In the Missouri Court of Appeals Eastern District DIVISION TWO
CHEMLINE INCORPORATED, ) No. ED108603 ) Respondent, ) Appeal from the Circuit Court ) of Saint Louis County v. ) 18SL-CC04666 ) TIMOTHY MAUZY ) Honorable Kristine A. Kerr ) Appellant. ) Filed: March 2, 2021
Introduction
Timothy Mauzy (“Mauzy”) appeals from the trial court’s judgment finding him in
contempt of an injunction order that prohibited him from contacting certain customers from his
previous employment with Chemline Incorporated (“Chemline”). The contempt judgment also
assessed a $2,000.00 compensatory fine based on this contemptuous conduct and awarded
Chemline $6,000.00 in attorneys’ fees. Mauzy asserts three points on appeal, arguing the trial
court erred in: finding him in contempt because the injunction order did not clearly,
unambiguously, and expressly prohibit his complained-of conduct (Point I); assessing the
compensatory fine because there was no evidence that Chemline suffered actual damages (Point
II); and awarding attorneys’ fees to Chemline because Mauzy did not violate the injunction order
1 (Point III). We affirm in part and reverse and remand in part for further proceedings consistent
with this opinion. 1
Factual and Procedural Background
For over five years, Mauzy was employed by Chemline as a sales representative.
Chemline required its sales representatives to enter into restrictive covenants, which included
non-competition and non-solicitation provisions. In May of 2018, Mauzy left his employment
with Chemline and began working in a sales capacity at IXS Coatings. Both IXS Coatings and
Chemline are in the business of providing custom coatings for use in industrial and commercial
applications and are direct marketplace competitors.
In December of 2018, Chemline filed a petition for injunctive relief and damages based
on allegations that Mauzy had violated the non-competition and non-solicitation provisions of his
employment agreement. On March 11, 2019, the trial court entered an order of permanent
injunction (“the Order”) prohibiting Mauzy from, in relevant part, contacting five customers with
whom Mauzy had a relationship during his employment at Chemline: Albers Spray Solutions,
Benchmark Foam, the Protective Group/Point Blank, BP Surface Solutions, and Alberts
Industrial Coatings. It is undisputed that Mauzy contacted individuals who were employed by
these customers during the twelve-month period covered by the Order. Testimony found
credible by the trial court established that: Mauzy met Matt Frey (“Frey”) of Benchmark Foam in
person on or about July 10, 2019, and otherwise contacted Frey over thirty times; and Mauzy
contacted Clay Butler of BP Surface Solutions and was contacted by Seth Albers of Albers Spray
Solutions.
1 We deny Chemline’s motion for attorneys’ fees related to this appeal, which this Court ordered taken with the case.
2 On July 19, 2019, Chemline filed a motion for contempt and to show cause alleging that
Mauzy’s interactions with Frey constituted a willful violation of the Order. The trial court found
that Mauzy engaged in willful disobedience of the Order, entered a judgment of contempt, and
awarded Chemline $6,000.00 in attorney’s fees. The trial court also ordered Mauzy to pay a
$2,000.00 compensatory fine to Chemline after finding that Mauzy had interfered with
Chemline’s business relationships, despite also finding “that Chemline cannot demonstrate a
quantified diminution in their business sales as a result of [Mauzy’s] complained-of conduct.”
This appeal follows.
Standard of Review
We review a contempt judgment under the same standard as other court-tried matters,
announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Wuebbeling v.
Wuebbeling, 574 S.W.3d 317, 327 (Mo. App. E.D. 2019). That is, we will affirm the judgment
unless it is not supported by substantial evidence, it is against the weight of the evidence, or it
erroneously declares or applies the law. Id. On review, we defer to the trial court’s credibility
determinations and recognize the trial court is free to accept or reject all, part, or none of the
testimony presented. Id. We view the evidence and inferences therefrom in the light most
favorable to the judgment and we will affirm if the judgment can be sustained on any ground
supported by the record. Id. Moreover, “we will not reverse the trial court’s ruling on a civil
contempt motion absent a clear abuse of discretion.” Id. An abuse of discretion occurs when the
trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and
unreasonable as to shock our sense of justice and indicate a lack of careful consideration. Id.
Discussion
Point I
3 In his first point on appeal, Mauzy argues the trial court erred in finding him in contempt
because his complained-of conduct was not clearly, unambiguously, and expressly prohibited by
the Order. We disagree.
