*1 CO., MILL & LUMBER REED
INC., Plaintiff-Appellant Cross-Appellee, JENSEN, Defendant-Appellee
Neil Cross-Appellant, Materials, Inc., Building
General
Defendant-Appellee. 05CA0431.
No. Appeals, Court of
Colorado
Div. IV.
Sept. 2006. Rehearing on Denial of
As Modified
Feb. 2007.* July Denied 2007.
Certiorari
* Casebolt, J., would GRANT. *2 Gibson, Jester, Jay
Jester & Nancy S. Denver, Egelhoff, Colorado, Bauer for Plain- tiff-Appellant Cross-Appellee. Bull, P.C., Bull, Bucholtz & James C. Defendant, Colorado, Village, Greenwood for Appellee and Cross-Appellant. Hart, LLP,
Holland Wiletsky, & Mark B. Boulder, Colorado, Defendant-Appellee. for Opinion by Judge CARPARELLL Plaintiff, Co., Inc., Reed Mill & Lumber defendants, appeals judgment in favor of Building Materials, Neil Jensen and General Jensen cross-appeals the failure award him fees. We affirm. general manager, and remained re- as its Background I. operations and sales. Thereaf- sponsible Mill, a mill and Reed worked for ter, responsible although he continued to be Dur- until 2002. from 1978 lumber sales, responsibilities operational his were company and before ing employment, assigned employees. to other a bonus Jensen received was sold *3 began resigned in 2002 and work- company stock. Jensen the form of Materials, Building Inc. ing for General and all or its name Reed Mill sold (GBM). Mill for breach of Reed sued Jensen operating assets Vranian nearly all of its noncompete agreement and sued GBM During par- (buyer). Enterprises, contract. After for tortious interference with each of agreed it that negotiations, was ties' in favor of Reed jury reached a verdict required would be shareholders Mill, motions for a and GBM filed Jensen noncompete agreement. sign judgment not with- verdict and for directed agreement purchase Section verdict, standing contending that the non- not to com- Mill's covenant that Reed states agreement invalid. was necessary ensure the continua- pete was that The trial court concluded regard to the assets the business with tion of noncompete in connec- parties executed the that, further as consid- being It states sold. business, the sale and tion with necessary inducement for the and eration permitted under an ex- noncompete was agreed that for a Mill purchase, Reed statutory on cove- ception to Colorado's bar date, closing it would years from the of three compete. It also found nants not to own, manage, oper- not, things, among other an departure, was not the time of Jensen ate, management or participate in the or employee of management executive a 100-milе any enterprise within control and company, and therefore the executive provision in the engaged was radius that exception ap- did not management personnel products. lumber services and mill and ' ply. proceeds of the Mill distributed the Reed ad- principal The court noted that in accordance to its shareholders sale three-year noncompete mitted that held each. Jen- percentage of shares signed by Reed Mill's agreement $50,000 for his shares sen received shareholder, nearly ten times who owned Shortly after the transac- company stock. Jensen, reasonable to than more shares closed, sharehold- and the other tion Jensen buyer's purchase of Reed agreements. Of the signed noncompetе ers basis, concluded that that the court will. On Mill, buyer paid to Reed price the total than sufficient for years was more three $115,000 compensation for was allocated as industry. in the buyer to establish itself compete. goodwill and the covenant amount, proa paid Mill Reed Of court found premises, these On $9,857. rata share the amount Jensen, why a mere reason valid percentage of an owner of a small and agreement states noncompete prohibited from com- should be pur- pursuant made to the asset that it was - years after Reed Mill in six peting with the three- agreement. provides It chase found that closing date. The court also competition would year prohibition against in the prohibiting Jensen from employ- begin upon termination оf Jensen's experience would he had only area reason, any continue three for and ment him, that it hardship on an undue place agreement also con- years thereafter. The for six necessary to bar Jensen was not prevailing par- entitling the provision tains a sale, nine much less for the date of after ty attorney fees and costs event years after the sale. litigation. court ordered directed Accordingly, years after the first few For defendants, judgment and entered the Reed verdict buyer operated the business under noncompete finding the duration of name, manage continued to and Jensen Mill court or- agreement was unreasonable. operations the new Reed Mill's and oversee party pay attorney own App.1988). dered each its Good will "is an incident of a continuing having fees. particular locali name," ty or expectation includes "the verdict, appeals Reed Mill the directed repeated public patronage." continued and rulings cross-appeals Miller, Propane Corp. Nat'l parties own pay must their fees and (Colo.App.2000). noncompete that the was made connection with the sale of a business. provides Where evidence ade quate support, we will not overturn the trial II. Reasonableness Connection finding noncompete court's that a with Sale made in connection with a sale of busi although Reed Mill contends that the trial 8-2-118(2)(a). ness under Boulder Med. correctly court concluded Jensen's non- Moore, Ctr. v. (Colo.App. *4 compete agreement was made connection 1982). purchase agreement, with it erred when it agree- concluded that the duration of the 2. Enforceability Reasonableness and perceive ment was unreasonable. We The reasonableness of covenants an error.
cillary
depends
to the sale of business
A.
