                 In the Missouri Court of Appeals
                         Eastern District
                                     DIVISION ONE

LINDA R. ZWEIFEL,                             )       No. ED107451
n/k/a LINDA R. SMITH,                         )
                                              )       Appeal from the Circuit Court
       Respondent,                            )       of Jefferson County
vs.                                           )
                                              )       Hon. Antonio M. Manansala
RANDALL ZWEIFEL,                              )
                                              )       Filed:
       Appellant.                             )       January 28, 2020

       Randall Zweifel appeals from the contempt judgment entered against him for

conduct his ex-wife Linda Smith claimed violated the dissolution judgments. We reverse.

                                       Background

       Zweifel and Smith jointly owned and operated Lawn Managers, Inc. during their

marriage.   The marriage dissolved, and the parties reached an agreement regarding their

business interests, among other things. The parties’ Marital Settlement Agreement was

incorporated into the dissolution judgment dated May 1, 2012 (collectively the agreement

and judgment will be referred to as “2012 MSA and Judgment”). Therein, it was agreed

that Smith would assign all of her shares in the lawn care business to Zweifel, which would

continue under the name “Lawn Managers, Inc.,” and Smith would establish a new lawn

care company. In Section 5.02, the parties divided the accounts and accounts receivable

of the business. They were each awarded certain commercial accounts and accounts

receivable; Smith was “awarded all right, title, and interest in all residential accounts and
accounts receivable in the following zip codes,” and then 19 zip codes were listed. Zweifel

was similarly “awarded all right, title, and interest in all residential accounts and accounts

receivable” in 54 zip codes.

       In Section 5.06, the parties addressed “Development of New Business.” Therein,

Smith agreed that her new lawn care business would use the name “Progressive Lawn

Managers, Inc., doing business as Lawn Managers” for a period of no more than two years

and would thereafter stop using the name “Lawn Managers” and use only the name

“Progressive Lawn Managers, Inc.” In that same section, the parties included a non-

solicitation agreement:

       For a period of two years from that date of dissolution of marriage [Smith]
       and her employees will refrain from soliciting residential accounts and
       commercial accounts in the zip codes that have been awarded to [Zweifel]
       in Section 5.02(2)(b), and [Zweifel] and his employees will refrain from
       soliciting residential accounts and commercial accounts in the zip codes that
       have been awarded to [Smith] in Section 5.02(2)(b). [Smith] and [Zwefiel]
       understand that the agreement to refrain from soliciting business in the zip
       codes awarded to the other party includes business for lawn care services,
       fertilization, weed control, insect control, and other types of lawn service.

       There appears to never have been any dispute that under the above terms of the

2012 MSA and Judgment, the parties were: (1) each awarded a number of existing

commercial accounts and a number of existing residential accounts in identified zip codes

and (2) each had the exclusive right to solicit new commercial or residential accounts in

those zip codes, at least for two years. There was, however, disagreement as to the meaning

of “solicit” in Section 5.06. When residential customers in Smith’s zip codes contacted

Zweifel for service, he began servicing them, claiming to believe that because he did not

“solicit” their business he was not violating the 2012 Judgment. It appears that some of

those 72 customers he began servicing were existing accounts awarded to Smith in Section



                                              2
5.02 and some of them were new accounts covered by the non-solicitation provision in

Section 5.06.

        In October of 2013, Smith filed a motion for contempt, alleging that Zweifel

solicited and serviced accounts that had been awarded to her in violation of Section 5.02

and the non-solicitation provision of Section 5.06. 1 Zweifel filed a cross-motion for

contempt alleging Smith was engaged in similar behavior. Ultimately, the parties reached

an agreement settling the issues in these motions on July 25, 2014. The terms of that

agreement were entered as the judgment of the court (collectively this agreement and

judgment will be referred to as “2014 Settlement and Judgment”). Therein, the parties

agreed that “each may sign up and service new commercial accounts wherever they may

be, regardless of zip code.” As to residential accounts, the parties agreed as follows:

