Cohen Realty, Inc. v. Marinick

• Decision Date: 30 July 1991
• Docket Number: No. 74850,No. 3,74850,3
• Parties: 1991 OK CIV APP 71, 6 IER Cases 1629 COHEN REALTY, INC., Appellant, v. Stephen A. MARINICK, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 747

817 P.2d 747

1991 OK CIV APP 71, 6 IER Cases 1629

COHEN REALTY, INC., Appellant, v. Stephen A. MARINICK, Appellee.

No. 74850.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma,

Division No. 3.

July 30, 1991.

Certiorari Denied Oct. 8, 1991.

Appeal from the District Court of Oklahoma County; Eugene H. Mathews, Judge.

AFFIRMED.

Michael E. Krasnow, Oklahoma City, for appellant.

William O. West, Edmond, for appellee.

MEMORANDUM OPINION

HUNTER, Chief Judge:

Appellant Cohen Realty, Inc. (CRI) filed suit against Appellee Stephen A. Marinick (Marinick) to enforce a non-compete covenant of an employment contract executed by the parties on June 1, 1987. After a temporary restraining order was issued prohibiting Marinick from competing in any manner with CRI, Marinick filed a motion for summary judgment, which was sustained by the trial court. This appeal followed.

CRI is a real estate brokerage company which represents customers and clients in the sale, purchase, lease or rental of nursing homes throughout the United States. Marinick, a licensed real estate broker, was hired by CRI in June, 1987. Prior to Marinick's employment with CRI, he had worked predominantly in the field of commercial leasing and had no experience related to the nursing home industry. Marinick signed an agreement prepared by CRI and its attorney containing a non-compete covenant which provided, in pertinent part:

Marinick further covenants and agrees that notwithstanding anything herein to the contrary, he shall not, for a period of ten (10) years from the effective date of this Agreement, whether Marinick is associated with or employed by CRI, or whether this Agreement may have been terminated for any cause whatsoever, either directly or indirectly, as a real estate broker, business broker, sales associate or otherwise, compete in any manner whatsoever with CRI by representing customers or clients in the sale, purchase, lease or rental of nursing homes.

The agreement also contained a provision against divulging "trade secrets" or "confidential knowledge or information", and contained a liquidated damages clause upon violation of the provisions.

Marinick worked for CRI for two years and was terminated. A termination agreement was entered into between the parties which specifically provided that the non-compete covenant of the agreement would remain in full force and effect upon termination. Marinick was unable to find a job in commercial real estate and subsequently established a company of his own to sell and lease nursing homes. CRI sued for damages and an injunction, claiming Marinick violated the agreement by soliciting CRI's customers and clients for the sale and lease of nursing homes. Marinick moved for summary judgment on the ground that the non-compete covenant of the agreement was in violation of 15 O.S.1981 § 217, which provided:

Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by the next two sections, is to that extent void.

The two statutory exceptions referred to above in Sections 218 and 219 involve the sale of good will or dissolution of a partnership, which are not applicable to these facts. Marinick also alleged the non-compete covenant was in violation of the prohibition against restraint of trade found in 79 O.S.1981 § 1. Upon review of the evidence, the trial court found that the covenant constituted an unreasonable restraint on trade for too long a term in an undefined territory. We agree.

Summary judgment is appropriately granted when there is no substantial controversy regarding any material fact and a party is entitled to judgment as a matter of law. Weldon v. Seminole Mun. Hosp., 709 P.2d 1058 (Okl.1985); Sellers v. Oklahoma...