Cullman Broadcasting Co., Inc. v. Bosley

• Citation: 373 So.2d 830
• Parties: CULLMAN BROADCASTING CO., INC. v. Patrick Howard BOSLEY. 77-782.
• Decision Date: 20 July 1979
• Court: Supreme Court of Alabama

Page 830

373 So.2d 830

CULLMAN BROADCASTING CO., INC. v. Patrick Howard BOSLEY.

77-782.

Supreme Court of Alabama.

July 20, 1979.

Sydney L. Lavender and John D. Quenelle, Birmingham, for appellant.

James F. Berry, Cullman, for appellee.

ALMON, Justice.

The plaintiff, Cullman Broadcasting Co., Inc., appeals from a judgment of the Circuit Court denying both injunctive relief and damages. We reverse.

This case was submitted to the trial court on a stipulation of facts and the briefs and arguments of counsel. The facts, briefly, are as follows: Bosley entered into a written employment agreement with the appellant whereby he was employed as a radio station announcer, or disc jockey. The employment contract contained a covenant not to compete which provided:

COVENANT NOT TO COMPETE : For a period of one (1) year after termination of his employment with Employer for any reason whatsoever, including expiration of the term of this agreement, Employee will not, directly or indirectly, be employed by, receive talent for, contract for the use of his voice, participate in or be connected in any manner with the ownership, management, operation or control of any radio station, television station, or CATV system with studio or transmitting facilities in the County of Cullman in the State of Alabama. The parties hereto recognize that it will be difficult to determine the damages which would be suffered by Employer in the event of a breach of this covenant not to compete and it is therefore agreed by the parties hereto that any such breach by Employee shall entitle Employer to liquidated damages against Employee in the amount of $3,000, and that in addition, Employer shall have such remedies as are in law or equity provided, including, without limitation, any action for specific performance or for injunctive relief. It is specifically understood that in the event of litigation resulting from a breach of this covenant not to compete, Employer shall be entitled to recover, in addition to any liquidated damages, all costs incurred, including a reasonable attorney's fee.

The appellee's employment with the appellant was terminated in January of 1978 and thereafter, in July, 1978, he was employed as a radio announcer for another radio station in Cullman.

The appellant filed this action seeking a temporary restraining order, liquidated damages and punitive damages. On the date of the hearing for a temporary restraining order, this case was argued and submitted to the trial court for a decision on the merits. The trial court entered judgment for the appellee.

The three issues raised by the appellant are that:

1. the trial court incorrectly considered evidence not contained in the stipulation of facts and that such evidence was in fact, erroneous;

2. the trial court erred in deciding as a matter of law that this covenant not to compete was unreasonable and

3. the trial court erred in refusing to award nominal damages.

I

With respect to the first issue, the trial court noted that there was no indication "that the listeners of the Plaintiff radio station are the same listeners that might be attuned to the radio station for which Defendant is now employed, to the contrary, it appears that Plaintiff's radio station would have a different group of listeners, that being a Country and Western music station, than would the radio station which presently employs the Defendant, that being a Popular music station."

It is undisputed that there was no evidence relating to the type of music each of these radio stations broadcasts. Courts may take judicial notice of matters of common knowledge without suggestion of counsel, O'Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974), and without proof thereof. Green v. Mutual Benefit Health & Accident Ass'n, 267 Ala. 56, 99 So.2d 694 (1957). Assuming that the content of each station's broadcasts was of common knowledge and therefore the proper subject for judicial notice, the mere fact that one radio station broadcasts different programs than another radio station does not necessarily warrant a conclusion that the listeners of each station do not overlap to some degree.

As the appellant points out in its brief, this Court has held that a court may not take judicial knowledge of a fact which might be disputed by competent evidence. Connecticut General Life Ins. Co. v. Smith, 226 Ala. 142, 145 So. 651 (1932). The appellant asserts that competent evidence exists which tends to establish a significant degree of overlap between country music and popular music, I. e., "a virtual merger." We agree with the appellant that the diversity between fans of country and western music and fans of popular music is not so generally recognized and established as to constitute common knowledge. We therefore hold that the trial court erred in making conclusions in this regard absent specific proof directed at this issue.

