AMERiGAS Propane, L.P. v. T-Bo Propane, Inc., Civil Action No. CV496-171.

• Decision Date: 20 August 1997
• Docket Number: Civil Action No. CV496-171.
• Citation: 972 F.Supp. 685
• Parties: AMERiGAS PROPANE, L.P., Plaintiff, v. T-BO PROPANE, INC.; Sue H. Tebeau; Larry R. Turner; and Lloyd Moore, Jr., Defendants.
• Court: U.S. District Court — Southern District of Georgia

972 F.Supp. 685

AMERiGAS PROPANE, L.P., Plaintiff, v. T-BO PROPANE, INC.; Sue H. Tebeau; Larry R. Turner; and Lloyd Moore, Jr., Defendants.

Civil Action No. CV496-171.

United States District Court, S.D. Georgia, Savannah Division.

August 20, 1997.

COPYRIGHT MATERIAL OMITTED

Morton G. Forbes, John Foster, Forbes & Bowman, Savannah, GA, for Plaintiff.

R. Daniel Price, Dennis G. Dozier, Sr., Thompson, Price & Dozier, Rincon, GA, for Defendants.

ORDER

MOORE, District Judge.

Plaintiff, in the above-captioned case, has sued Defendants, asserting that they have violated various non-competition and non-disclosure covenants agreed to among the parties. Defendants have filed a Motion for Summary Judgment while Plaintiff has filed a Motion for Partial Summary Judgment. For the reasons and to the extent stated below, Defendants' motion is GRANTED IN PART and DENIED IN PART and Plaintiff's motion is DENIED.

BACKGROUND

Unless otherwise indicated by commentary or specific citation to evidence, the following facts are not in dispute.

AmeriGas came into the Effingham area approximately four years ago by acquiring a company called Petrolane which had earlier acquired a company called Coastal Gas; currently, including Defendant T-Bo Propane, there are six propane gas dealers in the Effingham area — the largest being Shepard Brothers. Defendant Susan Tebeau's father had been the principal of Coastal Gas and she worked in various capacities with that company and its successors until she became the District Manager for Plaintiff, overseeing the Effingham branch of operations. Defendant Larry Turner, a service representative and truck driver, and Defendant Lloyd Moore, a sales representative and truck driver, were also absorbed as employees by Plaintiff upon its acquisition of Petrolane. In October 1995, Plaintiff, a national company, restructured its internal operations. As a result of this restructuring, Defendant Tebeau was essentially demoted to Customer Service Manager in or around April 1996. On April 9, 1996, Defendant Tebeau quit her employment with Plaintiff, as communicated through a resignation letter. Defendant Moore resigned on April 26, 1996, and Defendant Turner resigned on May 20, 1996. Though T-Bo Propane is owned and operated by Billy Tebeau, Mr. Tebeau's wife, Defendant Susan Tebeau, played an active role in establishing T-Bo Propane, certifying the company's safety record, and marketing the company's services. Defendant Tebeau maintains that she is not paid by the new company, she has no ownership interest, and merely works as an informal adviser. Defendants Moore and Turner are officially employed by Defendant T-Bo Propane.

Defendants Tebeau, Moore, and Turner, had all signed certain boilerplate covenants with Plaintiff throughout their employment with that corporation. The relevant covenants provide:

1. Confidential Information and Company Property

a. During my employment, the Company will put me in a position of trust and confidence by disclosing to me "Confidential Information" about its business and its customers. "Confidential Information" includes, for example, information concerning business and marketing plans; past, present and prospective customer identities, lists, and credit information; pricing and marketing policies and practices; gas usage patterns; financial information; and other operating policies and practices. I will protect the Company's confidential information from disclosure and will not divulge it to any other person or entity during or after the term of my employment.

b. Confidential information as well as reports, manuals, memoranda and other materials used by me during the performance of my duties belong to the Company and will be used by me exclusively for the Company's benefit. I will return all such property including copies to the Company at the termination of my employment.