To be found in civil contempt, the record must show: (1) an individual had an obligation
to perform or refrain from some action under a court order, and (2) the individual failed to meet
that obligation. Id. The judgment, order, or decree supporting a contempt charge “must
precisely advise the individual of what conduct is forbidden,” meaning that the directive “must
be so definite and specific as to leave no reasonable basis for doubt of its meaning” and it may
not be expanded by implication in a contempt proceeding. Id. at 328–29 (internal quotations and
citation omitted). Therefore, in reviewing a trial court’s judgment of contempt, we are guided by
the express dictates of the court order which the contemnor is alleged to have disobeyed. The
general rules of construction apply and thus “[w]ords and clauses used in the order, judgment or
decree must be construed in accordance with their natural import.” Carter Cty. R-1 Sch. Dist. v.
Palmer, 627 S.W.2d 664, 665 (Mo. App. S.D. 1982).
i. No reasonable basis exists to doubt that the Order’s directive prohibited Mauzy’s complained-of conduct
Mauzy does not challenge the trial court’s findings regarding his complained-of
conduct—namely, that he was in contact with employees of the prohibited company customers
during the twelve-month period specified in the Order—and only challenges the conclusion that
such conduct violated a clear and unambiguous directive of the Order. Mauzy advances two
arguments for why his conduct was not clearly prohibited and why he cannot therefore be found
in contempt. First, Mauzy contends the Order only specifically prohibited him from contacting
the listed companies and not their individual employees. Second, Mauzy contends the nature of
this contact was wholly personal—not sales- or business-related—and that the Order did not
4 prohibit maintaining personal relationships with individual employees of the listed companies.
We disagree and address each argument in turn.
a. The prohibition on contacting company customers includes the individual company employees at issue here
We first address Mauzy’s argument that he cannot be found in contempt because the
Order only prohibited him from contacting the listed company customers, which does not
encompass individual employees of those companies. In support of this construction, Mauzy
argues that a business entity is separate and distinct from its employees and that, because the
Order only lists the company names, Mauzy was only prohibited from, “for example, sending a
solicitous or introductory letter, fax, or email to the Companies’ attention, appearing at their
physical offices, or calling their general phone line.” 2 We disagree.
Under the circumstances here, the prohibition on contacting the company customers
encompasses the employee contact points with whom Mauzy closely worked. This
understanding is supported by substantial evidence in the record. Indeed, both at the injunction
hearing and the contempt hearing, the parties and their attorneys interchangeably utilized terms
such as the names of the companies, “customers,” “accounts,” and the individual points of
contact to refer to the same conceptual customer entities. For example:
Mauzy’s statements equated the company customers and the individual employee contacts, such as: “I contacted most of the customers that I had become close with ...” followed by “I had known those guys for quite some time, became friends with them…”; and answering the question “[o]ther than Matt Frey at Benchmark
2 Mauzy also supports this argument by contrasting the language covering the companies—whose names are listed— with the language outlining Mauzy’s prohibited actions—which explicitly covers Mauzy and his “agents, servants, and employees or anyone acting on his behalf.” We are not persuaded by this difference in language. It is not reasonably understood that language referring to one individual would include the conduct of any other individual unless specifically stated; conversely, it is reasonably understood under the circumstances here that listing a company name would include sales-related points of contact. Moreover, it is “common practice to make [an] injunction run to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abettors, etc.” so that the enjoined party may not easily circumvent any obligations. Chem. Fireproofing Corp. v. Bronska, 542 S.W.2d 74, 80 n.1 (Mo. App. 1976) (internal quotations and citation omitted).
5 Foam, what other customers listed in [the Order] have you contacted?” with “I have contacted or I’ve been in contact with on occasion Seth Albers from Albers Spray Solutions, and some of the employees at BP Surface Solutions.”
Chemline’s founder and CEO equated Benchmark Foam with Frey by stating “[Mauzy’s] been in contact with Benchmark, who has no problem letting us know that he talks to Tim [Mauzy] almost weekly,” specifically stating that the “he” referred to was Frey.
Mauzy’s counsel equated the company customer accounts and the individual employee contacts, asking Mauzy: “So earlier you testified that you contacted a number of other customers or accounts. Were you contacting these individuals in their capacity as individuals because you considered them friends?”; and “you have not solicited any business from those five companies since March 11? … Indirectly solicit[ed] anything, tried to hint to those people that you wanted them to buy from you?”