Compete
Covenants Not to
competition
whether
the restraint on
pro
protection
fair
buyer's
vides
to the
purchase
public policy
Colorado
disfavors
will,
good
imposing
while
restrictions no
However,
compete.
covenants not to
8-2-
greater
necessary
protect
than
the value
118, C.R.S$,.2006,permits
such
covenants
good
of that
will. See
v. McMurtry
Barrows
Enters.,
limited cireumstances. DBA
Inc. v.
Co.,
432,
(1913)(an
Mfg.
54 Colo.
made
sary for the duration
Agreement
B. Unenforeeable
en-
relationship.
matters
is whether
What
those
after
three
forcement
covenant
reason
that it was
Reed Mill asserts
protec-
necessary
provide
fair
years was
noncompetition
three-year
begin the
able to
in con-
buyer's legitimate interests
tion to
employ
of Jensen's
upon termination
own.
verting
will to its
old.
good will at
possessed
ment because Jensen
and maintained
time of the sale
recognize
possibility
regard,
In this
we
the new
during
employment with
of Jensen with old
the identification
disagree.
company.We
dissipate to the same ex-
Reed Mill did not
regard to shareholders
as it
tent
did
that the
agreement states
Hence,
employ.
it is
buyer did not
whom
necessary to
covenant not
*5
that, although
Reed Mill had
conceivable
new
the
continuation of
business.
ensure
the
company's
the
years
three
convert
had
And, indeed,
good
the
will
buyer purchased
own,
was in a better
good will to its
and
locality,
to old Reed Mill's
that was incident
it had been
regard
in that
than
position
name,
and re-
expectation of continued
and
sale,
may have
immediately after the
pur-
It
by its customers.
peated patronage
ability
Mill's
greater
a
risk to Reed
posed
from its own-
company's good will
chased the
enjoy
good
than did the
that
will
continue
owner, Jensen
was an
ers. Because Jensen
had remained com-
shareholders who
former
of the amount
pro
rata share
received
marketplace.
pletely out of the
buyer paid
good
for that
will.
employ Jensen
Mill continued to
But Reed
enjoy-
protect
its
Buyer
entitled to
was
years
noncompeti-
the
three
after
for another
and establish itself
good
of that
will
ment
the other former share-
obligations
tion
of
from the
industry
competition
the
without
Thus,
question
pre-
as
expired.
holders
protec-
company or its owners. Such
former
not whether
to the trial court was
sented
noncompeti-
by
period
of
was afforded
tion
inception,
at its
agreement was enforceable
former owners from
prevented
that
tion
rather,
years after
beginning six
whether
but
will,
company's good
benefiting from the
will,
buyer purchased old Reed
that
gave buyer time to convert
years of
yet
three
another
enforcement
own,
dissipated the extent
to which
and
its
rea-
competition was
from Jensen's
freedom
company with
marketplace
identified
value of
protecting
as a means
sonable
'
the former owners.
buyer'spurchase.
reason-
appropriate
Consistent with
years after the
For the first
three
court considered
analysis,
the trial
competition
ableness
enjoyed
absence of
buyer
nature
ownership, the
owner,
percentage of
including Jensen.
Jensen's
any former
from
after
employment at Reed Mill
addition,
personally
not
Jensen's
In
Jensen did
benefit
experi-
professional
Instead,
purchase,
Jensen's
good will.
as
from old Reed Mill's
the other sharehold-
ence, and the terms of
employees,
emplоyee of new Reed Mill's
one
court
agreements.
noncompete
to convert
ers'
efforts
participated
(1)
that
established
the evidence
found
own,
preserve
pa-
good will to its
buyer to
time for
customers,
years was a
it-
three
past
and establish
tronage of
sufficient
trade,
learn
industry.
during
take over
in the locale
self
the former own-
competition from
time,
be free of
buyer's right
will was
(2)
Mill;
years
three
Reed
ers of
protected.
period
charge"
reasonable
of time and
than
unsupervised
more
and act in an
capacity.
