Zimmer, Inc. and Zimmer Dental, Inc. v. Jason Young, Renae Salvitti, and Implant Direct Sybron Manufacturing, LLC d/b/a Implant Direct Sybron Intl.

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Sep 11 2012, 9:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
JULIA BLACKWELL GELINAS MICHAEL H. MICHMERHUIZEN
MELANIE D. MARGOLIN ANTHONY M. STITES
JOSHUA B. FLEMING Fort Wayne, Indiana
DARREN A. CRAIG
Frost Brown Todd, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ZIMMER, INC. and ZIMMER DENTAL, INC., )
)
Appellants, )
)
vs. ) No. 02A03-1112-CT-548
)
JASON YOUNG, RENAE SALVITTI, and )
IMPLANT DIRECT SYBRON )
MANUFACTURING, LLC, d/b/a IMPLANT )
DIRECT SYBRON INTERNATIONAL, )
)
Appellees. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Nancy E. Boyer, Judge
Cause No. 02D01-1107-CT-366
September 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Zimmer, Inc. (“Zimmer”) and Zimmer Dental, Inc. (“Zimmer Dental”) sued two
former sales representatives, Jason Young (“Young”) and Renae Salvitti (“Salvitti”) and
their new employer, Implant Direct Sybron Manufacturing, LLC d/b/a Implant Direct
Sybron International (“Implant Direct”) and sought a preliminary injunction seeking to
enjoin Young and Salvitti from violating the terms of their employment agreements,
which contained non-disclosure, non-competition, and non-solicitation provisions. The
parties entered into an agreed order, agreeing to the entry of a preliminary injunction
enjoining Young and Salvitti from violating the terms of their employment agreements
pending trial. The trial court adopted this agreed order but denied Zimmer Dental’s
request for additional injunctive relief against the parties. Zimmer Dental now files this
interlocutory appeal challenging the trial court’s denial of its request for additional
injunctive relief.1
We affirm.
ISSUE
Whether the trial court abused its discretion by denying Zimmer Dental’s
request for additional injunctive relief against Young, Salvitti, and Implant
Direct.
1
We reject Implant Direct’s argument that Zimmer Dental cannot appeal the trial court’s denial of its
request for additional injunctive relief. See Ind. Appellate Rule 14(A)(5) (explaining that an interlocutory
appeal as a matter of right may be taken from an order refusing to grant a preliminary injunction).
2
FACTS
Zimmer, the parent corporation, is a Delaware Corporation with its principal place
of business in Indiana. Zimmer Dental, which is a division of Zimmer, is a Delaware
Corporation with its principal place of business in California. Zimmer Dental designs,
manufactures, markets, and distributes dental implants and related products.
Salvitti, who lives in Pennsylvania, began her employment with Zimmer Dental in
May 2003. Young, who lives in Pennsylvania, started his employment with Zimmer
Dental in July 2007. Both worked for Zimmer Dental as sales representatives, which
required them to sell Zimmer Dental products in an assigned geographic area. Salvitti’s
assigned geographic territory for Zimmer Dental included “Pittsburgh south” while
Young’s geographic territory for Zimmer Dental included “Pittsburgh north.” (Tr. 52).
Annually, with the exception of 2011, both Young and Salvitti signed a Zimmer
Dental Confidentiality, Non-Competition, and Non-Solicitation Agreement for Sales
Managers and Representatives (“Zimmer Dental Employment Agreement”). In relevant
part, Young’s and Salvitti’s 2010 Zimmer Dental Employment Agreements provided:
A. For purposes of this Agreement, the term “Company” means
Zimmer Dental Inc. . . .
*****
2. Non-Disclosure and Ownership of Confidential Information.
Employee acknowledges that Confidential Information is a valuable,
special, and unique asset of Company, and solely the property of Company,
and agrees to the following:
3
*****
(b) Non-Disclosure of Confidential Information. During
Employee’s employment with Company and thereafter, Employee will not
disclose, transfer, or use (or seek to induce others to disclose, transfer, or
use) any Confidential Information for any purpose . . . Employee’s non-
disclosure obligations shall continue as long as the Confidential
Information remains confidential and shall not apply to information that
becomes generally known to the public through no fault or action of
Employee.