In addition, this reading of the Order is reasonable and expected given the protectable
interest at issue. “Customer contacts are a protectable commodity because goodwill develops
between the customers and the employer through its employees whose job it is to meet and
converse with the customer while representing the employer.” Systematic Bus. Servs., Inc. v.
Bratten, 162 S.W.3d 41, 51 (Mo. App. W.D. 2005).
[T]he rationale for protecting ‘customer contacts’ is that, in the sales industry, a customer’s goodwill toward a company is often attached to the employer’s individual sales representative, and the employer’s product or service becomes associated in the customer’s mind with that representative. The sales employee is thus placed in a position to exert a special influence over the customer and entice that customer’s business away from the employer.
Id. (internal quotations and citations omitted). Customer contacts are protectable due to the
personal nature of sales and the effort undertaken by sales representatives to build goodwill with
customers, frequently through individual personal relationships. See Healthcare Servs. of the
Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 611 (Mo. banc 2006) (defining protectable contacts
as “essentially the influence an employee acquires over his employer’s customers through
6 personal contact”) (internal quotations and citation omitted). Here, all parties testified to the
importance of personal relationships in the coatings sales business and to the time, effort, and
money expended to develop close relationships with individual points of contact at company
customers.
Given the above, it would be illogical that the Order’s prohibition on contacting company
customers would only apply to the companies’ formal front offices, as Mauzy contends. Rather,
the Order’s prohibition on contacting customers is reasonably understood to cover both the
formal front offices and the individual points of contact and relationships that Chemline—
through Mauzy—had spent time, effort, and money developing. Accord Systematic Bus. Servs.,
162 S.W.3d at 51–52 (analyzing former employee’s ability “to influence relevant contact
persons” and “decision makers located at Respondents’ customers” during discussion of
restrictive covenant prohibiting soliciting business from Respondents’ “customers”).
Simply because the Order does not exhaustively list the individual customer contacts
covered by the prohibition does not mean it is so vague that Mauzy cannot be held in contempt
thereof. In this regard we find instructive State ex rel. Girard v. Percich, 557 S.W.2d 25, 40
(Mo. App. 1977). In Girard, the court was presented with the question of whether union
members could be found in contempt for adopting a policy of following customers, even where
the underlying restraining order “did not specifically forbid following.” Id. at 28, 34, 40. In
affirming, the court explained that such conduct was included in the order’s express prohibition
on “intimidation, harassment, and coercion of customers,” reasoning that:
[t]he meaning of these terms is clear to one acting in good faith. The court was not required to denominate every type of prohibited conduct which would intimidate, harass and coerce customers. Use of generic terms was sufficient to give petitioners fair warning. If they questioned the permissibility of this practice, the proper course was a motion to modify the order, not reckless disobedience of its literal terms.
7 Id. at 40.
Similar to Girard, we find the meaning of the Order’s prohibition on contacting company
customers “clear to one acting in good faith,” given the way the parties employed the relevant
terms throughout this litigation and given the protectable interest at issue. We therefore find no
error in the trial court’s conclusion that the Order’s express prohibition on contacting the listed
company customers encompassed individual company employees who served as Mauzy’s points
of contact and with whom Chemline spent time, money, and effort developing relationships.
b. The prohibition on “contacting” encompasses all forms of contact, not only those explicitly for the purpose of soliciting business
We also disagree with Mauzy’s argument that the Order’s prohibition on “contacting” the
company customers encompassed only business-related solicitation and not personal
communication. The Order’s express directive prohibited Mauzy from “contacting” the listed
customers, with no limitations.
The Order’s prohibition on “contacting” must be construed in accordance with the natural
import of the verb “to contact.” See Carter Cty., 627 S.W.2d at 665 (words and clauses “must be
construed in accordance with their natural import”). Webster’s Dictionary defines “contact” as a
transitive verb that means “to enter or be in contact with: join” and “to get in communication
with.” Contact, Webster’s Dictionary (3d ed. 2002). Therefore, under the plain terms of the
Order, Mauzy was prohibited from engaging in all forms of communication with the listed
company customers and employee contacts. 3
3 Indeed, Mauzy admitted at the contempt hearing that his argument was not based on the express language of the Order itself: Q [Chemline’s counsel]: “But if I understand your affidavit correct[ly], what you believe that the Court Order says is you couldn’t solicit him? A [Mauzy]: That’s correct. Q: Can you point to this Court Order, and take your time, point to this Court Order and tell me where it says you can contact him but you can’t solicit him? A: No, it doesn’t say that.