Corp.
itself in
sufficient
establish
the Atmel
v. Vitesse
Corp.,
Semiconductor
(8)
30 P.3d
(Colo.App.2001).
Courts
industry;
why
no valid
there was
reason
noncompete agreement
employee's
have focused
an
degree
shоuld have
more on
(4)
skill,
years;
knowledge,
autonomy,
that extended six
at the time of his
or
rather than
Mill,
termination from
Reed
on his or
relationships
new
Jensen was
her
with customers.
position
management
in a
See Porter
Higgins,
an
Indus.
680 P.2d
position;
(Colo.App.1984)
executive
under
cireum-
(employee's
lack of su
stances,
pose
hardship
pervisory capacity
it would
an undue
dispositive, despite
contacts);
employee's
client
Harrison v. Al
require
Jensen to
that he not
participate
bright, supra,
area in
Colo.App.
which he had
(employee's
skills,
at 304
knowledge,
and li
experience.
findings
Each of
sup-
these
"key
censes made him the
very
man and
ported
supportive
in the record
and is
business").
finding
court's
heart of the
com-
period
noncompetitiоn
mence the
begin-
Whether an
is executive or
ning
years
purchase
six
after
was not
management personnel
question
ais
of fact
reasonable.
Recruiters,
Mgmt.
for the trial court.
addition,
undisputed
it is
that at the Miller,
(Colo.App.1988).
that a and non- goodwill Cross-Appeal was allocated IV. Moot Reed Mill Mill distribut- that old Reed and competition, that. the trial court cor- contends Jensen to its sharehold- of the sale proceeds ed and man- rectly concluded that the executive addition, agreement noncompete ers. § personnel provision 8-2- agerial buyer's offer of em- a condition was not 113(2)(d) However, con- apply. not does mana- in an executive ployment to Jensen agreement was not connected tends that the on the premised capacity, or otherwise gerial and, purchase agreement, there- to the asset have would responsibilities Jensen duties fore, it trial court erred when concluded future. permissi- noncompete agreement was that beginning the rationale 8-118(2)(a). Having § concluded ble under em noncompete when his of Jensen's term it found the trial court did not err when that Reed Mill provide "to ployment ended agreement was unrea- noncompete goodwill into its [Jensen's] time to convert judgment in Jensen's and rendered sonable However, agreed buyer paid an own." favor, question that this is moot. we conclude will, old Reed amount based on of each good will on the relative not based Attorney Fees V. shareholder, assuming could be even the trial also contends Indeed, are no Colorado there the case. awarding attorney him by not court erred employer's recognized an have cases that pursuant prevailing party fees as the by an good will created right protect noncom- fee-shifting provision included employer's relationships with employee's disagree. agreement. pete We Medtronic, Inc., 770 Prow v. customers. Cf. Cir.1985). (8th F.2d counterclaims, alleged, In his noncompete things, among other stated agreement explicitly (1) initio, part noncompete agree- void ab purpose 8-2-118(@2)(a); vio- § ensure the continuation it violated ments was to being assets Act of regard to the Antitrust lated the Colorado supports 6-4-101, as a seq., the evidence purchased. et C.R.S. violation, agreement was to that the he was entitled consequence. conclusion 6-4-114(2), $ will, C.R.S. fees under buyer's purchase *7 strategies high-level 2006; business wrongful a interference was manage- an executive or knowledge to which In his expectations. his future business with for the relief likely have access. for relief he asked prayer rial would [cJounterclaims, including in his "prayed for court's Accordingly, we conclude fees[,] costs, attorneys and such reasonable noncompete agreement finding that Jensen's may he be entitled." relief which other the busi- the sale of in connection with contained counterclaims answer and Jensen's as a not with Jensen's ness and fee-shifting agreement's no reference to Reed Mill was manager of old general provision. clearly erroneous. order, management In the trial trial court Because we conclude noncom- it ruled that the should be rescinded not err when did claimed motion for fraud. Jensen's in connec- due Vranian's was unreasonable pete agreement judgment notwithstand- verdict and directed of the tion with that the sought a declaration ing the verdict agreement was not that the also conclude void, he had been and that agreement was employment, we connection with Jensen's for attor- discharged. He asked wrongfully contention be- address GBM's need not wrong- tort of shareholder, only in relation to the ney fees minority we cause and, no reference discharge, again, made ful be ana- agreement must rule that the should disclosures, agreement's fee-shifting provision. clent and whether fees