*****
4. Return of Confidential Information and Company Property.
Immediately upon termination of Employee’s employment with Company,
Employee shall return to Company all of Company’s property relating to
Company’s business, including Company’s property which is in the
possession, custody, or control of Employee such as Confidential
Information, documents, hard copy files, copies of documents and
electronic information/files.
*****
7. Restrictive Covenants. Employee agrees to, and covenants to
comply with, each of the following separate and divisible restrictions:
(a) Definitions.
*****
(4) “Restricted Geographic Area” is defined as any
geographic territory assigned to Employee during Employee’s last
two years of employment with Company.
(5) “Restricted Period” is defined as the date Employee
executes this Agreement, continuing through the eighteen (18)
months after the Employee’s last day of employment with Company
unless otherwise extended by Employee’s breach of this Agreement .
...
(b) Restrictive Covenants. During the Restricted Period, Employee
agrees to be bound by each of the following independent and divisible
restrictions:
4
(1) Covenant Not to Compete
(A) Employee will not, within the Restricted
Geographic Area, be employed by, work for, consult with, provide services
to, or lend assistance to any Competing Organization in a Prohibited
Capacity.
*****
(2) Covenant Not to Solicit Customers or Active Prospects.
Employee will not i) provide, sell, or market; ii) assist in the provision,
selling or marketing of; or iii) attempt to provide, sell or market any
Competing Products to any of Company’s Customers or Active Prospects
in the Restricted Geographic Area.
*****
(4) Covenant Not to Solicit Company Employees. Employee
will not employ, solicit for employment, or advise any other person or
entity to employ or solicit for employment, any individual employed by
Company at the time of Employee’s separation from Company
employment, or otherwise induce or entice any such employee to leave
his/her employment with Company to work for, consult with, provide
services to, or lend assistance to any Competing Organization.
(5) Covenant Not to Disparage Company. Employee will not
make or publish any disparaging or derogatory statements about Company;
about Company’s products, processes, or services; or about Company’s
past, present and future officers, directors, employees, attorneys and agents
....
(Exs. 5, 35) (emphasis added).2
On June 4, 2011, Young attended a dental conference in Pennsylvania on Salvitti’s
behalf due to the recent death of her mother-in-law. During this conference, Young had a
conversation with Keith Johnson, a sales representative for Implant Direct, which is a
2
Some exhibits in this case, including Salvitti’s and Young’s Zimmer Dental Employment Agreements,
have been filed as confidential; however, both parties cite to them in their appellate briefs. This court’s
opinion provides only the portion of the Zimmer Dental Employment Agreements that are deemed
essential to the resolution of the case. See Ind. Administrative Rule 9(G)(3), (4)(d).
5
competitor of Zimmer Dental. Johnson informed Young that Implant Direct was
planning to add local sales representatives to the Pittsburgh area. The following day,
Young informed Salvitti about Implant Direct adding local sales representatives. On
June 6, 2010, Salvitti contacted Dr. Gerald Niznick, President of Implant Direct,3 to ask
about the Pennsylvania sales positions. Thereafter, Salvitti and Niznick exchanged emails
regarding the possibility of Salvitti and Young joining Implant Direct as sales
representatives.
After phone conversations with various Implant Direct sales executives, including
Michael Kennedy and Joseph Campbell, as well as providing Implant Direct with a copy
of the Zimmer Dental Employment Agreements and a list of the assigned zip codes in
their Zimmer Dental geographic sales territories, Salvitti and Young were eventually
hired as outside sales representatives by Implant Direct. During their conversations with
Campbell, he clarified to them that they were being hired for their sales abilities and not
for their Zimmer Dental customer contacts. Campbell also emphasized to Salvitti and
Young that, for the duration of their non-competition agreement with Zimmer Dental,
they would be required to cover a different geographic territory than the one they worked
while at Zimmer Dental.
