author: SUSANO, Judge.

text:
    VANTAGE TECHNOLOGY, LLC, Plaintiff-Appellant, v. Mark CROSS, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Oct. 19, 1999.
    Application for Permission to Appeal Denied by Supreme Court April 17, 2000.

      J. Ford Little and Michael J. King, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN, for Appellant.
    H. Scott Reams, Taylor, Reams, Tilson & Harrison, Morristown, TN, for Appellee.
   OPINION

SUSANO, Judge.

Vantage Technology, LLC (“Vantage”) filed this suit against its former employee, Mark Cross (“Cross”), seeking injunctive relief and damages for breach of a non-competition covenant. Following a bench trial, the Chancellor found that the covenant was unreasonable and unenforceable. Vantage appeals, raising the following issues for our consideration:

I. Did the trial court err in finding that the non-competition covenant was unreasonable and unenforceable?
2. Did the trial court err in denying Vantage’s motion to amend its pleadings to conform to the evidence?

Appellee Cross raises the additional issue of whether the trial court erred in applying Tennessee law rather than Illinois law.

I. Facts and Procedural History

A. Vantage’s Business

Vantage’s business involves the rendering of a service to ophthalmologists in a hospital setting. To best understand the facts of this case, it is necessary to have an elementary grasp of cataract surgery logistics, especially as it relates to the relationships of’ the parties involved. When an ophthalmologist determines that a patient needs surgery to remove cataracts, the physician must then choose, from among the hospitals at which the doctor has privileges, the facility at which the surgery is to be performed. Because physicians often prefer to perform surgery with certain equipment, supplies, and instruments, the presence or absence of these accouterments at a particular hospital is often the determining factor in the surgeon’s choice of location. Thus, hospitals, in competition with one another for facility usage fees, often seek to attract surgeons by offering the tools that surgeons prefer. While larger hospitals are generally able to provide these tools in-house, rural hospitals must often obtain them from third parties. These third parties, sometimes referred to as “mobile service providers”, transport the necessary equipment to the hospital when a surgeon is scheduled to perform cataract surgery. These mobile service providers are driven by the same incentives as are the hospitals — to provide the equipment, supplies, instruments and services that surgeons prefer.

Vantage, as one of these mobile service providers, employs technicians to transport the required materials to rural hospitals and to assist the physicians during surgery. Cross is a former Vantage technician. For the reasons outlined above, Vantage has an interest in initiating, developing, and sustaining relationships not only with hospitals, but also with the physicians performing cataract surgery at the hospitals. To initiate such relationships, Vantage utilizes direct-mailings or face-to-face demonstrations to sell its services to hospitals. Vantage delegates to the technicians the ongoing task of developing and sustaining these relationships because a technician is the primary liaison between Vantage and the doctors and hospitals. In furtherance of the goal of relationship-building, Vantage encourages its technicians to use entertainment expense accounts to purchase meals or gifts for physicians and other surgical staff.

Another method that Vantage employs to build and strengthen relationships is the collection and recordation of surgeon preferences. These “doctor diaries” are used to record surgeons’ preferences for machine settings, supplies, and instruments. This information is initially gathered and logged in by a Vantage salesperson. When a technician is assigned to a particular surgeon, the technician refers to the diary to determine what equipment to bring and how to set up the machine, instruments, and supplies. The doctor diaries also include personal information about the doctor such as hobbies and interests. Par.t of the technician’s responsibility is to record in the doctor diaries any change in surgeon preferences or problems encountered during surgery. The technicians are • also required to report growth opportunities of which they become aware during the performance of their duties. ■ •

The primary piece of equipment that Vantage provides to hospitals is a phacoe-mulsification machine. This machine is used to break cataracts into pieces and remove the pieces through irrigation and aspiration. Once the cataract is removed, the surgeon implants an artificial lens into the eye. Surgery with the machine enables the surgeon to utilize a much smaller incision which, in turn, allows an easier and shorter recuperation time for the patient. Additionally, the machines allow surgeons to perform more cataract surgeries in less time.

In addition to providing the machine, Vantage also provides supplies, instruments, and technician services. The technician’s pre-surgery responsibilities include transportation of the equipment, setting up the machine’s parameters according to the surgeon’s preferences, tuning the hand piece, “breaking out” the supplies and instruments, and preparing the room for surgery. During surgery, the technician stays by the machine and changes the machine’s modes by pressing buttons according to the surgeon’s- instructions. The surgeon, not the technician, places the machine tip to the eye and otherwise operates the machine during surgery through the use of foot pedals.

No medical training or education is required for technicians, nor do technicians need to be licensed. One can be trained to operate the machine in a single day. A trained technician can set up the parameter preferences in approximately 15 seconds. A physician can perform surgery without a technician in the room. Still, a technician’s responsibilities require a degree of familiarity with the machine.

From October, 1994, to August, 1996, Vantage, with 15 to 18 employees, provided mobile services to 70 to 100 hospitals in eight states, including Tennessee. Four hospitals in Tennessee are relevant to this case: Fort Sanders-Loudon Medical Center (“Fort Sanders-Loudon”) in Loudon; Lakeway Regional Hospital (“Lakeway”) in Morristown; LaFollette Medical Center (“LaFollette”) in LaFollette; and Fort Sanders-Sevierville Medical Center (“Fort Sanders-Sevierville”) in Sevierville.

Vantage provided mobile services to Fort Sanders-Loudon under an exclusive contract from August 15, 1995, to August 14, 1996. After termination of the contract, Vantage provided services at least once more on September 4, 1996. The primary ophthalmologist performing cataract surgery at Fort Sanders-Loudon was Dr. Subba Rao Gollamudi.

Vantage provided mobile services to Lakeway under a one-year, non-exclusive contract beginning on October 1, 1995. Dr. Gollamudi was also the primary ophthalmologist at Lakeway.

Vantage provided mobile services to La-Follette on one occasion in 1994. Because LaFollette was, at that time, satisfied with its own machine and because LaFollette and Vantage could not come to an agreement regarding price, LaFollette did not become a Vantage customer.

Vantage first contacted Fort Sanders-Sevierville in April, 1998, two months prior to trial.

• B. Cross’ Employment with and Departure from Vantage

•Cross began employment with Vantage as a technician in October, 1994. His qualifications for the position included a bachelor’s of science degree in administrative management and experience from a variety of jobs. He had no experience, training or education directly relevant to the operation of phacoemulsification machines.

In January, 1995, Cross signed a covenant not to compete, which provides as follows:

[djuring the term hereof and for a period of three years thereafter, the Employee shall not compete, directly or indirectly,. with the Company interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between the Company and any customer, client, supplier, consultant or employees of the Company, including, without limitation, employing or being an investor (representing more than a 5% equity interest) in, or officer, director or consultant to, any person or entity which employs any former key or technical employee whose employment with the Company was terminated after the date which is one year prior to the date of termination of the Employee’s employment therewith. An activity competitive with an activity engaged in by the Company shall mean performing services (whether as an employee, officer, consultant, director, partner or sole proprietor) for any person or entity engaged in the business then engaged in by the Company, within 50 miles of any Company office or Company’s client location.

The agreement also provides that:

[i]t is the desire and intent of the parties that the provisions of this Section shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular portion of this Section shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended, to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of this Section in the particular jurisdiction in which such adjudication is made.

Vantage taught Cross how to perform his duties as a phacoemulsification technician. Cross spent his first month of employment with Vantage in 241.5 hours of training. This training primarily consisted of observing a more senior Vantage technician during approximately 70 cataract surgeries. Cross also watched videos and read manuals. During the course of his employment, Cross attended monthly meetings and also went to one “wet lab” where he performed a cataract surgery on a pig’s eye. Most of Cross’ training pertained to two models of a machine manufactured by Alcon and one model manufactured by Storz.

