                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 13, 2001 Session

       PACKAGE EXPRESS CENTER, INC. v. DOUG MAUND, ET AL.

                     Appeal from the Chancery Court for Greene County
                      No. 95-78    Thomas R. Frierson, II, Chancellor

                                       FILED MAY 30, 2001

                                 No. E2000-02059-COA-R3-CV



CHARLES D. SUSANO, JR., J., concurring in part and dissenting in part.


        I agree with the majority’s conclusion that the information supplied by PEC to Athens
Pharmacy, along with the training and equipment furnished to the latter, do not “rise to the level of
creating a protectable interest.” This is because none of it is “sufficiently special as to make a
competing use of it by [Athens Pharmacy] unfair.” Vantage Technology, LLC v. Cross, 17 S.W.3d
637, 645 (Tenn. Ct. App. 1999), perm. app. denied April 17, 2000.

        My departure from the majority opinion is based upon my disagreement with its conclusion
that PEC has a protectable interest simply because “it would be very difficult for PEC...to compete
with Athens Pharmacy by setting up a service center in another retail location.” The majority bases
this conclusion on the fact that the customers of Athens Pharmacy are “drawn in by the name
recognition and goodwill of Athens Pharmacy and not PEC.” I believe the factual predicate for the
majority’s conclusion is borne out by the record; but, in my judgment, it is precisely because that
predicate is supported by the evidence that PEC does not have a protectable interest in Athens
Pharmacy’s business relationships. This case is unlike Vantage where, the employee, Cross, had
become the “face” of his employer. Id. at 645-46. In Vantage, we found that Cross’ relationships
with his customers were based on his employer’s goodwill. Id. at 646. The facts of the instant case,
as found by the majority, compel the opposite conclusion. There is no reason to believe that the
customers of Athens Pharmacy were even aware of the existence of PEC. They certainly did not
patronize Athens Pharmacy because of PEC.

        I recognize that the relationship at issue in the present case is that of business-to-business
rather than employer-employee, as was the case in Vantage; but, in my judgment, the principles
enunciated in Vantage are applicable to the instant litigation.
        I would hold that the non-competition provisions in this case amount to nothing more than
an unlawful restraint of ordinary competition. I would refuse to enforce them. I believe this case
is closer to Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. 1984) than it is to Vantage.


       Accordingly, I concur in part and dissent in part.



                                                      ___________________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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