incurred management order The trial also stated that after an offer of settlement and awarded as prayer attorney for Jensen would raise his comparing costs should be considered when practice. post-trial fees in motions recovery the offeree's with the settlement offer). These authorities are not relevant However, motion did not include Jensen's request his for appeal. except fees on And attorney request that he be awarded fees cases, for his citation to these Jensen did not fee-shifting provision in based on the state a request. basis for his granting agreement. In the order motion, court ordered that each side Thus, comply because Jensen did not with pay attorney fees. would its own And Jen- provides legal authority C.A.R. 39.5 and post-trial sen did not file a for relief motion or relevant regarding case law his asserted under C.R.C.P. 59 or for relief from the right appellate attorney fees under judgment under 60 as to that order. C.R.C.P. agrеement, we also decline to address this judgment After the court entered his fa- request appellate fees. vor, § he filed bill of costs under 13-16- Judgment affirmed. 54(d). C.R.S. and C.R.C.P. How- ever, attorney he not file a motion for did Judge CASEBOLT concurs. 1-22.2(a). by § required fees as C.R.C.P. 121 Thus, although during Jensen asserted Judge specially J. JONES concurs. argument appeal oral on that he asked the Judge speciallyconcurring. J. JONES attorney trial court for fees under the terms agreement, of the the record contains no I, III, IV, I concur in Parts of the V request. majority opinion. respectfully I disagree, He now asserts that the trial court erred however, analysis question of the legal when it him did not award fees enforceability of Jensen's covenant not to agreement's fee-shifting provision. under the compete in Part II majority opinion. pursue But because Jensen did not an award view, my latency it is not which attorney fees in the trial court in the (I renders the covenant unreasonable believe 1-222, required manner C.R.C.P. 121 aspect reasonable), of the covenant is we decline to address this contention. length but rather period during (three competition prohibited years) Further, Jensen's answer brief and and the size of geographic area in which opening cross-appeal brief on did not ask for competition prohibited during that three- an award of the fees he incurred in (within year period 100 miles of Reed brief, appeal. reply argued In his Denver). place the first time that he should be awarded fees conclude, I for reasons different from those trial, he incurred not but also in his relies, which the the cove- However, appeal. requires CAR. 39.5 unreasonable, nant I judg- concur party claiming attorney fees incurred in the ment. them, appeal specifically request and to request, party's state the for the *8 basis I. Standard of Review principal appellate brief in the court. In support request only of his cites parties stipulated The during trial that the 121; Gertz, C.R.C.P. Voller v. 107 P.3d enforceability 1129 issue of the of the covenant not 2004) (Colo.App. (pertaining wage to claims compete to by would be determined the court 8-4-101, 2006); § seq., under et C.R.S. jury "as matter of law" in the event the Homes, Inc., Chartier v. Weinland 25 P.3d found that Jensen had breached the cove- 2001) (Colo.App. (addressing Thus, 1279 whether nant. issue was in decided attorney may the amount of fees be deter context of motion for a directed verdict court, by jury mined motion, whether the under ruling C.R.C.P. 50. In on that plaintiff's claim for fees should be the trial court found that the facts relevant to untimely disallowed because of and insuffi- enforceability the issue of "undisputed." were
741 protection to the interests of provides a fair an issue court decides the trial Where reasonably protect in purchasing party of a facts in the context undisputed on based bought." Gibson w. ing [it] that which verdict, a directed our motion for 50 C.R.C.P. Eberle, 777, (Colo.App.1988) 762 P.2d 776 novo. Omedelena that issue is de review of Co., McMurtry Mfg. 54 (citing Barrows v. Inc., 717, 722 60 P.3d Options, v. Denver (1913)). 438-40, 430, 432, 131 P. 432-33 Colo. Webster, P.2d v. 832 (Colo.App.2002); Evans Moreover, hardship imposed on the cove- Further, ulti 951, (Colo.App.1991). 954 Whittenberg v. nantor must not be "undue." a covenant nоt question of whether mate 418, 420, 228, Williams, 135 P.2d 110 Colo. law, of is one compete is enforceable (1943). 229 Bank novo. See Central review de we (Ala.1983) 70, Beasley, 439 So.2d 73 v. South hindsight, in concludes compete (enforceability covenant not it is unreasonable because the covenant here are material de novo where reviewed passed had triggered not until six facts 517, Morris, Ariz. 122 Gann undisputed); v. effect, there- from the date of the sale. (reasonable 43, (Ct.App.1979) 44 596 fore, majority finds the covenant unrea- question compete is a covenant not ness of an indefinite because it contained sonable law); Raymundo v. Hammond Clinic is, it latency could be period-that (Ind.1983) (same); 276, Ass'n, N.E.2d long contin- triggered no matter how Estate, Inc., & Real v. Ins. company Bowen Carlsbad after the ued to work for the sale. (1986) 223, N.M. 724 P.2d disagree approach. with that I (same). enforcing ancil purpose of covenants "The find accept a trial court's lary we should of a business is to make the