8 Although Mauzy argues that a prohibition on all forms of communication is unenforceable,
the enforceability of the Order is not before this Court and a challenge to clarify or modify the
Order should have been brought prior to an appeal from a contempt judgment. See Girard, 557
S.W.2d at 40 (“[i]f [contemnors] questioned the permissibility of this practice, the proper course
was a motion to modify the order, not reckless disobedience of its literal terms”).
Where one has a genuine doubt as to whether his proposed conduct would be violative of the order because of its alleged vagueness, the proper procedure is not to act in reckless disregard of the potential restraint imposed. Once a court of general jurisdiction, having equity powers, issues an order upon pleadings properly before it, the order must be scrupulously obeyed even though it may prove to be erroneous. It is the function of the court in the first instance to judge the legality of its decision and until that decision is modified or reversed it must be respected under pain of contempt. Any attack on the propriety of the order must be by judicial process and not willful disobedience.
Id. at 37–38. Here, Mauzy testified he knew of the Order and its terms, considered
himself bound by it, and did not appeal or otherwise challenge the Order. Therefore, the Order
stands as written and we give its words their natural import. See Carter Cty., 627 S.W.2d at 665
(general rules of construction apply in contempt proceedings and “[w]ords and clauses used in
the order, judgment or decree must be construed in accordance with their natural import”).
We find no error in the trial court’s conclusion that the Order’s prohibition on
“contacting” encompassed all communications.
ii. Because Mauzy’s undisputed conduct violated the Order’s express prohibition on contacting the listed customers, Mauzy can be held in contempt thereof
*** Q: But again I’m not asking your understanding I’m asking where does it say you can contact him but you can’t solicit him? A: I don’t see it in either of these paragraphs [of the Order]. *** A: Again, my assumption was that I could continue to maintain friendships as long as I didn’t solicit their business. Q: But you agree with me that’s not what the Court Order says, right? A: That’s not what’s written.
9 On the record here, there are no reasonable bases to doubt the meaning of the Order’s
express prohibition on contacting the named company customers. Given this conclusion and that
the parties do not dispute Mauzy’s conduct, we affirm the trial court’s judgment of contempt. It
is undisputed that Mauzy’s main points of contact at the prohibited company customers were the
same employees with whom he had built personal relationships for sales purposes and with
whom he was in contact after leaving Chemline; namely, Frey, Mr. Albers, and Mr. Butler. It is
similarly undisputed that Mauzy was in contact with these individuals during the twelve-month
period following the Order, including “talk[ing] regularly” to Frey. Therefore, the trial court did
not err in finding Mauzy in contempt of the Order’s express prohibition on contacting the
company customers during the twelve-month period following entry of the Order.
Point I is denied.
Point II
In his second point on appeal, Mauzy argues the trial court erred in assessing the
$2,000.00 compensatory fine because there was no evidence that Chemline suffered actual
damages as a result of his contemptuous conduct. 4 We agree and remand to the trial court for
reconsideration of the compensatory fine.
“Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for
either or both of two purposes: to coerce the defendant into compliance with the court’s order,
and to compensate the complainant for losses sustained.” Frantz v. Frantz, 488 S.W.3d 167, 172
(Mo. App. E.D. 2016). The latter “compensatory fines” are available in the discretion of the trial
court to compensate the party whose rights were prejudiced by the contempt. In re Marriage of
4 Mauzy asserts the trial court’s judgment in this case was one of civil, not criminal, contempt. Chemline does not contest this characterization and, given the circumstances of this case, we assume the judgment here was one of civil contempt.
10 Hunt, 933 S.W.2d 437, 448–49 (Mo. App. S.D. 1996). Because its purpose is remedial, a
compensatory fine must be related to the actual damage suffered by the complainant for injury
caused by the contemptuous conduct. Id. at 449. Unless is it related to actual damages, an
outright fine is generally “not appropriate for civil contempt because it is not designed to cure
but is intended to punish.” Levis v. Markee, 771 S.W.2d 928, 932 (Mo. App. E.D. 1989).
