Rel: 09/12/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1130742
_________________________
Ex parte B2K Systems, LLC; Ingenuity International, LLC;
and Robert A. Przybysz
PETITION FOR WRIT OF MANDAMUS
(In re: Nannette Smith
v.
B2K Systems, LLC; Ingenuity International, LLC; and Robert
A. Przybysz)
(Jefferson Circuit Court, CV-14-00163)
MAIN, Justice.
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B2K Systems, LLC, a Delaware limited-liability company;
Ingenuity International, LLC, a foreign corporation
("Ingenuity"); and Robert A. Przybysz (hereinafter referred to
collectively as "the petitioners") petition for a writ of
mandamus seeking enforcement of an outbound forum-selection
clause and the reversal of a preliminary injunction entered by
the Jefferson Circuit Court. With respect to the forum-
selection-clause issue, we deny the petition. With regard to
the preliminary injunction, we treat the petition as a timely
filed direct appeal pursuant to Rule 4(a), Ala. R. App. P.,
and we reverse and remand.
I. Facts and Procedural History
This matter arises from a business dispute. The
respondent, Nannette Smith, was the founder and president of,
and the sole shareholder in, B2K Systems, Inc. ("B2K Inc"), a
Birmingham-based Alabama corporation that developed
specialized software for point-of-sale retailers. In August
2012, B2K Inc sold its assets to B2K Systems, LLC ("B2K LLC"),
a Delaware corporation set up for the purpose of acquiring B2K
Inc's assets. The purchase price totaled $6,900,000, with B2K
Inc to receive an initial payment of $200,000 and the
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remainder to be paid in monthly installments to B2K Inc and as
salaries paid to Smith and her son, Josh Smith. Although the
purchase price was to be paid incrementally, according to the
asset-purchase agreement B2K Inc's assets, including its
intellectual property, were to be transferred to B2K LLC
immediately upon closing in September 2012.
The asset-purchase agreement referenced various "related
agreements" to be executed as part of the purchase. Those
related agreements included a promissory note to be executed
by B2K LLC in favor of Smith and a guarantee of that note
executed by Ingenuity, a holding company owning the majority
shares of B2K LLC. The asset-purchase agreement also called
for B2K LLC and Smith to execute a five-year employment
agreement naming Smith president of B2K LLC and providing an
annual base salary of $200,000. Smith was also granted 20%
ownership of B2K LLC.
On September 1, 2012, Przybysz, the managing member and
CEO of B2K LLC and Ingenuity, executed the promissory note on
behalf of B2K LLC and the guaranty agreement on behalf of
Ingenuity. That same day, B2K LLC and Smith entered into the
employment agreement, pursuant to which Smith became president
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of B2K LLC. Each agreement –- the asset-purchase agreement,
the employment agreement, the promissory note, and the
guaranty agreement -– contained a forum-selection clause.
Although the scope of the forum-selection clauses are in
dispute, they, at the least, established Kent County,
Michigan, as a permissible forum for resolution of disputes
arising from the various agreements. All the agreements
provided that the law of the State of Delaware would govern.
Following the purchase, relations between Smith and B2K
LLC deteriorated. B2K LLC stopped making the monthly payments
on the promissory note. On March 3, 2014, Przybysz, as the
managing member of B2K LLC, acted to terminate Smith's
employment with B2K LLC. Przybysz met with Smith in B2K LLC's
Birmingham office and handed her a termination letter, which
explained that the termination of her employment was "for
cause." The same day, B2K LLC filed for and received a
temporary restraining order ("TRO") from the Kent, Michigan,
Circuit Court. The TRO enjoined Smith from
"(a) entering onto any premises owned, leased,
and/or operated by [B2K LLC]; (b) contacting [B2K,
LLC]'s employees, vendors, and/or current customers,
(c) using or disclosing [B2K LLC]'s confidential
information, including passwords, logins, and/or
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client lists; and (d) soliciting any business from
[B2K LLC]'s current clients and customers."
