*1 litigation related to the successor trust petition declaratory judgment ee’s for a attorney
which the allegedly gen fees were Thus, Hope’s
erated. Home of claim for
attorney particular fees inwas need of evi-
dentiary support, evidence which Home of
Hope present has failed for our consider Accordingly, Hope’s
ation. Home of eviden
tiary omissions are taken as favorable to the 624[3]; Delf, See 651 S.W.2d at Lake,
Shadow 893 S.W.2d at This 839[7].
court will not convict the trial court of a denying
manifest abuse of discretion for Hope’s
Home of application attorney for fees applicant impossible
when the has made ruling. us to review the trial court’s
Point III is denied.
MONTGOMERY, C.J., J., PARRISH,
concur. BROADCASTING, LTD.,
WEST GROUP Corporation,
a Missouri Plaintiff-
Respondent, BELL, Defendant-Appellant.
Danielle M.
No. 20785. Appeals,
Missouri Court of District,
Southern
Division Two.
Feb. Rehearing
Motion for and Transfer 5, 1997.
Denied March *2 Employee will Employer, the
with the way in Employer from the tower mile radius a 65 air within in Employer’s radio station location Missouri, peri- within a City, Joplin/Webb termi- resignation or days from od of 180 employment.” nation “the provision as refer to We henceforth noncompete covenant.” 1, 1995, Bell left West’s September On 9,1995, employment. On October at KSYN as an announcer employment by Big operated Mack station Joplin, a radio (“Mack”). Broadcasting, Inc. Mack seek- sued Bell and promptly alia, injunction enforcing the an
ing, inter hearing evi- noncompete covenant. After dence, preliminary court issued a the trial injunction. later, fur- the trial court heard weeks
Six perma- whether a to determine ther evidence injunction be issued. At the should nent the suit hearing, West dismissed start of that court is- Mack.1 The trial thereafter as to injunction barring Bell permanent sued a any employment “[ejngaging from February industry prior to broadcast Fleischaker, Roberts, J. Fleischak- William radius from West a 65 air-mile within er, Williams, Powell, Joplin, for Wilson & Missouri.” Group’s tower location defendant-appellant. injunc- brings appeal from that Bell this Dolence, Dwyer, Spencer, Scott & John S. tion. P.C., Joplin, plaintiff-respondent. this briefing completed, After SHRUM, Judge. This injunction expired. had noted the court directing thereupon an order court issued (“West”) Group Broadcasting, Ltd. why appeal should not cause Bell to show Joplin operates radio stations three as moot. be dismissed area, January of which is KXDG. On one (“Bell”) M. Bell West hired Danielle pre- pointed that the response, Bell out for KXDG. The contract an announcer post injunction required West liminary provision: employment included this $1,500 payment by West conditioned on bond Bell damages and costs incurred of all agrees that Employee “[T]he injunction was dis- preliminary the event the resigns or is otherwise ter- event ... she in- permanent of a without issuance ... her solved minated lawyer West and themselves.” told the trial court that 1. West’s among their differences Mack had “resolved 92.02(c).2
junction. format, See Rule i.e., insisted name “Hurricane Hannah.” The permanent that if this court were to type played, hold the music was “hot country.” injunction issued, Hannah, should not have been As Hurricane Bell worked her- liability on the bond “remains a viable self without co-announcer. Asked to de- show, *3 issue.” explained played scribe her music, recorded recording talked about the There are at least suggest two cases which subjects, artists and other telephone received might West be liable on the bond this court listeners, calls from and conversed with the were to hold the trial court in granting erred callers on the At air. the time she left injunctive They West relief. are: R.A. Vo employ, ratings” the “Arbitron Construction Co. v. Black Jack Fire rhof rating” showed she had the “number-one Dist., (Mo. 588, Protection 454 S.W.2d 595-96 Joplin metropolitan the market for her time App.1970), and Corp., Mercury Brunswick slot. 950, Marine Div. v. Hering, 619 952 S.W.2d (Mo.App.1981). Accordingly, there pay is still a Advertisers West to broadcast com- ripe issue. The is not messages case moot and we will mercial during programs. KXDG’s decide the issues on Hering, the merits. See money charges amount of West the ad- S.W.2d vertisers is people based on the number of who listen to That