Fill and Sign the 2015 Thomson Reuters No Claim to Original Us Form

IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI PLAINTIFFVS. NO. DEFENDANT 's OPPOSITION TO 's MOTION IN LIMINE BACKGROUND (" ") filed suit against (" "). It seeks damages for breach of a covenant not to compete. Trial is set to commence on , 20 . has filed this Motion seeking to exclude expert opinion testimony regarding 's damages which strongly opposes. was one of the original founders of . Consequently, when he/she elected to leave he/she negotiated a sale of his/her stock, as well as a price for his/her agreement not to compete with 's business for years. The amount assigned to that agreement not to compete was $ . received a total sum from in excess of $ . ARGUMENT The monies allocated by the parties to the covenant not to compete clause contained in the "Covenant Not To Compete And Termination Agreement" were agreed to by both parties ably represented by counsel. The parties also stipulated that would forfeit the monies paid to him/her to refrain from competing if he/she elect to violate the terms of the agreement. agrees that the restrictions contained in this paragraph are reasonable and necessary for the protection of the legitimate interests of the Corporation that any violation of these restrictive covenants would cause substantial injury to the Corporation and that the Corporation would not have entered into this Agreement with without receiving the additional consideration of signing himself/herself to these restrictions. Therefore, hereby agrees that in addition to preliminary and permanent injunctive relief, the Corporation shall be entitled to monetary damages from . Said monetary damages shall not exceed the amount paid by the Corporation for this covenant. (A copy of the Termination Agreement is attached hereto as Exhibit "A", pp. 7-8). 's position throughout this litigation has been that the covenant not to compete provides for liquidated damages. Arms length sales are generally the best evidence of the asset's value. United States v Music Masners, Ltd. 621 F.Supp. 1046, 1054 (D.C.N.C. 1985), aff'd, 816 F.2d 674 (4th Cir. 1987). Liquidated damage clauses, whether labeled as such or not, are enforceable and also looked upon favorably by the courts of Mississippi. Vanlandingham v Jenkins, 207 Miss. 882, 43 So.2d 578 (1950). The nomenclature is not controlling, it is the intention of the parties that is important. Wood Naval Stores Export Ass'n v. Latimer, 71 So.2d 425 (Miss. 1954). "Where it is inherently difficult to approximate the actual damages that a breach will cause, Mississippi Courts tend to be particularly indulgent of contractual provisions that prescribe a crude but convenient liquidation of the parties' rights." Dahistrom Corporation v. State Highway Comm., 590 F.2d 614, 615-16 (5th Cir. 1979), quoting, Patrick Petroleum of Mich. v Callon Petroleum Co, 531 F.2d 1312, 1315 (5th Cir.), cert. denied, 426 U.S. 951 (1976). ("The parties hereto further agree that in the event of a breach of said warranty, the recovery of [plaintiff] shall be limited to a return of a proportionate part of said consideration..." Id. at 314.)Alternatively, will also offer the expert economic testimony of Dr. to support its damage claim. Dr. is local professor of economics whose reputation is certainly known by this Court. (A copy of Dr. 's curriculum vitae is attached hereto as Exhibit "B"). Essentially Dr. will testify that 's damages are the amount which it paid to and that the figure represents the difference between the appraised value and the purchase price paid by for 's stock. (Dr. 's report attached hereto as Exhibit "C." has filed a motion to exclude Dr. 's testimony pursuant to Rule 403 of the Mississippi Rules of Evidence. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, concedes that Dr. 's testimony is relevant, but suggests that it is "speculative" and potentially prejudicial since it might "confuse and misinform the jury as to the correct measure of damages." 's Memorandum p.4. According to , did not sustain "actual" damages in the amount of S255.800; rather, S255, 800 is simply a sum that negotiated to pay in exchange for 's agreement not to compete, and that is entitled to retain that sum notwithstanding his violation of the agreement.The question is one of admissibility. "All relevant evidence is admissible." Miss. Rules of Evidence, Rule 402. Relevant evidence is that which "tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Jackson v Johns-Manville Sales Corp, 750 F.2d 1314, 1318 (5th Cir. 1985). Rule 403 favors admissibility. The general rule regarding expert opinion testimony is that if the evidence is at all relevant and helpful, the jury should not be denied its assistance at arriving at a sound verdict. United States v. Sessa, 806 F.Supp. 1063 1066 (E.D. N.Y. 1992); City of Clarksdale v Stuart, 184 Miss. 179, 185 So. 588 (1939) (testimony admissible regarding price acceptable to willing buyer and seller).The burden is on to show that the probative value of Dr. 's testimony is substantially outweighed by its confusing and unfair prejudicial nature. Jackson, 750 F.2d at 1319; United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862 (1979). has made no showing whatsoever. He/She does not question the factual predicate of Dr. 's opinion that "the best measure of the value of the clause is the actual price paid by and agreed to by . Prejudice in this context has a more specialized meaning, such as bias, sympathy, hatred, contempt, retribution or horror, McRae, 593 F.2d at 705. Additionally, he/she does not dispute Dr. 's evaluation of the documents which show that the agreed upon value represents "the difference between the appraised value of the stock owned by and the purchase price," or "the value implied by 's [buyout] Transaction." Exclusion of evidence, including opinion evidence, is an extraordinary remedy and is employed sparingly. United States v. Meester, 762 F.2d 867, 875 (11th Cir. 1985). Here, where Dr. 's opinion is based upon "the sort of data customarily relied upon by economists in forming opinions," his/her testimony is admissible. Flight Line Inc. v. Tankslev, 608 So.2d 1149, 1166 (Miss- 1992). It is entirely up to the jury what weight, if any, it will accord Dr. 's expert opinion testimony "in the context of all of the evidence in take case and the jury's own general knowledge of affairs." Id., Schoppe v. Applied Chemicals Division, 418 So.2d 833, 837 (Miss. 1982). CONCLUSION Dr. 's opinion testimony is relevant regarding 's damage claim and may assist the triers of fact. It will certainly not confuse them, nor will it unfairly prejudice . Thus, Dr. 's opinion as to the value of 's damage is admissible. 's Motion in Limine should be denied. Respectfully submitted, By:_________________________________________ OF COUNSEL: CERTIFICATE I, , do hereby certify that I forwarded by hand a true and correct copy of the above and foregoing pleading to: This the of , 20 . ___________________________________