2. Prohibited Activities

Following the termination of my employment with the Company for any reason:

a. I will not, directly or indirectly, solicit the liquefied petroleum gas ("LP-Gas") business of any "Customer" of the Company (i) for a period of two (2) years following the termination of my employment, and (ii) in a fifty (50) mile radius of any office or plant where I worked within the two (2) years prior to the termination of my employment.

b. I will not directly or indirectly service or sell LP-Gas or any related appliances, equipment or services to any "Customer" of the Company, (i) for a period of two (2) years following the termination of my employment and (ii) in a fifty (50) mile radius of any office or plant where I worked within the two (2) years prior to the termination of my employment. For purposes of Subsection 2a and 2b, a "Customer" of the Company includes any person or entity which purchased LP-Gas or related appliances, equipment, or services of the Company at any time within one (1) year prior to the termination of my employment or which during a period of six (6) months prior to the termination of my employment had been solicited by the Company or received a proposal from the Company to supply it with LP-Gas or related appliances, equipment or services.

c. For a period of two (2) years after the termination of my employment I will not, nor will I induce any other person or entity to, employ or offer employment in an LP-Gas related business to any employee of the Company with whom I worked during the two (2) years prior to the termination of my employment. Furthermore, I shall not induce any such employee to terminate his or her employment with the Company.

The agreements also include a non-waiver provision as well as a severability provision which states: "If any provision of this Agreement or its application to any person or any circumstance shall be determined to be invalid or unenforceable to any extent, then the remainder of the Agreement and the application of such a provision either to other persons or in different circumstances shall not be affected and shall be enforceable to the fullest extent permitted by law." These agreements were signed by Defendant Tebeau on March 14, 1994, Defendant Turner on February 22, 1994, and Defendant Moore on January 17, 1996.

Plaintiff maintains a file on each of its customers; each file generally includes address information, usage history, the pricing policy applicable to the customer, the customer's credit history, and other information used for marketing purposes. All three individual Defendants had open access to these files during their employment tenure with Plaintiff. Plaintiff does not contend that any of the individual Defendants removed any copies of information contained in the customer files from the AmeriGas office. (Testimony of David MacBride, Trans. of August 6, 1996, Prelim. Inj. Hrg., p. 31.)

Prior to terminating its relationship with Plaintiff, Lovette Lumber was one of the largest, if not the largest, customer of Plaintiff in the Effingham district. Situated in Rincon, Georgia, Lovette Lumber is a reseller of propane. In other words, it buys great quantities of the gas and then resells it to individuals through a dispensing tank. The dispensing tank had the term "AmeriGas" on the side and was clearly visible from the roadway. In the preliminary injunction hearing, Wendell Lovette testified that he had dealings with Plaintiff for several years but that Defendant Moore asked him whether he would be interested in switching his business to a company soon to be organized called T-Bo Propane. Defendant Moore was working for Plaintiff at the time. As a result of the solicitation, Lovette Lumber now buys its propane from Defendant T-Bo Propane. Plaintiff claims that Defendant Moore solicited the business at the direction of Mr. Tebeau; Defendants dispute this assertion. Whether or not he did so at Mr. Tebeau's direction, it is abundantly clear that Defendant Moore solicited Lovette Lumber while working for Plaintiff.

Linda Edwards is the proprietor of Mac's Country Store in Guyton, Georgia. Mac's Country Store, like Lovette Lumber, is a reseller of propane and was a large volume customer of Plaintiff's. The store also had a large dispensing tank with the "AmeriGas" logo visible from the roadway. As with Lovette Lumber, Defendant Moore, while working for Plaintiff, solicited Ms. Edwards to switch to Defendant T-Bo Propane and offered prices cheaper than Plaintiff's. The store switched accounts and is now a T-Bo Propane customer.

Defendant Moore also solicited on behalf of Defendant T-Bo Propane the following customers who switched from Plaintiff to Defendant T-Bo Propane: Robert Kennedy; Mildred Hall; Duane Hall; Linda Tillman; Christine Johnson; Betty Brown; Juanita Haggary; and J.W. Williams. The solicitations of these individuals as well as of the two stores were made by Defendant Moore during a period when he was supposed to be working for Plaintiff. During her employment with Plaintiff, Defendant Susan Tebeau knew of Defendant Moore's solicitations but did nothing to stop him.

It is not contested that Defendant Tebeau had access to customer information while working for Plaintiff and that she solicited customers of Plaintiff for her husband's new company after she left Plaintiff. At the preliminary injunction hearing, she testified that she is involved in "everything in general" with Defendant T-Bo Propane and that it was she who drafted the letter used in a direct mail marketing campaign launched by the new company. Furthermore, she acknowledged that, after leaving AmeriGas, she came into possession of a customer list from Plaintiff, knew that she should not use it for Defendant T-Bo Propane's advantage, but used it anyway to solicit approximately fifty customers. Defendants contend that Beatrice Watts, an employee of Plaintiff's, was planning on leaving Plaintiff and going to work for T-Bo Propane and that she gratuitously brought the customer list to T-Bo Propane's office. (See Susan Tebeau Test.,...