author: CHARLES R. JONES, Judge. MURRAY, J., McKAY, J.,

text:
    HOUSING AUTHORITY OF NEW ORLEANS v. Tony EASON.
    No. 2008-CA-0525.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2009.
    Rehearing Denied April 2, 2009.

      Laetitia Black, Kim R. Variste, Interim General Counsel, Wayne E. Woods, General Counsel, Housing Authority of New Orleans, New Orleans, LA, for Plaintiff/Ap-pellee.
    Mark Moreau, New Orleans Legal Assistance, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY, III).
   CHARLES R. JONES, Judge.

_JjThe appellant, Tony Eason appeals the First City Court’s judgment granting the Housing Authority of New Orleans’ {hereinafter HANO) Rule for Possession. We reverse and render.

Mr. Eason leases a subsidized apartment from HANO, pursuant to the Office of Housing and Urban Development’s (HUD’s) program for funded public housing for indigent persons.

Under Mr. Eason’s residential lease, which he signed on October 19, 2004, his monthly rent is $254.00, which is below the market rents in the metropolitan area of New Orleans. His rent was due on the first day of each month.

On January 18, 2006, Mr. Eason signed a Memorandum of Understanding that expressed his intention to occupy the unit from HANO and revived the original October 19, 2004 lease agreement.

Due to Mr. Eason’s failure to pay his rent consistently in accordance with the lease agreement, HANO made efforts to counsel Mr. Eason by delaying the collection of his rent, and attempted to work out a repayment plan with Mr. Eason, but to no avail. HANO sought to dissolve its lease with Mr. Eason and regain possession over the premises pursuant to Louisiana law.

[2On September 4, 2007, HANO filed a Rule for Possession of Premises to evict Mr. Eason from the property for nonpayment of rent from the period of January 1, 2007, through September 1, 2007, totaling $2,620.13 in late rent. A rule to show cause was scheduled to occur in First City Court on October 3, 2007.

However, on October 2, 2007, at approximately 5:00 p.m., Mr. Eason filed a Bankruptcy Petition in the United States Bankruptcy Court seeking relief under Chapter 7 of Title 11 of the United States Code. In his bankruptcy petition, Mr. Eason listed HANO as an “Unsecured Non-priority Claim.”

At the scheduled eviction hearing on October 3, 2007, at 10 a.m., Mr. Eason’s counsel served HANO with notice of Mr. Eason’s bankruptcy filing and an Answer. First City Court continued the matter for thirty (30) days due to the automatic stay, which was required due to the bankruptcy proceedings in federal court.

On October 12, 2007, the parties met to discuss the contents of Mr. Eason’s file and to discuss his options due to his bankruptcy petition; however, Mr. Eason himself did not attend the meeting. During the course of the meeting, it was decided that Mr. Eason was to deposit the post-bankruptcy rental payments into an escrow account with the First City Court.

However, on November 5, 2007, Mr. Ea-son served HANO with an Exception of Lack of Jurisdiction and Amended Answer alleging that the automatic stay in the Bankruptcy Court divested the First City Court of jurisdiction. Since the automatic stay was still in effect, HANO informed the | ¡¡court that it would not file any subsequent documents regarding the matter in Bankruptcy Court.

When Mr. Eason’s counsel attempted to tender payment for post-petition rents in open court, HANO informed Mr. Eason that it was not the proper party to accept past due rental payments. The post-petition rental payments were then deposited into the registry of the court.

On November 9, 2007, HANO attended a pre-scheduled Meeting of the Creditors wherein Mr. Eason’s Bankruptcy Petition was flagged as an eligible Discharge.

On December 5, 2007, based on the information gathered at the Creditor Meeting and the expiration of sixty (60) days from the automatic stay, HANO filed its Motion to Lift Automatic Stay. The hearing on the motion was scheduled in the Bankruptcy Court for January 9, 2008.

On December 19, 2007, Mr. Eason filed an Objection to HANO’s Motion to Lift Automatic Stay.

At the hearing on the Motion to Lift Automatic Stay on January 9, 2008, HANO presented evidence of its efforts to offer Mr. Eason financial counseling, the opportunity to schedule a payment plan for past due rents, and notices informing Mr. Eason that his failure to pay the past due rents would result in the termination of the lease agreement.

At the same hearing, Mr. Eason submitted receipts showing payment of post-petition rent, and argued that since the pre-petition rent was dischargeable in bankruptcy that the post-petition rent is current and HANO is owed nothing. Mr. Eason argued that HANO could not pursue an eviction against him.

|4After the hearing, the Bankruptcy Court granted HANO’s Motion to Lift Stay, and opined, “that rents paid post-petition are too little too late.” The Bankruptcy Court’s order also allowed HANO to proceed with the eviction hearing which was scheduled for January 10, 2008.

On January 9, 2008, at approximately 7 p.m., Mr. Eason filed an Appeal and Motion for Stay of the Bankruptcy Court’s order. The motion also requested that the Bankruptcy Court continue the eviction hearing until January 17, 2008. However, the Appeal and Motion for Stay was denied the following day.

On January 14, 2008, Mr. Eason then filed an Emergency Motion for Stay Pending Appeal with the Bankruptcy Court. HANO filed an opposition to Mr. Eason’s emergency motion and continued the eviction hearing until February 7, 2008.

The Emergency Motion for Stay Pending Appeal was denied by the U.S. District Court on January 31, 2008. Again, the Bankruptcy Court’s order allowed HANO to proceed with the eviction hearing on February 7, 2008, as scheduled.

On February 6, 2008, Mr. Eason filed a Motion to Reconsider Emergency Motion for Stay Pending Appeal. Again, the Bankruptcy Court denied the motion and ordered HANO to proceed with the eviction hearing.

The eviction hearing proceeded as scheduled on February 7, 2008, at which time the First City Court heard testimony and evidence presented by the parties, as well as the orders rendered by the Bankruptcy Court. The First City Court ruled in HANO’s favor allowing it to take possession of the property. On the same date, Mr. Eason filed a motion for appeal

UOn February 8, 2008, HANO filed an objection to Mr. Eason’s motion for appeal, and a motion for contempt and sanctions against Mr. Eason’s counsel for alleged unprofessional conduct in court.

About a month later on March 6, 2008, Mr. Eason filed a reply to HANO’s objection of his motion for appeal, in addition to a motion for contempt and sanctions against HANO’s counsel.

The following day, the Bankruptcy Court ordered the discharge of Mr. Ea-son’s debt under Chapter 7 of the Bankruptcy Code.

On March 11, 2008, Mr. Eason filed a motion to dismiss his appeal of the Bankruptcy Court order granting HANO’s motion to lift stay alleging that the issue was moot, and that the court lacked jurisdiction.

Or March 12, 2008, the First City Court refused to consider HANO’s objection to Mr. Eason’s motion for appeal stating that the court was divested of jurisdiction. The First City Court also denied HANO’s motion for contempt, and refused to address Mr. Eason’s motion for contempt because it was not properly set for hearing. This appeal followed.

In his sole assignment of error, Mr. Eason argues that the First City Court erred in granting HANO’s rule for possession.

DISCUSSION

As reiterated by this Court in Abrimson v. Ethel Kidd Real Estate, 2004-2085, pp. 3-4 (La.App. 4 Cir. 1/18/06), 926 So.2d 568, 569-570:

[AJcourt of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). Questions of law are resolved by determining whether the trial judge was legally correct or legally | [¡incorrect. Delacroix Corporation v. Perez, 98-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing Palmer v. Blue Water Marine Catering, Inc., 95-342 (La.App. 5 Cir. 10/18/95), 663 So.2d 780.
The provisions of La. C.C.P 4701 et seq. specifically set out the procedure by which a landlord may seek the eviction of a tenant. Eviction procedure of the Code of Civil Procedure is designed to expedite as quickly as possible determination of right of lessor to be restored to possession of premises. Edenborn Partners Ltd. Partnership v. Korndorffer, 94-891 (La.App. 5 Cir. 3/1/95), 652 So.2d [1027,] 1032. When lessee’s right of occupancy ceases for any reason, lessor is entitled to utilize summary eviction proceedings to obtain possession of the premises. New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 1995-0055 (La.App 4 Cir. 11/30/95), 665 So.2d 1186.

Although Mr. Eason’s assignment of error, as presented, is a bit misleading, the real issue before this Court is whether a public housing tenant can assert an affirmative defense under Bankruptcy law to prevent his eviction in a state court proceeding.

However, before this Court addresses the merits of the instant appeal, a thorough explanation of the applicable statutes must be discussed.