Along with its request for the TRO, B2K LLC filed a
complaint in the Kent Circuit Court alleging Smith had
misrepresented the status of B2K LLC's projects, had
squandered resources on nonapproved budgeted expenses, had
misappropriated funds and equipment, had prepared fraudulent
expense reports, had sent fraudulent invoices to clients, and
had misrepresented insurance records. The complaint alleged
breach of Smith's employment agreement with B2K LLC, breach of
fiduciary duty, and breach of the asset-purchase agreement.
On March 4, 2014, the day after the Michigan TRO was
issued, Smith filed a complaint and a petition for a TRO in
the Jefferson Circuit Court ("the trial court"), seeking her
own TRO against the petitioners and also seeking monetary
damages for breach of the employment contract and the
promissory note. Smith's complaint alleged that B2K LLC had
failed to make the monthly payments required under the note
and that B2K LLC had failed to honor her employment agreement.
Smith requested a TRO restraining the petitioners as follows:
"a. Precluding the [petitioners] from entering,
visiting, or otherwise disturbing the business
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of B2K LLC and any other business located on
the premises of [B2K LLC's office location];
"b. Precluding the [petitioners] from removing any
assets, tangible or intangible, including
software, hardware, property, intellectual
property, or any other asset contemplated by
the purchase agreement referenced herein;
"c. Precluding the [petitioners] from enforcing the
out-of-state order;
"d. Precluding the [petitioners] from copying,
scanning, altering, changing, running,
removing, using, destroying, and/or wasting any
code, intellectual property, software,
passwords, computer programs, computers,
servers, tablets, printers, cds, storage
devices, flash drives, external storage,
internal storage, hard drives, external hard
drives, USB drives, or any other item that
stores information;
"e. Further, the [petitioners] shall be precluded
from interfering with [Smith] and any other
employees of B2K LLC from the normal operation
of their business including the use of the
assets in the furtherance of the business;
"f. The [petitioners] are precluded from
terminating Smith from her employment without
cause until a hearing on the merits may be had;
"g. All parties shall maintain the status quo until
such time as a hearing on the merits can be
preformed and a trial on the merits for the
other claims obtained;
"h. Any other and further relief that this Court
deems appropriate."
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On March 4, the trial court issued the TRO and set a
hearing on a preliminary injunction for March 12, 2014. That
same day, the petitioners moved to dissolve the TRO and to
dismiss Smith's lawsuit, arguing, in part, that under the
various forum-selection clauses contained in the parties'
agreements, either the Kent, Michigan, Circuit Court or the
United States District Court for the Western District of
Michigan were the exclusive forums for Smith's lawsuit. On
March 10, Smith filed a response in opposition to the
petitioners' motion to dismiss. Smith argued that venue in
the trial court was proper, that the forum-selection clauses
were permissive rather than mandatory, and that Michigan was
a seriously inconvenient forum. On March 11, 2014, Smith
filed an amended complaint adding two additional claims, one
alleging breach of the asset-purchase agreement and another
alleging breach of the guaranty agreement.
On March 12, 2014, the trial court conducted an
evidentiary hearing, which included the testimony of Smith,
Przybysz, and other witnesses. On March 26, 2014, the trial
court issued a preliminary injunction. In its order, the
trial court addressed and rejected the petitioners' argument
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that Michigan was the proper forum for the dispute. The trial
court noted that the forum-selection clauses were "inartful"
and concluded that venue was proper in both Alabama and
Michigan.
The preliminary injunction essentially awarded total
control of B2K LLC and its assets to Smith. The injunction
instructed the petitioners to reinstate Smith as president of
B2K LLC, to pay her salary, to provide operating expenses, and
to refrain from interfering with or entering the Alabama
business operations of B2K LLC until further order of the
court. Specifically, the preliminary injunction required as
follows:
"a. The [petitioners] shall immediately formally
reinstate Smith to her position of President of
B2K LLC and shall pay her according to the
terms and conditions of her employment
agreement.
"b. The [petitioners] shall provide an operating
account for Smith with check writing authority
and properly fund the operational expenses of
B2K LLC.
"c. The [petitioners] shall not take any adverse
employment action against Smith, or other
employees, while this injunction remains in
force and effect absent permission from this
Court or written agreement between Smith and
B2K LLC.
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"d. [Petitioners] Ingenuity and Robert A. Przybysz
shall not enter the premises [of B2K LLC].