KXDG. number is estab- scope judge-tried of our review in this ratings. lished If Arbitron the rat- 73.01(c) ease is set forth Rule as construed ings show an increase number Carron, 30, in Murphy v. 536 S.W.2d 32[1] listeners, KXDG’s the advertis- West raises (Mo.banc 1976). judgment trial rates; ing ratings if the show a decrease in court will be affirmed unless there is no listeners, West lowers the rates. As suc- it, support substantial evidence to unless it is Swint, cinctly explained by general Paul against evidence, weight unless it manager Joplin, of West’s stations in “[Lis- erroneously law, declares the or unless it ratings, ratings teners mean mean dol- erroneously applies the law. lars.” Analysis of requires Bell’s claims of error Upon commencing employment at KSYN them, an account of narrating the facts. (39 days KXDG), leaving Bell was as- credibility we are mindful that of the wit signed shift, the 5:30 until 10:00 a.m. broad- weight given nesses and the to be their testi (which casting wrote), conversing news mony court, awas matter for the trial which (who played with the show’s male host re- none, part, free to believe or all of the music), “contemporary” corded partici- testimony any Harl, witness. Herbert v. pating answering with him in telephone calls (Mo.banc 1988). 757 S.W.2d 587[1] We KSYN, At listeners. Bell broadcasted testimony assume the trial court believed the under the name “Robin Kane.” Delk, consistent with its Tubbs v. (Mo.App.1996); 455[2] S.W.2d Mat point Bell’s first relied on asserts: Moore, (Mo. thews v. 911 S.W.2d 668[3] enjoining “The trial court erred in ... App.1995). Consequently, accept we as true ... engaging Bell from the evidence and inferences from it favorable prior the broadcast to Febru- judgment disregard contrary evi 29, 1996, ary within a 65 air-mile radius C.A.G., dence. T.B.G. from ... Group’s tower location in (Mo.banc 1989). 654[2] judgment Missouri because said viewed,
So
supported by any
the evidence establishes that
was not
evi-
substantial
West,
during
employment by
her
Bell be-
dence
the evidence ...
failed to
regular
jockey”
came
“disc
on the “seven-
...
legally
show
had
show,”
to-midnight
protectable
under the
‘customer contacts’ which enti-
(1996).
2. Rule references are to Missouri Rules of Civil
Procedure
employment,
after termination
not to com-
ers
its covenant
tied it to enforce
court declared:
by enjoining her from
... Bell
pete with
competi-
working
an announcer for
de-
of reasonableness
“The determination
tor.”
competing needs
upon the
pends
public.
the needs of the
parties as well as
point
proceed
must
with
Analysis of this
(1)
employer’s need
These needs are:
in mind.
principles
these
interests,
protect
business
by employees not
Covenants
lists,
customer
secrets and
as trade
such
after termi
employers
their
(2)
living,
employee’s need to earn
longer con
employment are no
nation of
(3)
public’s need
secure
Missouri,
they
yet
trary
public policy
pool[J”
in the labor
employee’s presence
*4
in this state. Furni
are not favored
still
3],
874[2,
at
Id.
642,
Corp.
Joseph, 900 S.W.2d
Mfg.
ture
v.
are
(Mo.App.1995). Such covenants
647[8]
is also dis-
of such covenants
Enforcement
they
carefully
because
deal
restricted
v.
Recovery Co.
in Mo-Kan Central
cussed
employ
an
commerce and limit
restraints on
(Mo.App.1984),
396
Hedenkamp, 671 S.W.2d
pursue
to
his or her trade.
ees’s freedom
There,
by Bell.
we learn:
another case cited
Lyon,
Ins. Co. v.
Underwriters
Universal
“
granting
limit the
of
courts
... Missouri
762,
(citing
(Mo.App.1995)
764[2]
896 S.W.2d
narrowly de-
protection to two
equitable
Donovan,
Glass,
Osage
Inc. v.
693 S.W.2d
interests,
employer
cus-
of
fined classes
1985)).
(Mo.banc
following gen
75
...
seerets[.]
and trade
tomer contacts
cannot
employer
attends: An
eral rule still
a
competition ceases
be
The threat of
an enforceable restrictive covenant
extract
by a
accompanied
it
danger, ‘unless
is
real
merely
protect
competi
from the
himself
by
learned
knowledge of trade secrets
Hall,
employee. Herrington
an
tion of
an
during
employment,
his
or
employee
(Mo.App.1981). Ac
151[1]
624 S.W.2d
employee over
acquired
influence
cordingly, even when restrictive covenants
employer.’
‘This
of his
the customers
spa
on future
are reasonable
deny relief unless one
the courts to
has led
they
tially
temporally,
are enforceable
”
present.’
is
those elements
of
of
only
legitimate protectable
if a
employer is served.