After Cross’ initial training, he began to provide services to hospitals without the supervision of another Vantage technician. Cross relied on the doctor diaries to ascertain the preferences of the doctors with whom he worked. In addition to the doctor diaries, Cross received schedules which included not only his own itinerary, but also the names of the hospitals and doctors for whom his fellow technicians would be working. Cross testified that, after referring to the schedules to determine where and with whom he was to work, he discarded the schedules without having ascertained the identities of any other Vantage customers. Cross had limited knowledge of Vantage’s pricing and other terms of Vantage’s contracts with hospitals.

During his employment with Vantage, Cross serviced 49 hospitals in at least six states. Two of the hospitals Cross serviced were Fort Sanders-Loudon and Lakeway. At first, Vantage dispatched several different technicians to service these two hospitals. By the summer of 1996, however, Cross was the Vantage technician in the majority of the surgeries performed at these two hospitals, and had developed a strong relationship with Dr. Gollamudi.

In the summer of 1996, Vantage informed Cross that it wanted him to service hospitals in Ohio rather than in Tennessee. Cross and Dr. Gollamudi began to discuss the possibility of Cross' working as a technician for Dr. Gollamudi independent of Vantage, using an Allergan Prestige machine which Dr. Gollamudi preferred over the machines supplied by Vantage. Vantage never trained Cross on an Allergan Prestige machine.

Around this time, Cross learned from Dr. Gollamudi that LaFollette was experiencing problems with its phacoemulsification machine to the point of having to postpone and cancel surgeries. The Operating Room Director at LaFollette testified that Cross met her on August 13, 1996, to discuss the providing of mobile services. Cross did not mention that he was a Vantage employee. On August 15, 1996, Cross gave Vantage his two weeks notice. Cross faxed a price quote to La-Follette on August 16, 1996. On August 19, 1996, Dr. Gollamudi secured $40,000 from a bank and then loaned the money to Cross to finance the start-up of Cross’ business, Southern Surgical Support. Cross used most of the money to purchase a refurbished Allergan Prestige machine which he ordered on August 29, 1996, his last day as a Vantage employee. Cross received the machine on September 2, 1996, and an Allergan representative, in one day, instructed him in its operation.

Cross rendered his first service through his new business on September 10,1996, at LaFollette. With the help of Dr. Gollamu-di’s influence, Cross began servicing Lake-way sometime within the next month and Fort Sanders-Loudon in October, 1996. In November, Dr. Gollamudi introduced Cross to a partner who performed surgery at Fort Sanders-Sevierville. Cross began servicing Fort Sanders-Sevierville in January, 1997.

Vantage filed suit on May 16, 1997, alleging that Cross had breached a valid and enforceable covenant not to compete. The trial court, finding the covenant unreasonable and unenforceable, rendered judgment in favor of Cross. Vantage then appealed.

II. Standard of Review

In this non-jury case, our review is de novo upon the record, with a presumption of correctness as to the trial court’s factual determinations, unless the evidence preponderates otherwise. Rule 13(d), T.R.A.P.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

Our de novo review is subject to the well-established principle that the trial court is in the best position to assess the credibility of the witnesses; accordingly, such determinations are entitled to great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App.1995); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App.1991).

III. Analysis

A. Non-Competition Covenant

Covenants not to compete, because they are in restraint of trade, are disfavored in Tennessee. Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 472 (Tenn.1984). As such, they are construed strictly in favor of the employee. Id. However, when the restrictions are reasonable under the circumstances, such covenants are enforceable. Id. The factors that are relevant in determining whether a covenant not to compete is reasonable include “the consideration supporting the agreements; the threatened danger to the employer in the absence of such an agreement; the economic hardship imposed on the employee by such a covenant; and whether or not such a covenant should be inimical to public interest.” Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 409 S.W.2d 361, 363 (1966).

The first factor, consideration, is not an issue on appeal. In balancing the other three factors, a threshold question is whether the employer has a legitimate business interest, ie., one that is properly protectable by a non-competition covenant. See Hasty, 671 S.W.2d at 473.

Several principles guide the determination of whether an employer has a business interest properly protectable by a non-competition covenant. Because an employer may not restrain ordinary competition, it must show the existence of special facts over and above ordinary competition. Id. These facts must be such that without the covenant, the employee would gain an unfair advantage in future competition with the employer. Id. Considerations in determining whether an employee would have such an unfair advantage include (1) whether the employer provided the employee with specialized training; (2) whether the employee is given access to trade or business secrets or other confidential information; and (3) whether the employer’s customers tend to associate the employer’s business with the employee due to the employee’s repeated contacts with the customers on behalf of the employer. Id. These considerations may operate individually or in tandem to give rise to a properly protectable business interest. See, e.g., AmeriGas Propane, Inc. v. Crook, 844 F.Supp. 379 (M.D.Tenn.1993); Flying Colors of Nashville, Inc. v. Keyt, C/A No. 01A01-9103-CH-00088, 1991 WL 153198 (Tenn.App.M.S., filed August 14, 1991).

1. Specialized Training

An employer does not have a protectable interest in the general knowledge and skill of an employee. Hasty, 671 S.W.2d at 473. This is not only true of knowledge and skill brought into the employment relationship, but also true as to that acquired during the employment relationship, even if the employee obtained such general knowledge and skill through expensive training. See Hasty, 671 S.W.2d at 473 (“general knowledge and skill appertain exclusively to the employee, even if acquired with expensive training and thus does not constitute a protectible [sic] interest of the employer”).

In contrast, an employer may have a protectable interest in the unique knowledge and skill that an employee receives through special training by his employer, at least when such training is present along with other factors tending to show a protectable interest. Id; Selox, Inc. v. Ford, 675 S.W.2d 474, 476 (Tenn.1984) (“A line must be drawn between the general skills and knowledge of the trade and information that is peculiar to the employer’s business.”) (quoting Restatement (Second) of Contracts § 188 cmt. g (1981)). See also Flying Colors of Nashville, 1991 WL 153198 at *5 (holding that training in specialized techniques and processes of paint-mixing, together with a special relationship with the employer’s customers, gives rise to a properly protect-able interest).

Thus, whether an employer has a protectable interest in its investment in training an employee depends on whether the skill acquired as á result of that training is sufficiently special as to make a competing use of it by the employee unfair.

2. Trade Secrets and Confidential Information

An employer has a legitimate business interest in keeping its former employees from using the former employer’s trade or business secrets or other confidential information in competition against the former employer. Hasty, 671 S.W.2d at 473. A trade secret is defined as any secret “formula, process, pattern, device or compilation of information that is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not use it.” Hickory Specialties, Inc. v. B & L Labs., Inc., 592 S.W.2d 583, 586 (Tenn.App.1979) (quoting Allis-Chalmers Mfg. Co. v. Continental Aviation & Eng’g Corp., 255 F.Supp. 645, 653 (E.D.Mich.1966)). The subject matter of a trade secret must be secret and not well known or easily ascertainable. Hickory Specialties, 592 S.W.2d at 587.

What constitutes “confidential information” is somewhat less clear. In Heyer-Jordan & Assocs., Inc. v. Jordan, 801 S.W.2d 814 (Tenn.App.1990), we held that the identities of the employer’s customers did not amount to “confidential business information” within the meaning of the employment agreement because such information was generally available in the trade. We reasoned that “confidential information” is ahalogods to “trade secret” and that, because customer identities are not secret, they cannot be considered confidential. See also Amarr Co. v. Depew, C/A No. 03A01-9511-CH-00412, 1996 WL 600330, *4-*5 (Tenn.App. W.S., filed October 16, 1996) (holding that customer lists, customer credit information, pricing information, and profit and loss statements did not constitute confidential information because such information is easily available from sources other than the employer).