"i. The [petitioners] shall not disrupt
the business operations of B2K LLC or
other business located [at the
business address of B2K LLC].
"ii. The [petitioners] shall not interfere
with Smith or any other employee of
B2K LLC from engaging in the normal
operation of their business.
"e. The [petitioners] shall not access (including
remote access), alter, change, run, remove,
dispose of, copy, scan, amend, waste, interfere
with, or otherwise control the assets, tangible
or intangible, of B2K LLC without express
permission of this Court or through express
written agreement of the parties and signed by
all parties with notary verification of the
signatures. These assets shall include but are
not limited to the following:
"i. software
"ii. source code
"iii. hardware
"iv. servers
"v. drives/storage (external or internal)
"vi. computers
"vii. laptops
"viii. property
"ix. intellectual property
"x. passwords
"xi. tablets
"xii. printers
"xiii. cds
"xiv. flash drives
"xv. USB drives
"f. Ingenuity shall immediately determine the
'value of all of [B2K LLC's] equity on a fiscal
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year end basis calculated as five times EBITDA
and allocated on a pro rata membership basis
for the fiscal year ending in 2013. This must
be completed no later than thirty (30) days
after the entry of this Order.
"g. The [petitioners] shall adequately provide
operating expenses to B2K LLC, including
payment of employee salaries/wages, business
expense, rent, accounts payable, and others as
necessary and due, including payment to
venders."
The petitioners filed this petition for a writ of
mandamus 13 days after the entry of the preliminary
injunction. The petition seeks dissolution of the preliminary
injunction and also challenges venue based on the forum-
selection clauses.
II. Analysis
A. The forum-selection clauses
The threshold issue raised by the petitioners is whether
this action is governed by one or more outbound forum-
selection clauses purportedly requiring the parties to
litigate this dispute in Michigan.1 The petitioners argue
that the trial court erred in refusing to enforce the forum-
1
We recognize that the competing Michigan and Alabama
injunctions raise potential comity concerns. Those concerns
are neither raised nor briefed by the parties, and we decline
to address them ex mero motu.
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selection clauses in the various agreements at issue and,
therefore, in refusing to dismiss Smith's lawsuit as being
brought in an improper venue.
This Court has held that an order denying enforcement of
an outbound forum-selection clause is properly reviewable by
a petition for a writ of mandamus:
"'"[A] petition for a writ of mandamus is the
proper vehicle for obtaining review of an order
denying enforcement of an 'outbound' forum-selection
clause when it is presented in a motion to dismiss."
Ex parte D.M. White Constr. Co., 806 So. 2d 370, 372
(Ala. 2001); see Ex parte CTB, Inc., 782 So. 2d 188,
190 (Ala. 2000). "[A] writ of mandamus is an
extraordinary remedy, which requires the petitioner
to demonstrate a clear, legal right to the relief
sought, or an abuse of discretion." Ex parte Palm
Harbor Homes, Inc., 798 So. 2d 656, 660 (Ala. 2001).
"[T]he review of a trial court's ruling on the
question of enforcing a forum-selection clause is
for an abuse of discretion." Ex parte D.M. White
Constr. Co., 806 So. 2d at 372.'"
Ex parte Textron, Inc., 67 So. 3d 61, 65-66 (Ala. 2011)
(quoting Ex parte Leasecomm Corp., 886 So. 2d 58, 62 (Ala.
2003)).
Here we are initially presented with an issue concerning
the interpretation of the four forum-selection clauses
included in various related agreements. The trial court
concluded, and Smith argues, that the clauses are unclear and
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that they therefore must be construed as merely designating
Michigan as a permissible forum, not the exclusive forum.
The petitioners, on the other hand, contend that the forum-
selection clauses establish Michigan as the mandatory and
exclusive forum for resolution of this dispute. Thus, before
we reach the parties' arguments concerning the enforceability
of the forum-selection clauses, we must first decide whether
the provisions at issue actually restrict venue to the federal
and state courts in Michigan. See Ex parte CTB, Inc., 782 So.
2d 188, 191 (Ala. 2000) (finding no reason to address
arguments concerning the reasonableness of enforcing a forum-
selection clause when the clause could not be interpreted as
requiring that the action be filed in Indiana).