Id.
Id. at 399.
this record
thorough review of
Upon
An
of the reasonable
assessment
con
principles, we are
light
in
of the above
requires a
compete
of a covenant not to
ness
merit when
point
first
has
vinced that Bell’s
surrounding
thorough
cir
consideration
present
failed to
that West
asserts
cumstances,
subject mat
which includes the
it had a
evidence that
substantial
served,
contract,
purpose
to be
ter
by enjoining
protectable interest to be served
parties,
the extent of the
the situation
asserts—
working at KSYN. Bell
Bell from
restraint,
specialization of the busi
and the
acquired no
Bell
concedes—that
Herrington,
151[3].
624 S.W.2d
ness.
evidence
from West.
trade secrets
of law
reasonableness is one
The issue of
customers
might exploit KXDG’s
that Bell
agree
subject
according to the
matter
manager,
general
Swint.
came from KXDG
House
existing circumstances.
ment and the
was, “very rec
that Bell's voice
He asserted
Price,
Inc. v.
504
Engineering,
Tools and
recog
might
audiences
ognizable,” that radio
157, 159[5] (Mo.App.1973).
S.W.2d
voice,
“go from
and her fans could
nize her
view,
is
In
that
another.”
our
support of one station to
by Bell in
of the cases cited
One
as
lists or influence
of customer
Bank
not evidence
Grebing v. First National
point
874, and
Grebing,
Girardeau,
613 S.W.2d.
(Mo.App. discussed
Cape
Co.,
Recovery
1981).
671 S.W.2d.
There,
discussing
Mo-Kan Central
covenants
support an
and is not sufficient
employ-
compete with their
employees not to
pur-
absolute restraint on Bell’s freedom to
left station
WSB-TV
station WXIA-TV.
sue her trade.
sought declaratory
Beckman
ruling that his
noncompetition covenant with WSB-TV was
conclusion,
In reaching
ig-
this
we do not
argued
invalid. Beckman
he
arguments
nore West’s
the “customer
personality
and maintained his television
analyses
contacts”
the cases cited
Beckman,
with his own skills and resources.
employer
do not fit situations where an
is in
Therefore,
Id. at 486. employer. employee mer The Beckman case, Beckman, enjoined Georgia Johnny capitalizing image was from on the personality, recognition “Johnny well-known Atlanta television and name Beckman” CROW, Judge, Presiding dissents. his expense former em- case, Bell, In this the mantle ployer. without respectfully I dissent. Hannah, enjoined Hurricane skill, on her talent and voice. capitalizing own holds “did not majority opinion it, both the Florida case and the As we see protectable prove had a factually are Georgia case too dissimilar work- by preventing Bell from to be served deciding this ease. aid ing at KSYN.” Continuing, ignore the we do not dissent’s trial court It must be remembered analysis in Continental assertions working at not bar Bell from KSYN did Scholz, Corp. v. Research noncompete perpetuity. The covenant (Mo.App.1980) apropos to this case. provided the trial court to enforce asked court The Continental said: with- with West that Bell would not goodwill of a the sales “[I]n following 180-day period in a termination frequently attaches to the em- customer employment. personally; sales ployer’s representative product employer’s becomes associated employment September Bell left West’s represen- mind with that the customer’s Octo- at KSYN fre- tative. sales thus preliminary injunction was ber 1995. The position quently special in a to exert a 22,1995. then, By days issued November
influence over the customer and entice that period passed. had away from customer’s business the em- days 43 of had at KSYN for those 81 worked may An ployer. employer properly pro- in violation covenant. against eventuality tect itself such an period injunction reasonable permanent expired of time.” Febru- *6 Thus, ary grant- relief the modest analysis in agree at 401. We that the Id. em- by barred Bell from ed the trial court persuasive if Continental would be Bell had industry in the ployment in the broadcast attempted or the used use Hurricane Han- that, days. Joplin area for 99 After special personality nah radio to exert influ- or other free work at KSYN for was and, Joplin ence over area radio listeners broadcaster. fashion, adversely that West’s affected adver- tising diverting revenue listeners from acknowledges that a majority opinion The However, KXDG to KSYN. as recounted reviewing the court be- court assumes trial above, nothing capitalize Bell did at KSYN to judg- testimony lieved the consistent with image personality on the of the radio devel- ment; ac- reviewing the court consequently, at oped for her KXDG. inferences cepts as true the evidence and judgment careful examination of this After record and disre- from it favorable to the and assessment of the distinctive circum- contrary gards evidence. therein, stances revealed we are convinced judgment includ- Evidence favorable prove did not it had a that West Swint, general manag- testimony by Paul ed by prevent-