        Parties agree that each of them shall NOT sign up or service any new
        residential accounts in the zip codes awarded to the other in [the 2012 MSA
        and Judgment]. This non-compete agreement shall remain in effect for two
        years from today’s date and is enacted in lieu of the prior non-solicitation
        clause found in paragraph 5.06 of [the 2012 Judgment]. 2
Zweifel also agreed to transfer to Smith “all of his existing residential customers” in two

of the zip codes that had been awarded to him in 2012, and these zip codes were expressly

covered by the non-competition provision above. Otherwise, the parties agreed, “[a]ll other

terms of [the 2012 MSA and Judgment] shall remain in full force and effect.” It was also

agreed that Smith would stop using the name “Lawn Managers” on December 31, 2014

and thereafter use only the name “Progressive Lawn Managers, Inc.” for her business.




1
  Several months earlier, Zweifel was held in contempt of the 2012 MSA and Judgment, on Smith’s motion,
for failing to make a certain payment thereunder. He successfully purged himself of that contempt by making
the payment.
2
  We note the two-year non-solicitation clause in Section 5.06 of the 2012 MSA and Judgment—which this
non-compete was said to replace—had actually already expired on May 1, 2014 by its own terms.

                                                    3
       In February of 2016, Zweifel’s company filed a trademark infringement claim in

federal court, alleging that Smith’s company was continuing to use his company’s name in

violation of the parties’ agreement. While that case was pending, the two-year non-

compete in the 2014 Settlement and Judgment expired on July 25, 2016.          The parties

agreed this meant that they were no longer prohibited from signing up or servicing new

residential customers in the other’s zip codes. But it became evident that they disagreed

about whether they could also begin to compete for the existing residential accounts that

had been awarded to the other party. It appears Zweifel believed that once the non-

solicitation and non-compete expired, all customers were fair game and he sent a “We

Want You Back” letter to customer accounts that had been awarded to Smith. It appears

Smith disagreed, and believed there was a permanent non-compete on the existing

customer accounts each was awarded. She asserted an affirmative defense of unclean

hands in the federal trademark infringement case based on the “We Want You Back” letter

and Zweifel’s continued service of the 72 residential customers that contacted him years

earlier. Smith also filed another motion for contempt in state court and a separate request

for injunctive relief based on that conduct.

       The state court issued a temporary restraining order prohibiting Zweifel from

contacting, soliciting or providing services to “any of the customers and/or accounts

awarded to [Smith]” in either 2012 or 2014. On Zweifel’s motion to clarify, the TRO was

modified to provide that Zweifel was permitted to respond to a specific list of customers

who contacted him after the “We Want You Back” letter by notifying them that he could

not service their accounts at this time and could not discuss the matter further. The TRO,




                                               4
as modified, was converted to a preliminary injunction on November 18, 2016, after a

hearing.

       Smith then amended her latest motion for contempt in October of 2017. Zweifel

asserted affirmative defenses, one of which was that any claims in this motion for contempt

relating to his continued servicing of the 72 customers were precluded under principles of

res judicata because they were previously fully adjudicated in the proceedings to resolve

the parties’ earlier cross-motions for contempt, which resulted in the 2014 Settlement and

Judgment. Zweifel also filed counterclaims for, among other things, damages based on

improvidently granted injunctive relief. A bench trial was held over the course of several

days in February, March and April of 2018.

       Shortly after the contempt trial ended in state court but before a decision was

reached, the federal court ruled on the trademark infringement case. It entered judgment

finding that Smith had infringed by using the “Lawn Managers” name and, in assessing

damages, concluded that Zweifel did not have unclean hands because the non-competition

provision had expired by the time he sent the “We Want You Back” letter. Zweifel sought

to have the state court reopen the evidence in the contempt case, arguing that this federal

judgment must be given collateral estoppel effect and precluded the state court from finding

him in contempt for conduct the federal court found was permissible.        That motion to

reopen was denied.