3. Special Customer Relationships

An employer may also have a legitimate protectable interest in the relationships between its employees and its customers. See Hasty, 671 S.W.2d at 473. It is often the case that the customer associates the employer’s business with the employee due to the employee’s repeated contacts with the customer. The employee in essence becomes “the face” of the employer. This relationship is based on the employer’s goodwill. The employee’s role in this relationship is merely that of the employer’s agent. In this role, the employee is made privy to certain information that is personal, if not technically confidential. Because this relationship arises out of the employer’s goodwill, the employer has a legitimate interest in keeping the employee from using this relationship, or the information that flows through it, for his own benefit. This is especially true if this special relationship exists along with the elements of confidential information and/or specialized training. For illustrations of this principle, see AmeriGas Propane, Inc. v. Crook, 844 F.Supp. 379, 386 (M.D.Tenn.1993); Ramsey v. Mutual Supply Co., 58 Tenn.App. 164, 427 S.W.2d 849, 852 (1968); Federated Mut. Implement and Hardware Ins. Co. v. Anderson, 49 Tenn.App. 124, 351 S.W.2d 411, 415 (1961); Arkansas Dailies, Inc. v. Dan, 36 Tenn.App. 663, 260 S.W.2d 200, 204-05 (1953); Powell v. McDonnell Ins., Inc., C/A No. 02A01-9608-CH-00176, 1997 WL 589232, *5 (Tenn.App. W.S., filed September 24, 1997); Flying Colors of Nashville, Inc. v. Keyt, C/A No. 01A01-9103-CH-00088, 1991 WL 153198, *5 (Tenn.App. M.S., filed August 14,1991).

4. Application

Vantage argues on appeal that it has a legitimate business interest in all of the above categories, i.e., specialized training, confidential information, and special customer relationships.. The trial court concluded that Cross’ training was “not so unique or specialized as to justify a covenant not to compete for its protection....” It also held that Vantage had no legitimate business interest in the customer lists, pricing levels, and doctor diaries because such information does not constitute confidential information. Finally, the trial court found that Vantage does not have a protectable interest in the relationship arising out of Cross’ direct and repeated contacts with Vantage’s customers because the hospitals are primarily concerned with quality and price rather than developing relationships.

While the relevant factors mentioned above must each be analyzed in isolation, they must also be analyzed in tandem. When the facts of the instant case are analyzed in the latter manner, we find and hold that Vantage has established a legitimate business interest that can be properly protected by a covenant not to compete.

Cross’ first month of employment was devoted to training. His first 241.5 hours on the job were primarily spent in observation of approximately 70 surgeries. After the initial training period ended, he attended monthly meetings. In addition to this training, the relationships between Vantage and the hospitals and surgeons were initiated by Vantage and were built on the foundation of Vantage’s goodwill. Any contribution of Cross to the development and sustenance of these relationships was accomplished in Cross’ role as an agent of Vantage. In performance of this role, Cross was made privy to surgeon preferences. He had a degree of knowledge of Vantage’s other customers and the prices it charged for Cross’ services. Additionally, it was in this role as Vantage technician that Cross’ relationship with Dr. Gollamudi was initiated and developed. This relationship, as well as the information that flowed through it, gives Cross an unfair advantage in competition against his former employer because it comes at the expense of his former employer. When this special relationship is coupled with the training Cross received from Vantage and the confidential information he received while in its employ, the totality of all of this amounts to a legitimate business interest properly protectable by a covenant not to compete. To the extent the trial court found otherwise, we find and hold that the evidence preponderates against ■ such a finding.

Finding that Vantage has established a protectable interest, however, does not end our inquiry. According to the Allright factors, the threatened danger to Vantage’s protectable interest in the absence of a non-competition covenant must be balanced against the economic hardship imposed on Cross by such a covenant. The public interest must also be considered. Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 409 S.W.2d 361, 363 (1966).

The trial court, apparently relying on its previous findings of fact, found that “[t]he economic hardship imposed upon Cross by such a covenant greatly outweighs ’ the threatened danger to Vantage in the absence of such an agreement.” For the reasons articulated above, we disagree. If the covenant is not enforced, Vantage stands to lose its investment in training Cross and its investment in the development of customer relationships as well as the effort expended in gathering information concerning surgeon preferences. If the covenant is enforced, Cross merely loses that which does not belong to him.

The relevant considerations bearing on the public interest do not preclude enforcement of the non-competition covenant. Any restraint on competition has the potential to increase the cost of what are already expensive health care services. On the other hand, not enforcing the covenant would allow Cross to unfairly use the benefits bestowed upon him by his employer and may result in a disincentive to Vantage to properly train and inform its employees. Accordingly, we find that the public interest considerations do not militate against enforcement of the covenant. We conclude that the threatened danger to Vantage in the absence of such enforcement outweighs the economic hardship imposed upon Cross by enforcement of the non-competition covenant.

To be enforceable, a covenant not to compete must clear one final hurdle. The scope of a covenant not to compete must be reasonable in that “the time and territorial limits involved must be no greater than is necessary to protect the business interests of the employer.” Allright Auto Parks, 409 S.W.2d at 363. If the scope of the covenant is reasonable as written, it will be enforced as written. If the scope is unnecessarily burdensome to the employee, however, it will be enforced only “to the extent that [it is] reasonably necessary to protect the employer’s interest “without imposing undue hardship on the employee when the public interest is not adversely affected.’ ” Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28, 37 (Tenn.1984) (quoting in part Ehlers v. Iowa Warehouse Co., 188 N.W.2d 368, 370 (Iowa 1971)). Hence, a court may modify an unreasonable covenant so as to render it reasonable. To protect against employers drafting overly broad language secure in the knowledge that the sole sanction would be modification to the maximum extent allowed, courts will hold the entire covenant invalid if credible evidence supports a finding-that the covenant is deliberately unreasonable and oppressive. Central Adjustment Bureau, 678 S.W.2d at 37. With respect to territorial limitations, covenants that embrace an area in which the employee never performed services are unreasonable unless the employee possesses knowledge of the employer’s trade secrets. Allright Auto Parks, 409 S.W.2d at 364.

The covenant at issue in the instant case is rather inartfully drawn. It essentially prohibits Cross from competing with Vantage for three years “within 50 miles of any Company office or Company’s client location.” Vantage’s rationale for the 50-mile restriction is that surgeons often serve numerous hospitals within 50 miles of each other, and, because surgeons are so influential in the hospitals’ choice of mobile service provider, a provider’s relationship with a surgeon can translate into relationships with surrounding hospitals.

We find the 50-mile restriction to be a reasonable geographical scope with respect to the locations of Vantage’s customer-hospitals in which Cross served as technician for Vantage. Vantage’s asserted rationale, however, does not explain the need for protection of a 50-mile area surrounding Vantage’s offices. Nor does it explain the need for protection in areas near hospitals in which Cross never performed services. The evidence does not suggest that Vantage deliberately drafted the covenant to be unreasonable or oppressive. Accordingly, we modify the covenant to prohibit Cross from competing with Vantage within 50 miles of any Vantage customer location in which Cross performed services while a Vantage technician.

There are at least two other problems with the subject covenant. First, it does not expressly state whether “within 50 miles” is intended to refer to a radius or driving distance. Second, the covenant does not state whether the “Company’s client location” refers to hospitals which were at one time clients or which were clients at the time of Cross’ termination. Because the agreement is ambiguous, and because we are to construe covenants not to compete favorably to the employee, we find and hold that the area of restriction is 50 miles as determined by the shortest driving distance. Additionally, we hold that the covenant applies only to those hospitals in which Vantage was regularly providing services at the time of Cross’ termination.

With respect to the period of restriction, we hold that three years is reasonable. See Matthews v. Barnes, 155 Tenn. 110, 293 S.W. 993, 993, 996 (1927) (five-year covenant held reasonable); Ramsey v. Mutual Supply Co., 58 Tenn.App. 164, 427 S.W.2d 849, 852-53 (1968) (five-year covenant held reasonable); Arkansas Dailies, Inc. v. Dan, 36 Tenn.App. 663, 260 S.W.2d 200, 205 (1953) (three-year covenant held reasonable); Mike Glynn & Son, Inc. v. Schang, 1990 WL 7449, *1, *4 (Tenn.App. W.S., filed February 5, 1990) (three-year covenant held reasonable).

