93 0561 La.App. 1 Cir. 3/11/94, Allied Bruce Terminix Companies, Inc. v. Ferrier

• Decision Date: 11 March 1994
• Citation: 634 So.2d 44
• Parties: 93 0561 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 44

634 So.2d 44

93 0561 La.App. 1 Cir. 3/11/94

ALLIED BRUCE TERMINIX COMPANIES, INC. v. Gil FERRIER.

No. 93 CA 0561.

Court of Appeal of Louisiana, First Circuit.

March 11, 1994.

Tracy K. Hidalgo, New Orleans, for plaintiff-appellant.

Alan Gregory Rome, Baton Rouge, for defendant-appellee.

Before WATKINS, SHORTESS and FOGG, JJ.

[93 0561 La.App. 1 Cir. 2] SHORTESS, Judge.

Gil Ferrier (defendant) was a branch manager for Allied Bruce Terminix Companies, Inc. (plaintiff), a pest control service. Plaintiff and defendant entered into an agreement on August 24, 1990, which provided that if defendant left plaintiff's employment, he was prohibited from soliciting plaintiff's customers or competing with plaintiff in a twelve-parish area for two years from the date of termination of employment. The agreement further provided that if legal action was brought to enforce the agreement, that period was "extended through two years following the date of the final court order, judgment or decree so enforcing or confirming Employer's rights...."

Defendant terminated employment with plaintiff on January 15, 1992. On January 27, 1992, he entered into a severance agreement with plaintiff acknowledging the noncompetition provision in his employment contract and agreeing to forfeit his severance pay if he breached that provision. Defendant then took a job with Louisiana Pest Control, a direct competitor of plaintiff.

Plaintiff sued defendant, alleging breach of the noncompetition and nonsolicitation agreements in the employment and severance contracts. Plaintiff sought damages, costs, attorney fees, and an injunction restraining defendant from competing with it or soliciting its customers. After a hearing, the trial court denied plaintiff's request that defendant be enjoined "for a period of two years from the date of any injunction issued by this Court" from working in the twelve-parish area set forth in the contract for Louisiana Pest Control Service or any competitor of plaintiff. [93 0561 La.App. 1 Cir. 3] Plaintiff appealed the denial of the preliminary injunction. ¹ The damages portion of the suit has not been litigated and does not form a part of this appeal.

Prior to 1989, Louisiana Revised Statute 23:921 permitted noncompetition agreements only if the employer incurred significant or extensive expenditures in the training of the employee or the advertisement of the business. Orkin Exterminating Co. v. Foti, 302 So.2d 593 (La.1974). Noncompetition agreements which met this criteria were limited to a two-year period by the statute.

The noncompetition statute was rewritten in 1989. The new version expanded the use of noncompetition agreements by removing the expenditure requirement, but retained the two-year limitation. The statute now provides in pertinent part:

A. Every contract or agreement, or provision thereof,...