Implant Direct took steps to ensure that Salvitti and Young complied with their
non-competition agreements by crafting a new sales territory for each of them that
3
Niznick owned the company that eventually became Zimmer Dental but sold that company in 2001.
6
excluded all zip codes that they served in their Zimmer Dental geographic territories.4
Their offers of employment from Implant Direct specifically provided, in relevant part:
“You are specifically precluded from contacting or soliciting sales from Zimmer
Dental Customers or Prospective Customers within the Territory you were assigned
to sell Zimmer Dental products, for the two year period, prior to coming to work for
Implant Direct Sybron International; said territory is defined in Attachment “B”.”
(Ex. 22 at 2; Ex. 42 at 2). Implant Direct repeatedly instructed Salvitti and Young not to
bring confidential information of Zimmer Dental into Implant Direct. Implant Direct also
instructed Salvitti and Young not to share with each other any Zimmer Dental customer
information regarding their previous Zimmer Dental territories.
Young and Salvitti ended their employment with Zimmer Dental on July 13 and
14, 2011, respectively and started employment with Implant Direct on July 19, 2011. On
July 17, 2011, before returning her Zimmer Dental computer to Zimmer Dental, Salvitti
downloaded her Zimmer Dental hard drive onto a USB drive. Salvitti accessed her USB
on her personal computer and later on her Implant Direct computer. Young also
downloaded some Zimmer Dental information before he returned his Zimmer Dental
equipment. Specifically, Young downloaded expense reports for use in preparing his
4
Salvitti’s sales territory for Implant Direct included zip codes contained in Young’s former Zimmer
Dental Restricted Geographic Area plus additional territory not covered while they were at Zimmer
Dental, while Young’s sales territory for Implant Direct included zip codes from Salvitti’s prior Zimmer
Dental Restricted Geographic Area and more. Both Salvitti’s and Young’s new Implant Direct territories
were twice the size of their prior Zimmer Dental sales territories.
7
taxes and a customer list because he “was looking for something for [his] brag book[5] to
show proof that [he] was successful at Zimmer [Dental].” (Tr. 272). Young deleted the
list and did not show it to Implant Direct.
On July 22, 2011, Zimmer Dental filed a Complaint for Preliminary Injunction,
Permanent Injunction, and Damages (“Complaint”) against Young, Salvitti, and Implant
Direct.6 Zimmer Dental alleged, among other things, that Young and Salvitti had
breached their contracts by going to work for Implant Direct and that Implant Direct had
tortiously interfered with Young’s and Salvitti’s contracts. Zimmer Dental sought to
enjoin Young and Salvitti from: (1) working for a direct competitor of Zimmer Dental in
his or her Restricted Geographic Area as well as the Restricted Geographic Area of each
other; (2) contacting any Zimmer Dental customer that Young or Salvitti had served
during his or her employment with Zimmer Dental; (3) inducing other Zimmer Dental
employees to terminate employment with Zimmer Dental; (4) disclosing Zimmer
Dental’s confidential information, including customer information, to another person or
corporation; and (5) making disparaging statements about Zimmer Dental.
After this litigation had commenced, the parties jointly hired Mirror Consulting—
a company that specializes in electronic discovery and digital forensics—for discovery
purposes. Mirror Consulting examines, extracts, and preserves information off of
5
A “brag book”, common in the sales industry, is a binder containing documents to show that a sales
person’s ranking and that he or she has had “successes” and has “reached [his or her] numbers.” (Tr.
391).
6
Salvitti’s and Young’s Zimmer Dental Employment Agreements contained a provision that the
construction and enforcement of the Employment Agreements would be governed by Indiana law and that
the parties would submit to jurisdiction in Indiana.
8
computers, cell phones, and other electronic devices. Young sent his USB drive, and
Salvitti sent her USB drive, personal computer, and her Implant Direct computer to
Mirror Consulting for investigation.