The Court’s review of the legislative and jurisprudential history of 11 U.S.C. § 525(a), was fully discussed in Stoltz v. Brattleboro Housing Authority, 315 F.3d 80 (2d Cir.2002). The Second Circuit of the United States Court of Appeals observed that § 525(a) evolved from the U.S. Supreme Court case Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). Id., at 87. In its discussion of the codification of § 525(a), the Second Circuit, in Stoltz, noted that the Perez case was:

[A] seminal bankruptcy case in which the Supreme Court struck down a state statute that withheld driving privileges from debtors who failed to satisfy motor-vehicle-related tort judgments against them, even if the | judgments were discharged under bankruptcy law. The Supreme Court used the Supremacy Clause to invalidate the state statute, finding that it discriminated against debtors in a manner that frustrated and was contrary to the fresh start principles of the Bankruptcy Act. Id. at 649-52, 91 S.Ct. at 1711-13. Congress thereafter signaled its approval of the Perez holding by enacting section 525(a), which prohibits bankruptcy-based discrimination by governmental units against debtors. Section 525(a) states, in relevant part, that:
[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.
11 U.S.C. § 525(a) (2001) (emphasis added). Notably, the text of Section 525(a) does not limit its scope to the facts presented in Perez. Section 525(a) applies to any governmental unit, not just a State agency or department; it covers not only licenses, but also permits, charters, franchises, and other similar grants; and it applies regardless of whether the governmental unit involved is the creditor whom the debtor failed to pay, or is simply a grantor conditioning a grant on the debtor’s satisfaction of a discharged debt owed to a third party.
In the nearly twenty-four years that have passed since its enactment, section 525(a) has been interpreted by the courts to protect debtors from discrimination in a wide variety of contexts, including a debtor’s right to |soperate a motor vehicle, see, e.g., In re Adler, 47 B.R. 554 (Bankr.S.D.Fla.1985) (holding section 525(a) prohibits enforcement of statute that allows state department of motor vehicles to suspend licenses and registrations of judgment debtors, even if motor-vehicle-related judgments against them were discharged in bankruptcy); ability to engage in a trade or business, see, e.g., In re Walker, 927 F.2d 1138 (10th Cir.1991) (finding statute, which automatically revokes real estate license of any licensee for whom payment was made from real estate recovery fund, contravenes section 525(a)); and ability to obtain essential goods and services, In re Heath, 3 B.R. 351 (Bankr.N.D.Ill.1980) (holding state university’s refusal to release student-debtor’s transcript until he paid prepetition debt in full violated section 525(a)).
Despite more than twenty years of judicial consideration, however, the scope of Section 525(a)’s protection in the context of public housing is still unsettled. No circuit court has yet spoken on the issue, and the bankruptcy courts and district courts that have done so have done so inharmoni-ously. It is undisputed that a public housing authority is a governmental unit within the meaning of 525(a), FN3 See 11 U.S.C. § 101(27); see also In re Robinson, 169 B.R. 171, 176 (N.D.Ill.1994), In re Szymecki, 87 B.R. 14, 16 (Bankr.W.D.Pa.1988).

Stoltz, 315 F.3d at 87-88. [Emphasis added]

In the instant matter, Mr. Eason argues that since his pre-petition rents were discharged in the bankruptcy proceedings and that his post-petition rents were placed in escrow, HANO is not owed any pre-petition rents for the unit and that he is entitled to remain on the premises. Additionally, he asserts that since HANO sought to evict him solely based on his non-payment of pre-petition rents, that HANO’s actions are discriminatory and are expressly prohibited under § 525(a).

In support of this contention Mr. Eason cites FCC v. NextWave Personal Communications, 537 U.S. 293, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003), in which the U.S. Supreme Court ruled that the debtor’s (Nex-twave’s) failure to pay its debt, which was dischargeable in | ^bankruptcy, to the FCC was the proximate cause of the cancellation of the debtor’s licenses for broadband personal communications services. Id. at 301-302, 123 S.Ct. 832. As a result, the Supreme Court held that the FCC was prohibited from revoking the licenses pursuant to section 525(a). Id. In its decision, the Supreme Court explained that “[w]hen a statute refers to the failure to pay a debt as the sole cause of cancellation (“solely because”), it cannot reasonably be understood to include, among the other causes whose presence can preclude the application of the prohibition, the governmental unit’s motive in effecting the cancellation.” Id. at 301,123 S.Ct. 832.

Mr. Eason notes that the United States Supreme Court has not ruled on the specific issue of whether § 525(a) bars a public housing authority from evicting a tenant for failure to pay pre-petition rent. He notes that only one federal circuit court of appeal has addressed the specific issue. The ease to which he refers is a case mentioned earlier in our discussion, Stoltz v. Brattleboro Housing Authority, 315 F.3d 80 (2d Cir.2002).

In Stoltz, a creditor-public housing authority moved for relief from stay, in order to evict a Chapter 7 debtor from her publicly subsidized apartment based on her nonpayment of discharged pre-petition rent. The United States Bankruptcy Court for the District of Vermont, granted the motion, and the debtor appealed. The district court reversed and reinstated the automatic stay. The public housing creditor appealed.

Addressing issues of apparent first impression among the circuits, the Court of Appeal, held that: (1) a public housing lease is a grant “similar” to a “license, | inpermit, charter, [or] franchise,” within the meaning of section of the Bankruptcy Code that protects debtors from discrimination by governmental units; Id., p. 91, (2) debtor’s eviction was “solely because” of discharged pre-petition rent, within the meaning of the antidiscrimination provision; Id., p. 93, and (3) section of the Code setting forth the antidiscrimination provision is more specific than section of the Code providing that landlords in general may evict debtor-tenants for nonpayment of discharged pre-petition rent, and so, to the extent these sections conflict, the former “trumps” the latter. Id.

HANO asserts that the lease it terminated due to Mr. Eason’s failure to pay rent renders § 525 inapplicable to the instant case. Quite simply they assert that the eviction was not sought in retaliation; rather it was done in response to Mr. Eason violating the terms of the lease. Therefore, HANO maintains that it followed state law proceedings to evict a Louisiana tenant who violated a Louisiana lease.

HANO also argues that pursuant to La. C.C. art. 2704, titled, Nonpayment of rent, that “[i]f the lessee fails to pay the rent when due, the lessor may, in accordance with the provisions of the Title “Conventional Obligations or Contracts,” dissolve the lease and may regain possession in the manner provided by law.”

HANO also distinguishes the NextWave and Stoltz cases in pointing out that Nex-tWave concerned a license rather than a lease agreement. It also asserts that Stoltz is distinguishable because it concerns a discriminatory eviction based solely on pre-petition rent previously discharged.

Nevertheless, HANO argues that there are no Federal or Louisiana laws which would allow a tenant to live free for two years, with the exception of cases |nin which a discriminatory or retaliatory eviction occurred. HANO points out that it went out of its way to assist Mr. Eason in paying rent and allowed extensions of his occupancy. However, instead of making a good faith effort to pay his rent, Mr. Ea-son filed his bankruptcy claim, which delayed the eviction proceedings for eight (8) months. Essentially, HANO concludes that Mr. Eason merely used the bankruptcy to prevent his eviction.

However, we disagree with HANO’s assessment once the following facts are considered: (1) Mr. Eason filed his bankruptcy proceedings when he was served with HANO’s Rule for Possession for the leased premises; (2) the pendency of the bankruptcy procedure stayed the First City Court eviction proceeding, as required under 42 U.S.C. § 362; (3) the Bankruptcy Court granted Mr. Eason’s relief under Chapter 7 under the U.S. Bankruptcy Code; (4) Mr. Eason’s bankruptcy extinguished all of his pre-petition debt, including the pre-petition rent of approximately $2,620.13 owed to HANO on or about September 2007; (5) Mr. Eason put the post-petition rent into an escrow account; and finally (6) the applicable jurisprudence, as stated in Stoltz, unambiguously sets forth that entities, such as HANO, are deemed governmental entities — and prohibits evictions solely on the basis of non-payment of rent under § 525(a).

As explained in Meyer & Associates, Inc. v. Coushatta Tribe of Louisiana, 2007-2256 (La.9/23/08), 992 So.2d 446:

It is a well-settled principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent [ 12of the legislature. La. C.C. art. 9. The meaning and intent of a law is determined by a consideration of the law in its entirety, and the court’s construction should be consistent with the express terms of law and with the obvious intent of the lawmaker in enacting it. Bridges v. Autozone Properties, Inc., 04-0814 (La.3/24/05), 900 So.2d 784, 799. The best evidence of the legislature’s intent is the wording of the statute. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 800.

Id., 2007-2256, p. 7-8, 992 So.2d at 452. Furthermore, given the explanations set forth in NextWave and Stoltz, regarding the construction and application § 525(a), we are inclined to agree with Mr. Eason’s argument.

An “[e]viction is a summary action which involves the single issue of whether the owner is entitled to possession of the premises. Mascaro v. Hudson, 496 So.2d 428, 429 (La.App. 4 Cir.1986). The tenant or occupant cannot defeat the owner’s right to summary eviction by injecting foreign issues into the case in an attempt to convert it into an ordinary proceeding. Id. The only affirmative relief that can be granted is the right to remain in the premises.” Capone v. Kenny, 646 So.2d 510, 512 (La.App. 4 Cir. 11/30/94). Based on Mr. Eason’s affirmative defense of his discharge in bankruptcy, given we find that the only reason elicited by HANO is his failure to pay pre-petition rent, we find that HANO’s action fits the type of discriminatory conduct expressly prohibited by § 525(a).

