Redd Pest Control Co., Inc. v. Foster

761 So. 2d 967, 16 I.E.R. Cas. (BNA) 721, 2000 Miss. App. LEXIS 288, 2000 WL 760945
CourtCourt of Appeals of Mississippi
DecidedJune 13, 2000
Docket98-CA-00755-COA
StatusPublished
Cited by4 cases

This text of 761 So. 2d 967 (Redd Pest Control Co., Inc. v. Foster) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Redd Pest Control Co., Inc. v. Foster, 761 So. 2d 967, 16 I.E.R. Cas. (BNA) 721, 2000 Miss. App. LEXIS 288, 2000 WL 760945 (Mich. Ct. App. 2000).

Opinion

761 So.2d 967 (2000)

REDD PEST CONTROL COMPANY, INC., Appellant,
v.
Wayne FOSTER and Isadore Smith, Appellees.

No. 98-CA-00755-COA.

Court of Appeals of Mississippi.

June 13, 2000.

*969 Robert O. Allen, Sally Burchfield Doty, Brookhaven, Attorneys for Appellant.

Ralph L. Peeples, Brookhaven, Attorney for Appellees.

BEFORE MCMILLIN, C.J., LEE, MOORE, JJ.

LEE, J., for the Court:

¶ 1. Redd Pest Control Company, Inc., filed an action against former employees, Wayne Foster and Isadore Smith, based on the breach of covenants not to compete which were included in each individual's employment contract. Redd Pest was seeking injunctive relief and damages for the breach of the covenant. The special chancellor denied injunctive relief and damages and held that the contracts were unenforceable. It is from this denial that Redd Pest filed a timely appeal and presents the following issues: (1) whether the special chancellor was manifestly wrong in his factual finding that Redd Pest's announcement of increased sales goals served as an "intolerable condition" and warranted Foster's and Smith's claim of constructive discharge, and whether without a constructive discharge, there was a sufficient basis for the chancellor to deny injunctive and monetary relief, (2) whether Foster and Smith tortiously interfered with the business relations of Redd Pest by soliciting and diverting customers to a competing pest control company during the term of their restrictive covenants, and (3) whether Redd Pest offered sufficient proof at trial that it suffered substantial monetary damages. Finding the first issue to have merit, we reverse and render and grant the requested injunction; however, we remand this case to the Chancery Court of Lincoln County for a determination of the reasonableness of the terms of the covenants and the extent of damages suffered by Redd Pest.

FACTS

¶ 2. Redd Pest operates a pest control business with numerous offices located in Mississippi, as well as other states. The events which are the subject of this appeal focus on former employees of an office located in Brookhaven, Mississippi. In consideration of their employment with Redd Pest, Foster and Smith signed an employment contract.

¶ 3. Foster signed the employment contract on October 1, 1980. Smith signed the employment contract on July 28, 1965. The employment contracts contained a covenant not to compete. The covenants not to compete were substantially similar and essentially required that if Foster and Smith ceased to be employed by Redd Pest, they would not compete with Redd Pest in the counties which they formerly worked, in any manner, for a period of two years. Subsequently, Foster and Smith were employed with Redd Pest for numerous years. The following is a statement of the facts that lead to Foster's resignation and Smith's retirement from Redd Pest, and their subsequent employment with Tom Smith.

¶ 4. James R. Waitress, the Director of Human Resources and Risk Management, testified that in 1996, Redd Pest was suffering financial problems. Estimates reflected that Redd Pest was going to suffer a financial loss of between $365,000 to $400,000 in 1996. Since the company was financially strained, it hired a consulting firm to assist in improving its financial situation. Waitress further testified that commencing October 1996 and continuing through November 1996, the consulting firm worked with Redd Pest in developing a business plan.

¶ 5. The business plan was a three year plan. One facet of the plan set route goals for the technicians of Redd Pest. The plan set a goal of $7,500 for each technician's route. In January of 1997, Foster and Smith attended a meeting where they were informed of the financial condition of Redd Pest. On March 13, 1997, Foster and Smith attended another meeting concerning the financial condition of Redd Pest.

*970 ¶ 6. In the March meeting, Foster and Smith received letters that had been drafted by Jim Waitress, which informed them that Redd Pest was beginning the process of increasing the requirements regarding the income each route produced. The letter noted that it was necessary for each pest control route to produce $7,500 a month in revenue in order to be profitable, and that any routes not currently at that level must be increased. The letter went on to note that Foster's and Smith's routes were not at this level of production, and that they must start the process of increasing their routes to reach this goal. The letter acknowledged that this goal could not be reached overnight; however, during the months of March, April, May, and June they would begin the process of building their route. It was expected that their routes would be increased by $200 a month for the next three months. Ultimately, this meant an increase of $600 by the end of June 1997. Additionally, Frank Barkdull was given the responsibility of assisting Foster and Smith in achieving this goal. The letter concluded by stating that if they were unable to achieve the growth required, it would be necessary to eliminate their position and combine existing routes until the goal of $7,500 was reached. Shortly after receiving this letter, Foster and Smith left Redd Pest.

¶ 7. The record reveals that Foster terminated his employment with Redd Pest by way of resignation on March 21, 1997. Additionally, the record reveals that Smith terminated his employment by retiring from Redd Pest on March 31, 1997. On April 1, 1997, Foster and Smith became employed by another pest control business located in Brookhaven, Mississippi, known as Tom Smith Pest Control.

¶ 8. The record discloses that approximately seventy-one of Foster's former customers at Redd Pest became customers of Tom Smith. Of these seventy-one customers, approximately twenty-five of Foster's former customers were serviced by him on April 1-2, 1997. Testimony regarding Smith's route established that between thirty-nine to fifty of his seventy-five former Redd Pest customers were service by him as a technician for Tom Smith. Jim Waltress projected that Redd Pest had suffered a projected gross loss of income of $32,440.50 due to Foster's resignation and subsequent employment with Tom Smith, and Redd Pest had suffered a projected gross loss of income of $17,960 from Smith's retirement and employment with Tom Smith. Based on Foster's and Smith's employment with Tom Smith, Redd Pest filed a complaint against both gentlemen asserting breach of the non-compete clause in the employment contract and tortuous interference with business relations.

¶ 9. Redd Pest originally filed separate complaints against Foster and Smith; however, later, these actions were consolidated and one trial was held. Essentially, Redd Pest requested an injunction and damages against Foster and Smith and asserted that Foster's and Smith's employment with Tom Smith was a breach of the covenant and caused a loss in sales because of the loss of existing and potential customers.

¶ 10. The chancellor held that the March 13, 1997 letter issued to Foster and Smith was arbitrary and capricious; therefore, it was inequitable for Redd Pest to enforce the non-competition provision. Additionally, the chancellor held that Redd Pest failed to meet its burden of proof and denied relief in the form of an injunction or damages against Foster and Smith.

DISCUSSION

I. WHETHER THE SPECIAL CHANCELLOR WAS MANIFESTLY WRONG IN HIS FACTUAL FINDING THAT REDD PEST'S ANNOUNCEMENT OF INCREASED SALES GOALS SERVED AS AN "INTOLERABLE CONDITION" AND WARRANTED FOSTER'S AND SMITH'S CLAIM OF CONSTRUCTIVE DISCHARGE, AND WHETHER *971

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761 So. 2d 967, 16 I.E.R. Cas. (BNA) 721, 2000 Miss. App. LEXIS 288, 2000 WL 760945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redd-pest-control-co-inc-v-foster-missctapp-2000.