On October 4, 2011, the day of the preliminary injunction hearing, the parties—
using the language and definitions contained in Young’s and Salvitti’s Zimmer Dental
Employment Agreements—entered into an Agreed Order, in which they agreed to the
entry of a preliminary injunction pending trial and agreed to enjoin Young and Salvitti
from violating the terms of their Zimmer Dental Employment Agreements. Specifically,
the parties agreed that:
(1) Young and Salvitti [would] not, within their respective Restricted
Geographic Areas, be employed by, work for, consult with, provide
services to, or lend assistance to Implant Direct[;]
(2) Young and Salvitti [would] not (i) provide, sell, or market; (ii) assist in
the provision, selling or marketing of; or (iii) attempt to provide, sell or
market any Competing Products to any of [Zimmer Dental’s] Customers or
Active Prospects in the respective Restricted Geographic Areas.
(3) Young and Salvitti will not employ, solicit for employment, or advise
any other person or entity to employ or solicit for employment, any
individual employed by [Zimmer Dental] at the time of Young and
Salvitti’s separation from [Zimmer Dental] employment, or otherwise
induce or entice any such employee to leave his/her employment with
[Zimmer Dental] to work for, consult with, provide services to, or lend
assistance to any Competing Organization.
(4) Young and Salvitti [would] not knowingly make any false statements of
material fact about [Zimmer Dental]; about [Zimmer Dental’s] products,
processes, or services; or about [Zimmer Dental’s] past, present and future
officers, directors, employees, attorneys and agents.
(5) Young and Salvitti shall destroy or return, at [Zimmer Dental’s] option,
any and all Confidential Information belonging to [Zimmer Dental] in their
possession and remove and delete any Confidential Information that Young
9
and Salvitti possess in electronic form and provide written verification to
[Zimmer Dental] that they have done so; and they shall not possess, use, or
disclose such Confidential Information.
(Zimmer Dental’s App. at 97).
At the beginning of the preliminary injunction hearing, Zimmer Dental informed
the trial court that they were requesting injunctive relief beyond what was agreed upon in
the Agreed Order and beyond what was contained in Young’s and Salvitti’s Zimmer
Dental Employment Agreements. Specifically, Zimmer Dental sought to enjoin Young
and Salvitti from working in the Restricted Geographic Area that the other had served
when employed by Zimmer Dental. As for an injunction against Implant Direct, Zimmer
Dental sought, in part, to order Implant Direct to submit its computer system to a third
party to search for and delete any Zimmer Dental confidential information.
After taking a break and prior to Zimmer Dental calling its first witness, the
attorneys for the parties informed the trial court that their stipulation in the Agreed Order
included the agreement that Salvitti would return her Implant Direct computer to Mirror
Consulting “and any Zimmer [Dental] information on it w[ould] be, pending litigation,
scrubbed and stripped.” (Tr. 31). The attorneys indicated that they did not have a
“protocol work[ed] out, but [they would] do that on the side.” (Tr. 31).
During the preliminary injunction hearing Rebecca Hendricks, president of Mirror
Consulting, testified that she had made mirror images of the hard drives of the devices
submitted to her from Young and Salvitti. Hendricks made a file list from the devices
and analyzed them, pursuant to the path name searches agreed to by the parties, to see
what files were accessed on or after July 19, 2011. Hendricks testified that the parties
10
had not yet requested that she pull up the content of any document that may have been
accessed.
On November 18, 2011, the trial court entered an order denying Zimmer Dental’s
request for additional injunctive relief against Salvitti and Young beyond what it received
as part of the Agreed Order and denied its request for injunctive relief against Implant
Direct. The trial court’s findings and conclusions provide, in part:
FINDINGS OF FACT
*****
31. Young has not worked for or sold products for Implant Direct in the
territory to which he had been assigned during his last two years of
employment with Zimmer Dental and has not lent assistance in his former
territory to any Implant Direct employee.
32. Salvitti has not worked for or sold products for Implant Direct in the
territory to which she had been assigned during her last two years of
employment with Zimmer Dental and has not lent assistance in her former
territory to any Implant Direct employee.
