SHRUM, Judge.
West Group Broadcasting, Ltd. (“West”) operates three radio stations in the Joplin area, one of which is KXDG. On January 30, 1995, West hired Danielle M. Bell (“Bell”) as an announcer for KXDG. The contract of employment included this provision:
“[T]he Employee agrees that in the event ... she resigns or is otherwise terminated ... from ... her employment with the Employer, the Employee will not compete with the Employer in any way within a 65 air mile radius from the tower location of the Employer’s radio station in Joplin/Webb City, Missouri, within a period of 180 days from resignation or termination of employment.”
We henceforth refer to that provision as “the noncompete covenant.”
On September 1, 1995, Bell left West’s employment. On October 9,1995, she began employment as an announcer at KSYN in Joplin, a radio station operated by Big Mack Broadcasting, Inc. (“Mack”).
West promptly sued Bell and Mack seeking, inter alia, an injunction enforcing the noncompete covenant. After hearing evidence, the trial court issued a preliminary injunction.
Six weeks later, the trial court heard further evidence to determine whether a permanent injunction should be issued. At the start of that hearing, West dismissed the suit as to Mack.1 The trial court thereafter issued a permanent injunction barring Bell from “[ejngaging in any employment in the broadcast industry prior to February 29, 1996, within a 65 air-mile radius from West Group’s tower location in Joplin, Missouri.”
Bell brings this appeal from that injunction.
After briefing was completed, this court noted the injunction had expired. This court thereupon issued an order directing Bell to show cause why the appeal should not be dismissed as moot.
In response, Bell pointed out that the preliminary injunction required West to post a $1,500 bond conditioned on payment by West of all damages and costs incurred by Bell in the event the preliminary injunction was dissolved without issuance of a permanent in[936]*936junction. See Rule 92.02(c).2 Bell insisted that if this court were to hold the permanent injunction should not have been issued, West’s liability on the bond “remains a viable issue.”
There are at least two cases which suggest West might be liable on the bond if this court were to hold the trial court erred in granting West injunctive relief. They are: R.A. Vorhof Construction Co. v. Black Jack Fire Protection Dist., 454 S.W.2d 588, 595-96 (Mo.App.1970), and Brunswick Corp., Mercury Marine Div. v. Hering, 619 S.W.2d 950, 952 (Mo.App.1981). Accordingly, there is still a ripe issue. The case is not moot and we will decide the issues on the merits. See Hering, 619 S.W.2d at 952.
The scope of our review in this judge-tried ease is set forth in Rule 73.01(c) as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.
Analysis of Bell’s claims of error requires an account of the facts. In narrating them, we are mindful that credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part, or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587[1] (Mo.banc 1988). We assume the trial court believed the testimony consistent with its judgment. Tubbs v. Delk, 932 S.W.2d 454, 455[2] (Mo.App.1996); Matthews v. Moore, 911 S.W.2d 664, 668[3] (Mo.App.1995). Consequently, we accept as true the evidence and inferences from it favorable to the judgment and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo.banc 1989).
So viewed, the evidence establishes that during her employment by West, Bell became the regular “disc jockey” on the “seven-to-midnight show,” broadcasting under the name “Hurricane Hannah.” The format, i.e., the type music played, was “hot country.” As Hurricane Hannah, Bell worked by herself without a co-announcer. Asked to describe her show, Bell explained she played recorded music, talked about the recording artists and other subjects, received telephone calls from listeners, and conversed with the callers on the air. At the time she left West’s employ, the “Arbitron ratings” showed she had the “number-one rating” in the Joplin metropolitan market for her time slot.
Advertisers pay West to broadcast commercial messages during KXDG’s programs. The amount of money West charges the advertisers is based on the number of people who listen to KXDG. That number is established by the Arbitron ratings. If the ratings show an increase in the number of KXDG’s listeners, West raises the advertising rates; if the ratings show a decrease in listeners, West lowers the rates. As succinctly explained by Paul Swint, general manager of West’s stations in Joplin, “[Listeners mean ratings, and ratings mean dollars.”
Upon commencing employment at KSYN (39 days after leaving KXDG), Bell was assigned the 5:30 until 10:00 a.m. shift, broadcasting news (which she wrote), conversing with the show’s male host (who played recorded “contemporary” music), and participating with him in answering telephone calls from listeners. At KSYN, Bell broadcasted under the name “Robin Kane.”
Bell’s first point relied on asserts:
“The trial court erred in ... enjoining ... Bell from engaging in any employment in the broadcast industry prior to February 29, 1996, within a 65 air-mile radius from ... West Group’s tower location in Joplin, Missouri because said judgment was not supported by any substantial evidence in that the evidence ... failed to show that ... West ... had any legally protectable ‘customer contacts’ which enti-[937]*937tied it to enforce its covenant not to compete with ... Bell by enjoining her from working as an announcer for a competitor.”