In sum, we hold the following: (1) that Vantage has established that it has a legitimate, protectable interest; (2) that the threatened danger to this interest in the absence of a non-competition covenant outweighs the economic hardship imposed on Cross resulting from enforcement of the covenant; (3) that the three-year time period for which Cross is prohibited from competing with Vantage is reasonable; and (4) that the geographical scope of the covenant is modified so that Cross is prohibited from competing with Vantage within 50 miles, shortest driving distance, of any hospital in which Vantage was regularly providing services at the time of Cross’ termination, but only with respect to those hospitals in which Cross performed services while a Vantage technician.

On remand, the trial court must determine, according to the parameters we have outlined above, whether and to what extent Cross has violated his non-competition covenant. If Cross has violated his covenant, the trial court must determine the extent of injunctive relief and/or damages to which Vantage is entitled.

B. Motion to Amend to Conform to the Evidence

The second issue Vantage raises on appeal is whether the trial court erred in denying Vantage’s motion to amend its pleadings to conform to the evidence. On May 16, 1997, Vantage filed suit alleging breach of the covenant not to compete. Vantage did not assert breach of duty of loyalty as a cause of action. On June 30, 1998, the parties proceeded to the first day of trial. Vantage examined, and Cross cross-examined, four witnesses. The court then adjourned until July 13, 1998. On July 7, 1998, Vantage filed a motion to amend the pleadings to conform to the evidence seeking to add a breach of duty of loyalty cause of action. The court heard the motion on July 13, 1998, and denied it, finding that the issue had not been tried by express or implied consent and that an amendment at that time would result in prejudice to Cross.

In determining whether to grant or deny a motion to amend the pleadings to conform to the evidence, “the most important question is whether the new issues were tried by the parties’ express or implied consent and whether the defendant ‘would be prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory.’ ” Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn.1980) (quoting Browning Debenture Holders’ Comm. v. DASA Corp., 560 F.2d 1078, 1086 (2d Cir.1977)). Presentation of evidence that is relevant to both a pled issue and a non-pled issue does not establish trial of the non-pled issue by implied consent. Hiller v. Hailey, 915 S.W.2d 800, 805 (Tenn.App.1995). Whether the issue has been tried by implied consent is a decision resting within the sound discretion of the trial court, and, as such, it cannot be disturbed on appeal absent an . abuse of discretion. Zack Cheek Builders, 597 S.W.2d at 891.

Here, Vantage seeks to amend the pleadings to include a breach of duty of loyalty claim based on certain evidence elicited on the first day of trial. Vantage asserts that it did not learn until the first day of trial that Cross personally solicited LaFollette two days before giving his notice of termination to Vantage. Vantage contends that this evidence is relevant only to a breach of duty of loyalty claim. It also asserts that this issue was tried by implied consent because Cross’ attorney examined two witnesses regarding the timing of Cross’ solicitation of LaFollette for himself. Cross responds with the argument that the facts surrounding the timing of his personal solicitation of clients is relevant to the breach of the non-competition covenant, especially as it relates to the calculation of damages should he be found to be in violation of the covenant. Thus, Cross argues that he did not expressly or impliedly try the breach of duty of loyalty claim, and that the amendment after witnesses have been dismissed would be prejudicial to his case.

On the second day of trial, after denial of the motion to amend, counsel for Vantage questioned Cross about when Cross established his own business. In response to an objection based on relevancy, i.e., that the question was outside the scope of the pleadings, counsel for Vantage stated that “[i]f the gentleman is out competing directly with his employer during the actual employment with the employer, that’s certainly relevant to the facts of this case.” We agree with Cross and Vantage’s counsel that the evidence surrounding the timing of Cross’ solicitation of LaFollette is relevant to the alleged violation of the non-competition covenant. Moreover, by the time the motion was filed, four witnesses had been examined and dismissed. Granting the motion would have resulted in Cross not being given fair notice or an opportunity to present evidence relevant to a cause of action alleging breach of duty of loyalty. Accordingly, we find that the trial court did not abuse its discretion in denying Vantage’s motion to amend its pleadings to conform to the evidence.

C. Choice of Law

Cross raises as an issue on appeal whether the trial court erred in applying Tennessee law rather than Illinois law in determining the enforceability of the covenant not to compete. The basis for the trial court’s decision regarding choice of law is paragraph 2(b) of the agreement not to compete signed by Cross. This paragraph provides as follows:

[i]t is the desire and intent of the parties that the provisions of this Section shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular portion of this Section shall be adjudicated to be invalid or unenforceable, this Section shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of this Section in the particular jurisdiction in which such adjudication is made.

The goal of contract interpretation is to ascertain the intent of the parties according to the usual, natural, and ordinary meaning of the words used by the parties. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999). Any ambiguity is to be construed against the drafter. Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528, 531 (Tenn.1991). Contracts must be construed, as far as is reasonable, so as to give effect to every term. Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn.App.1996). Interpretation of a contract, being a matter of law, is subject to de novo review with no presumption of correctness. Guiliano v. Cleo, 995 S.W.2d 88, 95 (Tenn.1999); Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed' by the law of the jurisdiction in which it was executed absent a contrary intent. Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn.1973).

If the parties manifest an intent to instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met. The choice of law provision must be executed in good faith. Goodwin Bros. Leasing, Inc. v.H & B Inc., 597 S.W.2d 303, 306 (Tenn.1980). The jurisdiction whose law is cho sen must bear a material connection to the transaction. Id. The basis for the choice of another jurisdiction’s law must be -reasonable and not merely a sham or subterfuge. Id. Finally, the parties’ choice of another jurisdiction’s law must not be “contrary to' ‘a fundamental policy’ of a state having [a] ‘materially greater interest’ and whose law would otherwise govern.” Id., n. 2 (citing Restatement (Second) of Conflict of Laws § 187(2) (1971)).

In a February 13, 1998, memorandum opinion relating to this issue, the trial court made the following findings of fact: (1) both parties executed the agreement in ‘ good faith; (2) Tennessee had a direct and relevant connection with the transaction in question; (3) there was no evidence of sham or subterfuge; and (4) there was no evidence that Illinois had a materially greater interest. The trial court also concluded, as a matter of law, that the provision was both a choice of law clause and a separability clause and that the parties intended to be governed by the laws of the State of Tennessee in the event a party sought enforcement of the contract in this state. Based on this conclusion and its findings of fact, the trial court held that Tennessee law applied to the analysis of the covenant not to compete.

Cross argues on appeal that the trial court erred in applying Tennessee rather than Illinois law. He contends that the provision is solely a separability provision because it provides for modification in the event that any portion is adjudicated invalid or unenforceable. Additionally, Cross notes that the provision does not refer to a particular foreign jurisdiction, but rather refers to the laws of “each jurisdiction in which enforcement is sought.” In so doing, he argues, the provision does not promote the goal of certainty, predictability and uniformity because it necessarily mutates according to the jurisdiction in which Vantage seeks to enforce the agreement. Vantage responds that the first sentence of the provision is a choice of law clause and that ignoring it would amount to a finding that it is meaningless, a result that offends the established rule that contracts must be construed, as far as is reasonable, so as to give effect to every term.

We find that the trial court did not abuse its discretion in finding that the contract was executed in good faith, that Tennessee had a reasonable relation to the transaction, and that there was no evidence of improper purpose or that Illinois had a materially greater interest than Tennessee. Moreover, we agree that the provision is both a choice of law clause and a separability clause. To construe the first sentence of paragraph 2(b) of the agreement as anything other than a choice of law clause would be to ignore the clear intent of the parties and thus render the sentence meaningless. That the clause, in tandem with the separability clause, might result in a different outcome depending on the jurisdiction in which it is enforced is not an impediment to our decision. This is so because our exercise of jurisdiction over this matter is proper. Our decision is entitled to full faith and credit even though it affects the rights and obligations of the parties with respect to areas outside of Tennessee. Hence, as between Vantage and Mark Cross, the matter may not be re-litigated in another jurisdiction, and as such, the choice of law provision does not offend the goal of certainty, predictability, and uniformity. We therefore hold that the provision is a valid choice of law provision and that the trial court was correct in applying Tennessee, rather than Illinois, law.