*****
37. Young has not used, or disclosed to Implant Direct, any Zimmer
Dental confidential information, and Implant Direct has not requested or
required Young use or disclose the information.
*****
39. Although Salvitti accessed information on her USB flash drive
during the week-long training session she attended when she began
working for Implant Direct, no evidence was presented to show that Salvitti
used or disclosed the information on these files to, or in connection with,
her job at Implant Direct. Further, no evidence was presented as to what
portion of the files were accessed or for how long.
40. Rebecca Hendricks, President of Mirror Consulting, a digital
forensic company, testified that if a power point were opened and several
files were embedded in the presentation, her report would demonstrate that
all of the embedded files had been accessed whether or not they were. She
11
could not testify to the time of access, what part of the file was accessed, or
how long the file was accessed.
41. None of the files that were accessed were produced at the
Preliminary Injunction hearing.
42. Salvitti has not used, or disclosed to Implant Direct, any Zimmer
Dental confidential information, including the files downloaded on to the
USB drives, in connection with the performance of her Implant Direct job
responsibilities. Implant Direct has not requested or required Salvitti use or
disclose that information.
43. Representatives of Implant Direct testified that they did not want or
need confidential information of Zimmer Dental. They have not sought
confidential information from Young and/or Salvitti, and they have not
received any confidential information regarding Zimmer Dental.
44. Zimmer Dental failed to present any testimony or other evidence that
Young and/or Salvitti had provided any confidential information to Implant
Direct.
*****
CONCLUSIONS OF LAW
*****
The Court cannot enjoin Young or Salvitti from working in an area other
than their former territory under the [Employment] Agreement, so the
Court must determine whether there is any other basis for enjoining them.
The Agreements purport to prohibit Young and Salvitti from working for a
competitor in the “Restricted Geographic Area,” which is defined as the
geographic territory assigned to an employee during the employee’s last
two years of employment with the Company. The parties have agreed to an
Order enjoining Young and Salvitti from being so employed and the Court
need not determine whether that provision is reasonable. However, the
Court may not enjoin Young and Salvitti beyond the express terms of their
[Employment] Agreements. To do so would be to rewrite the parties’
agreements.
Zimmer Dental argues that the Court can only give Zimmer the benefit of
its non-compete bargain by enjoining both Young and Salvitti from
working in any territory served by either of them. The Court cannot give
the parties the benefit of their bargain by enforcing terms to which the
12
parties never agreed. The Agreed Order gives Zimmer the benefit of its
non-compete bargain.
The Court may not award injunctive relief unless Zimmer Dental has
proven that it has suffered irreparable harm.
Irreparable harm is harm that cannot be compensated by damages through
the resolution of the underlying action. By virtue of the Agreed Order, the
Court has granted any injunctive relief that Zimmer Dental might have
otherwise be[en] entitled to under the Agreements.
Zimmer Dental failed to present any evidence that Young or Salvitti shared
any confidential information of Zimmer Dental with Implant Direct.
Zimmer Dental failed to present any evidence that Young or Salvitti used
any confidential information of Zimmer Dental to make a sale or solicit a
customer of Zimmer Dental. Zimmer Dental failed to present any evidence
that Young or Salvitti while employed by Implant Direct solicited a
customer that they had served while at Zimmer Dental.
*****
Zimmer Dental failed to present any evidence that Implant Direct sought or
received any confidential information of Zimmer Dental. Representatives
of Implant Direct affirmatively testified that they did not receive or want
any of Zimmer Dental’s information.
At all times, Implant Direct repeatedly instructed Young and Salvitti to
abide by their non-competition agreements and took proactive steps to
assure compliance.
Zimmer Dental failed to present any evidence to support the granting of an
injunction against Implant Direct.
(App. 23-24, 26-27) (internal case citations omitted). Zimmer Dental now appeals the
trial court’s denial of its request for additional injunctive relief.7
7
Pursuant to an order granting Zimmer Dental’s motion, the trial court stayed the proceedings pending
this appeal.