We are satisfied that Mr. Eason has shown that the First City Court erred in granting HANO’s Rule for Possession and order to vacate. We can only arrive at this conclusion by giving strict application of the legislative and jurisprudential history of § 525. Therefore, we conclude that Mr. Eason has a right to remain in the leased premises at this time.

However, this conclusion does not relieve Mr. Eason from paying all post-petition rent. Although we have concluded that Mr. Eason cannot be evicted from 113the unit based upon the protections afforded to him under § 525(a), and further noting that Mr. Eason’s pre-petition rent has been discharged through bankruptcy, he must still fulfill all other obligations under his lease agreement, prospectively, from the date of his discharge in bankruptcy. The post-petition rental payments deposited into the court registry by Mr. Ea-son are the property of HANO, and HANO is ordered to collect the money held in escrow in order to get Mr. Eason’s account up to date.

We note that HANO has not waived the right to evict Mr. Eason on some other basis, besides non-payment of rent, constituting a breach of his lease agreement. However, these issues are hot before us at this time.

Our review of the record reveals that Mr. Eason attempted to pay post-petition rents, but these payments were not accepted by HANO and are currently held in the court’s registry. In order to cure the defect, and comply with the non-discriminatory provisions as a governmental entity, HANO must accept the post-petition rent payments that are currently held in escrow, to allow Mr. Eason the “fresh start” that his Chapter 7 bankruptcy debt discharge has granted to him.

DECREE

The First City Court erred in granting HANO’s Rule of Possession and order to vacate directed to Mr. Eason. The judgment of the First City Court is reversed. Additionally, HANO is ordered to claim all post-petition rent payments deposited by Mr. Eason that are currently held in the registry of the court.

REVERSED AND RENDERED.

MURRAY, J., concurs with reasons.

MCKAY, J., dissents with reasons.

MURRAY, J.,

concurs with reasons.

| lAlthough I agree with the result reached and the rationale adopted by the majority opinion, I write to more fully address some of the arguments HANO advanced. This case presents compelling, competing interests. On the one hand, Congress enacted Section 525(a) to protect debtors from bankruptcy-based discrimination by governmental units that provide essential services. On the other hand, the ■viability of public housing programs is dependent on enforcement of the requirement that tenants promptly pay their rent.

Section 525(a) provides that its protection extends to “licenses, permits, charters, franchises,” and to “other similar grants.” The statute, however, does not define the term “other similar grants.” Construing the contours of the catchall phrase “other similar grants” is the primary dispute over the application of Section 525(a) in the public housing setting; is a public housing lease an “other similar” grant within the meaning of Section 525(a). The most prominent case addressing this issue is In re Stoltz, 315 F.3d 80, 91 (2d Cir.2002).

The majority in Stoltz, citing dictionary definitions, concluded that a “housing lease is a grant by which a public housing authority conveys to a public housing tenant the right to use and occupy public housing in exchange for rent.” Id. at 89-90.

|2The majority identified the common qualities of the specified grants protected under section 525(a) — licenses, permits, charters, and franchises — to be that such grants are unobtainable from the private sector and are essential to a debtor’s fresh start. The majority found that a public housing lease was a similar grant because it too was unobtainable from the private sector and essential to a debtor’s fresh start. The majority further found that a debtor tenant who was evicted from public housing, in all likelihood, would become homeless, which condition would not promote the fresh start policy of the Bankruptcy Code. The majority still further found that its construction of the phrase “other similar grants” as including public housing leases was consistent with the legislative history of Section 525(a), which indicated that the enumeration of various forms of protected grants was not intended to be exhaustive. Id. at 89, n. 4.

Conversely, the dissent in Stoltz, which HANO cites in support of its arguments, identified the common characteristic of the specified grants protected under Section 525(a) to be that “each allows the grant-holder to engage in certain regulated conduct.” Id. at 95. The dissent thus concluded that “other similar grants” means “grant[s] relating to authorization to engage in income-generating conduct.” Id. Based on this reasoning, the dissent concluded that Section 525(a) did not extend to public housing leases because “[s]uch leases do not directly enable their holders to engage in the kind of an income-generating activity as do licenses, permits, charters, and franchises.” Id. at 96. The dissent further reasoned that “not to include leases makes sense as a matter of public housing policy.” Id. As alluded to earlier, construing Section 525(a) to protect debtors from bankruptcy-based discrimination by governmental units that provide essential services is at odds with the public housing policy of requiring prompt rental Inpayments by tenants. “Congress emphasized the importance of requiring prompt rental payments from public housing tenants when it conditioned contributions to public housing agencies on ‘the establishment of satisfactory procedures designed to assure the prompt payment and collection of rents and the prompt processing of evictions in the case of nonpayment of rent.’ ” Id. at 96 (quoting 42 U.S.C. § 1437d(c) (4) (B)).

Although the dissent in Stoltz makes a valid point, I am persuaded by the rationale of the majority in Stoltz that “the plain language of the provision indicates that eviction [of a public housing tenant because of non-payment of pre-petition rent] would revoke a protected grant, i.e., the lease, in violation of section 525(a).” Id. at 89. Congress intended that Section 525(a) protect bankrupt debtors’ fresh start, and the legislative history specifically rejects a narrow construction of this statute. Id. at 92, n. 6. The legislative history also indicates that the judiciary was assigned the task of establishing the boundaries of this anti-discriminatory provision in accord with sound bankruptcy policy. Id. The broad construction of Section 525(a) espoused by the majority in Stoltz is bolstered by the more recent United States Supreme Court opinion in Federal Communications Comm’n v. NextWave Personal Communications, 537 U.S. 293, 303, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003), which broadly construed Section 525(a) to reject a governmental agency’s arguments that its regulatory conditions should be excluded from the scope of the statute.

Disallowing HANO’s eviction of Mr. Ea-son because of his pre-petition debt does not free him from his rental obligation. Should he fail to pay post-petition rent in accordance with the lease agreement, HANO can evict him.

For these reasons, I concur.

McKAY, J., dissents with reasons.

McKAY, J.,

dissents with reasons.

|,I respectfully dissent and would affirm the trial court’s judgment granting HANO’s Rule for Possession.

Despite the majority’s reliance on Stoltz v. Brattleboro Housing Authority, 315 F.3d 80 (2d Cir.2002), I am not convinced that 11 U.S.C. § 525 applies in the context of public housing. Other than the Stoltz, case, there is no indication that it should apply in this type of situation. Furthermore, Stoltz is distinguishable from the instant case because it concerned a discriminatory eviction based solely on pre-petition rent previously discharged.

In the instant case, HANO asserts that its eviction of Mr. Eason was not sought in retaliation, but was done in response to Mr. Eason violating the terms of his lease with HANO. Pursuant to Louisiana Civil Code Article 2704, “[i]f the lessee fails to pay the rent when due, the lessor may, in accordance with provisions of the Title “Conventional Obligations or Contracts,” dissolve the lease and may regain possession in the manner provided by law.” Mr. Eason failed to pay his rent for more than nine months before HANO sought to evict him. When HANO did move to evict him, it did so before he filed for bankruptcy. Clearly, Mr. Eason violated the terms of his lease with HANO and that was the 12cause for his eviction. This cause did not magically disappear because of his bankruptcy. He still violated the terms of his lease and HANO was within its rights to evict him. Accordingly, I would affirm the trial court’s judgment.

      . The property was specified as being located at "1205 Bienville Street, Apartment D.”

      . An example of the inapplicability of § 525(a) is much clearer, for instance, if Mr. Eason had violated some other terms of the subsidized lease agreement, other than (or in addition to) non-payment of rent.

      . As of the date of this opinion, it is unclear whether Mr. Eason has vacated the premises.

      . The majority in Stoltz cited Merriam Webster’s Collegiate Dictionary 507 (10th ed.2000)(defining a grant as "a transfer of property by deed or -writing”), and Black’s Law Dictionary, 707 (7th ed. 1999)(defining a grant as "[a]n agreement that creates a right of any description other than the one held by the grantor. Examples include leases, easements, charges, patents, franchises, powers, and licenses.”)


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Madeline D. EDWARDS, Individually, and On Behalf of Her Minor Child, Derrick Edwards v. DOUG RUEDLINGER, INC., Louisiana High School Athletic Association, and the Orleans Parish School Board.
    No. 2008-CA-0772.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.
    Writ Denied May 29, 2009.
    Francis P. Accardo, Pugh Accardo Haas & Radecker, New Orleans, LA, for Insurance Company of North America.
    William D. Aaron, Jr., Mark C. Carver, Goins Aaron, P.L.C., New Orleans, LA, for Defendant/Appellant, Orleans Parish School Board.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|2This litigation arises from injuries sustained by Derrick Edwards while participating as a player on Kennedy High School’s football team. As a result of the injuries, Mr. Edwards is a quadriplegic. Suit was filed against numerous parties including Leroy Walker, the coach for the Kennedy football team.