       In November of 2018, the court entered the judgment that is now on appeal,

granting the amended motion for contempt and denying all defenses and counterclaims. It

concluded that Section 5.02 of the 2012 MSA and Judgment—dividing the commercial

and residential accounts and accounts receivable—was a division of business assets, which



                                             5
like any division of marital property, is “not subject to modification.” The court concluded

that the parties have and “will continue to have, in perpetuity, a property interest” in the

customer accounts awarded to each of them in 2012 and 2014. The court found the 2012

MSA and Judgment and the 2014 Settlement and Judgment obligated Zweifel “to only

service zip code accounts that were awarded as property to [him]. . . and not to service zip

code accounts awarded as property to [Smith].” The non-solicitation and non-competition

provisions therein, it concluded, applied only to “new business” and not the customer

accounts awarded in the division of property. Once those provisions expired, the court

found, the parties were permitted to solicit new business in any zip code, but could not

“solicit the customer accounts awarded to the parties” in 2012 and 2014. Thus, the court

held Zweifel in contempt for servicing existing residential accounts in Smith’s zip codes

and soliciting Smith’s existing residential accounts with the “We Want You Back” letter—

all in violation of the 2012 MSA and Judgment and the 2014 Settlement and Judgment.

The court also found that since 2014, Zweifel solicited, signed up and serviced new

residential accounts in zip codes awarded to Smith in violation of the non-compete in the

2014 Settlement and Judgment. The court found Zweifel’s conduct to be intentional and

contumacious. The court ordered him to pay Smith damages in the amount of $415,381.72,

based on her lost profits, and attorney fees. This appeal follows.

                                         Scope of Appeal

       Zweifel raises six points of error in which he challenges various aspects of the

contempt judgment on different theories. We note at the outset that this appeal does not

involve commercial accounts, as all of the conduct the court held was contemptuous related

to residential customers. It does not involve Zweifel’s conduct with respect to new



                                             6
residential accounts: Zweifel has not raised any point on appeal challenging the court’s

finding that while the non-compete in the 2014 Settlement and Judgment was in effect, he

solicited, signed up and serviced new residential customers in Smith’s zip codes. Rather,

all of the issues on appeal relate solely to Zweifel’s soliciting and servicing of residential

customer accounts that existed at the time of the dissolution and were awarded to Smith.

       In his first point on appeal, Zweifel contends the federal trademark judgment was

a conclusive determination that he was permitted to send the “We Want You Back” letter

to the Smith’s customers after the expiration of the two-year non-compete in the 2014

Settlement and Judgment, which he claims is dispositive of the issue of whether Smith had

a permanent non-compete as to those customers and whether sending the letter violated

such a provision. In his fourth point on appeal, he similarly contends that any claims

regarding his servicing of the 72 customers who came to him had been fully and

conclusively resolved in his favor by the 2014 Settlement and Judgment and could not be

re-litigated in this later motion for contempt. In essence, Zwefiel asserts that these two

previous adjudications are dispositive of the issues and claims here and require a finding

by this Court that his conduct in sending the letter and servicing those 72 customer accounts

did not violate the 2012 MSA and Judgment or the 2014 Settlement and Judgment. We

disagree that such a definitive finding of “no contempt” is appropriate here. Rather, we

agree with Zweifel’s alternative basis for reversal, set out in his second point on appeal:

that the provision of the 2012 MSA and Judgment and the 2014 Settlement and Judgment

are too vague and indefinite as to his obligations regarding the existing customer accounts

awarded to Smith for him to be held in contempt thereof. Granting the second point on

appeal, renders his third and fifth points on appeal moot. In his sixth and final point on



                                              7
appeal, Zweifel argues that if we reverse, we must also deem the preliminary injunction to

have been improvidently granted, which we do not believe is warranted here.

                                                   Discussion

        We take the points on appeal somewhat out of order, beginning with the preclusive

effect of certain prior judgments on the issues and claims in this matter. The underlying

question as to whether an issue is barred by a prior judgment is a question of law. See

Bresnahan v. May Department Stores Company 726 S.W.2d 327, 329 (Mo. banc 1987).