protectable interest to be served that Bell’s er West’s stations working from at hold ing Bell KSYN. We recognizable” fans “very is and her voice this restrictive cove- that the enforcement of go “can from station to other.” one under the circum- nant was reasonable stances. Wendt, jockey Barry KXDG at a disc judgment trial court re- that departure, testified the time of Bell’s “happened versed. into her to run left he recount- restaurant.” downtown at a Wendt ed, news that she had some “She mentioned PARRISH, J., concurs. happy, and make me too probably wouldn’t P.J., didn’t, going CROW, but to work separate opinion. that she dissents continued, Dunaway.”1 Mr. adversely “I advertising Wendt asked affect West’s revenue time, about the and she diverting listeners from KXDG to KSYN it, said that Chuck will take care of or Chuck began broadcasting when she there. said he will take care of it.” majority opinion agrees that the anal- Describing disclosure, his reaction to Bell’s Continental, ysis in supra, would persua- be unhappy, Wendt said: “I was because she’s sive Bell had attempted used or to use the employee, valuable and I that knew she was Hurricane Hannah radio personality to exert us, going to hurt good because she had rat- special Joplin influence over area radio lis- station, ings on our and I didn’t want her and, fashion, teners that adversely affected taking following over to his station .... advertising revenue diverting lis- as soon as she hit very the air—she’s talent- However, teners from KXDG to KSYN. ed, and I knew that that would hurt us.” majority opinion says nothing Bell did capitalize KSYN to image on the of the radio Scholz, Corp. Continental Research personality developed for her at KXDG. E.D.1980), (Mo.App. court said: majority’s analysis ignores evidence favorable to the Charles Duna- goodwill
“[I]n the sales of a way2 testified approximately there are frequently customer attaches to the em- larger radio markets than Joplin market. ployer’s representative personally; sales relatively Given the Joplin small size of the employer’s product becomes associated market, readily it is although inferable that represen- customer’s mind with that broadcasting at tative. The KSYN as Robin sales is thus fre- Kane, quently position the audience she special at KXDG exert a recognize would influence over the her on customer and entice KSYN as Hurricane Hannah, away customer’s they business to whom the em- had listened a few ployer. An employer may properly pro- weeks earlier on KXDG. against tect eventuality itself such an for a evidentiary support There is for that infer- period reasonable of time.” general Swint, ence. manager, KXDG’s tes- Although passage deals with a sales day tified that the first Bell was on the air at representative, analysis apropos here. KSYN, *7 people reported three or four himto Because popularity Bell working “Hannah’s on KSYN.” Swint KXDG, with broadcasting listeners while added, myself.” “I heard her in position she was to away entice listeners West’s noncompete evidence showed cove- to KXDG KSYN when she nants broadcasting are common in the indus- pointed by there. As out disc try. Georgia The and Florida cases dis-
jockey show, “I midday Wendt: do the majority cussed in opinion the demonstrate morning [Bell] does the show over there [at noncompete is so. The covenant Bell KSYN], usually your So morning your is signed when West hired her is similar to the your show, midday lead into people go so if covenants in geographical those cases as to over there and to in mornings, listen her the area and duration. they might stay middays.” there majority majority opinion The opinion recognizes relies on factual dif- that if a increase, radio ferences between the instant station’s listeners case and the its advertis- rise; ing decrease, Georgia justification rates its Florida cases as for listeners advertising Consequently, allowing noncompete rates fall. Bell to violate the even cove- though personal me, Bell had no contact nant. with To those are in differences advertisers, degree, it is obvious she could not substance. Mack, 1, Dunaway part supra. Charles R. owner of 2. Footnote operates which KSYN. by the on the imposed the restraint covenant may attained the ce- Bell not have While Ac- Id. at 874[1]. is reasonable. lebrity Geor- status the announcers cording Grebing, to the determination of rea- cases, unquestion- she was gia and Florida competing needs depends on the audience, sonableness ably to able attract a sizeable parties public. and the needs of the ratings. Arbitron demonstrated majority opinion quotes [2]. Id. at evidence, favorably judgment, viewed to [3], identifying segment Grebing, id. amply had a financial demonstrates West those needs. in keeping those listeners tuned following compet- Bell to a KXDG instead Grebing listed The first need ing upon departure. station her protect legitimate busi- employer’s need first addressing Bell’s ness interests. Enforcing covenant would point, I West had a concluded period allowed West a brief introduce have Bell attracted to business interest