13
DECISION8
Zimmer Dental asserts that the trial court abused its discretion by denying its
request for additional preliminary injunctive relief.
To obtain a preliminary injunction, the moving party has the burden
of showing by a preponderance of the evidence that: (1) the moving party’s
remedies at law are inadequate, thus causing irreparable harm pending
resolution of the substantive action; (2) the moving party has at least a
reasonable likelihood of success on the merits at trial by establishing a
prima facie case; (3) the threatened injury to the moving party outweighs
the potential harm to the non-moving party resulting from the granting of
the injunction; and (4) the public interest would not be disserved. The
moving party must prove each of these requirements to obtain a preliminary
injunction. If the moving party fails to prove even one of these
requirements, the trial court’s grant of an injunction is an abuse of
discretion.
A party appealing from the trial court’s denial of an injunction
appeals from a negative judgment and must demonstrate that the trial
court’s judgment is contrary to law; that is, the evidence of record and the
reasonable inferences drawn therefrom are without conflict and lead
unerringly to a conclusion opposite that reached by the trial court. We
cannot reweigh the evidence or judge the credibility of any witness.
Further, while we defer substantially to the trial court’s findings of fact, we
evaluate questions of law de novo.
The grant or denial of a preliminary injunction is within the sound
discretion of the trial court, and the scope of appellate review is limited to
deciding whether there has been a clear abuse of discretion. When
determining whether to grant a preliminary injunction, the trial court is
required to make special findings of fact and state its conclusions thereon.
When findings and conclusions are made, the reviewing court must
determine if the trial court’s findings support the judgment. The trial
court’s judgment will be reversed only when clearly erroneous. Findings of
fact are clearly erroneous when the record lacks evidence or reasonable
8
Before we address Zimmer Dental’s issue on appeal, we note that resolution of this case “required much
separating of the wheat from the chaff inserted by both parties in their briefs.” See Oxford Fin. Grp., Ltd.
v. Evans, 795 N.E.2d 1135, 1139 (Ind. Ct. App. 2003). The parties devoted portions of their briefs
addressing arguments not relevant to the narrow issue in this case of whether Zimmer Dental had met its
burden of showing the four requirements necessary to obtain preliminary injunctive relief beyond the
preliminary injunction that was already entered as part of the Agreed Order.
14
inferences from the evidence to support them. A judgment is clearly
erroneous when a review of the record leaves us with a firm conviction that
a mistake has been made. We consider the evidence only in the light most
favorable to the judgment and construe findings together liberally in favor
of the judgment.
Zimmer, Inc. v. Davis, 922 N.E.2d 68, 71 (Ind. Ct. App. 2010) (internal citations and
quotations omitted).
Here, the parties voluntarily entered into an Agreed Order in which they agreed to
the entry of a preliminary injunction and agreed that Young and Salvitti would be
enjoined from violating the terms of their Zimmer Dental Employment Agreements
pending trial. Specifically, in relevant part, the parties agreed that Young and Salvitti
would not work for Implant Direct in their Restricted Geographic Area and would not
assist others in their Restricted Geographic Area. Zimmer Dental, however, sought
additional injunctive relief beyond the relief contained in the parties Agreed Order.
Specifically, it sought: (A) a prohibitory injunction9 against Salvitti and Young, seeking
to enjoin them from working in the Restricted Geographic Area that the other had served
when employed by Zimmer Dental; and (B) a mandatory injunction10 against Implant
Direct, seeking to compel Implant Direct to submit its computer system to a third party to
search for and delete any Zimmer Dental confidential information. We will discuss each
in turn.
A. Preliminary Injunction Against Salvitti and Young
9
A prohibitory injunction is an injunction that orders a party to refrain from doing something. See Field
v. Area Plan Comm’n of Grant County, Ind., 421 N.E.2d 1132, 1141 (Ind. Ct. App. 1981).
10
A mandatory injunction is an injunction that “‘orders an affirmative act or mandates a specified course
of conduct.’” City of Gary, Indiana v. Majestic Star Casino, LLC, 905 N.E.2d 1076, 1082 n.6 (Ind. Ct.
