Deck and Decker Personnel Consultants, Ltd. v. Pigg
| Decision Date | 29 August 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 555 S.W.2d 705 |
| Parties | DECK AND DECKER PERSONNEL CONSULTANTS, LTD., Respondent, v. Doris Dean PIGG, d/b/a Dean Pigg Employment Agency, Appellant. 29002. |
| Court | Missouri Court of Appeals |
Craig A. Van Matre, Van Matre & Van Matre, Columbia, for appellant.
James C. Butcher, Butcher, Marshall & Cline, Columbia, for respondent.
Before SOMERVILLE, P. J., and WASSERSTROM and TURNAGE, JJ.
Defendant-appellant (hereinafter referred to as employee) was enjoined from engaging in the employment agency business for a period of one year in a restricted area at the behest of plaintiff-respondent (hereinafter referred to as employer).
The injunctive relief granted, and from which employee appeals, represented enforcement of a covenant not to compete contained in a written contract of employment which was terminable at will by either party. Employee left employer's hire after approximately three years service and set up her own employment agency.
Although the spatial and temporal limitations spelled out in the restrictive covenant have not been questioned as being unreasonable, employee seeks reversal of the judgment below and dissolution of the injunction for a myriad of other reasons.
Employee attacks employer's right to enforce the restrictive covenant because of a discrepancy between employer's name as it appeared in the employment contract and its correct corporate name. This point is not well taken as there was evidence from which the trial court could and obviously did find that notwithstanding the misnomer the employment contract was executed by and on behalf of employer corporation and binding upon it. H. W. Underhill Const. Co. v. Nilson, 3 S.W.2d 399, 400 (Mo.App.1928); and DeMaria & Janssen v. Baum, 227 Mo.App. 212, 52 S.W.2d 418, 420 (1932).
The trial court is faulted for granting the requested injunctive relief because it did so without taking into consideration the "unclean hands" of employer's president, sole stockholder, and chief executive officer. Employee's lack of specificity regarding "wherein and why" the hands of employer's alter ego were besmirched, equitably speaking, fails to comply with Rule 84.04(d). In so failing, no viable point is presented for appellate review. See Simpson v. Island View Sales Corp., 540 S.W.2d 624 (Mo.App.1976). Its deficiency is further compounded by the fact that although employee contends that the trial court manifested its refusal to consider the doctrine of "unclean hands" by the rejection of evidence offered by employee, no reference is made to the rejection of any specific evidence. Further discourse on this point is unwarranted.
Employee's next point, that the evidence "overwhelmingly indicates" that employer had no protectible interest to justify equitable enforcement of the restrictive covenant, is disposed of by recognizing and applying a few well established principles of law pertaining to such covenants and the scope of review of court tried cases.
The natural repulsion of a free enterprise society toward restraints of trade has engendered a literal "sea" of case law, periodicals, annotations and treatises touching upon the validity and enforcement of restrictive covenants of the nature of the one at hand. An extensive compilation of them is contained in Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685 (Ohio Com.P.L.1952), and it is recommended reading for those wishing to become quickly exposed by a single source to the many and multifacted principles applicable to covenants not to compete. Notwithstanding the vast "sea" of available authority, Missouri cases exist which are dispositive of the precise issue presently under consideration.
Although an employer cannot extract an enforceable restrictive covenant from an employee merely to protect himself from competition, a temporally and spatially limited restraint may be deemed reasonable and enforceable in equity if a legitimate protectible interest of the employer is served. Prentice v. Rowe, 324 S.W.2d 457, 461 (Mo.App.1959); and Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 151 (1949). Customer contact is judicially recognized in this state as being a legitimate protectible interest. R. E. Harrington, Inc. v. Frick, 428 S.W.2d 945, 950 (Mo.App.1968); and Renwood Food Products v. Schaefer, supra, 223 S.W.2d at 151. More particularly, in Haysler v. Butterfield, 240 Mo.App. 733, 218 S.W.2d 129 (1949), decided by this court's predecessor, an employee's contact with prospective employers to whom job applicants of an employment agency were referred was held to constitute a legitimate protectible interest of the employment agency for the purpose of enforcing a covenant not to compete by way of injunction.
The power of an appellate court to set aside a decree or judgment in a court tried case on...
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