listeners announcer in to hold the a new an effort KXDG. developed by If audience Bell KXDG. 1, 1996, could not do March so argues protect- Bell that West should have day properly could an- Bell have started more paying her ed such interest KSYN, nouncing at would have had to money. point argues, “Thus one of Bell consequences. suffer the financial balancing strongly against test is resolved [West].” ignores reality It the evidence favor- —and judgment to the hold West had no able —to issue, On that the evidence shows West protectable “legitimate interest” the audi- per Bell hour. A month or hired at $5.00 I ence Bell attracted to KXDG. therefore seven-to-midnight two after she took over point. no merit in find Bell’s first show, per her to hour. West raised $5.50 ratings August, After Arbitron (and final) point Her second reads: and was Bell asked for a raise $6.00 offered later, enjoining resigned. in ... per “The trial court erred hour. a week About she (a student) why, university testi- engaging ... Bell from Asked enough money it getting industry prior fied “wasn’t the broadcast Febru- to conflict school.” ary 65 air-mile within a radius Group’s from ... West tower location in Unquestionably, wages rela- Bell’s were erroneously Missouri de- because However, per hour tively the $6.00 modest. relating applied clared or law en- twenty August, West offered in was forcement restrictive covenants in that salary percent than the at which more acting trial court as a court of was just Further- started months earlier. seven equity required to balance the more, money to to earn more Bell’s desire *8 paties needs of the as well as the [sic] compensate conflict her em- for the between balancing public application and an of that extinguish does ployment her studies not undisputed test to the facts this case right in listen- protect to clearly matter of that establishes as a law KXDG. I find ers Bell attracted to therefore living ... Bell’s need to earn a and the argument merit that the first no in Bell’s presence her in the public’s need secure Grebing test element of the is resolved pool outweighed need of West labor strongly against West. protect any legitimate in- business Grebing listed in The second need terest.” living. earn a Bell as- employee’s need to Grebing, 613 point is on S.W.2d based very also heavi- serts this factor “is balanced majority opinion. Grebing cited in the ly in [her] favor.” by employees that covenants not holds issue, ob- the record reveals Bell employers with their termi- On leav- employment as a waitress after only tained are enforceable nation ing Although KXDG. right, there is no evidence you is that before went about job, what she earned it is work? wages
inferable that her and hours were satisfactory more wages her than her A. Yes. hours at job KXDG. Bell held the waitress 9, 1995, until October when she was hired at Q. you, Yeah. He told worry don’t about KSYN. it, lawyers his will take care of it? Isn’t that what he said? earlier, As injunc- noted the effect of the granted by tive A. Yeah. relief He said he didn’t it the trial court was to believe was enforceable, lawyer, bar Bell from employment in and so the the broadcast legal system industry only for days, would take care of it.” within a “65 airmile radius” of Joplin. West’s tower in out, prophesied As turned what the boss While exclusion from the industry broadcast came true in this court. days Joplin undeniably area firmly I am convinced the trial court nei- ability income, hindered Bell’s to earn it did ther erroneously erroneously declared nor prevent doing her from so. She was applied respect alleged law unquestionably employable waitress, as a point. Bell’s Accordingly, second I would that occupation evidently more attractive affirm the job to her than the left KXDG.
Furthermore, 1, 1996, on March she was
free to return to the broadcast
Joplin. high Because of her rating Arbitron KXDG, her value an announcer in the
Joplin arguably greater area was when the
injunction expired than it was thirteen
months earlier when West hired her.3 Con-
sequently, reject I argument Bell’s that the Grebing
second factor in heavily test is
balanced in her favor.
The final need in Grebing listed is the
public’s employee’s need to secure pres- ence in pool. the labor arguing Other than Missouri, Respondent. STATE of high rating her Arbitron indicates the
public enjoyed performance, her Bell makes attempt no to show that the third factor JACKSON, Robert Appellant. Dean
favors her. Nos. WD WD 52674. In my judgment, the trial court did not improperly equities balance the enforcing Appeals, Missouri Court of noncompete seen, covenant. As we have Western District. knew the covenant barred *9 her from days at KSYN for 180 April leaving praiseworthy KXDG. With candor, she testified: Now,
“Q. you your have talked with new covenant, [at
boss KSYN] about this month, (November 16, 1995), hearing
3. At the first $1,200 salary per testified her at KSYN was