Smith's complaint alleges a breach of each of the four
related agreements. Each agreement contains its own forum-
selection clause. The forum-selection clause in the asset-
purchase agreement provides:
"The parties (a) irrevocably submit to the
jurisdiction of any Michigan or federal court
sitting in Grand Rapids, Michigan, in any action
arising out of this agreement, (b) agree that all
claims in any action may be decided in either court,
and (c) waive, to the fullest extent that they may
effectively do so, the defense of an inconvenient
forum."
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(Emphasis added.) The forum-selection clause in the
promissory note provides: "Any dispute shall be brought in the
appropriate state or federal court in Kent County, Michigan
and the parties agree that said courts have personal and
subject matter jurisdiction over all disputes regarding this
Note and waive any claims to the contrary." (Emphasis added.)
The forum-selection clause in the employment agreement states:
"This Agreement shall be enforced in the State of Michigan in
either Kent County Circuit Court or the United States District
Court for the Western District of Michigan and such applicable
court shall be deemed to have subject matter and personal
jurisdiction of the parties with respect to any dispute."
(Emphasis added.) The clause in the guaranty agreement
provides: "Guarantor irrevocably agrees and consents that any
action against Guarantor for collection or enforcement of this
guaranty may be brought in any state or federal court that is
located in, or whose district includes, Kent County, Michigan,
and that any such court shall have personal jurisdiction over
Guarantor for purposes of that action." (Emphasis added.)
The problem before us is that, when read individually,
two of the provisions appear to be "exclusive," while the
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other two are "permissive." In construing the four forum-
selection clauses, it is important to recognize the
relationship between the four agreements. The asset-purchase
agreement specifically references the three other "related"
agreements,2 which were apparently executed contemporaneously
with the asset-purchase agreement. Indeed, execution of the
2
The asset-purchase agreement provides, in part:
"In connection with [B2K LLC's] purchase of the
Purchased Assets, ... (2) [B2K LLC] and Nannette
Smith and Josh Smith have agreed to enter into the
Employment Agreements; and (3) the parties have
agreed to take various other actions, all as
described in this Agreement and in the Related
Agreements."
The term "related agreements" is defined in the asset-purchase
agreement as follows:
"'Related Agreements' are all written agreements,
other than this Agreement, which are executed and
delivered by [B2K LLC] or [B2K Inc] pursuant to this
Agreement in connection with [B2K LLC's] purchase of
the Purchased Assets or the other transactions
contemplated by this Agreement (including the
Noncompetition Agreement, the Employment Agreement,
the Promissory Note, ..., Guaranty Agreement, and
the other agreements contemplated thereunder),
regardless of whether such other agreements are
expressly referred to in this Agreement."
Other provisions of the asset-purchase agreement require the
parties to execute the employment agreement, promissory note,
and guaranty agreement, which were attached as exhibits to the
asset-purchase agreement.
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"related agreements" was required by the asset-purchase
agreement. The well recognized principles of contract
construction require that related contemporaneously executed
documents should be read together. We note that the
petitioners have cited no authority and make only conclusory
arguments as to how the four forum-selection clauses, when
read together, should be construed. The trial court,
construing the four clauses together, found them to be
permissive rather than mandatory. Because we are presented
with no viable argument or citation of authority regarding the
proper standards for interpreting or enforcing the forum-
selection clauses at issue, we decline to disturb the trial
court's determination that its exercise of authority in this
case was not prohibited by those clauses.3
Based on the foregoing, we hold that the petitioners have
failed to establish a clear legal right to the dismissal of
3
Rule 21(a)(1)(D), Ala. R. App. P., which is similar to
the analogous Rule 28(a)(10), Ala. R. App. P., governing
briefs in appeals, requires a petition for an extraordinary
writ filed in an appellate court to cite statutes and
authorities supporting the proposition that the writ should
issue. This Court stated in Ex parte Showers, 812 So. 2d 277,
281 (Ala. 2001), "[i]f anything, the extraordinary nature of
a writ of mandamus makes the Rule 21 requirement of citation
to authority even more compelling than the Rule 28 requirement
of citation to authority in a brief on appeal."