IV. Conclusion

The judgment of the trial court is reversed in part, affirmed in part, and remanded for further determinations consistent with this opinion. Exercising our discretion, we tax the costs on appeal half to each party.

GODDARD, P.J., concur.

INMAN, J., not participating.

      . Cross strenuously argues that much of what he learned while a Vantage employee is of no use to him because he uses a different machine. He also argues that the information in the Vantage doctor diaries is not relevant to the services currently being provided by him. Even if true, this does not affect our holding that the totality of the circumstances — training, confidential information and relationships — -amounts to a protectable business interest of Vantage.

      . Motions to amend pleadings to conform to the evidence are governed by T.R.C.P. § 15.02: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.... If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice that party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”


source: Caselaw Access Project

license: Public Domain

text:
    Jerry L. HENSON, Petitioner, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY and Texas Farm Bureau Mutual Insurance Company, Respondents.
    No. 99-0453.
    Supreme Court of Texas.
    Argued Feb. 9, 2000.
    Decided April 13, 2000.
    Kenneth D. Cowling, Lubbock, for petitioner.
    James L. Wharton, G. Douglas Welch, Lubbock, for respondents.
   Justice ENOCH delivered the opinion for a unanimous Court.

The question is whether an insurer, obligated to pay uninsured/underinsured benefits, owes on top of those benefits prejudgment interest to be computed either from 180 days after a demand for those benefits has been made, or from the day a' suit is filed for those benefits. Because uninsured/underinsured insurers do not breach their contractual obligation to pay until tort Lability is established, we conclude that prejudgment interest begins running from the date liability of the uninsured/underinsured motorist is established. Consequently, Texas Farm Bureau Mutual Insurance Company and Southern Farm Bureau Casualty Insurance Company do not owe Jerry Henson prejudgment interest on top of the uninsured/underinsured benefits.

On March 3,1991, Henson was a passenger in a truck driven by Robert Millican. Henson was injured when the truck collided with a truck driven by Consuelo Contreras. In March 1991, Henson submitted his claim to his insurance carrier, Texas Farm Bureau Mutual Insurance Company, and Milliean’s insurance carrier, Southern Farm Bureau Casualty Insurance Company, for uninsured/underinsured motorists benefits. In February 1993, Henson and his wife sued both Millican and Contreras for negligence. They also sued Texas Farm Bureau and Southern Farm Bureau for the uninsured/underinsured motorists benefits.

Without establishing liability, but with the insurers’ permission, the Hensons settled with Contreras for $20,000, the limits of her liability policy. Before proceeding to trial against Millican, the claim against the insurers was severed, and the insurers agreed to be bound by the judgment rendered in the negligence action against Mil-lican. The agreement also provided that the insurers had thirty days before the judgment would be binding against them. The jury attributed 100% of the negligence that caused the collision to Contreras, and fixed Henson’s damages at $133,842.13. The court then entered a take-nothing judgment as to Millican.

Within thirty days of the judgment, the insurers tendered $45,000, the combined uninsured/underinsured motorist policy limits, to Henson. But he refused the tender, demanding prejudgment interest on top of the benefits. In the severed action, the insurers then filed an amended answer, denying that Henson met all conditions precedent required by the contract prior to the judgment in the tort action, and specifically denying that Henson was entitled to prejudgment interest. With their amended answer, the insurers paid the policy benefits into the court’s registry.

Henson moved for judgment and summary judgment, and the insurers moved for summary judgment. The trial court denied both of Henson’s motions and granted the insurers’ motion, ordering that Henson recover from Texas Farm its uninsured/underinsured policy limits of $25,000, and from Southern Farm the uninsured/underinsured policy limits of $20,000, plus interest accrued while in the court’s registry, “in full satisfaction of this judgment.”

Henson believes that our previous holdings on prejudgment interest and sections 2 and 6 of article 5069-1.05 of the Texas Revised Civil Statutes entitle him to prejudgment interest of ten percent on the uninsured/underinsured motorist benefits computed from 180 days after he made demand for the benefits.

But Henson conflates two prejudgment interest concepts. There is no doubt that if Henson were recovering directly from Contreras, the judgment would include prejudgment interest. And the insurers do not dispute that had the trial court awarded prejudgment interest against the tort defendants, the insurers would be obligated to pay the entire judgment including that portion awarded for prejudgment interest, to the extent of policy limits. But here, Henson is seeking to recover prejudgment interest based not on the tortfeaser’s obligations, but upon the insurance companies’ obligations. Unlike the relationship between Henson and Contreras, which is that of injured party and tortfeasor, the relationship between Henson and the insurers is that of contracting parties. Consequently, their respective duties are established by the contract.

Under the policies, the insurance companies are obligated to pay the uninsured/un-derinsured motorist’s shortfall to the extent of the policy limits. The Texas Farm policy limits were $25,000 per person and $50,000 per accident; the Southern Farm policy limits were $20,000 per person and $40,000 per accident. Both policies stated:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an [uninsured/underinsured] motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle.

We have emphasized that prejudgment interest is awarded not to punish the defendant, but to fully compensate the injured party. The insurers owe prejudgment interest on top of the policy benefits only if they withheld those benefits, in breach of the insurance contracts. In that case, the injured insured would have lost the use of funds that he would otherwise have had, and prejudgment interest would compensate for the time the proceeds were withheld.

Here, Henson has failed to demonstrate that the insurers were obligated to pay the benefit at any time earlier than they did. In his brief, Henson appears to concede that the insurer’s obligation to pay did not arise until the first judgment was rendered, stating that the trial court’s entry of judgment “had the effect of entitling Mr. Henson to recover the respective sums of $20,000 and $25,000 from Southern Farm Bureau and Texas Farm Bureau, by reason of the ... stipulation.” He fails to specify any point earlier than rendition of the judgment that a breach of contract could have occurred. We infer from his insistence that the prejudgment interest accrued either 180 days after he gave notice of the claim, or the day he filed suit against the companies, that he believes the obligation to pay arose either at the time he filed his claim, or at the time he filed suit against the insurers. But neither of these events, the claim itself or filing suit, triggers an obligation to pay.

In this case, Henson settled with Contreras for $20,000, the limits of her liability insurance policy, and released her from any further claims. Because the jury could have found that Contreras was not at fault, or that the damages resulting from her actions did not exceed her policy limits, the settlement alone did not establish that Henson was entitled to recover from the uninsured/underinsured insurers.

In fact, though, the jury found the entire losses to be inflicted by Contreras, and fixed the amount of those losses at $133,-842.13. The policies provided that the insurers will pay damages that a covered person is legally entitled to recover from an uninsured/underinsured motorist. When the jury found Contreras at fault for the accident and found Henson damaged by her negligence, Henson became legally entitled to recover from her. And because the damages exceeded Contreras’ liability policy limits, Henson became entitled to the uninsured/underinsured motorist policy benefits, up to the policy limits. By the terms of the policies, no obligation to pay the claim existed until the jury established Contreras’ liability. And the insurers paid the claim promptly after, the jury made its findings. Because no contractual duty was breached, Henson had no right to receive the benefits earlier than he in fact received them. Therefore no compensation is due for lost use of the funds. Thus Henson is not entitled to prejudgment interest on top of the benefits he is. otherwise entitled to receive from the insurers.

The judgment of the court of appeals is affirmed.

      . Tex.Rev.Civ. Stat. art. 5069-1.05 §§ 2 and 6 have been subsequently recodified at Tex. Fin. Code §§ 304.003, .006, and 304.102.

      . Tex.Rev.Civ. Stat. art. 5069-1.05 §§ 2 and 6; see Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529-30 (Tex.1998).

      . Johnson & Higgins, 962 S.W.2d at 528.