Analysis of this point must proceed with these principles in mind.
Covenants by employees not to compete with their employers after termination of employment are no longer contrary to public policy in Missouri, yet they still are not favored in this state. Furniture Mfg. Corp. v. Joseph, 900 S.W.2d 642, 647[8] (Mo.App.1995). Such covenants are carefully restricted because they deal with restraints on commerce and limit an employees’s freedom to pursue his or her trade. Universal Underwriters Ins. Co. v. Lyon, 896 S.W.2d 762, 764[2] (Mo.App.1995) (citing Osage Glass, Inc.
Free access — add to your briefcase to read the full text and ask questions with AI
SHRUM, Judge.
West Group Broadcasting, Ltd. (“West”) operates three radio stations in the Joplin area, one of which is KXDG. On January 30, 1995, West hired Danielle M. Bell (“Bell”) as an announcer for KXDG. The contract of employment included this provision:
“[T]he Employee agrees that in the event ... she resigns or is otherwise terminated ... from ... her employment with the Employer, the Employee will not compete with the Employer in any way within a 65 air mile radius from the tower location of the Employer’s radio station in Joplin/Webb City, Missouri, within a period of 180 days from resignation or termination of employment.”
We henceforth refer to that provision as “the noncompete covenant.”
On September 1, 1995, Bell left West’s employment. On October 9,1995, she began employment as an announcer at KSYN in Joplin, a radio station operated by Big Mack Broadcasting, Inc. (“Mack”).
West promptly sued Bell and Mack seeking, inter alia, an injunction enforcing the noncompete covenant. After hearing evidence, the trial court issued a preliminary injunction.
Six weeks later, the trial court heard further evidence to determine whether a permanent injunction should be issued. At the start of that hearing, West dismissed the suit as to Mack.1 The trial court thereafter issued a permanent injunction barring Bell from “[ejngaging in any employment in the broadcast industry prior to February 29, 1996, within a 65 air-mile radius from West Group’s tower location in Joplin, Missouri.”
Bell brings this appeal from that injunction.
After briefing was completed, this court noted the injunction had expired. This court thereupon issued an order directing Bell to show cause why the appeal should not be dismissed as moot.
In response, Bell pointed out that the preliminary injunction required West to post a $1,500 bond conditioned on payment by West of all damages and costs incurred by Bell in the event the preliminary injunction was dissolved without issuance of a permanent in[936]*936junction. See Rule 92.02(c).2 Bell insisted that if this court were to hold the permanent injunction should not have been issued, West’s liability on the bond “remains a viable issue.”
There are at least two cases which suggest West might be liable on the bond if this court were to hold the trial court erred in granting West injunctive relief. They are: R.A. Vorhof Construction Co. v. Black Jack Fire Protection Dist., 454 S.W.2d 588, 595-96 (Mo.App.1970), and Brunswick Corp., Mercury Marine Div. v. Hering, 619 S.W.2d 950, 952 (Mo.App.1981). Accordingly, there is still a ripe issue. The case is not moot and we will decide the issues on the merits. See Hering, 619 S.W.2d at 952.
The scope of our review in this judge-tried ease is set forth in Rule 73.01(c) as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.
Analysis of Bell’s claims of error requires an account of the facts. In narrating them, we are mindful that credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part, or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587[1] (Mo.banc 1988). We assume the trial court believed the testimony consistent with its judgment. Tubbs v. Delk, 932 S.W.2d 454, 455[2] (Mo.App.1996); Matthews v. Moore, 911 S.W.2d 664, 668[3] (Mo.App.1995). Consequently, we accept as true the evidence and inferences from it favorable to the judgment and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo.banc 1989).
So viewed, the evidence establishes that during her employment by West, Bell became the regular “disc jockey” on the “seven-to-midnight show,” broadcasting under the name “Hurricane Hannah.” The format, i.e., the type music played, was “hot country.” As Hurricane Hannah, Bell worked by herself without a co-announcer. Asked to describe her show, Bell explained she played recorded music, talked about the recording artists and other subjects, received telephone calls from listeners, and conversed with the callers on the air. At the time she left West’s employ, the “Arbitron ratings” showed she had the “number-one rating” in the Joplin metropolitan market for her time slot.
Advertisers pay West to broadcast commercial messages during KXDG’s programs. The amount of money West charges the advertisers is based on the number of people who listen to KXDG. That number is established by the Arbitron ratings. If the ratings show an increase in the number of KXDG’s listeners, West raises the advertising rates; if the ratings show a decrease in listeners, West lowers the rates. As succinctly explained by Paul Swint, general manager of West’s stations in Joplin, “[Listeners mean ratings, and ratings mean dollars.”