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Smith's action based on the forum-selection clauses.
Accordingly, as to the venue issue, the petition for the writ
of mandamus is due to be denied.
B. The preliminary injunction
The petitioners next challenge the preliminary injunction
entered by the trial court. Initially, we note that the
proper method to challenge an injunction is by a direct appeal
under Rule 4(a)(1), Ala. R. App. P. However, because the
petition for a writ of mandamus was filed within the time for
taking an appeal under Rule 4(a)(1) and raised an issue for
which mandamus review was appropriate, we will treat the
petition, insofar as it challenges the preliminary injunction,
as a timely filed appeal from an order granting a preliminary
injunction. See Ex parte Hollis & Wright, P.C., 987 So. 2d
530, 531 (Ala. 2007) (treating a petition for a writ of
mandamus challenging an injunction as an appeal under Rule
4(a)(1)); Ex parte Health Care Mgmt. Grp. of Camden, Inc., 522
So. 2d 280, 281 (Ala. 1988) (same).
The petitioners make two general arguments in opposition
to the preliminary injunction. First, they argue that Smith
failed to establish the four well known requirements necessary
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for the issuance of a preliminary injunction. Second, they
argue that, even if the elements necessary for the issuance of
the injunction in a normal case were met, the injunction in
this case requires the petitioners to perform certain
affirmative acts. They contend that this aspect of the
injunction required a higher standard of proof, which, they
say, Smith did not meet.
Alabama law controls the issuance of a preliminary
injunction under Rule 65, Ala. R. Civ. P. "The decision to
grant or to deny a preliminary injunction is within the trial
court's sound discretion. In reviewing an order granting a
preliminary injunction, the Court determines whether the trial
court exceeded that discretion." SouthTrust Bank of Alabama,
N.A. v. Webb-Stiles Co., 931 So. 2d 706, 709 (Ala. 2005).
Questions of law, however, are reviewed de novo. Holiday
Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008).
This Court has set forth the requirements for a
preliminary injunction on numerous occasions.
"A preliminary injunction may issue only when
the party seeking the injunction demonstrates
"'"(1) that without the injunction the
[party] would suffer irreparable injury;
(2) that the [party] has no adequate remedy
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at law; (3) that the [party] has at least
a reasonable chance of success on the
ultimate merits; and (4) that the hardship
imposed on the [party opposing the
preliminary injunction] by the injunction
would not unreasonably outweigh the benefit
accruing to the [party seeking the
injunction]."'
"Ormco Corp. v. Johns, 869 So. 2d 1109, 1113 (Ala.
2003) (quoting Perley v. Tapscan, Inc., 646 So. 2d
585, 587 (Ala. 1994))."
SouthTrust Bank, 931 So. 2d at 709.
The petitioners argue that Smith has failed to establish
any of the above four elements. Because we conclude that
Smith failed to prove she would suffer irreparable injury if
the injunction were not issued, we reverse the order of the
trial court granting the preliminary injunction.
Our cases hold that a preliminary injunction should be
issued only when the party seeking the injunction can
demonstrate that, without the injunction, he or she would
suffer irreparable injury for which there is no adequate
remedy at law.
"'"'Irreparable injury' is an injury that is not
redressable in a court of law through an award of
money damages." [Perley v. Tapscan, Inc.], 646 So.
2d [585,] 587 [(Ala. 1994)] (citing Triple J Cattle,
Inc. v. Chambers, 551 So. 2d 280 (Ala. 1989)).
However, "courts will not use the extraordinary
power of injunctive relief merely to allay an
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apprehension of a possible injury; the injury must
be imminent and irreparable in a court of law."
Martin v. City of Linden, 667 So. 2d 732, 736 (Ala.
1995); see also Borey v. National Union Fire Ins.
Co. of Pittsburgh, 934 F.2d 30, 34 (2d Cir. 1991)
(stating that "a mere possibility of irreparable
harm is insufficient to justify the drastic remedy
of a preliminary injunction").'"
Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions,
Inc., 99 So. 3d 855, 862 (Ala. 2012) (quoting Ormco Corp. v.