App. 2009) (quoting Black’s Law Dictionary 800 (8th ed. 2004)), trans. denied.
15
On appeal, Zimmer Dental argues that the trial court erred by failing to enjoin
Young from working in Salvitti’s prior Restricted Geographic Area and by failing to
enjoin Salvitti from working in Young’s prior Restricted Geographic Area.
As part of its burden to succeed on its request for this additional injunctive relief,
Zimmer Dental was required to demonstrate that its “remedies at law were inadequate,
thus causing irreparable harm pending resolution of the substantive action.” Ind. Fam.
and Soc. Serv. Admin. v. Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002). “If an
adequate remedy at law exists, injunctive relief should not be granted.” Id. “A party
suffering mere economic injury is not entitled to injunctive relief because damages are
sufficient to make the party whole.” Id.Zimmer Dental contends that it met its burden of proving irreparable harm.
Specifically, Zimmer Dental argues that it “faces substantial, irreparable harm if Young
and Salvitti continue using and disclosing Zimmer’s confidential information and
assisting Implant Direct in soliciting Zimmer’s customers and active prospects for
business.” Zimmer Dental’s Br. at 26. Thus, Zimmer Dental contends that it has
established irreparable harm based on its allegation that Salvitti and Young breached their
respective Zimmer Dental Employment Agreements by using and disclosing confidential
information for their own benefit and the benefit of Implant Direct.
Zimmer Dental’s contention amounts to nothing more than an argument that it
should be granted equitable relief beyond the preliminary injunction already granted as
part of the Agreed Order based on its assertion that it will suffer irreparable harm if both
Young and Salvitti are not enjoined from working in the geographic area included in the
16
other’s Zimmer Dental Employment Agreement. But, here, Young and Salvitti do not
violate their Zimmer Dental Employment Agreements simply by working in geographic
areas that were not assigned to them in their respective Zimmer Dental Employment
Agreements. Indeed, to enjoin Young and Salvitti from working in a geographic region
not contained in their respective Zimmer Dental Employment Agreements would be to
extend the express terms of their non-competition agreements contained therein, which
we have previously explained we will not do. See Oxford, 795 N.E.2d at 1146 (“‘[I]n any
situation, non-competition agreements . . . will never be extended beyond the express
terms of the agreement.’”) (quoting Franke v. Honeywell, Inc., 516 N.E.2d 1090, 1092–
93 (Ind. Ct. App. 1987), trans. denied).
Furthermore, Zimmer Dental’s contention that it met its burden of showing
irreparable harm based on Young’s and Salvitti’s disclosure of confidential information is
also without merit. Here, the trial court specifically found that Young and Salvitti had
neither used nor disclosed any Zimmer Dental confidential information to Implant Direct.
Zimmer Dental makes no argument that the trial court’s findings are erroneous. Thus,
Zimmer Dental’s assertion that Young and Salvitti disclosed confidential information
amounts to nothing more than a request to reweigh evidence, which we cannot do. See
Zimmer, 922 N.E.2d at 71.
Finally, Zimmer Dental has not shown irreparable harm to its business pending the
determination of this case on its merits. See AGS Capital Corp., Inc. v. Product Action
Intern., LLC, 884 N.E.2d 294, 314 (Ind. Ct. App. 2008) (explaining that a party seeking a
preliminary injunction is required to show irreparable harm to its business in order to
17
meets its burden of proving that its remedies at law are inadequate), trans. denied.
Because Zimmer Dental failed to prove irreparable harm, we conclude that the trial court
did not abuse its discretion by denying Zimmer Dental’s request for additional
preliminary injunctive relief against Young and Salvitti. See Zimmer, 922 N.E.2d at 74
(affirming the trial court’s denial of an employer’s request for preliminary injunction
against a former employee where the employer failed to meet its burden on one of the
four requirements of a preliminary injunction).