II

The appellant's second contention is that the covenant not to compete is reasonable as to both time and space and the trial court erred in holding that it was unreasonable and overbroad. Code 1975, § 8-1-1 provides Inter alia that contracts restricting anyone from exercising a lawful profession, trade or business are void except that an agent, servant or employee may agree with his employer not to engage in or carry on a similar business and not to solicit old customers of the employer.

Justice Maddox reviewed the law regarding covenants not to compete in Robinson v. Computer Servicenters, Inc., 346 So.2d 940 (Ala.1977).

. . . Contracts restraining employment are looked upon with disfavor, because they tend not only to deprive the public of efficient service, but tend to impoverish the individual. . . . The courts will not specifically enforce, as of course, the naked terms of a negative covenant in a personal service contract restricting other employment, unless supporting the affirmative promise, the employer has a substantial right unique in his business which it is the office of the court to protect, and the restriction laid upon the employee has a reasonable relevancy to that result, and imposes no undue hardship. . . . (Citations omitted.)

346 So.2d at 943.

Moreover, the validity of a covenant not to compete is dependent on the particular facts of each case. Robinson, supra.

In this case, the relevant facts are that the appellee was employed by the appellant as a disc jockey for the appellant's radio station. The covenant not to compete provided that for a period of one year after the termination of the appellee's employment with appellant, he would not be employed by any radio station, television station or CATV system with studios or transmitting facilities in Cullman County, Alabama. Approximately seven months after the appellee's employment with the appellant terminated, the appellee started to work as a radio announcer for another radio station in Cullman, Alabama.

Cases from other jurisdictions which have addressed the issue of the enforceability of covenants not to compete in the context of radio announcers illustrate that, as this Court has observed, the facts of each particular case determine the outcome. Compare Clooney v. WCPO Tv. Div. of Scripps-Howard Broadcasting Co., 35 Ohio App.2d 124, 300 N.E.2d 256 (1973) and Skyland Broadcasting Corp. v. Hamby, 2 Ohio Op.2d 426, 141 N.E.2d 783 (Ohio Com.Pl.1957) with Bennett v. Storz Broadcasting Co., 270 Minn. 525, 134 N.W.2d 892 (1965) and WAKE Broadcasters, Inc. v. Crawford, 215 Ga. 862, 114 S.E.2d 26 (1960).

In Bennett, supra, ¹ the Minnesota Supreme Court cited the presumably unpublished judgment of the trial court in a related case. There, the employer-broadcaster sought injunctive relief to restrain its former employee from working as an announcer for a rival radio station. The trial court refused to enjoin the employee from working despite a covenant not to compete very similar to the covenant in this case. (The time and space limitations were, respectively, 18 months and 35 miles.)

The trial court's refusal to enforce the restrictive covenant was based upon its findings that, Inter alia :

a. the employee was an above-average announcer or disc jockey but his abilities were not unique, unusual, extraordinary or of great value;

b. the employer did not expend substantial amounts of money to advertise, develop or feature the employee or his program and whatever abilities and capacities the employee possessed were not developed while he was working for the employer;

c. the employer materially changed the format of the employee's customary program thereby limiting and changing his "radio personality" and, ultimately;

d. the employer relegated the employee to an inferior position, I. e., taping an all-night program which did not carry advertising.

The trial court determined that the evidence conclusively indicated that at no time during the employment contract, except perhaps its inception, did the employer consider the employee as anything other than an ordinary, if not less than ordinary, "radio personality." The trial court further found that the employee did not possess trade secrets, business secrets or confidential information. There was insufficient evidence to indicate that the employer had secured or retained customers because of the employee, or that the employer had lost or would lose customers in his absence.

In the Crawford case, Supra, the Supreme Court of Georgia refused to enforce a covenant not to compete. Again, the covenant not to compete was essentially similar to the covenant in the instant case, the time and space limitations were 18 months and 50 miles. The court, however, found that this covenant was unreasonably and unnecessarily broad since the broadcaster-employer was a subsidiary of the "Bartell Group" and the covenant purported to restrict the employee from working within 50 miles of "any city in which the Bartell Group now or shall . . . own or operate" a radio or television station....