pp. 12-

       13. Janowiak asserts that the term “53 current customers” is not specific.


[32]   At the injunction hearing, Watcon presented evidence of Janowiak’s customers

       at the time he left the company. Resnik testified that, based upon Watcon’s

       company records, Janowiak was servicing 53 customers at the time of his

       departure. At least seven of the 53 customers were specifically named at the

       hearing as having been solicited by Janowiak since his departure from Watcon.

       Similarly, Sean McMullen, Watcon’s sales manager, testified that Janowiak

       had 53 active accounts that he was servicing at the time he left. This evidence

       was uncontested and supports Finding of Fact No. 20, which states:


       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 15 of 21
               20. Janowiak had 53 current active customers (the “53 Current
               Customers[”]) on September 1, 2015. Those are the only
               customers for which Watcon is seeking a preliminary injunction.
               Watcon has a legitimate interest in the ongoing business with the
               53 Current Customers, and that interest is protectable.


       Id. at 7. Finding No. 20, in turn, supports Conclusion of Law No. 2, which

       states, in part: “Watcon has a protectable interest in the 53 Current

       Customers.” Id. at 10. From our review of the transcript it appears that

       everyone understood the identity of the 53 customers. Janowiak neither

       presented evidence disputing Watcon’s evidence of 53 active customers at the

       injunction hearing, nor expressed an inability to identify the 53 customers or

       addressed the issue with the trial court by asking for clarification of its

       injunction order.


[33]   Nevertheless, Indiana Code section 34-26-1-9 (1998) permits “[u]pon the

       granting or continuing of an injunction, such terms and conditions may be

       imposed upon the party obtaining the injunction that are considered equitable.”

       Although the trial court did not abuse its discretion in using the term “53

       Current Customers” in its injunction order, by utilizing this statute, the

       injunction order can be clarified for all the parties involved. Therefore, the trial

       court is to order Watcon, pursuant to this statute, to submit a verified statement

       identifying the 53 customers that were Janowiak’s current customers at the time

       he left his employment with Watcon. The trial court is further ordered to

       clarify its injunction order utilizing the verified statement provided by Watcon.

       See, e.g., Burk v. Heritage Food Serv. Equip., Inc., 737 N.E.2d 803 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 16 of 21
       2000) (upon issuing injunction against former employee to enforce

       noncompetition agreement, trial court acted within its discretion in ordering,

       post-judgment, former employer to submit list of customers to clarify injunction

       and apprise former employee of customers not to be solicited for duration of

       injunction).



                         2. Conclusions of the Trial Court
                                        A. Ambiguous Term
[34]   Janowiak additionally asserts that the term “users” in paragraph 9 is overbroad

       and unenforceable, thereby challenging the trial court’s Conclusion of Law No.

       2, which states: “The Court is not persuaded that the term “user” is

       ambiguous. The intent of the parties seems clear. They intended to protect

       Watcon from Janowiak competing with respect to then-current actual

       customers of Watcon at the time Janowiak’s relationship with Watcon

       terminated.” Appellant’s App. p. 10.


[35]   The court’s Finding of Fact No. 20 supports its Conclusion of Law No. 2.

       Finding of Fact No. 20 states: “Janowiak had 53 current active customers (the

       “53 Current Customers[”]) on September 1, 2015. Those are the only

       customers for which Watcon is seeking a preliminary injunction. Watcon has a

       legitimate interest in the ongoing business with the 53 Current Customers, and

       that interest is protectable.” Id. at 7.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1512-PL-2154 | August 11, 2016   Page 17 of 21
[36]   In turn, the evidence supports Finding of Fact No. 20. The parties’

       understanding of the term “users,” as employed in paragraph 9 of the

       Agreement, was revealed during Janowiak’s cross-examination of Resnik:

               JANOWIAK’S COUNSEL: If I ask you to identify the users of
               Watcon’s products and services as used in that sentence, would
               your answer be to give me a list of names of customers?
               RESNIK: Yes.
       *****************


               JANOWIAK’S COUNSEL: One of the things that you testified
               about on cross-examination was the customers in his territory,
               and I take it that the purpose of this case is to try and preserve
               those relationships, right, for Watcon?
               RESNIK: Yes.
               JANOWIAK’S COUNSEL: You don’t want Mr. Janowiak to
               go out and take over those relationships or interfere with them to
               the extent they already exist between Watcon and a customer in
               his territory, right?
               RESNIK: Yes.
       Tr. pp. 51, 53.