Upon commencing employment at KSYN (39 days after leaving KXDG), Bell was assigned the 5:30 until 10:00 a.m. shift, broadcasting news (which she wrote), conversing with the show’s male host (who played recorded “contemporary” music), and participating with him in answering telephone calls from listeners. At KSYN, Bell broadcasted under the name “Robin Kane.”
Bell’s first point relied on asserts:
“The trial court erred in ... enjoining ... Bell from engaging in any employment in the broadcast industry prior to February 29, 1996, within a 65 air-mile radius from ... West Group’s tower location in Joplin, Missouri because said judgment was not supported by any substantial evidence in that the evidence ... failed to show that ... West ... had any legally protectable ‘customer contacts’ which enti-[937]*937tied it to enforce its covenant not to compete with ... Bell by enjoining her from working as an announcer for a competitor.”
Analysis of this point must proceed with these principles in mind.
Covenants by employees not to compete with their employers after termination of employment are no longer contrary to public policy in Missouri, yet they still are not favored in this state. Furniture Mfg. Corp. v. Joseph, 900 S.W.2d 642, 647[8] (Mo.App.1995). Such covenants are carefully restricted because they deal with restraints on commerce and limit an employees’s freedom to pursue his or her trade. Universal Underwriters Ins. Co. v. Lyon, 896 S.W.2d 762, 764[2] (Mo.App.1995) (citing Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 75 (Mo.banc 1985)). The following general rule still attends: An employer cannot extract an enforceable restrictive covenant merely to protect himself from the competition of an employee. Herrington v. Hall, 624 S.W.2d 148, 151[1] (Mo.App.1981). Accordingly, even when restrictive covenants on future employment are reasonable spatially and temporally, they are enforceable only if a legitimate protectable interest of the employer is served. Id.
An assessment of the reasonableness of a covenant not to compete requires a thorough consideration of surrounding circumstances, which includes the subject matter of the contract, the purpose to be served, the situation of the parties, the extent of the restraint, and the specialization of the business. Herrington, 624 S.W.2d at 151[3]. The issue of reasonableness is one of law according to the subject matter of the agreement and the existing circumstances. House of Tools and Engineering, Inc. v. Price, 504 S.W.2d 157, 159[5] (Mo.App.1973).
One of the cases cited by Bell in support of the point is Grebing v. First National Bank of Cape Girardeau, 613 S.W.2d 872 (Mo.App.1981). There, in discussing covenants by employees not to compete with their employers after termination of employment, the court declared:
“The determination of reasonableness depends upon the competing needs of the parties as well as the needs of the public. These needs are: (1) the employer’s need to protect legitimate business interests, such as trade secrets and customer lists, (2) the employee’s need to earn a living, and (3) the public’s need to secure the employee’s presence in the labor pool[J”
Id. at 874[2, 3],
Enforcement of such covenants is also discussed in Mo-Kan Central Recovery Co. v. Hedenkamp, 671 S.W.2d 396 (Mo.App.1984), another case cited by Bell. There, we learn:
“ ... Missouri courts limit the granting of equitable protection to two narrowly defined classes of employer interests, customer contacts and trade seerets[.] ... The threat of competition ceases to be a real danger, ‘unless it is accompanied by a knowledge of trade secrets learned by the employee during his employment, or an influence acquired by the employee over the customers of his employer.’ ... ‘This has led the courts to deny relief unless one of those elements is present.’ ”
Id. at 399.
Upon thorough review of this record in light of the above principles, we are convinced that Bell’s first point has merit when it asserts that West failed to present any substantial evidence that it had a legitimate protectable interest to be served by enjoining Bell from working at KSYN. Bell asserts— and West concedes — that Bell acquired no trade secrets from West. The only evidence that Bell might exploit KXDG’s customers came from KXDG general manager, Swint. He asserted that Bell's voice was, “very recognizable,” that radio audiences might recognize her voice, and her fans could “go from one station to another.” In our view, that is not evidence of customer lists or influence as discussed in Grebing, 613 S.W.2d. at 874, and Mo-Kan Central Recovery Co., 671 S.W.2d. at 399, and is not sufficient to support an [938]*938absolute restraint on Bell’s freedom to pursue her trade.
In reaching this conclusion, we do not ignore West’s arguments that the “customer contacts” analyses in the cases cited by Bell do not fit situations where an employer is in the broadcasting business and its employee is an announcer who acquires a corps of listeners while in the employer’s service.
