Dusablon v. Jackson Cnty. Bank

132 N.E.3d 69

Mathew R. DUSABLON, Appellant-Defendant,

v.JACKSON COUNTY BANK, Appellee-Plaintiff.

Court of Appeals Case No. 18A-MI-2259

Court of Appeals of Indiana.

FILED September 23, 2019

Attorney for Appellant: Jason M. Smith, Smith Law Services, P.C., Seymour, Indiana

Attorneys for Appellee: Debra A. Mastrian, Suzannah W. Overholt, Elizabeth S. Traylor, SmithAmundsen LLC, Indianapolis, Indiana

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 The October 2018 sanctions order superseded the September 2018 sanctions order, and we agree with DuSablon that the October order is appealable as of right under Appellate Rule 14(A)(1) as an order for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 History³

[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 counter-claims 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] employees, and [the Bank's] branches.

9. DuSablon was also responsible for compliance requirements in accordance with [the Bank's] procedures, as well as the requirements of [the Bank's] broker-dealer, INVEST Financial Corporation ("INVEST"), for which he also served as [a] registered representative.

10. DuSablon executed the purchase and sales of securities through INVEST for [the Bank's] customers.

11. In late July 2017, DuSablon approached [the Bank's] Chief Wealth Management Officer, George Spray, and told Spray that he heard a rumor that INVEST was being sold to LPL Financial ("LPL"). [The Bank] subsequently considered alternative broker-dealers, and [it] ultimately decided to contract with Raymond James. [The Bank's] change from INVEST/LPL to Raymond James became effective on or about January 16, 2018.

12. On January 8, 2018, just days before the change to Raymond James was to occur, DuSablon resigned and voluntarily terminated his employment with [the Bank].

13. Almost immediately after resigning from [the Bank], DuSablon became a registered representative of LPL[ ] and created a new business entity, New Legacy Wealth Management, to offer the same investment and other financial services and advice that he performed while employed by [the Bank].

14. DuSablon also opened an office which is located just two blocks from [the Bank's] main branch in Seymour and provides his services from that office.

15. As of July 9, 2018, the day DuSablon was deposed in this case, every single customer of his at New Legacy Wealth Management was a former [Bank] investment services customer that he served while employed by [the Bank].

16. DuSablon's assistant at [the Bank], Erin Goodpaster, resigned the very day after DuSablon resigned.

17. Goodpaster admitted under oath ... that while she and DuSablon were still employed by [the Bank] DuSablon discussed with her the possibility of her joining him in his new venture after he left [the Bank].

Appellant's App. Vol. 2 at 16-19. The court then concluded in part as follows:

13. ... [D]espite DuSablon's contention ... that he was an employee of INVEST, not [the Bank], DuSablon received W-2 statements from [the Bank], and the Agreement specifically states that DuSablon was hire[d] as an employee of [the Bank]. (E.g. , Agreement, Recitals B-D.) Whether or not DuSablon might also have been an employee of INVEST or some other entity while he was employed by [the Bank] is not relevant ....

14. DuSablon has violated the Agreement by opening his new business just blocks away from [the Bank] and by soliciting Goodpaster to leave [the Bank] and join him....

Id. at 21.

[6] In September, about two weeks after the court's entry of the preliminary injunction, the court entered an "Order on Sanctions and Attorney Fees" (the "September Fees Order"). According to the September Fees Order:

[The Bank] served discovery to [DuSablon] and non-parties including ... Goodpaster and [DuSablon's] new employer. The Court granted [the Bank's] Motion to Expedite this discovery. The Court reviewed [the Bank's] discovery [requests, which were] limited in scope, focused[,] and relevant to the issues in this case.

[DuSablon's] responses to [the Bank's] discovery [requests] were to object to all of the [requests] and to not produce a single document. Discovery under the Indiana Trial Rules is supposed to be open[,] liberal[,] and self-executing. The Court granted [the Bank's] Motion to Compel ... on June 20, 2018.

[DuSablon] has engaged in an ongoing pattern to evade responding to relevant discovery requests. [DuSablon] responded to no requests. He then removed this case to the Federal Court the day before the Motion to Compel hearing. Judge Sarah Evans Barker found the removal improper and untimely. This Court should not penalize Du[S]ablon for the removal as he was sanctioned with fees in Federal Court. This Court should consider the timing of the removal in examining Du[S]ablon's conduct. Evidence at the Preliminary Injunction eviden[tiary] hearing showed Du[S]ablon also encouraged a non-party[,] LPL Financial LLC[,] he currently has a relationship with to not respond to the legitimate non-party discovery [requests].

[DuSablon] has engaged in a pattern of obfuscation and delay that violates the spirit, letter[,] and requirements [of] the Indiana Trial Rules ... relating to discovery.

The Court finds that [DuSablon's] conduct does not justify[ ] striking any of his claims or defenses. [DuSablon's] conduct clearly justifies the granting of ... attorney fees. [The Bank's] counsel is given seven (7) days to file an Affidavit setting forth the [Bank's] attorney's fees relating to the Motion to Compel and Opposition to [DuSablon's ensuing request for a] Protective Order. If [DuSablon] wishes to contest the amount of attorney fees he can file a Request for Hearing .... If [DuSablon] does not contest the attorney fees he should pay them within thirty (30) days of the filing of [the Bank's] counsel's affidavit.

Id. at 24-25 (citations omitted).

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