The Orleans Parish School Board (OPSB), on Leroy Walker’s (Coach Walker) behalf, filed a third party demand against the Insurance Company of North America (INA), his professional liability insurer by virtue of his membership in the American Federation of Teachers. In response, INA filed cross-claims against all other defendants including Coach Walker’s employer, the OPSB, as Coach Walker’s subrogee, asserting his rights of indemnity pui'suant to La. R.S. 17:416.4, which provides in pertinent part:

A. In addition to the provisions of R.S. 17:416.1(0, 416.3(B) and (C)(2)(a), and 416.6(B), should any public school employee be sued for damages by any student or any person qualified to bring suit on behalf of any person qualified to bring suit on behalf of any student based on any action or statement or the omission of any action or statement by such employee when in |sthe proper course and scope of his duties as defined by the school board employing such employee, then it shall be the obligation of said school board to provide such defendant with a legal defense to such suit including reasonable attorney fees, investigatory costs, and other related expenses. Should any such employee be east in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment including all principal, interest, and costs, except that the school board shall not be responsible for any costs which the court stipulates are to be borne by a party other than the employee or school board.

On May 14, 1997, Coach Walker entered into a consent judgment with “Madeline D. Edwards Washington, individually and on behalf of Derrick Edwards and Derrick Edwards” for $550,000.00 as compensation for the claims asserted against Leroy Walker. INA satisfied the consent judgment. In exchange for this payment, Coach Walker and INA were released from all past, present and future claims.

On January 10, 2003, INA filed a motion for summary judgment on its cross-claim against OPSB, seeking indemnification from OPSB pursuant to La. R.S. 17:416.4, for the amount of $550,000.00. On April 30, 2003, the trial court granted INA’s motion. On May 9, 2003, the OPSB filed a motion for new trial. The motion for new trial was heard and denied on July 10, 2003. Subsequently, the OPSB appealed to this court prior to having the trial court certify its judgment as final and appealable in compliance with La. C.C.P. art. 1915. Thus, the appeal was dismissed without prejudice. Edwards v. Doug Ruedling, Inc., et al., 2003-1788 (La.App. 4 Cir. 4/28/04), 871 So.2d 1280. The April 30, 2003 judgment granting INA’s motion for summary judgment was certified as a final judgment, in |4accordance with art.1915, by the trial court on January 15, 2008. This appeal followed.

The proper standard of review for an appellate court considering summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480, p. 1 (La.4/11/94), 634 So.2d 1180, 1182; see also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

On appeal the OPSB has several enumerated assignments of error, all of which relate to the correctness of the trial court’s judgment finding that INA could be subro-gated to Coach Walker’s rights of indemnification under La. R.S. 17:416.4 by virtue of a consent judgment.

The issue of insurers’ indemnification by the school board under the aforementioned statute has been discussed in previous opinions. Declouet v. Orleans Parish School Board, 1996-2805 (La.App. 4 Cir. 6/3/98), 715 So.2d 69; Richardson v. Orleans Parish School Board, 93-1179 (La.App. 4 Cir. 12/16/93), 629 So.2d 1292 and Haley v. McManus, 593 So.2d 1339 (La.App. 1 Cir. 12/27/91). Deelouet, supra is the most recent opinion rendered on the subject by this court. The specifics of the facts in Deelouet are not particularly relevant to the issue at hand. In brief, a mother and sister of a student who died of an asthma attack filed suit against the school board, principal, school counselor and them insurers. After a trial on the merits, judgment was entered in favor of the plaintiffs. The principal and insurers appealed on several grounds.

|sThe pertinent part of the appeal for the case sub judice is this Court’s opinion that the counselor’s private insurance carrier was entitled to be indemnified by the school board pursuant to La. R.S. 17:416.4. Deelouet, p. 29, 715 So.2d at 84. The Court further reasoned that the obligation for the school board to indemnify under the statute was not strictly personal and could be subrogated. Id.

By operation of law the OPSB had a duty to defend Coach Walker. See La. R.S. 17:416.4(A). In the course of its representation of Coach Walker, the OPSB relinquished its defense in favor of INA. At that time, through the filing of a cross-claim, INA notified the OPSB of its reservation of rights to pursue indemnification as the subrogee of Coach Walker. As stated in Haley, the school board’s legal obligation to indemnify the teacher fully against a judgment is mandatory, not conditioned upon the absence of personal malpractice coverage. Haley, supra. Additionally, La. C.C. art. 2642 states that “[a]ll rights may be assigned, with the exception of those pertaining to obligations that are strictly personal.” A strict reading of the statute does not specify that the School Board’s obligation to indemnify is strictly personal.

The distinguishing factor in this case is that the judgment from which INA is seeking indemnification is a consent judgment. Thus, the merits of the case have not been adjudicated. Although a consent judgment binds the parties as fully as other judgments the OPSB has argued that a consent judgment is not a “judgment” in the context of 17:416.4, because a consent judgment is not an adjudication of the case establishing liability. The OPSB contends that the settlement was unreasonable and it was denied its due process rights by not being | fimade a part of the settlement negotiations. In effect, settlements of this nature give rise to collusion and fraud.

Morris v. Schlumberger, 445 So.2d 1242 (La.App. 3 Cir. 2/1/84) addressed the issue of due process and reasonableness of settlements entered into by indemnitee’s without the consent of the indemnitor. The Morris opinion provided the following discussion on the equitable principles of indemnity:

Under equitable principles of indemnity, in order for a settling indemnitee to support his indemnity claim he must prove actual liability to the original plaintiff and that the amount paid in settlement was reasonable. To avoid having to prove actual liability, the in-demnitee should offer the indemnitor before any settlement is concluded the choice of (1) approving the settlement or (2) taking over the indemnitee’s defense. If the indemnitor refuses to take either course, then the indemnitee will only be required to show potential liability to the original plaintiff to support his claim for indemnity. There is no rigid requirement that the indemnitee offer the above precise choice to the indemnitor. The primary concern is fairness to the indemnitor. If it can be shown that the indemnitor was afforded substantially the same protection that the above choice affords, then the indemnitee will have to show only potential liability. A formal tender of defense is not required, rather only an opportunity to defend is necessary, (citations omitted) (emphasis added).

Id. at 1246.

As previously discussed, the OPSB, the indemnitor, relinquished its obligation to defend Coach Walker and was thereafter placed on notice of INA, the indemnitee’s intent to seek indemnification. There is nothing in the record to establish that in the course of INA’s representation of Coach Walker the OPSB was deprived of any rights or unfairly regarded as the indemnitor.

Once Coach Walker’s defense was surrendered to INA, it had the duty to act in his best interest. In the course of litigation, settlement is often found to be in the best interest of a defendant. According to Moms, INA only had to show potential | pliability on the part of Coach Walker to establish that the settlement was reasonable. Id. This case was filed in 1990, the consent judgment relating to the settlement on behalf of Coach Walker was rendered in 1997 and as of late 2008, a trial on the merits had not been conducted. As a member of the Kennedy High School football team, Mr. Edwards was under the direction of Coach Walker at the time of his injuries. Considering the magnitude of Mr. Edwards’ damages, litigation costs and judicial interest on a potential judgment against Coach Walker this Court cannot find that the $550,000.00 settlement was unreasonable.

In light of the president set by Declouet, and the absence of any evidence to suggest that the consent judgment was unreasonable or the result of collusion or fraud we must find that the trial court correctly granted the motion for summary judgment in favor of INA.

AFFIRMED

      . Black's Law Dictionary 858 (8th ed. 2004).


author: PETTIGREW, J. WELCH, J.,

text:
    CDI CORPORATION v. Richard Paul HOUGH, Larry Kyzer, H & K Engineering, Inc. and Sylinda Anderson.
    No. 2008 CA 0218.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      Richard F. Zimmerman, Jr., Jennifer Aaron Hataway, Baton Rouge, LA, for Plaintiff-Appellee, CDI Corporation.
    Harry J. Philips, Jr., Robert W. Barton, S. Bradley Rhorer, Baton Rouge, LA, for Defendants Appellants, Richard Paul Hough, Larry Kyzer, H & K Engineering, Inc., and Sylinda Anderson.
    Before CARTER, C.J., KUHN, GUIDRY, PETTIGREW and WELCH, JJ.
   PETTIGREW, J.

| gin this appeal, Richard Paul Hough, Larry Ward Kyzer, H & K Engineering, Inc. (“H & K”), and Sylinda Anderson appeal a judgment in favor of CDI Corporation enjoining Mr. Hough and H & K from directly or indirectly soliciting or hiring any employee of CDI Corporation in accordance with an agreement between Mr. Hough and CDI Engineering Group, Inc. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

CDI Corporation, which has an office located in Baton Rouge, Louisiana, provides temporary engineering, information technology, and other professional workers and services to its clients. CDI Corporation was previously part of CDI Engineering Group, Inc., a separate corporate entity but wholly owned subsidiary of CDI Corporation. In 2003, CDI Engineering Group, Inc. changed its name to CDI Engineering Solutions, Inc., and on December 31, 2006, CDI Engineering Solutions, Inc. merged into its parent corporation, CDI Corporation.

In May 1998, Mr. Hough became employed with CDI Engineering Group, Inc. and served as vice-president of operations in Baton Rouge. After CDI Engineering Group, Inc. changed its name and after it merged into CDI Corporation, Mr. Hough continued to serve as vice-president of operations in Baton Rouge for the respective corporate entities, until he resigned on August 3, 2007, which was effective as of September 2, 2007.