      . Petitioner's brief on the merit's at 4.


author: PER CURIAM.

text:
    In re DAISY MANUFACTURING COMPANY, INC., Relator.
    No. 99-0500.
    Supreme Court of Texas.
    April 13, 2000.

      Hugh P. Touchy, George Christian Kraehe, Charles V. Willette, Jr., Brownsville, for relator.
    Ernesto Gamez, Jr., Victor Quintanilla, Sean Paul Belleville, Brownsville, for respondent.
   PER CURIAM.

In this case, the trial court refused to set aside a protective order preventing the plaintiff, Claudia Sanchez, from deposing Daisy Manufacturing’s Chief Executive Officer Marvin Griffin. Sanchez asserts that she had attempted less-intrusive discovery methods and consequently the trial court abused its discretion when it failed to set aside the protective order.' The court of appeals agreed and conditionally manda-mused the trial court to lift the protective order, concluding that the trial court abused its discretion because Sanchez satisfied Crown Central Petroleum Corporation v. Garcia apex deposition guidelines. We disagree. Consequently, we conditionally grant the writ of mandamus directing the court of appeals to vacate its order.

In ordering or preventing an apex deposition, a trial court must follow Crown Central’s framework. Under Crovm Central, if a discovering party cannot arguably show that a high-level official has unique or superior knowledge of discoverable information, the trial court must grant a motion for protection, “and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods.” The discovering party may thereafter depose the apex official if, after making a “good faith effort to obtain the discovery through less intrusive methods,” the party shows that (1) there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) the less-intrusive methods are unsatisfactory, insufficient or inadequate.

Because Sanchez failed to demonstrate that the less-intrusive methods of discovery were unsatisfactory, insufficient or inadequate, the trial court did not abuse its discretion by maintaining the protective order. As a result, the court of appeals erred in conditionally granting a writ of mandamus. Accordingly, we conditionally grant Daisy’s request that the court of appeals’ mandamus order be set aside.

In May 1994, Claudia Sanchez was accidentally shot in the eye by a BB from her minor nephew’s Daisy model 84%4i BB gun. In the underlying product-liability suit, Sanchez alleges that defects in the Daisy BB gun’s gravity-feed system were a producing or proximate cause of her eye injury.

Unrelated to Sanchez’s suit, Griffin appeared on the ABC News Program “20/20” to defend the safety of the Daisy BB gun’s gravity-feed system. During the program, he claimed that Daisy products were reliable, and that the expert witness Sanchez would eventually hire for her product-liability suit was not credible.

After serving interrogatories and requests for production and deposing a Daisy engineer, whom Daisy had offered as its corporate representative, Sanchez sought Griffin’s deposition. The trial court considered and then overruled Daisy’s motion for protection, compelling Griffin’s deposition. In the court of appeals’ first opinion in this case, it granted mandamus relief to Daisy, concluding that Sanchez could not depose Griffin because she had failed to arguably show that Griffin had “unique or superior knowledge of discoverable information” as Crown Central’s first guideline step requires. Addressing Griffin’s statements on 20/20, the court concluded that a corporate official’s generalized opinion on the safety of one of his company’s products “does not imbue that official with unique or superior knowledge.” The court then ruled that because Sanchez could not arguably show that Griffin had unique or superior knowledge of discoverable information, Crown Central required her to seek discovery through less-intrusive methods. It therefore ordered the trial court to vacate its order compelling Griffin’s deposition and grant Daisy’s motion for protection.

Sanchez subsequently deposed three of Daisy’s current and former officers: Engineering Director Michael Bare; Vice President of Operations Ronald Joyce; and Vice President of Marketing Lynn Scott. She then returned to the trial court and requested that the protective order be lifted, claiming that: (1) the depositions indicated that Griffin’s deposition would lead to the discovery of admissible evidence; (2) she exhausted less-intrusive discovery methods by taking these depositions; and (3) the deposition results were unsatisfactory, insufficient or inadequate. The trial court denied Sanchez’s request and she again sought mandamus relief from the court of appeals. In its second opinion, the court of appeals concluded that Sanchez had satisfied Crown Central ⅛ second guideline step by showing: (1) a reasonable indication that Griffin’s deposition was calculated to lead to the discovery of admissible evidence, and (2) that the less-intrusive methods of discovery were unsatisfactory, insufficient or inadequate. The court therefore conditionally granted the writ of mandamus, compelling the trial court to lift the protective order. Daisy now petitions this Court for a writ of mandamus, requesting that we vacate the court of appeals’ order.

To determine whether the court of appeals improperly granted mandamus relief, this Court focuses on whether the trial court’s ruling was an abuse of discretion. If the trial court did not abuse its discretion, then the court of appeals erred in granting mandamus relief. Mandamus relief is available only when the record establishes (1) the trial court clearly abused its discretion or violated a duty imposed by law, and (2) the absence of an adequate remedy by appeal. Because the court of appeals erred when it disturbed the trial court’s order, exercise of our mandamus authority is proper.

The court of appeals noted in its first opinion in this case that “[i]f additional good faith efforts to obtain discovery through less intrusive means fail, i.e. deposing other Daisy corporate officials, Sanchez may seek to have the protective order vacated or modified.” And Sanchez argues that she can now depose Griffin because she followed the court of appeals’ suggestion and deposed three lower-level Daisy officials. But a discovering party’s burden is not perfunctorily met by any showing that the party employed less-intrusive discovery methods. Crown Central states only that “[depending upon the circumstances of the particular case, [less intrusive] methods could include the depositions of lower level employees, the deposition of the corporation itself, and interrogatories and requests for production of documents directed to the corporation.” Crown Central, rather, instructs courts to measure whether the discovering party made a reasonable effort to obtain discovery through less-intrusive methods. Merely completing some less-intrusive discovery does not trigger an automatic right to depose the apex official.

In this case, Sanchez argues that Griffin’s deposition was calculated to lead to the discovery of admissible evidence because Griffin, as Daisy’s CEO, has access to information responsive to forty-eight unanswered “areas of inquiry.” The court of appeals succinctly summarized these “areas of inquiry” as: company policy; design of the gravity-feed system vs. design and implementation of a positive feed system; product defects; sales; net worth; Griffin’s comments on 20/20; Griffin’s opinions of. Sanchez’s expert; other lawsuits filed; settlements of those suits; content of internal memoranda; use of children’s pictures on the rifle boxes; warnings; and safety standards. Further, Sanchez contends that Griffin’s deposition will lead to the discovery of admissible evidence “because he has the power to unilaterally change company policies and procedures.” Sanchez asserts that the lower-level officials’ depositions all point to Griffin as having information responsive to her inquiries.

But the unanswered areas of inquiry do not justify Griffin’s deposition because the evidence indicates that even if Griffin were deposed, he has'little first-hand information about the areas of inquiry. For exam-pie, many of the areas of inquiry focus on diagrams of the BB gun’s gravity-feed system. But Griffin’s affidavit specifically denies any knowledge of such diagrams. As for the other areas of inquiry, they primarily focus on general business information. The trial court correctly recognized that even if Daisy produced Griffin for deposition, Sanchez would not get answers to the remaining areas of inquiry.

Importantly, Sanchez fails to articulate how the less-intrusive discovery (the depositions) was unsatisfactory, insufficient or inadequate. She offers only that after the lower level officials’ depositions, the unanswered “areas of inquiry” remained. But the deposed officials, while indicating that Griffin had access to information because he was the CEO, did not show that the information could not be obtained by less-intrusive methods. In fact, these officials actually pointed to an accountant and a design engineer who could respond to many of Sanchez’s areas of inquiry.

AMR Corporation v. Enlow provides a good example. In that ease, the Second Court of Appeals overturned the trial court’s decision to allow AMR CEO Robert Crandall’s deposition even though the plaintiffs had deposed thirteen lower-level employees. The court reasoned that the AMR plaintiffs “ha[d] not even taken the corporation’s deposition ... [to require] American to produce a corporate representative with the most knowledge of American’s alcohol policies and training— the exact information that they seek from Crandall.” In essence, the court recognized that a discovering party’s effort at discovery must be reasonable. And if not, Crown Central’s standards have not been met.