While to the sale conveyed 'a saleable by good will of the business supported fact if ings historical buyer enjoy in by record, protecting asset Chapman Willey, v. 134 P.3d see " (Gibson, pays." that for which he made no ment of the trial court (Colo.App.2006), Corbin, A. case, supra, (quoting at 779 6A 762 P.2d conclusions findings (1962)). Therefore, § 1887 Where seller Contracts undisputed facts. law based on purchased busi rulings on whom some measure to the court's no deference we owe reposed continues to work ness's will is v. Feed before us. Weed the issues Monfort after the purchased business Lots, Inc., 402 P.2d 156 Colo. enjoyment fully protected (1965); Vu, is not Ocean Mar Pacific pays-the will- Inc., that for which he (Colo.App. ketplace, by This is because merely virtue of the sale. Evans, 2001); at 954. supra, 832 P.2d extent, may, remain to some seller-employee while he con reposed in the II. Discussion Indeed, a company. to work for the tinues majority's conclusions agree I with the hope buyer may purchase a business (1) not covenant to use that the seller will continue conjunction the sale of to in with agreed company following will for the benefit Mill, by the permitted therefore Reed and is the sale. 8-2-118(2)(a), § C.R.S. plain language of it, put court has As one 2006; the covenant not of a for the seller is not at all unusual employment agreement, [t part of an was not in an enterprisе join the new statu permitted and is therefore are obvious 8-2-118(@2)(d), capacity. There C.R.S. tory exception flow from advantages sides which manage to both executive and pertaining to pur- case, arrangement. It enables such an in this as personnel. ment carry the old business observes, chaser majority correctly enforceabili *9 and loss possible dislocation the least turns on whether ty of the covenant of in the eustomers good will. Established In the context of is "reasonable." covenant patron- expected to sold could be ancillary to the sale of a covenant And such an business. ize the successor the reasonableness test to determine "[tlhe seller with the provides the arrangement the restraint covenant] such is whether [a of 742 productive in
opportunity any to be the work invalidating aware of case such cove familiar, gain with which he is and to in- latency period. nant on the basis it included come. Though asserts "there Alexander, Danahy, Inc. v. 21 Alexander & recognized are no Colorado cases that have (1986) 488, 22, Mass.App.Ct. 488 N.E.2d 28 an employer's right protect good to will ere- added). {emphasis by employee's ated an relationships with the therefore, case, as a matter of customers," employee's protection good of reality, portion economic of some through will created relationships such good possessed presumably will frequently implicit enforcing rationale for reposed remained in him not- compete ancillary covenants not to to em after withstanding that the "owned" it. See ployment many covenants, in cases. Such Alexander, supra, Alexander & 488 N.E.2d by typically their nature include laten reality, at 29. Given this economic the focus cy periods, may necessary fully be protect to inquiry of the reasonableness should be on employer's an good interest in generated will whether the covenant is no broader than through relationships, regardless necessary protect to interest in See, good acquired. when that will e.g., retaining in good will the event Jensen's 227, Albright, Colo.App. Harrison v. 40 577 company association with the were to cease. P.2d 302 (affirming grant injunctive enforcing relief compete trig covenant not to
By
lateney period
virtue of the
in Jensen's
gered by
company
еxit from the
where evi
compete,
buyer pur
covenant not
to
dence that defendant had taken several of
protection
good
chased
for its
interest
company's
irreparable
customers
which,
showed
will in the form of a
in
time
injury).
generally
Blake,
See
Harlan M.
following Jensen's disassociation from the
Employee Agreements
Compete,
Not
company,
attempt
capture
Reed Mill could
(1960) (customer
Harv. L.Rev.
