Smith-Scharff Paper Co., Inc. v. Blum

• Decision Date: 28 May 1991
• Docket Number: No. 58354,SMITH-SCHARFF,58354
• Citation: 813 S.W.2d 27
• Parties: 6 IER Cases 867 PAPER COMPANY, INC., Plaintiff-Appellant, v. Paul T. BLUM, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 27

813 S.W.2d 27

6 IER Cases 867

SMITH-SCHARFF PAPER COMPANY, INC., Plaintiff-Appellant, v. Paul T. BLUM, Defendant-Respondent.

No. 58354.

Missouri Court of Appeals,

Eastern District,

Division One.

May 28, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 26, 1991.

Application to Transfer Denied Sept. 10, 1991.

Weier, Hockensmith & Sherby, St. Louis, for plaintiff-appellant.

Suelthaus & Kaplan, P.C., Helmut Starr, Betty L. Thorne, St. Louis, for defendant-respondent.

PUDLOWSKI, Presiding Judge.

This is an appeal from a court-tried judgment. Appellant, Smith-Scharff Paper Company, Inc., is a Missouri Corporation engaged in the wholesaling of paper-related and janitorial products (hereinafter Smith-Scharff). Respondent, Paul T. Blum (hereinafter Blum) and Smith-Scharff entered into an employment agreement on August 22, 1988. The employment agreement provided terms for compensation, termination of employment, modification of the contract and covenants not to compete. It also stated that Blum's employment "shall be for an initial term of one (1) year." Paragraph 21 expressly stated that:

This agreement contains the entire agreement of the parties in this matter. No modification amendment or waiver of any of the provisions of this agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.

Both Blum and Arthur Scharff (hereinafter Scharff), president of Smith-Scharff, testified at trial that Blum's compensation was $2500 per month. Blum was to receive this salary until he achieved "sales representative status." Schedule D of the employment agreement provided that "in order to achieve sales representative status, a sales trainee must have their commissions equal to or greater than their salary for three consecutive months." At trial Scharff testified that most sales trainees require approximately one year to achieve three consecutive months where their commissions equalled or exceeded their salaries. Scharff explained during testimony that the "three consecutive month" policy was introduced in order to protect a sales trainee who might have one or two months where his commissions rose above his salary level, but then fall below this level in subsequent months.

The employment agreement also contained certain covenants not to compete. Under the terms of the covenant Blum was prohibited from entering into the employment or having any interest in any person or company engaged in a business competitive with Smith-Scharff. Blum was also restricted from influencing any customers of Blum to divert their business. The terms of the restrictive covenant pertained solely to accounts serviced by Blum while working for Smith-Scharff. The covenant specifically provided that "[t]his restriction shall be applicable only with respect to the geographic areas in which the relevant operations are conducted by [Smith-Scharff] and its subsidiaries and affiliates at any time during the employment period."

In a court-tried case the standard for review on appeal is controlled by the oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment in a court-tried case is presumed correct. Prudential Property and Casualty Ins. Co., Inc. v. Call, 586 S.W.2d 433, 434 (Mo.App.1979). It is well settled law in Missouri that the credibility of witnesses and the weight given their testimony is for the trial court to determine. In making this determination as to the validity of the trial court's findings, the appellate court must defer to the trial court's opportunity to observe the parties while...