In AMR, the plaintiff argued that AMR CEO Robert Crandall could be deposed in a dramshop negligence case because he had ultimate authority on all of AMR’s policies, including alcohol service policies. But in concluding that Crandall could not be deposed, the court of appeals correctly stated that this argument “amount[s] to nothing more than the simple, obvious recognition that the highest-ranking corporate officer of any corporation has the ultimate responsibility for all corporate decisions_” While the Second Court of Appeals applied this rationale to Croton Central’s “unique or superior knowledge” analysis, we believe it applies equally to measure whether the apex deposition is reasonably calculated to lead to the discovery of admissible evidence that less-intrusive methods would be unsuccessful in discovering. Allegations of ultimate responsibility and access are not enough; parties must demonstrate that the deposition is reasonably calculated to lead to the discovery of admissible evidence that cannot be obtained by less-intrusive methods. Sanchez’s allegations that Griffin had “access” to information and that he was the final policy authority, alone, do not satisfy Crown Central ⅛ standard.

The court of appeals in this case, like Sanchez, relied on the unanswered areas of inquiry to conclude that Griffin’s deposition was calculated to lead to the discovery of admissible evidence and that the less-intrusive discovery methods were unsatisfactory, insufficient or inadequate. As well, the court concluded that the lower-level officials’ depositions point to Griffin as having information about the areas of inquiry. But the depositions before the trial court do not reflect that Griffin has any information that could not be obtained by less-intrusive discovery. They suggest only that he has access to it because he is Daisy’s CEO. Sanchez has failed to articulate facts reasonably indicating that Griffin’s deposition would lead to the discovery of admissible evidence that could not be obtained by less-intrusive methods. On this record, the trial court could conclude that Sanchez failed to show that the less-intrusive discovery was unsatisfactory, insufficient or inadequate. The trial court, therefore, did not abuse its discretion, and the court of appeals improperly granted mandamus relief.

In addition, Sanchez’s attorney argued at a motion for protection hearing that he was entitled to Griffin’s deposition because “it’s only fair to my client and I think it will be a tremendous assistance in settling this case.... ” The trial court could have also concluded from this remark that Griffin’s deposition was not calculated to lead to the discovery of admissible evidence, but was sought for unrelated reasons. And a person noticed for deposition has the right to protection “from undue burden, unnecessary expense, harassment [or] annoyance....” This evidence supports the trial court’s conclusion that “[b]ottom line ... this is harassment and you all have not satisfied Crown.”

Consequently, without hearing oral argument, we conditionally grant mandamus relief. We instruct the court of appeals to set aside its order of May 6, 1999 and to reinstate the trial court’s protective order preventing Griffin’s deposition. The writ will issue only if the court fails to do so.

      . 904 S.W.2d 125, 128 (Tex.1995).

      . See id. at 128; see also In re Alcatel USA, Inc., 11 S.W.3d 173 (Tex.2000).

      . See Crown Central, 904 S.W.2d at 128.

      . Id.

      . In re Daisy Mfg. Co., Inc., 976 S.W.2d 327, 329 (Tex.App.—Corpus Christi 1998, orig. proceeding).

      . Id.

      . See id.

      . In re Sanchez, 991 S.W.2d 507, 509 (Tex. App.-Corpus Christi 1999, orig. proceeding).

      . See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985).

      . See id.

      . See Walker v. Packer, 827 S.W.2d 833, 839-42 (Tex.1992).

      . See Johnson, 700 S.W.2d at 917.

      . See In Re Daisy, 976 S.W.2d at 330.

      . See Crown Central, 904 S.W.2d at 128 (emphasis added).

      . See 991 S.W.2d at 509 n. 4.

      . 926 S.W.2d 640, 644 (Tex.App.—Fort Worth 1996, orig. proceeding).

      . Id.

      . Id.

      . See Crown Central, 904 S.W.2d at 128; see also In re Alcatel, 11 S.W.3d at 174.

      . Tex.R. Civ. P. 192.6(b).

      . See Tex.R.App. P. 52.8(c).


author: MEYERS, J., JOHNSON, J.,

text:
    Eric Lenard SMITH, Appellant, v. The STATE of Texas.
    No. 1010-99.
    Court of Criminal Appeals of Texas.
    May 17, 2000.

      Tony Aninao, Houston, for appellant. Alan Curry, Asst. Dist. Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of a unanimous Court.

Appellant was charged with the felony offense of aggravated robbery, but pleaded guilty to the lesser included offense of aggravated assault without an agreed punishment recommendation from the State. The trial court deferred an adjudication of guilt and placed appellant on community supervision for ten years. See Tex.CRim. Proc.Code Ann. art. 42.12, § 5(a) (Vernon Supp.1996). After a hearing on the State’s Motion to Adjudicate Guilt, the trial court found that appellant had violated the terms of his community supervision, adjudged him guilty of aggravated assault, and sentenced him to sixteen years confinement. During the adjudication portion of the hearing, defense counsel presented no evidence relevant to punishment, and was completely silent after adjudication.

Appellant filed a pro se notice of appeal in which he noted that while he was not appealing his guilt, he felt that his sentence “was very unjust.” Specifically, appellant cited his counsel’s failure to present any punishment evidence. He alleged that counsel did not tell him of the need for character witnesses and maintained that he had witnesses who would have been available to testify on his behalf. Seven days later, appellant was brought to court, signed a pauper’s oath, and requested new counsel. The trial court signed an order appointing counsel, but the order was not filed until after the deadline had passed for filing a motion for new trial. See Tex.R.App. P. 21.4 (requiring motion for new trial be filed no later than 30 days after date when trial court imposes or suspends sentence).

In the Court of Appeals, appellant argued, inter alia, that he was denied the effective assistance of counsel during the time required to file a motion for new trial. He maintained that the lack of counsel during this time-frame deprived him of the opportunity to develop an appellate record to show that he received ineffective assistance of counsel in relation to punishment.

The appellate court held that, although the appeal arose in the context of an adjudication of guilt, it had jurisdiction to consider appellant’s claims under Texas Code of Criminal Procedure article 42.12, § 5(b), because “[ajppellant’s complaints [did] not arise from the hearing to adjudicate his guilt, but instead [arose] from what he alleges failed to occur after the adjudication.” Smith v. State, 990 S.W.2d 893, 895 (Tex.App.—Houston [1st Dist.] 1999). The Court of Appeals went on to hold that the record adequately rebutted the presumption that appellant was effectively represented by counsel during the time for filing a motion for new trial and sustained appellant’s point of error. Id. at 895. The court determined that the proper remedy was to remand the case to the trial court and allow the appellate timetable for filing a motion for new trial to begin anew. Id. at 896. We granted the State’s petition in order to address the argument that the Court of Appeals erred in holding that it had the authority to restore the jurisdiction of the trial court so that it could allow appellant time to file an out-of-time motion for new trial.

The State argues that the Court of Appeals’ decision is in conflict with our holding in Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App.1998) (opinion on reh’g), inasmuch as appellant has failed to overcome the presumption that he was effectively represented by counsel during the time for fíhng a motion for new trial. Appellant counters that, while Oldham “would seem at first blush to present a facially analogous fact situation” to the instant case, the Court of Appeals correctly distinguished that decision.

In Oldham, this Court was presented with facts nearly identical to those in the case at bar. After Oldham had been convicted and sentenced for forgery, she filed a pro se notice of appeal and indigency. Id. at 355. The following day, the appeal was assigned to the Court of Appeals with a notation on the letter of assignment from the trial court that the attorney of record on appeal was “to be determined.” Id. Thirty-three days later, the trial court found appellant indigent and appointed appellate counsel. Id. Shortly thereafter, appellate counsel filed a motion to abate the appeal, requesting that the case be remanded to the trial court and that the appellate time-tables begin anew to allow the appellant leave to file a motion for new trial on the ground that she was denied the effective assistance of counsel. Id. at 356. The Court of Appeals ultimately determined that the appellant had been denied her Sixth Amendment right to counsel during the time for filing a motion for new trial, and therefore abated the appeal and remanded the cause to allow the appellant to pursue post-trial motions. Id.

