Financial Guardian, Inc. v. Kutter, 44332
| Court | Missouri Court of Appeals |
| Writing for the Court | CRIST; REINHARD, P. J., and SNYDER |
| Citation | Financial Guardian, Inc. v. Kutter, 630 S.W.2d 197 (Mo. App. 1982) |
| Decision Date | 26 January 1982 |
| Docket Number | No. 44332,44332 |
| Parties | FINANCIAL GUARDIAN, INC., Apellant, v. James D. KUTTER, Respondent. |
William B. Smith, St. Louis, for appellant.
Kenneth C. Brostron, St. Louis, for respondent.
Appellant, Financial Guardian, Inc., entered into a employment contract with respondent James D. Kutter on July 1, 1975. This contract contained a covenant not to compete for three years after leaving the employ of Financial Guardian. Financial Guardian's petition, filed February 5, 1981, sought injunctive relief, money damages and an accounting for monies received by Kutter as a result of an alleged breach of the covenant. Financial Guardian's petition incorporated the employment contract, asserted that the contract was not renewed on July 1, 1979, that Kutter continued in the employ of Financial Guardian until May 31, 1980, and that Kutter had become associated with a competing insurance company. The trial court sustained Kutter's motion to dismiss. We affirm.
The question to be resolved is whether or not Financial Guardian pled itself out of court by pleading "on or about July 1, 1979, said contract was not renewed." Because the employment contract containing the restrictive covenant was admittedly terminated before the restriction became operative, we hold that the trial court properly dismissed Financial Guardian's petition.
A petition is not to be dismissed for failure to state a claim unless it appears the plaintiff can prove no set of facts which would entitle it to relief. Ghertner v. Lipton, 563 S.W.2d 531, 532 (Mo.App.1978). Financial Guardian admitted Kutter was still in its...
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IN RE BENNETT PAPER CORP., Bankruptcy No. 85-00782(2)
...of law, Counts I and II which sound in contract must be dismissed. In support of their argument, Defendants cite Financial Guardian, Inc. v. Kutter, 630 S.W.2d 197 (Mo.App.1982). In that case Kutter entered an employment contract with Financial Guardian on July 1, "This contract contained a......
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Shelbina Veterinary Clinic v. Holthaus
...they entered into a new contract, which did not include a covenant not to compete. Defendant relies on Financial Guardian, Inc. v. Kutter, 630 S.W.2d 197 (Mo.App.1982), to support her proposition that the contract was not in effect when she quit. In Financial Guardian, an insurance company ......
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Section 60 Requirement of a Valid and Enforceable Contract
...the employer is precluded from enforcing the covenant when the employee terminates employment. Financial Guardian, Inc. v. Kutter, 630 S.W.2d 197, 198 (Mo. App. E.D. 1982). The noncompete agreement must be supported by consideration. Typically, in the context of an employment agreement, the......
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Section 6 Accountants
...employer, the employer is precluded from enforcing the covenant when the employee terminates employment. Fin. Guardian, Inc. v. Kutter, 630 S.W.2d 197, 198 (Mo. App. E.D. 1982). But see Shelbina Veterinary Clinic v. Holthaus, 892 S.W.2d 803, 805 (Mo. App. E.D. 1995) (upholding a restrictive......
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Section 7 Conflict of Laws and Forum Selection Clauses
...employer, the employer is precluded from enforcing the covenant when the employee terminates employment. Fin. Guardian, Inc. v. Kutter, 630 S.W.2d 197, 198 (Mo. App. E.D. 1982). But see Shelbina Veterinary Clinic v. Holthaus, 892 S.W.2d 803, 805 (Mo. App. E.D. 1995) (upholding a restrictive......
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Section 4.35 Specific Performance of Negative Covenants
...courts have construed negative covenants in employment contracts strictly against the employer. In Financial Guardian, Inc. v. Kutter, 630 S.W.2d 197 (Mo. App. E.D. 1982), after terminating the contract, the employer permitted the employee to remain in its employ. The court concluded that t......