Chemline argues the compensatory award here was properly based on lost profits and
damaged business relationships, which are inherently difficult to reduce to a specific monetary
value. Although “lost-profits determinations are based on estimations of prospective or
anticipated profits and cannot be expected to operate as an exact science,” Gateway Foam
Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 186 (Mo. banc 2009),
Chemline did not present any evidence of lost profits. As the Gateway Foam court noted, “a
party must produce evidence that provides an adequate basis for estimating the lost profits with
reasonable certainty.” Id. (internal quotations and citation omitted). Here, despite the trial
court’s finding that Mauzy’s willful disobedience of the Order had “weakened and placed
divisions in the relationship between Benchmark and Chemline,” we are unable to find any
evidence in the record of the valuation of such diminished relationships or of other monetary
losses. Most importantly, we cannot ignore the trial court’s express finding “that Chemline
cannot demonstrate a quantified diminution in their business sales as a result of [Mauzy’s]
complained-of conduct.”
Because the trial court expressly found that Chemline could not demonstrate a quantified
diminution in business sales due to Mauzy’s contemptuous conduct and because there is no other
evidence in the record of the value of any resulting loss to Chemline, the trial court had nothing
before it on which to base a “compensatory fine.” See Tashma v. Nucrown, Inc., 23 S.W.3d 248,
11 252 (Mo. App. E.D. 2000) (finding “compensatory” contempt fine improper where complainant
“never testified nor produced any evidence of any monetary loss suffered under the agreement”
and where accountant testified complainant was not owed any money); Levis, 771 S.W.2d at 932
(finding error in “compensatory” contempt fine of $1,500.00 where there was no evidence
amount was compensatory or related to actual damages suffered); Angell v. Angell, 674 S.W.2d
147, 149 (Mo. App. W.D. 1984) (finding civil contempt fine improper where “there [was] no
evidence as to the value of the property which [complainant] contended remained missing … nor
did the order finding [contemnor] in contempt make any finding as to the value of the property
taken and retained by [contemnor]”).
On the record here, the trial court erred in assessing the $2,000.00 fine and we remand for
reconsideration of the propriety of a compensatory fine. See Tashma, 23 S.W.3d at 253
(remanding for reconsideration of monetary sanctions, including compensatory contempt fine);
Angell, 674 S.W.2d at 149 (same).
Point II is granted.
Point III
In his third point on appeal, Mauzy argues the trial court erred in awarding $6,000.00 in
attorneys’ fees to Chemline because he did not violate the injunction order, willfully or
otherwise. We disagree.
In a civil contempt proceeding, a trial court has the inherent authority to assess attorneys’
fees for willful disobedience of a court order “as part of the costs and expenses incurred by the
complainant in the prosecution of the contempt proceedings.” Levis, 771 S.W.2d at 932. We
will affirm an award of attorneys’ fees unless it constitutes an abuse of discretion. Id.
12 The trial court here faced a question of credibility of whether Mauzy believed in good
faith that his actions were not prohibited by the Order or whether he was attempting to
circumvent the letter and spirit of the Order by redefining its terms to suit his needs. On this
matter the trial court specifically found that Mauzy engaged in willful disobedience of the Order
and that, given the “nature of the sales business, [Mauzy’s] belief that he ‘thought he could
maintain friendships as long as [he] didn’t solicit their business’ is a method of circumventing
the intent of the [trial c]ourt’s previous order, which was to refrain from contacting the listed
customers.”
Given our discussion in Point I, supra, regarding the reasonableness of Mauzy’s
interpretation of the Order and his admissions that his “assumptions” about the Order’s meaning
were not supported by its plain text, we are inclined to agree with the trial court’s determination
that Mauzy willfully disobeyed the Order. 5 We cannot say the trial court abused its discretion in
awarding Chemline attorneys’ fees in the amount of $6,000.00.
Point III is denied.
Conclusion
The trial court’s judgment is affirmed in part and reversed and remanded in part. We
affirm the judgment finding Mauzy in contempt of the injunction order and we affirm the related
grant of attorneys’ fees to Chemline in the amount of $6,000.00. We reverse the portion of the
judgment assessing a $2,000.00 fine and remand to allow the trial court to reconsider whether a
compensatory fine is proper here.
5 Mauzy has not pointed us to any evidence in the record showing that his actions—particularly in contacting Frey over thirty times—were not in willful violation of the Order. Indeed, the only statement in Mauzy’s appellate briefing regarding a lack of willfulness is a footnote that states: “Even if the Court would find that Mr. Mauzy’s actions amounted to a violation of the Injunction Order, it would be a further leap to find that not only was it a violation but a willful violation.”
13 ____________________________ Robin Ransom, Presiding Judge
Sherri B. Sullivan, J., and Lisa P. Page, J., concur.