B. Preliminary Injunction Against Implant Direct
Zimmer Dental also argues that the trial court erred by failing to grant its request
for additional injunctive relief. Specifically, Zimmer Dental contends that the trial court
erred by failing to order Implant Direct to submit its computer systems to a third party to
search for and delete any Zimmer Dental confidential information.11
As noted above, Zimmer Dental’s request for injunctive relief against Implant
Direct was a request for a mandatory injunction, which is an injunction that orders a party
to take action. See Majestic Star Casino, 905 N.E.2d at 1082 n.6. Such an injunction “is
an extraordinary equitable remedy [that] should be granted with caution.” Id. at 1082.
See also Crossmann Cmtys., Inc. v. Dean, 767 N.E.2d 1035, 1040 (Ind. Ct. App. 2002)
(explaining that “[a]lthough the principles upon which mandatory and prohibitory
11
We reject Implant Direct’s various contentions that this argument is not available to Zimmer Dental on
appeal because Zimmer Dental did not request such relief. The record before us reveals that Zimmer
Dental requested such injunctive relief but that the trial court denied it.
Additionally, we note that, at the preliminary injunction hearing, Zimmer Dental also requested that
Implant Direct be enjoined from using, disclosing, and possessing Zimmer Dental confidential
information. Zimmer Dental, however, makes no specific argument regarding the trial court’s denial of
its request for this specific injunctive relief.
18
injunctions are granted do not materially differ[, c]ourts are, however, more reluctant in
granting the mandatory writ”) (citation and internal quotation marks omitted). A party
seeking a such an injunction “carries the burden of demonstrating injury [that] is certain
and irreparable if the injunction is denied.” Majestic Star Casino, 905 N.E.2d at 1082.
Zimmer Dental argues that the trial court should have granted its request for a
preliminary injunction against Implant Direct because the evidence shows that Salvitti
“accessed Zimmer Dental’s confidential information from at least one Implant Direct
computer.” Zimmer Dental’s Br. at 28.
While the record before us reveals that Salvitti accessed Zimmer Dental files
contained on her USB on an Implant Direct computer, the record also indicates that
Salvitti submitted her Implant Direct computer to the jointly hired computer expert at
Mirror Consulting for discovery purposes. During the preliminary injunction hearing,
Hendricks of Mirror Consulting testified that she had a mirror image of the hard drive of
Salvitti’s computer and had analyzed it, based on dates and path name searches agreed to
by the parties, to see what files had been accessed. Hendricks also testified that the
parties had not yet requested her to provide the content of any document that may have
been accessed. Additionally, the parties stipulated that Salvitti would return her Implant
Direct computer to Mirror Consulting pending litigation.
Based on the evidence presented during the preliminary injunction hearing, the
trial court found that Young and Salvitti did not disclose any Zimmer Dental confidential
information to Implant Direct and that Implant Direct did not seek or have any
confidential information regarding Zimmer Dental. Again, Zimmer Dental does not
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specifically challenge these trial court’s findings as erroneous. Indeed, Zimmer Dental
makes no allegation or argument that it met the four requirements necessary for the trial
court to grant the preliminary injunctive relief requested against Implant Direct. Zimmer
Dental has failed to demonstrate that the trial court’s judgment is contrary to law.
Therefore, the trial court did not abuse its discretion by denying Zimmer Dental’s request
for preliminary injunctive relief against Implant Direct.12
CONCLUSION
Zimmer Dental has failed to demonstrate an abuse of discretion in the trial court’s
denial of it request for additional injunctive relief against Young, Salvitti, and Implant
Direct. Thus, we affirm the trial court’s order denying Zimmer Dental’s request for
preliminary injunctive relief beyond the Agreed Order.
Affirmed.
RILEY, J., and NAJAM, J., concur.
12
Aside from the parties working together on the entry of the Agreed Order, it is clear from the record
before us that the parties have worked together on discovery issues relating to Zimmer Dental’s
confidential information. We commend the parties for their efforts to work together to conduct discovery
issues and encourage them to continue to do so as they move to trial in this case.
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