In connection with Mr. Hough’s employment, he signed an “Employee Covenants and Agreements on Non-Solicitation, Non-Disclosure and Ownership of Inventions” (“the agreement”) in June 2000. Section A(4)(a) of the agreement (“the non solicitation of employees clause”) provided, in pertinent part, as follows:

4. Non^Solicitation Provisions. For a period of twelve (12) months following the termination of your employment with the Company, you will not:
(a) Directly or indirectly hire or cause to be hired, or solicit, interfere with or attempt to entice away from the Company, any individual who was an employee of the Company within six (6) months prior to such contact, solicitation, interference or enticement. ...

The agreement also contained a non-competition clause and a non-solicitation of the lacompany’s customers clause. It also required Mr. Hough to hold all of the company’s confidential information, including contracts and agreements, in the strictest confidence. The agreement did not specifically define the term “Company.” However, on page four of the agreement, the initials “CEG” appear on the line above “Name of Company.” It is undisputed by the parties herein that the initials “CEG,” as written on the agreement, represents CDI Engineering Group, Inc., the entity that employed Mr. Hough at the time he signed the agreement.

Larry Ward Kyzer was a long-time employee of CDI Engineering Group, Inc. and it successors, CDI Engineering Solutions, Inc. and CDI Corporation, and was under the direct supervision of Mr. Hough. In connection with Mr. Kyzer’s employment, he signed an agreement requiring him to hold all of the information of the company (identified on the last page of the agreement as CDI Engineering Solutions, Inc.) in the strictest confidence. Mr. Kyzer also tendered his resignation on August 3, 2007, which was effective as of September 2, 2007.

While Mr. Hough and Mr. Kyzer were still employed by CDI Corporation, they met with Rick Summers, the owner of Epic Group, Inc. (“Epic”), to discuss forming a new business to compete with CDI Corporation. These discussions resulted in Mr. Hough and Mr. Kyzer tendering their resignations to CDI Corporation. However, on August 22, 2007, prior to Mr. Hough’s and Mr. Kyzer’s resignations being effective, CDI Corporation terminated both Mr. Hough and Mr. Kyzer.

Thereafter, on August 27, 2007, Mr. Hough, Mr. Kyzer, and Mr. Summers formed H & K, with Mr. Hough and Mr. Kyzer each owning 10 percent of the company (and serving on its board of directors) and Mr. Summers and/or Epic owning 80 percent of the company.

Sylinda Anderson was also an employee of CDI Engineering Solutions, Inc. (and later CDI Corporation). Like Mr. Kyzer, Ms. Anderson signed an agreement to hold all of the information of the company (again identified on the last page of the agreement as CDI Engineering Solutions, Inc.) in the strictest confidence. Ms. Anderson left CDI Corporation in September 2007, after being contacted by Mr. Hough and Mr. Kyzer regarding employment at H & K.

|/Thereafter, Mr. Hough also solicited and successfully hired CDI Corporation employee Dale Wilkins. Mr. Hough and/or Mr. Kyzer also solicited CDI Corporation employees Phil Harris, Bruce Thomas, and Jay Hennings to work for H & K. Additionally, two former CDI Corporation employees, Kim Pham and Mai Truong, who left CDI Corporation to work elsewhere, contacted Mr. Hough regarding possible employment at H & K.

On October 2, 2007, CDI Corporation commenced these proceedings by filing a petition for temporary restraining order, preliminary injunction, permanent injunction, and damages. Mr. Hough, Mr. Kyzer, H & K, and Ms. Anderson were named as defendants. CDI Corporation alleged that Mr. Hough and Mr. Kyzer resigned from CDI Corporation with the intention of forming a new corporation to compete against it by soliciting and hiring its employees and soliciting its clients, in violation of the agreement. CDI Corporation also alleged that after H & K was formed, Mr. Kyzer either directed the misappropriation of certain CDI Corporation contract information and forms and that Ms. Anderson, who was then still employed by CDI Corporation, complied, or that Mr. Kyzer had reason to know that the CDI Corporation contract information and forms were derived from Ms. Anderson, who owed CDI Corporation a duty to maintain secrecy. CDI Corporation further alleged that all of these activities were an attempt to gain an unlawful commercial advantage over it by using its confidential information. Therefore, CDI Corporation sought a temporary restraining order and a preliminary injunction enforcing the agreement, precluding Mr. Hough, Mr. Kyzer, and H & K from soliciting or hiring CDI Corporation employees, and prohibiting H & K from employing Ms. Anderson. However, CDI Corporation did not seek to enforce either the non competition or the non-solicitation of customers clauses of the agreement.

In opposing the request for injunctive relief, the defendants asserted that the non-solicitation of employees clause was unenforceable because it violated La. R.S. 23:921, which prohibits contracts or agreements that restrains any person’s exercise of lawful profession, trade, or business. The defendants further argued that the agreement could not be enforced by CDI Corporation since Mr. Hough entered into the agreement with CDI Engineering Group, Inc., which ceased to exist when it merged into |aits joarent corporation, CDI Corporation.

Following a hearing on October 11, 2007, the trial court granted CDI Corporation’s request for a preliminary injunction and enjoined “[Mr.] Hough and H & K and those acting in concert or participating with [Mr.] Hough and H & K from directly or indirectly soliciting or hiring any employee of CDI [Corporation] or any individual who has been employed with CDI [Corporation] in the six months prior to such solicitation or hiring prior to August 22, 2008.” However, the judgment specifically did not enjoin H & K from employing Ms. Anderson. A written judgment in conformity with the trial coui't’s ruling was signed on October 17, 2007, and it is from this judgment that Mr. Hough, Mr. Kyzer, H & K, and Ms. Anderson have appealed.

On appeal, the appellants assert that the trial court erred in: (1) issuing a preliminary injunction based upon the agreement between Mr. Hough and CDI Engineering Group, Inc. (a corporation that has merged into another entity and therefore, no longer exists), because the obligation was not a heritable obligation; (2) issuing a preliminary injunction based upon a contract that unlawfully restrained trade in violation of La. R.S. 23:921(A); and (3) issuing a preliminary injunction that was overly broad, enjoined a corporate entity that was not a party to the agreement that formed the basis of the injunction (ie., H & K), disregarded any geographic or other limitation, and extended to employees of a successor entity, contrary to the intent of the agreement.

Because the resolution of assignments of error numbers 1 and 3 depends on whether the non-solicitation of employees clause is enforceable (assignment of error number 2), we address that issue first.

| (APPLICABLE LEGAL PRECEPTS

Preliminary Injunctive Relief

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima fade showing that the party will prevail on the merits of the case. Jurisich v. Jenkins, 97-1870, p. 4 (La.App. 1 Cir. 9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. CDI Corporation asserts that it was entitled to in-junctive relief because the solicitation and hiring of CDI Corporation employees was a direct violation of the agreement. In determining whether CDI Corporation met its burden of proving entitlement to the preliminary injunctive relief, the validity and enforceability of the agreement must be considered. See Vartech Systems, Inc. v. Hayden, 2005-2499, p. 7 (La.App. 1 Cir. 12/20/06), 951 So.2d 247, 255 (in determining whether an employer has met his burden of proving entitlement to injunctive relief against an employee based on an agreement not to compete, the courts must initially consider the validity and enforceability of the agreement sought to be enforced). If the agreement is found to be unenforceable and/or an agreement in restraint of trade or business that does not fall within an exception found in La. R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought. See Vartech Systems, Inc., 2005-2499 at 8, 951 So.2d at 255-256.

Standard of Review

Generally, the issuance of a preliminary injunction by the trial court will not be disturbed on appeal absent a clear abuse of discretion. Vartech Systems, Inc., 2005-2499 at 8, 951 So.2d at 256. However, in this case, the underlying issue is the validity or enforceability of the non-solicitation of employees clause of the agreement. The | ./resolution of that issue requires us to interpret La. R.S. 23:921. The proper interpretation of a statute is a question of law, which we will review de novo. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045.

Principles of Contracts

Contracts have the effect of law for the parties. La. Civ.Code art.1983. If the terms of a contract are clear, the court ■will enforce the contract as written, provided the agreement is not contrary to good morals or public policy. First Nat. Bank of Commerce v. City of Neiv Orleans, 555 So.2d 1345, 1348 (La.1990). Parties are free to contract for any object that is lawful, possible, and determined or determinable. La. Civ.Code art.1971. This “freedom of contract” signifies that parties to an agreement have the right and power to construct them own bargains. Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716, 96-1727, p. 14 (La.7/1/97), 696 So.2d 1373, 1380. However, the state may legitimately restrict the parties’ right to contract if the proposed bargain is found to have some deleterious effect on the public or to contravene some other matter of public policy. Louisiana Smoked Prod- nets, Inc., 96-1716 at 14, 696 So.2d at 1381. Therefore, in a free enterprise system, parties are free to contract except for those instances where the government places restrictions for reasons of public policy. Id.

Louisiana Revised Statutes 23:921

1962 La. Acts, No. 104, § 1, 2 amended and re-enacted La. R.S. 23:921 to provide as follows:

No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employee is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years.