This Court reversed the appellate court, holding that the facts presented “[did] not rebut the, presumption that the appellant was represented by counsel and that counsel acted effectively.” Id. at 363 (citation omitted). Specifically, we noted that there was no evidence in the record to show “that trial counsel thought that his duties were completed with the end of trial, and had thereafter abandoned the appellant.” Id. at 362. We also observed:

[t]here is nothing in the record to suggest that the attorney did not discuss the merits of a motion for a new trial with the appellant, which the appellant rejected. When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.

Id. at 363. Finally, we remarked that the fact that the appellant had seen her way clear to file a pro se notice of appeal was an indication that she was aware of some of her appellate rights, “and we presume she was adequately counseled unless the record affirmatively displays otherwise.” Id.

In the instant case, the only facts cited by the Court of Appeals to distinguish it from. Oldham were appellant’s representations in his notice of appeal that trial counsel was ineffective at the punishment portion of his trial, and that appellant subsequently appeared without counsel when he was brought to court to sign a pauper’s oath and to request new counsel. Smith, 990 S.W.2d at 895. We hold that these facts are not sufficient to justify a departure from this Court’s holding in Oldham. Just as in Oldham, there is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial. We therefore assume that appellant considered this option and rejected it. Oldham, 977 S.W.2d at 368. Also, just as in Old-ham, the fact that appellant filed a pro se notice of appeal is evidence that he was informed of at least some of his appellate rights. We therefore assume, absent a showing in the record to the contrary, that appellant was adequately counseled regarding his right to file a motion for new trial. We hold that appellant has failed to overcome the presumption that he was adequately represented by counsel during the time for filing a motion for new trial.

The Court of Appeals erred in concluding that appellant overcame the presumption that he was adequately represented by counsel at all times in the litigation. The judgment of the Court of Appeals is reversed, and the case is remanded for consideration of appellant’s remaining points of error.

JOHNSON, J., filed a concurring opinion in which MANSFIELD, J., joined.

JOHNSON, J.,

filed a concurring opinion

in which MANSFIELD, J. joins.

Today this court holds that appellant has failed to overcome the presumption that he was effectively represented by counsel during the time for filing a motion for new trial. It so holds because, pursuant to Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App.1998), cert. denied, 525 U.S. 1181, 119 S.Ct. 1121, 143 L.Ed.2d 116 (1999), “there is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial. We therefore assume that appellant considered this option and rejected it,” and “the fact that appellant filed a pro se notice of appeal is evidence that he was informed of at least some of his appellate rights. We there assume, absent a showing in the record to the contrary, that appellant was adequately counseled regarding his right to file a motion for new trial.” Ante, at 663.

I agree that as a matter of precedent, Oldham dictates the outcome in the instant case. However, as a matter of logic and reason, I believe that the court of appeals’ analysis is far more persuasive:

[T]he record shows that on April 9, appellant was brought to the court, without counsel, where he signed a pauper’s oath and request for new counsel. The court signed an order appointing appellate counsel on April 16, but the order was not filed until April 21, 1998. The time for filing a motion for new trial expired April 20, 1998, precluding the fifing of a motion for new trial by appellate counsel to develop appellant’s claims of ineffective assistance of counsel. The record before us adequately rebuts the presumption that appellant was effectively represented by counsel during the time for filing a motion for new trial.

Smith v. State, 990 S.W.2d 893, 895 (Tex.App.—Houston [1st Dist.] 1999). Oldham represents a recent trend by this court to entirely preclude relief on direct appeal as to claims of ineffective assistance of counsel. See also Thompson v. State, 9.S.W.3d 808 (Tex.Crim.App.1999). In noting the “exceedingly short leash” that we have given courts of appeal to review claims of ineffective assistance of counsel on direct appeal, Justice Rickhoff, writing for a panel of the Fourth Court of Appeals, recently noted:

There appears to be an increase in allegations of ineffective assistance of counsel. In response, the court of criminal appeals has tightened the standard of review ... In my judgment, this is precisely the wrong response. Intermediate appellate court justices have experience and expertise in evaluating the performance of-counsel and are competent to exercise judgment on an issue this subjective. Before appellate review, no participant can stop an obviously ineffective performance by defense counsel. Criminal defendants, usually not part of the most vocal or analytical segments of society, are most often unable to identify ineffectiveness, speak for themselves, and urge a resolution ... Trial judges are entirely frustrated. Once counsel is appointed or retained, a trial judge generally lacks authority to unilaterally remove counsel. Trial judges have no formal process for clearly identifying and recording incidents of ineffectiveness. Occasionally, a trial judge will réinark on the record that counsel’s performance may be deficient ... Certainly, the opposing advocate can do nothing. Following the trial, even if w;e as appellate justices believe in good conscience that we have identified an ineffective performance, we are unable to satisfy the standard of review imposed upon us ...' The bar has no effective program to identify, mentor, or eliminate ineffective defense counsel. We all proceed with the fiction that anyone who passes the bar is competent to defend all but capital cases. The result is an institution unable to remedy a problem all. recognize as increasing. Our criminal justice system operates on the assumption -that both defendant and the State will have -able and effective counsel. Unless and' until the court of criminal appeals revisits this issue, trial ■judges and intermediate appellate courts are powerless to ensure that this assumption is justified.

Devis v. State, 18 S.W.3d 777, 787 & n. 1, (Tex.App.—San Antonio 2000, no pet. h.) (citations omitted). While I join today’s majority opinion on the basis of precedent, I take this opportunity to suggest that we reconsider this issue.

      . The State’s petition actually brought two grounds for review. Although we granted review on ground two only, the parties were erroneously informed that both grounds would be submitted to the Court. We informed the parties about this mistake during oral argument and now take this opportunity to dismiss the State's first ground for review.

      . Appellant initially argues that while the appellate court in Oldham relied on former Texas Rule of Appellate Procedure 2(b) in order to extend the thirty day deadline for filing a motion for new trial, the Court of Appeals in the instant case fashioned its remedy based on its finding that appellant was denied a fundamental constitutional right. See Smith, 990 S.W.2d at 894 ("Denial of counsel, if supported by the record, must be remedied, because the right to counsel is fundamental in our system of justice”). He therefore maintains that the lower court's remedy does not run afoul of Oldham's restrictions regarding the use of former Rule 2(b) to expand the appellate time-tables. See Oldham, 977 S.W.2d at 360 (noting that while using Rule 2(b) to suspend or enlarge appellate time limits was error, Court’s holding "should not be understood as restricting a court of appeals’ power to abate an appeal and remand a case under authority other than Rule 2(b)”). While appellant’s point is well taken, we interpret the State’s argument to have less to do with Oldham’s initial holding regarding Rule 2(b), and more to do with that portion of Oldham relating to the appellant's failure to rebut the presumption that he was adequately represented by counsel during the time for filing a motion for new trial. See id. at 363. While the State’s ground for review is somewhat ambiguous given these dual holdings of Oldham, the argument set forth in its brief clearly pivots on what the State’s perceives as a conflict with what it terms the "second holding” of Oldham.

      . The issue remains undecided whether a defendant is entitled to counsel during the time limit for filing a motion for new trial to assist the defendant in preparing the motion. See Oldham, 977 S.W.2d at 360 (noting that issue has not been addressed by this Court and explicitly declining to reach it in the case presented) (citations omitted). We are not asked to decide this issue today and will not do so given our disposition of the State’s ground for review.

      . Appellant raised four points of error before the Court of Appeals. However, in light of its decision to sustain appellant’s fourth point and remand the case to the trial court, the appellate court declined to address appellant’s remaining two points of error. See Smith, 990 S.W.2d at 895-96.