Mitchells Salon & Day Spa, Inc. v. Bustle

931 N.E.2d 1172, 187 Ohio App. 3d 336
CourtOhio Court of Appeals
DecidedApril 30, 2010
DocketNo. C-0900349
StatusPublished
Cited by3 cases

This text of 931 N.E.2d 1172 (Mitchells Salon & Day Spa, Inc. v. Bustle) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchells Salon & Day Spa, Inc. v. Bustle, 931 N.E.2d 1172, 187 Ohio App. 3d 336 (Ohio Ct. App. 2010).

Opinions

Hildebrandt, Judge.

{¶ 1} Defendant-appellant Michael E. Bustle appeals the trial court’s judgment finding him in contempt of a court order. The court’s order had adopted an agreed entry enjoining Bustle from providing hairstyling services to clients of his former employer, plaintiff-appellee Mitchells Salon & Day Spa, Inc. (“Mitchells”), for one year. For the following reasons, we affirm.

{¶ 2} Mitchells operates high-end beauty salons throughout the greater Cincinnati area. Bustle was hired by Mitchells in February 1995, soon after he had graduated from cosmetology school. At that time, Bustle had no clients. Bustle signed an employment agreement that contained a noncompete clause. That clause prohibited Bustle, for a period of one year following his cessation of employment with Mitchells, from rendering “any hair care treatment, hair care styling, or related services * * * to any persons who are or were customers of [Mitchells] and with whom [Bustle] had personal contact during the time of [Bustle’s] employment.” Bustle resigned from Mitchells on August 10, 2007, after 12$ years of working there. Bustle then opened his own hairstyling business by renting a booth at Salon Concepts in Montgomery, Ohio.

{¶ 3} Because Mitchells noticed that most of the clients Bustle had previously served at Mitchells had not returned for hair services after Bustle quit, Mitchells [339]*339suspected that Bustle was violating the noncompete agreement. Mitchells sued Bustle in January 2008 in an effort to enforce the noncompete agreement by seeking a temporary restraining order (“TRO”) and a permanent injunction. On February 21, 2008, following a hearing that has not been transcribed for our review, the trial court journalized a TRO prohibiting Bustle from providing “beauty services” to any person to whom he had previously provided services while employed at Mitchells.

{¶ 4} Following the TRO hearing, Mitchells and Bustle were able to negotiate a settlement under which Bustle agreed to be enjoined for one year beginning February 21, 2008, from providing “any hair care treatment, hair care styling, or related services, directly or indirectly” to any person who is or was a customer of Mitchells and with whom Bustle had had personal contact during his employment with Mitchells. Essentially, Bustle agreed to abide by the noncompete clause in his contract. Bustle also agreed to execute letters, prepared by Mitchells, to send to Bustle’s former clients, informing them that he could no longer provide hairstyling services for them and recommending another stylist at Mitchells. Apparently, Mitchells offered these customers a discount or free service if they returned to Mitchells after receipt of the letter. The court accepted an agreed entry, signed by both parties, as an order of the court in March 2008.

{¶ 5} After the letters signed by Bustle were mailed, Mitchells again noticed that many of Bustle’s former clients had not returned despite the fact that free services had been offered. In September 2009, Mitchells then hired a private-investigation firm, Business Intelligence (“BI”), to conduct surveillance to determine if Bustle was violating the agreed entry. As a result of the surveillance report, Mitchells filed a motion for contempt on December 10, 2008, claiming that Bustle was routinely violating the agreed entry.

{¶ 6} At a preliminary hearing on the contempt motion, the trial court indicated that it would treat this case as one involving civil contempt and would not incarcerate Bustle if it was determined that he had violated the agreed entry. With that assurance, Bustle complied with Mitchells’ discovery request and sent a list of clients for which Bustle had provided hair-care services during the injunction period and who were his former Mitchells’ clients.

{¶ 7} At the April 20, 2009 contempt hearing, Bustle admitted that he had violated the noncompete agreement. He also admitted that while it was never his intent, he had also violated the TRO and the court’s agreed judgment entry. He testified that he had trouble saying “no” to his former clients. During discovery, Bustle had provided Mitchells with a list of over 180 names of former Mitchells’ clients for whom Bustle had provided multiple hairstyling services from August 2007 through March 2009. But Bustle claimed that 63 of those individuals were clients whom he had procured on his own while employed at Mitchells and were [340]*340not clients obtained by Mitchells’ efforts or advertising campaigns. Thus, Bustle argued that he was not prohibited from serving those clients. Bustle testified that he had made a profit of $37,471.50, after costs, from former Mitchells’ clients from August 2007 through March 2009.

{¶ 8} Mitchells presented the testimony of James Simon, a licensed private investigator, who stated that BI had spent over 290 hours performing investigative work for the contempt hearing. The fees for its services, which included surveillance and general investigative work (checking over 418 license plates against a Mitchells customer list), amounted to $52,620.67. During BI’s investigation, it recovered a partially shredded calendar from Bustle’s trash. The general manager of Mitchells, Michael Batchelor, testified that the calendar included Bustle’s appointments from May 9, 2008, to June 3, 2008, and that there were 39 former Mitchells’ clients listed on the calendar. Batchelor testified that those 39 names were not included on the list of names that Bustle had produced during discovery. Bustle explained that those names were not included because he had been using a paper calendar until he was able to use his Blackberry device to handle appointments, and because some appointments were accidentally not transferred to his Blackberry or QuickBooks program.

{¶ 9} Batchelor testified that, due to Bustle’s violation of the TRO and the agreed entry, Mitchells had lost profits of $74,101.15. Batchelor reached this figure by reviewing Bustle’s profits from the last year he had worked at Mitchells. From that figure, Mitchells subtracted costs and Bustle’s commission to reach the amount of $74,101.15.

{¶ 10} Finally, Mitchells’ trial counsel testified that Mitchells’ legal fees from the time of the agreed entry through the contempt hearing amounted to $15,801.04.

{¶ 11} On May 1, 2009, the trial court found Bustle in contempt of court and ordered him to purge his contempt by paying $139,521 to Mitchells for attorney fees, investigative fees, and lost profits. The trial court also ordered that Bustle “fully comply with the provisions of [the noncompete clause] of the Agreed Judgment Entry entered herein March 25, 2008 from the date of this Order until April 19, 2010.” Thus, Bustle was prohibited from providing hairstyling services to any person to whom he had previously provided services while employed at Mitchells for 11 months. This appeal followed.

{¶ 12} In the first of his four assignments of error, Bustle contends that the trial court erred by finding him in contempt of the trial court’s order entitled “Agreed Judgment Entry.” Citing Civ.R. 65, which governs permanent injunctions, Bustle argues that the injunction contained in the agreed entry was not valid because it did not state the reasons for its issuance. Therefore, Bustle [341]*341maintains that he could not have been found in contempt for violating the injunction. We disagree.

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Bluebook (online)
931 N.E.2d 1172, 187 Ohio App. 3d 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchells-salon-day-spa-inc-v-bustle-ohioctapp-2010.