1 ¡¡Pursuant to 1989 La. Acts No 639, § 1, the Louisiana Legislature completely redrafted La. R.S. 23:921. Louisiana Revised Statutes 23:921(A)(1) now provides: “Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.” The statute then defines the limited circumstances under which such agreements may be valid in the context of certain relationships. See Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954, p. 6 (La.App. 1 Cir. 9/28/01), 809 So.2d 405, 410, writs denied, 2001-3316 and 2001-3355 (La.3/8/02), 811 So.2d 883, 886.

DISCUSSION

Unlawful Restraint of Trade in Violation of La. R.S. 23:921 (Assignment of Error No. 2)

Appellants contend that the trial court erred in issuing a preliminary injunction on the basis of the non-solicitation of employees clause because the clause is unenforceable since it restrains Mr. Hough from exercising a lawful profession, trade, or business in violation of La. R.S. 23:921(A)(1). However, CDI Corporation contends that La. R.S. 23:921 does not apply to the non-solicitation of employees clause, and therefore, the agreement is valid and enforceable.

Under the version of La. R.S. 23:921 prior to amendment by 1989 La. Acts No 639, § 1, two Louisiana cases, John Jay Esthetic Salon, Inc. v. Woods, 377 So.2d 1363 (La.App. 4 Cir.1979), writ denied, 395 So.2d 1363 (La.1981) and Emergency Physicians Ass’n v. Our Lady of the Lake Regional Medical Center, 92-2090 (La. App. 1 Cir. 2/11/94), 635 So.2d 1148, writ granted and judgment vacated in part on other grounds, 94-1268 (La.9/16/94), 642 So.2d 179, held that such agreements were valid and not within the purview of the then existing version of La. R.S. 23:921. CDI Corporation asserts that these cases control the resolution of the issue before this court, and that under the holdings of these cases, the agreement by Mr. Hough not to solicit or hire employees of the company is not within the prohibition contained in La. R.S. 23:921, and is, therefore, valid and enforceable. The appellants contend, however, that at the time John Jay Esthetic Salon, Inc. and Emergency Physicians Ass’n were decided, La. R.S. 23:921 did not purport to prohibit 19agreements restraining the exercise of a profession, trade, or business. Rather, it only prohibited certain non-com petition agreements. Thus, appellants argue, this is truly a case of first impression.

In John Jay Esthetic Salon, Inc., the defendants, Culver and Woods, both hairdressers, had entered into separate agreements (one was a lease agreement and the other an employment contract) with the plaintiff, the corporate owner and operator of nine beauty salons. Both agreements provided that in the event of the termination of the agreement, the defendants would not solicit any of the plaintiff’s customers and would not offer, hire, or employ or enter into any partnership, corporation, or other business relationship, directly or indirectly, with any of the plaintiffs present or future students, employees, or independent contractors for a period of two years. Shortly after the defendants had entered into their respective agreements with the plaintiff, both defendants terminated their relationship with the plaintiff. Defendant Culver opened his own shop, and defendant Woods immediately moved into Culver’s shop while seeking other employment, but later began working regularly for Culver.

The plaintiff brought suit for damages against both defendants for breach of contract. The defendants asserted that the provision in each contract relative to soliciting employees of the employer or to engage in a business relationship with them was a non-competition agreement and was invalid as against the public policy stated in La. R.S. 23:921. The fourth circuit held that “the agreement not to solicit the employees of the employer or to engage in a business relationship with them is not within the prohibition of [La.] R.S. 23:921 and is therefore valid and enforceable.” John Jay Esthetic Salon, Inc., 377 So.2d at 1366.

| min Emergency Physicians Ass’n, Emergency Physicians Association (“EPA”), a partnership of physicians formed for the purpose of rendering emergency room medical services, entered into a contract with Our Lady of the Lake Regional Medical Center (“OLOL”) to provide physicians for OLOL’s emergency room. Included within the contract was agreement by OLOL that it would not solicit the individual physician partners of EPA to provide emergency room services during the terms of the contract Thereafter, two of the physician partners of EPA resigned from EPA and entered into an agreement with OLOL to provide full-time emergency physician coverage at OLOL. EPA sued OLOL for breach of contract. At trial and on appeal, OLOL asserted that the provision that prohibited OLOL from soliciting the partners of EPA to perform emergency room services was invalid and illegal under La. R.S. 23:921. Citing John Jay Esthetic Salon, Inc., this court concluded that such agreements were valid and not within the prohibition of La. R.S. 23:921. Emergency Physicians Ass’n, 92-2090 at 5, 635 So.2d at 1150. In doing so, this court noted that the restriction placed on OLOL by the contract provision did not violate public policy because the provision did not interfere or so burden OLOL that it could not fulfill its duty to the citizens of Baton Rouge. OLOL was free to contact, solicit, negotiate, or contract with any physician or group of physicians except the partners of EPA. Id.

We have thoroughly reviewed the facts and holdings of John Jay Esthetic Salon, Inc. and Emergency Physicians Ass’n in light of both the prior version of La. R.S. 23:921 and the current version of the statute that governs this case. While we do not find the holdings of these cases to be dispositive of the issue of the applicability of La. R.S. 23:921 to agreements not to solicit employees, we do find them to be instructive in our analysis.

In John Jay Esthetic Salon, Inc. and Emergency Physicians Ass’n, the courts evaluated the enforceability of agreements not to solicit employees in light of the former language of La. R.S. 23:921, which prohibited an employer from requiring or directing an employee to enter into an agreement where the employee agrees “not to engage in any competing business” and provided the specific circumstances under which such agreements would be allowed. Citing Martin-Parry Corp. v. New Orleans Fire Detection Serv., 221 La. 677, 60 So.2d 83 (1952), the court in John Jay Esthetic Salon, Inc. noted that “[a]n agreement not to engage in competition with the employer is vastly different from an agreement not to solicit the employer’s customers or employees or to engage in a business relationship with the employees or contractors.” John Jay Esthetic Salon, Inc., 377 So.2d at 1366. Therefore, the court in John Jay Esthetic Salon, Inc. properly concluded that a non-solicitation of employees agreement did not constitute an agreement “not to engage in any competing business” specifically prohibited by La. R.S. 23:921. Consequently, the statute was not applicable and the agreements were enforceable. In Emergency Physicians Ass’n, this court merely followed the holding of John Jay Esthetic Salon, Inc. and concluded that the agreement was not within the prohibition of the then applicable version of La. R.S. 23:921.

The amendment to La. R.S. 23:921 by 1989 La. Acts, No. 639, § 1 changed the law from a prohibition against agreements between employers and employees for the employee “not to engage in any competing business” to a prohibition against all “contracts or agreements ... by which anyone is restrained from exercising a lawful profession, trade, or business.”

CDI Corporation asserts that even if John Jay Esthetic Salon, Inc. and Emergency Physicians Ass’n are distinguishable because they were decided under the prior version of La. R.S. 23:921, whether an agreement not to solicit employees violates the current version of La. R.S. 23:921 was already decided by the United States Fifth Circuit Court of Appeal in Smith, Barney, Hams Upham & Co., Inc. v. Robinson, 12 F.3d 515 (5 Cir.1994), which found that such an agreement was enforceable because it “simply [did] not meet the definition of the kinds of contracts covered by [La. R.S. 23:921].” Smith, Barney, Harris Upham- & Co., Inc., 12 F.3d at 519.

In Smith, Barney, Hams Upham & Co., In,c., Robinson, a former branch manager of a brokerage office of Smith, Barney, Harris Upham & Co., Inc. (“Smith | ^Barney”), entered into an agreement with Smith Barney during his employment that provided:

[i]n consideration of payment of the 1993 Incentive Compensation to me, I agree that should my employment with Smith Barney terminate for any reason and I become employed at a competitor organization I will not for a one (1) year period directly or indirectly solicit or induce any Smith Barney employee to resign from either (a) the Smith Barney branch office at which I worked; or (b) any other Smith Barney branch office within a fifty (50) mile radius of the competitor organization’s office at which I work, in order for that employee to accept employment at the competitor organization at which I work.

Smith, Barney, Harris Upham & Co., Inc., 12 F.3d at 517.

After entering into this agreement, Robinson left Smith Barney’s employ and began working for Morgan, Keegan & Co., Inc. (“Morgan Keegan”), a competitor organization. Robinson then, after having been advised that the agreement was unenforceable, knowingly breached the agreement not to solicit Smith Barney’s employees by actively recruiting those employees. Smith Barney initiated proceedings against Robinson seeking among other things, an injunction prohibiting Robinson from soliciting Smith Barney’s employees. Robinson claimed that the non-solicitation of employees provision of the agreement was unenforceable under La. R.S. 23:921.

After reviewing the applicable provisions of La. R.S. 23:921, the Fifth Circuit found that the agreement did not possess the attributes of an agreement prohibited by La. R.S. 23:921. In doing so, the court reasoned:

[T]he [a]greement does not restrain Robinson from exercising a lawful profession, trade, or business.... [T]he [a]greement assumes that Robinson will exercise his profession, presumably even as branch manager, with a competitor firm. Robinson is free to recruit stockbrokers or employees for Morgan Kee-gan — anywhere, any time, and from any organization — save only that small class comprising Smith Barney’s employees, a class which he willingly agreed not to solicit.