[37]   Watcon does not seek to prohibit Janowiak from soliciting all of its customers –

       just those with whom Janowiak did business. Thus, the trial court’s conclusion

       that the term “users” in paragraph 9 of the Agreement means customers of

       Janowiak’s at the time he terminated his relationship with Watcon is not clearly

       erroneous. See Field v. Alexander & Alexander of Ind., Inc., 503 N.E.2d 627 (Ind.

       Ct. App. 1987) (holding that the term “any customer,” in the absence of explicit



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       language to the contrary, should be confined to the employer’s customers when

       the employee was terminated), trans. denied.


                                     B. Blue Pencil Doctrine
[38]   Finally, Janowiak challenges the trial court’s application of the blue pencil

       doctrine to a portion of paragraph 3(A). Indiana’s blue pencil doctrine allows

       courts of this State, when reviewing covenants not to compete, to enforce

       reasonable restrictions of covenants and strike unreasonable restrictions, as long

       as they are divisible. Clark’s Sales & Serv., Inc. v. Smith, 4 N.E.3d 772 (Ind. Ct.

       App. 2014), trans. denied. When employing this doctrine, a court must not add

       terms that were not part of the agreement; rather, the court may only strike

       unreasonable terms or clauses in order to give effect to the parties’ intentions.

       Id. Courts must be mindful not to use the blue pencil doctrine to create a

       reasonable restriction under the guise of interpretation, as this would subject the

       parties to an agreement they have not made. Id.


[39]   Here, in its Conclusion of Law No. 2, the trial court severed a portion of

       paragraph 3(A) by applying the blue pencil doctrine. Although set out

       previously in this opinion, for ease of reference we reproduce the terms of

       Paragraph 3(A) here.

               3. The Seller further agrees:
                      (A) To maintain in strict confidence all details, plans,
               formulas, lists of customers and other information pertaining to
               the Companys’ [sic] business and technical data as may come to
               him by virtue of his efforts to sell the products of the Company
               and, in the event of the termination of this agreement, not to divulge the
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               foregoing to any existing or prospective competitor of the Company and
               not to act in any way as competitor of the Company in the territory
               granted unto him for a period of two years after such termination.
       Appellant’s App. p. 14 (emphasis added). The italicized portion was struck by

       the trial court pursuant to the blue pencil doctrine. We note that by utilizing

       this doctrine, the court struck a clause that defined too broadly the type of

       activity from which Janowiak is restricted upon terminating his employment

       with Watcon. Janowiak, in fact, argued that this very clause is overbroad. See

       Discussion Section 1.A.(1)(a), supra. Janowiak now claims the court’s use of

       this doctrine creates a two-year restriction to which the parties did not agree.


[40]   Contrary to Janowiak’s contention, the covenant as originally written and

       agreed upon by the parties, limited his disclosure of Watcon’s confidential

       information for a period of two years. A portion of the covenant struck by the

       trial court stated that Janowiak agreed that “in the event of the termination of

       this agreement, not to divulge the foregoing . . . .” Appellant’s App. p. 14. The

       term “foregoing” refers back to the first sentence of the covenant listing the

       items to be kept confidential as Watcon’s “details, plans, formulas, lists of

       customers and other information pertaining to [ ] business and technical data.”

       Id. This part of the covenant remains intact. Moreover, the two-year limitation

       refers not only to the latter part of the clause prohibiting Janowiak from acting

       as a competitor of Watcon, as Janowiak argues, but also to the former part of

       the clause listing the items to be kept confidential. This is indicated by use of

       the conjunction “and.” Consequently, even prior to the trial court striking part

       of the covenant, a two-year limit was in place for this information. Moreover,

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       the very language that Janowiak challenges is favorable to him because it limits

       his obligation to only a two-year period. Thus, by applying the blue pencil

       doctrine to paragraph 3(A), the court struck an overbroad clause and added

       nothing to the agreement. What remains, after the redaction, is a reasonable

       two-year prohibition on the disclosure of Watcon’s confidential information by

       Janowiak. We find no error in the trial court’s use of the blue pencil doctrine.


[41]   In light of the foregoing, we affirm the judgment of the trial court and remand,

       in part, with instructions.


[42]   Judgment affirmed and remanded, in part, with instructions.


       Kirsch, J., and Altice, J., concur.




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