Johns, 869 So. 2d 1109, 1113 (Ala. 2003)). "The party seeking
the injunction has the burden of demonstrating that it lacks
an adequate remedy." Monte Sano Research, 99 So. 3d at 862.
In the present case, Smith alleges that, because B2K LLC
ceased making the monthly purchase payments required by the
promissory note, it has breached the asset-purchase agreement
and the promissory note. Smith also claims that because
Ingenuity has failed to remedy B2K LLC's default under the
note, Ingenuity has breached the guaranty agreement. Finally,
she alleges that her termination as president of B2K LLC was
a breach of the employment agreement. The petitioners argue
that each of these alleged breaches, if proven, can be
redressed through an easily quantifiable award of money
damages. Further, they argue that Smith has not presented any
evidence of an imminent injury to support the injunction. In
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short, they argue, Smith has not established an imminent and
irreparable injury.
Smith argues that the trial court correctly held that
Smith's potential loss of control over B2K LLC's intellectual
property established the irreparable-injury requirement. The
trial court concluded, and the parties agree, that B2K LLC's
chief asset is the source code for its software. The trial
court cited the following provision of the guaranty agreement:
"[B2K Inc] shall have the right to demand transfer of the pro
rata amount of [Ingenuity]'s membership units in [B2K LLC] to
pay the full amount of any uncured default."4 Based on the
ownership-shifting provision in the guaranty agreement, the
trial court concluded that Smith would likely prevail at trial
and that the assets of B2K LLC, namely the software and source
code, would be shifted to her control.5 It further concluded
that the letter of termination to Smith represented Smith's
4
The guaranty agreement provides a formula to be used to
calculate the value of Ingenuity's equity in B2K LLC.
5
The payee/creditor on the promissory note and the
guaranty agreement is listed as B2K Inc. The material before
us indicates that B2K Inc has been dissolved. For the purpose
of this appeal, we assume, without deciding, that Smith is the
appropriate party with capacity to enforce the various
agreements.
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imminent loss of control over the software and source code and
that monetary damages would not suffice to compensate Smith
for that loss. Specifically, the trial court concluded:
"If Smith is successful on the merits, she will
be entitled, through the terms of the Guaranty
[agreement], to a shift in the ownership of B2K LLC.
The ownership of B2K LLC in turn owns the assets of
B2K LLC which necessarily includes the software and
source code to the software. The parties agree that
this software and the source code are unique and
that loss of rights to, and ownership interest in,
this software will cause irreparable injury.
Further, the harm is immediate as is clear from the
evidence, including the attempted, alleged, and
potential termination of Smith as president of B2K
LLC.
"....
"Smith does not have an adequate remedy at law
because she seeks more than monetary damages, and
such monetary damages, taken alone, will be
insufficient to fully compensate her. Smith has at
least a twenty percent (20%) ownership interest in
B2K LLC. B2K LLC owns the software and source code.
The software and source code, as discussed
previously, are unique and extremely difficult to
value purely in monetary damages. In fact, the
parties agreed that monetary damages 'would be
extremely difficult, if not impossible, to estimate
or determine and which may not be adequately
compensated by monetary damages alone.' ... Since
ownership in B2K LLC and its assets is likely to be
shifted pursuant to the Guaranty [agreement], money
damages alone will not be an adequate remedy at
law."
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On appeal, Smith restates the reasoning contained in the
trial court's order. Smith argues, as the trial court
concluded, that her imminent loss of control over B2K LLC's
software and source code establishes an irreparable injury.
Smith argues:
"The purpose of the injunction is to insure against
the serious injury that would occur should [Smith]
lose possession of the source code and other
software. Without the source code the business is
not operational, and thus her continued employment
is necessary to preserve the status quo until proper
valuations can take place and final dispositions can
be made."
Smith's brief, at 17. Other than her potential loss of
control of the software and source code, she identifies no
other ground of irreparable injury.
We certainly understand the importance of the software
and source code to B2K LLC's business. We further understand,
given Smith's partial ownership and her potentially
controlling interest in B2K LLC, that the continued operation
of B2K LLC is important to Smith. Thus, we do not doubt that
destruction or loss of the software and source code could
result in irreparable injury to B2K LLC, and, by virtue of her
ownership interest in B2K LLC, to Smith. Nevertheless, we
fail to understand from the evidence before us why Smith's
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continued employment as president of B2K LLC, or her absolute
control of B2K LLC, is a necessary condition to the
preservation of the software and source code.