653-67
itself,
independently,
entirely for
whatev
relationships,
including those
Jensen,
created and
reposed
er
will was
in
without
any
by covenantor-employee,
interference from
latency
Jensen. Such
nurtured
constitute
justification
one historical
enforcing
cove
periods may
adequately
pro
be essential
nants not
to compete ancillary
employ
purchaser's
tect the
interest
will. So
ment);
(Second)
Restatement
long
Contracts
employed
compa
as the seller is
g (preventing employee
188 emt.
ny,
from at
compete
a covenant
unnecessary
not to
tracting
away
employer
customers
from
one
protect
that interest
employ
because the
covenants).
rationale for enforcing such
duty
loyalty precludes
ee's common law
any competition
employer.
with the
Jet
jurisdictions
Courts
other
have enforced
Serv.,
Mulei,
Courier
771 P.2d
covenants not to
which include la
(Colo.1989).
buyer,
492-93
For the
there
tency periods
agreements
where such
are
fore,
critical
concern is how to
See,
ancillary to
e.g.,
sales of businesses.
it purchased
will
after
the seller-em
Lueth,
Corp.
Business Records
981 F.2d
ployee
may
reposed
whom
be
(7th
Cir.1992) (covenant
959-62
in effect
longer employed by
company.
A from
years
the later of three
after the sale or
covenant not
triggered
which is
years
two
employment;
after termination of
upon
employee's
disassociation from the
company
years
left
six
after
company
addresses
concern. See Cen
sale);
Bank, supra,
Central
at
So.2d
71-
Bank, supra,
tral
Our
court
years
has enforced covenants
years
after the sale or two
after termi
nation
employment);
compete containing latency periods
Alexander & Alex
See,
ander,
e.g., Zeff,
(cove
contracts.
supra,
Far
tion with a contract respectfully See I disagree with majority's Co., Lesser, Inc. v. F.Supp. Roto-Die 899 point, rationale on that I concur the result. (W.D.Va.1995) 1515, (applying Virginia 1519
law); Inc., Fletcher/Mayo/Assocs., White v. 203, 746, (1983);
251 Ga. 303 S.E.2d 749-50 Serv., Coskey's Tel. Radio & Sales &
Foti, 626, 789, N.J.Super. 602 A.2d 793- (App.Div.1992); Alexander & Alexander
Servs., 1066, Maloff, 105 A.D.2d (1984). Regardless
N.Y.S.2d 387-88 serutiny appropriate, which level of is howev BLACK, LLC, Virginia Srednicki, JET E. er, I cannot conclude that the covenant Srednicki, is Richard J. Storm Mountain Ranch, reasonable. LLC, Mary Allen, Rayner, K. David eryl Rayner, Carol, Cynthia Jim Ch above, As noted it is well-established that a Carol, Barry Gafner, Gafner, Annette covenant not to if it unreasonable Temple, Enterprise Jeff Floren Limited hardship works an undue on the covenantor. Partnership, Kartsotis, Lynne Tom Siders, Knoebel Mercantile Co. v. 165 Colo. Kartsotis, Family Trust, Link Michael 393, 399, (1968); Whitten Salsbury, H. Triptow, Ogilvie Donna H. berg, supra, at 110 Colo. P.2d 229. Family Trust, Reed, Sherry Randall hardship worked on Jensen virtue of Reed, D. Petitioners-Appellants, undue, light the covenant is particu Zeff, lar facts here. See Farrington & As socs., supra, 168 Colo. at at. ROUTT COUNTY BOARD OF COUNTY (reasonableness of covenant not to COMMISSIONERS, Respondent- case). depends on the facts of the Appellee, previously noted, As paid Jensen was $9,857 сovenant, for his while the paid
shareholder was more than ten times Colorado State Board of Assessment that amount. prohibited Jensen's covenant Appeals, Appellee. him from working which he has ever worked for a No. 05CA0511. three in an area within 100 miles of (an place of business in Denver Colorado Appeals, Court of miles). 31,000 area of over square The sum Div. II. $9,857 hardly relieves the burden of com- Oct. 2006. plying with such an extensive covenant. See Mercantile, (covenant supra EKnoebel of two Rehearing Denied Dec. 2006. years duration deemed unreasonable where injury to former from enforcement Aug. Certiorari Denied 2007. outweigh covenant would any benefit employer).
Likewise, paid sum the for that
portion of old Reed reposed strongly suggests gross imba-
lance seope between the of Jensen's covenant necessary
and what
interest in that will. sum, I would conclude that the covenant and, hence, unenforceable, unreasonable
albeit for reasons different from those ex-
pressed by majority. Accordingly,while