Smith, Barney, Harris Upham & Co., Inc., 12 F.3d at 519.

The court further concluded that for the agreement to fall “within the ambit of [La. R.S. 23:921],” it would have to find “not only that that recruiting [was] an indispensable ingredient of Robinson’s profession[,] but also that the [a]greement prohibited Robinson from recruiting employees or stockbrokers to work for Morgan Keegan,” which it did not do. Id. The court then found that “Smith Barney did not generally restrain Robinson from recruiting employees for Morgan Keegan” but rather, it | ^“microscopically focused the [a]greement at that aspect of Robinson’s job that would be most damaging to Smith Barney — Robinson’s recruitment of Smith Barney’s employees to work for a competitor organization.” Id. The court then noted in passing that La. R.S. 23:921(C) allows parties to contract to prohibit an employee from engaging in similar business and from soliciting customers, but it did not mention soliciting fellow employees. Therefore, the court considered that omission an implicit legislative recognition that, without more, a narrowly tailored agreement not to solicit employees of the employer was not among the kinds of agreements covered by the statute. As a result, the agreement in the case was not governed by La. R.S. 23:921.

CDI Corporation contends that the reasoning in the Smith, Barney, Hams Up-ham & Co., Inc. case is applicable to this case. CDI Corporation asserts that the non-solicitation of employees clause agreed to by Mr. Hough, like the one agreed to by Robinson, is “microscopically focused” to prohibit him from soliciting a small group of employees and that there is a substantial pool of potential employees all over the world for Mr. Hough to solicit for employment with H & K without violating the agreement. And, like Robinson, CDI Corporation asserts that Mr. Hough is free to recruit employees, with the exception of that small class of individuals Mr. Hough willingly agreed not to solicit for twelve months following his termination with the company. Therefore, CDI Corporation asserts that because Mr. Hough is not prohibited from the performance of his trade, from competing against CDI Corporation, or from soliciting CDI Corporation’s customers, the non-solicitation of employees clause in the agreement signed by Mr. Hough is not a restraint on the exercise of his profession, trade, or business, and therefore, La. R.S. 23:921 is not applicable. We agree.

As in Smith, Barney, Harris Upham & Co., Inc., the non-solicitation of employees clause in the agreement signed in the instant case does not prevent Mr. Hough from exercising his trade, profession, or business. In fact, the agreement assumes Mr. Hough will compete with CDI Corporation. The agreement merely restricts those whom he can recruit for his new company for a period of twelve months following his termination from CDI Corporation. The agreement is reasonable in scope and Induration. Thus, the agreement is not governed by La. R.S. 23:921. The agreement between Mr. Hough and CDI Corporation is valid and enforceable. Heritability of the Agreement (Assignment of Error No. 1)

Appellants assert the trial court erred in allowing CDI Corporation to enforce the agreement because Mr. Hough entered into the agreement with CDI Corporation’s predecessor’s company, CDI Engineering Group, Inc., not CDI Corporation. Appellants argue that the obligation to refrain from post-employment activities is an obligation strictly personal to the obligee and therefore not heritable and not assignable by the obligee. Citing La. R.S. 12:115, as well as Delaware and Pennsylvania law, CDI Corporation contends this argument is without merit. CDI Corporation maintains that the agreement automatically transferred to CDI Corporation, by operation of law, upon its merger with CDI Engineering Group, Inc. We agree with CDI Corporation.

Louisiana Civil Code article 1765 provides, in pertinent part, as follows: “An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obli-gor. Every obligation is deemed heritable as to all parties, except when the contrary results from the terms or from the nature of the contract.” The agreement before us does not provide that it is not heritable nor can we find any statute or law that provides that an employment agreement is not heritable. In fact, as correctly pointed out by CDI Corporation in brief to this court, Louisiana, Pennsylvania, and Delaware have all enacted a statutory scheme aimed at regulating corporations and the effects of mergers thereof. See La. R.S. 12:115; 8 Del.C. § 259(a); 15 Pa.C.SA § 1929.

Upon the merger of CDI Engineering Group, Inc. into CDI Corporation, CDI Corporation possessed all the rights and privileges of CDI Engineering Group, Inc. See La. R.S. 12:115(C). Moreover, the property and assets of CDI Engineering Group, Inc. were deemed to be transferred to CDI Corporation without further act or deed. See La. R.S. 12:115(D). Thus, the agreement between Mr. Hough and CDI Engineering Group, Inc. was automatically transferred, by operation of law, to CDI Corporation upon its h ¿merger with CDI Engineering Group, Inc., and CDI Corporation was entitled to enforce its provisions.

Scope of Preliminary Injunction (Assignment of Error No. 3)

In assignment of error number 3, appellants assert the trial court erred in issuing a preliminary injunction that is overly broad, enjoins a corporate entity that is not a party to the agreement that forms the basis for the injunction, disregards any geographic limitation, and extends to employees of a successor entity, all contrary to the intent of the agreement. Appellants maintain that because H & K is a separate corporate entity and not a party to any agreement with CDI Corporation, H & K should not have been directly enjoined from the kinds of activities described in the agreement. Appellants argue further that CDI Corporation should not be entitled to “bootstrap” the scope of the agreement between Mr. Hough and CDI Engineering Group, Inc. so as to make it now include all 18,000 of its employees worldwide simply by virtue of an intracompany merger. As an alternative to reversing the trial court and dissolving the injunction, appellants contend this court should conclude that any injunctive relief to which CDI Corporation may be entitled should be limited only to Mr. Hough, individually, and be restricted to the solicitation or employment of those current CDI Corporation employees who formerly worked for CDI Engineering Group, Inc. in its geographic market. We find no merit to this argument.

Pursuant to La.Code Civ. P. art. 3605, a preliminary injunction “shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them.” Mr. Hough is president, a member of the board of directors, and part owner of H & K. Thus, it follows that any acts of H & K, even through its other employees, would be in active conceit or participation with Mr. Hough. In oral reasons for judgment, the trial court offered the following with regard to the scope of the preliminary injunction: “I’m also going to grant a preliminary injunction restraining and enjoining Paul Hough and H & K Engineering, Inc., from directly or indirectly soliciting any employee of CDI who is employed by CDI prior to August 22, 2008. After August 22, 2008, everybody is fair game.” The trial court continued, “Now this includes any indirect solicitation through |lfiany employee, officer, director, agent, counsel or those acting in concert or participation with them prior to August 22, 2008. That means that Ms. Anderson and Mr. Kyzer cannot do that which Mr. Hough is directly refrained from doing.” Based on these reasons, the trial court enjoined both Mr. Hough and H & K from directly or indirectly soliciting or hiring any CDI Corporation employees. As noted by CDI Corporation in brief, an injunction that would allow H & K to corporately do the exact same thing that Mr. Hough is prohibited from doing individually would be worthless. We agree and find no error in the scope of the preliminary injunction as ordered by the trial court.

CONCLUSION

For the above and foregoing reasons, we affirm the October 17, 2007 judgment of the trial court. All costs of this appeal are hereby assessed to the defendants/appel.lants, Richard Paul Hough, Larry Ward Kyzer, H & K Engineering, Inc., and Sy-linda Anderson.

AFFIRMED.

WELCH J., dissents and assigns reasons.

CARTER, C. J. dissents for reasons assigned by Judge WELCH.

WELCH, J.,

Dissenting.

hi respectfully disagree with the majority opinion in this case. The nonsolicitation of employees clause runs afoul of this State’s longstanding public policy against agreements in restraint of trade or business. It is, therefore, null and unenforceable pursuant to La. R.S. 23:921 and, thus, CDI Corporation was not legally entitled to a preliminary injunction enjoining Mr. Hough and H & K from directly or indirectly soliciting or hiring any employee of CDI Corporation. Accordingly, that portion of the October 17, 2007 judgment of the trial court should be reversed and this case remanded for further proceeding.

Louisiana Revised Statutes 23:921(A)(1) provides that “[ejvery contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.” The non-solicitation of employees clause in this case is an agreement by which Mr. Hough is restrained from exercising a lawful profession, trade, or business of any kind. The prohibition against agreements by which anyone is restrained from exercising a lawful profession, trade, or business, applies to all components of the profession, trade, or business. The solicitation and hiring of qualified employees for a business enterprise is a part of a successful and competitive business’s operations. The non-solicitation of employees clause subjects Mr. Hough to post-employment restrictions and prohibits him from performing an essential function of his new competitive business — the recruitment and hiring of qualified employees knowledgeable in the field of engineering.

|2In addition to limiting Mr. Hough’s ability to solicit and hire CDI Corporation employees, the non-solicitation of employees clause also prevents him from hiring qualified employees who may have voluntarily left CDI Corporation for other employment opportunities (for instance, Kim Pham and Mai Trong, who left CDI Corporation, sought employment elsewhere, and thereafter contacted Mr. Hough about employment at H & K) or from hiring qualified employees who were fired or otherwise tercninated by CDI Corporation. The non-solicitation of employees also has the effect of restraining Mr. Hough’s former co-employees from exercising a lawful profession, trade, or business since Mr. Hough is not allowed to advise them of competitive opportunities. These restrictions are in derogation of the public policy premised on the fundamental right of individuals to seek success in our free enterprise society. See Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954, p. 7 n. 9 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 411 n. 9, writs denied, 2001-3316 and 2001-3355 (La.3/8/02), 811 So.2d 883 and 886.