There is no evidence in the record indicating that the
software and source code are in any imminent danger. The
source code is owned by B2K LLC. Smith testified that the
source code is stored in an electronic library located at B2K
LLC's office in Birmingham. Smith testified that B2K LLC's
system contains a number of redundancies designed to protect
the source code. For example, the system prevents any one
person from accessing or modifying all the source code at any
one time. Smith also testified that the source code is backed
up every night to remote servers. Although Smith testified
that an unqualified operator could accidentally cause damage
to the source code, there was no evidence indicating that any
such damage was likely to occur if Smith is removed as
president of B2K LLC. Certainly there was no evidence
indicating that the petitioners intended to damage or destroy
the source code. To the contrary, the trial court found that
all the parties shared a common interest in the success of B2K
LLC: "While the parties' relationship is currently
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acrimonious, they also all want B2K LLC to be successful. The
parties have all invested significant time and money into the
business, including the development of the software and source
code." Accordingly, from the record before us, we see no
merit to Smith's contention that her loss of control over B2K
LLC, and thus the software and source code, would cause her to
suffer an "immediate and irreparable injury," necessitating
the issuance of the preliminary injunction.6
Nor, given our conclusion above, can we say that Smith
lacks an adequate legal remedy. Should she prevail on her
breach-of-contract claims, monetary damages representing the
debt owed under the asset-purchase agreement, the promissory
note, and the guaranty agreement appear to be adequate and
easily quantifiable. The same can be said for the breach of
Smith's employment agreement. See Perley v. Tapscan, Inc.,
646 So. 2d 585 (Ala. 1994) (affirming the trial court's
refusal to enter a preliminary injunction reinstating a
minority shareholder to his position as president of a company
6
We do not mean to be understood as precluding the entry
of an injunction should Smith present evidence of an imminent
threat of compromise to the software or the source code,
although we do question whether such a threatened injury would
require an injunction as broad in scope as the one now at
issue.
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on the ground that money damages would provide adequate legal
remedy). Moreover, our conclusion that Smith has an adequate
legal remedy is reinforced by the trial court's conclusion
that "[i]f Smith is successful on the merits, she will be
entitled, through the terms of the Guaranty [agreement], to a
shift in the ownership of B2K LLC."7 Because Smith, if
successful, will be entitled to an award of money damages and
to a potential pro rata shift in ownership shares from
Ingenuity, her alleged injuries are not irreparable.
Smith has failed to convince us that, without the
injunction, she would suffer irreparable injury. Accordingly,
she was not entitled to the preliminary injunction, and the
order of the trial court issuing the injunction is due to be
reversed. Because we hold that the preliminary injunction is
due to be dissolved, we pretermit discussion of the
petitioners' remaining arguments.
7
We express no opinion at this time as to the construction
or application of this particular provision because that issue
is not before us. We note, however, that the petitioners have
not challenged the trial court's conclusion that, if
successful, Smith may be entitled to some or all of
Ingenuity's ownership shares in B2K LLC.
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III. Conclusion
With regard to the trial court's denial of the
petitioners' motion to dismiss based on the outbound forum-
selection clauses, we deny the petition for the writ of
mandamus. With regard to the petitioners' challenge of the
preliminary injunction, which we treat as a timely filed
direct appeal under Rule 4(a)(1)(A), Ala. R. App. P., we
reverse the order of the trial court entering the preliminary
injunction and remand the case to the trial court for that
court to dissolve the preliminary injunction.
PETITION DENIED; REVERSED AND REMANDED WITH INSTRUCTIONS.
Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan,
JJ., concur.
Moore, C.J., concurs in part and dissents in part.
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MOORE, Chief Justice (concurring in part and dissenting in
part).
I concur in the majority opinion so far as it denies the
petition for a writ of mandamus on the venue issue, but I
dissent from the majority opinion to the extent that it orders
the dissolution of the preliminary injunction.
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