Dave Stafford for www.theindianalawyer.com

While an Indiana commercial court failed to provide sufficient notice to a worker who was being sued by his former employer that sought to enforce a noncompete agreement, the Indiana Court of Appeals found the worker had waived his argument and affirmed a resulting injunction barring him from a new job at a competing company.

The court ruled against Craig Vickery in his suit against Ardagh Glass, finding that even though he didn’t receive sufficient notice that resulted in the same-day initial judgment against him, his objections were not timely. “We find that Vickery received insufficient notice of the temporary restraining order proceeding, but that he has waived the right to seek relief on the issue. We further find that the trial court did not err by entering the preliminary injunction. We affirm and remand for further proceedings,” Judge John Baker wrote for the panel.

The panel also rejected Vickery’s motion presented at the outset of oral arguments last month challenging the constitutionality and jurisdiction of Indiana commercial courts — specialized pilot-project dockets in six courts around the state.

“Vickery acts as though litigating in the Commercial Court is compulsory if the plaintiff files a complaint there. That, however, is patently untrue,” Baker wrote, noting litigants may opt out of commercial court jurisdiction by objecting within 30 days, which he did not do. “Under these circumstances, Vickery has waived the right to challenge the Commercial Court’s jurisdiction or authority and we deny his motion to dismiss.”

Ardagh sent Vickery, a glass mold engineer, an email saying it planned to sue him and seek a TRO preventing him from taking a job in Ohio at a rival glass company. The ex parte TRO was issued hours later by Judge Heather Welch in Marion Superior Court, one of the commercial court venues. While the panel said this notice was insufficient, it let stand the result, while issuing a mild warning.

“(W)e caution attorneys and trial courts around the state to be mindful of the notice requirements surrounding TROs. There are circumstances in which a TRO must truly be granted immediately without affording time to the adverse party to respond, but those circumstances must strictly meet the requirements set forth by Trial Rule 65(B). In all other cases, both the applicant party and the trial court are required by due process and the trial rules to ensure that the adverse party was given legally sufficient notice before final action is taken.”

The court also concluded Ardagh has a right to enforce the noncompete; established a reasonable likelihood of success on the merits of its breach of contract and Indiana Trade Secrets Acts complaints; established it has remedies at law that are inadequate and that it would suffer irreparable harm during the pendency of the action; the threatened harm to Ardagh outweigh the threatened harm to Vickery; and the public interest would not be disserved by granting the injunction.