In finding that the non-solicitation of employees clause is enforceable, the majority reasons that the clause does not prevent Mr. Hough from exercising his trade, profession, or business, because it assumes that Mr. Hough will compete with CDI Corporation, and that the agreement merely restricts those whom he can recruit for his new company. This is simply not correct. The agreement signed by Mr. Hough also contained a non-competition clause (and a non-solicitation of the company’s customers clause). Although those clauses, as written, are unenforceable under Louisiana law, the existence of those clauses in the agreement undermines the majority’s premise that the agreement assumed Mr. Hough would compete with CDI Corporation.

Furthermore, in concluding that the non-solicitation of employees clause is enforceable, the majority erroneously relies on Smith, Barney, Harris Upham & [3Co., Inc. v. Robinson, 12 F.3d 515 (5th Cir.1994) and the Fifth Circuit’s flawed interpretation of La. R.S. 23:921. First and foremost, Smith, Barmy, Harris Upham & Co., Inc. is factually distinguishable from the present case in that the non-solicitation of employees agreement was more narrowly tailored than the non solicitation of employees clause in this case. The non-solicitation of employees agreement in Smith, Barney, Harris Upham & Co., Inc. only prohibited Mr. Robinson from soliciting employees; however, the non-solicitation of employees clause' in this case not only purports to prevent Mr. Hough from soliciting employees of the company, but also purports to prevent Mr. Hough from hiring any employees of the company, including those who may voluntarily contact him regarding employment. Additionally, the non-solicitation of employees agreement in Smith, Barney, Harris Upham & Co., Inc. was only triggered in the event Mr. Robinson became employed by a competing organization,, whereas the non solicitation of employees clause in this case purports to prevent Mr. Hough from soliciting employees of the company for any purpose. And, the non-solicitation of employees agreement in Smith, Barney, Harris Upham & Co., Inc. was limited to a small geographic area, whereas the non-solicitation of employees clause in the agreement in this cáse is not limited to any geographic area.

Additionally, the Fifth Circuit’s application and interpretation of La. R.S. 23:921 in Smith, Barney, Harris Upham & Co., Inc. was incorrect. In reaching the conclusion that the agreement did not restrain Mr. Robinson from exercising his trade or profession, the Fifth Circuit erroneously focused on the extent of the restraint rather than the existence of the restraint. The court reasoned that Mr. Robinson’s agreement was “narrowly tailored” and ás such, it did not “generally restrain” or prohibit him from recruiting employees for Morgan Keegan. Smith, Barney, Harris Upham & Co., Inc., 12 F.3d at 519. However, La. R.S. 23:921 applies not only to narrowly tailored agreements, but to every contract or |4agreement that restrains, in any way, the exercise of a profession, trade, or business. Thus, it is the existence of a' restraint on the exercise of the profession, trade, or business that triggers the application of La. R.S. 23:921, not the extent of that restraint.

Additionally, the Fifth Circuit incorrectly concluded that the Legislature did not intend to include agreements not to solicit employees within the kinds of agreements prohibited by La. R.S. 23:921. As the majority stated, the Fifth Circuit noted “in passing” that La. R.S. 23:921(0 mentions engaging in a similar business and soliciting customers, but did not mention soliciting fellow employees. The Fifth Circuit considered that omission an “implicit legislative recognition” that a narrowly tailored agreement not to solicit employees of the employer was not among the kinds of agreements covered by the statute, and therefore, the agreement in the case was not governed by La. R.S. 23:921. Thus, they construed the Legislature’s failure to specifically include agreements not to solicit employees within the statutory language of La. R.S. 23:921 to mean that the Legislature did not intend La. R.S. 23:921 to be applicable to such agreements. Id.

However, such an interpretation of La. R.S. 23:921 in this regard ignores several important rules regarding statutory construction. When the Legislature specifically enumerates a series of things, the Legislature’s omission of other items, which could have easily been included in the statute, is deemed intentional. State, Through Dept. of Public Safety and Corrections, Office of State Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Com’n and Horseshoe Entertainment, 94-1872, p. 17 (La.5/22/95), 655 So.2d 292, 302. Louisiana Revised Statutes 23:921 starts with a broad and general premise in subparagraph (A)(1) that every contract or agreement by which anyone is restrained from exercising a lawful profession, trade, or business is null and void. Specific exceptions to this the rule are set forth in the remainder of the statute, with the 1 ¡^statute specifically defining the limited circumstances under which an agreement that restrains someone from exercising a profession, trade, or business agreements may be valid. See Kimball, 2000-1954 at p. 6, 809 So.2d at 410. Thus, the correct interpretation of La. R.S. 23:921 is that the Legislature intended to include within the general prohibition all restraints on the exercise of a trade or business not specifically excepted under the statute. Therefore, contrary to the pronouncement by the Fifth Circuit in Smith, Barney, Harris Upham & Co., Inc., if an agreement to not solicit employees is not among the exceptions listed in La. R.S. 23:921 to the general rule set forth in La. R.S. 23:921(A)(1), then such agreements are prohibited to the extent they restrain a person from the exercise of a lawful profession, trade, or business.

Because the non-solicitation of employees clause in this case is an agreement that restrains Mr, Hough from exercising a lawful profession, trade, or business, it is unenforceable.

Thus, I respectfully dissent.

      . The judgment also enjoined Mr. Hough, Mr. Kyzer, H & K, Ms. Anderson, and those acting in concert with them from using, providing, delivering, or disclosing certain documents and other confidential information of CDI Corporation to any individual or entity, including H & K. However, no issues have been raised in this appeal with regard to that portion of the judgment.

      . Mr. Hough, Mr. Kyzer, H & K, and Ms. Anderson also filed a supervisoiy writ application seeking review of the trial court’s ruling in this regard. However, because Mr. Hough, Mr. Kyzer, H & K, and Ms. Anderson had already filed this appeal seeking review of the grant of the preliminary injunction in accordance with La.Code Civ. P. art. 3612, this court declined to exercise its supervisory jurisdiction. See CDI Corporation v. Richard Paul Hough, Larry Kyzer, H & K Engineering, Inc., and Sylinda Anderson, 2007-2432 (La. App. 1 Cir. 2/12/08) (unpublished writ action).

      . However, if an employee enters into an agreement with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of tire employer pursuant to La. R.S. 23:921(C), and fails to perform his obligation under such an agreement, the court shall order injunctive relief without a showing of irreparable injury upon proof by the employer of the employee's breach of the agreement. La. R.S. 23:921(H). In this case, although Mr. Hough also agreed not to engage in a business that competes with the company and not to solicit customers of the company, those agreements do not meet requirements set forth in La. R.S. 23:921(C), and therefore, CDI Corporation does not seek to enforce those agreements. Therefore, in order to be entitled to injunctive relief, CDI Corporation had the burden of showing it would suffer irreparable injury if the injunction did not issue and entitlement to the relief sought.

      . We note that since La. R.S. 23:921 was amended by 1989 La. Acts No. 639, § 1, the fifth circuit has addressed the issue of whether a non-solicitation of employees clause is covered by La. R.S. 23:921. In Bell v. Rimkus Consulting Group, Inc. of Louisiana, 2008-491 (La.App. 5 Cir. 1/13/09), 8 So.2d 64, the court found that although the non-solicitation of employees clause was not specifically covered by La. R.S. 23:921, it was against public policy as written because it did not provide a reasonable time limit on the prohibition against the plaintiff's actions in soliciting the employees of his former employer. Thus, the court held that the provision was invalid and not enforceable. Bell, 2008-491 at 3, 8 So.2d at 67. However, Beil is distinguishable from the one before us as the agreement in the instant case is reasonable in both scope and duration.

      . In reaching this conclusion, the fourth circuit relied on Martin-Parry Corp. v. New Orleans Fire Detection Serv., 221 La. 677, 60 So.2d 83 (1952), which held that a provision in a contract not to solicit the employers’ employees was enforceable. However, Martin-Parry Corp. was decided before the enactment of La. R.S. 23:921 by 1962 La. Acts., No. 104, and therefore, the applicability of La. R.S. 23:921 to such an agreement was not discussed.

      . At the time this court rendered its decision in Emergency Physicians Ass'n., La. R.S. 23:921 had been amended by 1989 La. Acts, No. 639, § 1. However, this court determined that the prior version of La. R.S. 23:921 was the applicable statute to the case because the contract at issue had been confected under the prior version of La. R.S. 23:921.

      . Although Mr. Hough worked in CDI Corporation’s Baton Rouge office and all of the events in this case took place in Louisiana, CDI Engineering Solutions, Inc. was incorporated in Delaware and CDI Corporation was incorporated in Pennsylvania.