West concedes it is unaware of any Missouri case addressing the enforceability of a covenant not to compete in regard to a “broadcast personality.” It cites us, however, to Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 296 S.E.2d 566 (1982), and T.K. Communications, Inc. v. Herman, 505 So.2d 484 (Fla.App.1987), cases which enforced covenants not to compete in the broadcast industry.
In T.K. Communications, disc jockeys Herman and McBean, a popular morning team at WSHE, moved to WGTR, a rival station. WGTR specifically utilized the names and, reputations of Herman and McBean to solicit advertisers and to attract listeners before the expiration of the noncom-petition period. 505 So.2d at 485. During the noncompetition period, Herman and McBean also engaged in activities such as: helping WGTR in recruitment of local personalities and WSHE employees, explaining the production of their former WSHE show to WGTR’s program director, and playing recordings of their WSHE show for WGTR personnel. Id. With the facts so explained, the Florida court then concluded:
“WSHE has shown it has no adequate remedy at law. The breach consists of intangibles that cannot be replaced by money damages; for instance, the use ¿f the disc jockeys’ valuable names and reputations and the capitalization on the disc jockeys’ popularity. McBean even admitted that the defendants’ names, reputations, and popularity were ‘significant’ and of ‘unique value’ and would be of a ‘special value’ to WGTR.”
Id. at 486.
In the Georgia case, Johnny Beckman, a well-known Atlanta television personality, left station WSB-TV for station WXIA-TV. Beckman sought a declaratory ruling that his noncompetition covenant with WSB-TV was invalid. Beckman argued that he developed and maintained his television personality with his own skills and resources. Beckman, 296 S.E.2d at 569. Therefore, he insisted that he could take his television personality to another station without interference from WSB-TV. Id. In rejecting that argument, the Supreme Court of Georgia found that WSB-TV had made an investment in Beck-man’s image as part of its own image, and was entitled to protect its own image by reasonably-tailored restrictions. Id.
The facts of T.K. Communications and Beckman are not the facts of this case. At KXDG, Bell was an announcer whose only name recognition was as Hurricane Hannah. She worked in the 7:00 p.m. to midnight spot with a country music format. As Hurricane Hannah, Bell worked by herself without a co-announcer. In addition to playing music, she talked about the artists and took telephone calls. Although West created Hurricane Hannah as Bed’s radio personality and used its resources to promote Hurricane Hannah as part of KXDG’s image, there is no evidence that at KSYN Bell ever used or attempted to capitalize on that personality or name recognition. The only things that Bell took with her and used when she went from KXDG to ’ KSYN were her aptitude, skill, mental ability, and the voice with which she was born. At KSYN, Bell assumed a new name, Robin Kane. She worked a different time slot, 5:30 a.m. to 10:00 a.m.; and was merely a co-host with a male announcer. At KSYN, she read the news and bantered with the cohost. The music on KSYN, which was announced by Robin Kane’s co-host, was contemporary music, not the country format of KXDG.
The announcers, in T.K Communications were enjoined from capitalizing on the popularity and name recognition of “Herman and McBean” developed at the expense of a former employer. The employee in Beckman was enjoined from capitalizing on the image and name recognition of “Johnny Beckman” [939]*939developed at the expense of his former employer. In this case, Bell, without the mantle of Hurricane Hannah, was enjoined from capitalizing on her own skill, talent and voice. As we see it, both the Florida case and the Georgia case are too factually dissimilar to aid in deciding this ease.
Continuing, we do not ignore the dissent’s assertions that the analysis in Continental Research Corp. v. Scholz, 595 S.W.2d 396, 401 (Mo.App.1980) is apropos to this case. The Continental court said:
“[I]n the sales industry the goodwill of a customer frequently attaches to the employer’s sales representative personally; the employer’s product becomes associated in the customer’s mind with that representative. The sales employee is thus frequently in a position to exert a special influence over the customer and entice that customer’s business away from the employer. An employer may properly protect itself against such an eventuality for a reasonable period of time.”
Id. at 401. We agree that the analysis in Continental would be persuasive if Bell had used or attempted to use the Hurricane Hannah radio personality to exert special influence over Joplin area radio listeners and, in that fashion, adversely affected West’s advertising revenue by diverting listeners from KXDG to KSYN. However, as recounted above, Bell did nothing at KSYN to capitalize on the image of the radio personality developed for her at KXDG.
After careful examination of this record and assessment of the distinctive circumstances revealed therein, we are convinced that West did not prove it had a legitimate protectable interest to be served by preventing Bell from working at KSYN. We hold that the enforcement of this restrictive covenant was not reasonable under the circumstances.
The judgment of the trial court is reversed.
PARRISH, J., concurs.
CROW, P.J., dissents in separate opinion.