Otherwise, our review of the contempt judgment is the same as in any court-tried matter:

we will affirm a civil contempt judgment unless there is no substantial evidence to support

the decision, the decision is against the weight of the evidence or the decision erroneously

declares or applies the law. Wuebbeling v. Wuebbeling, 574 S.W.3d 317, 327 (Mo. App.

E.D. 2019). “Further, this Court will not reverse the trial court’s ruling on a civil contempt

motion absent a clear abuse of discretion.” Id.

        Preclusion

        Zweifel contends the judgment entered in his company’s federal trademark

infringement case against Smith’s company conclusively determined the meaning of the

2012 MSA and Judgment and the 2014 Settlement and Judgment and precluded a different

finding about the obligations thereunder by the trial court in this contempt case. 3 The claim

of infringement in the federal case was based on Smith’s continued use of Zweifel’s

company name. 4 Smith asserted the affirmative defense of unclean hands, claiming that


3
  Smith notes that Zweifel moved this Court on appeal to suspend the briefing schedule while the federal
court’s judgment is pending on appeal, raising the same collateral estoppel arguments raised in this point.
We denied that motion without explanation and do not consider that denial to be determinative of the merits
of whether the federal judgment has a preclusive effect on this issue.
4
  The record before us regarding the federal trademark case consists solely of the federal court’s judgment
and memorandum opinion and the proposed findings and conclusions submitted to the federal court by both
parties in that case. The appendix to Smith’s brief contains additional pleadings purportedly filed in that

                                                    8
Zweifel’s solicitation of customers in her zip codes in July of 2016—namely, sending the

“We Want You Back” letter—was a violation of the 2014 non-compete and should bar his

trademark infringement claim. In its judgment, the federal court addressed the unclean

hands defense only in the context of assessing damages:

         The Court previously stated it would consider [Smith’s] unclean hands
         defense when assessing damages. [Smith] claims that [Zweifel’s]
         advertisement to customers in [her] zip code areas in July 2016 sullied [his]
         hands in this suit. Under Missouri law, the protection of customer accounts,
         lists, or relationships is assumed to be limited in duration, unless a party
         demonstrates “unequivocally” that both parties intended it to run
         perpetually. See, e.g., Armstrong Business Services, Inc. v. H & R Block,
         96 S.W.3d 867, 875 (Mo. App. W.D. 2002). Rather than any such indicator
         of perpetual intent, both the 2012 [MSA and Judgment] and the 2014
         [Settlement and] Judgment expressly limited the non-solicitation and non-
         compete provisions to a term of years. Accordingly, [Zweifel] was entitled
         to renew advertising to customers following the expiration of the 2014
         [Settlement and] Judgment’s non-compete provision in July 2016, and this
         advertisement did not sully [his] hands in a suit for trademark infringement.
         [Smith] produced no other evidence to support a finding that [Zweifel] acted
         inequitably toward it as to the trademark at issue.

         Collateral estoppel—or issue preclusion, as it is known in modern terms—

precludes the same parties (or those in privity with them) from re-litigating an issue that

was previously adjudicated. U-Haul Company of Missouri v. Carter, 567 S.W.3d 680,

684–85 (Mo. App. W.D. 2019). For collateral estoppel to apply, the prior action must have

necessarily and unambiguously resolved the same question presented in the second

proceeding. Id. at 685; see also Trow v. Worley 40 S.W.3d 417, 422 (Mo App. S.D. 2001).

The overriding factor is a consideration of whether it would be fair to apply collateral

estoppel in this particular case. James v. Paul, 49 S.W.3d 678, 688 (Mo. banc 2001). The




case, but those documents are not part of the record in this appeal and are not made part of the record simply
by including them in the appendix. We do not consider documents in an appendix that are not in the record
on appeal. Washington v. Blackburn, 286 S.W.3d 818, 822 (Mo. App. E.D. 2009).


                                                      9
analysis must focus primarily on principles of equity derived from the facts of each case,

and collateral estoppel will not be applied where to do so would be inequitable. Id.; see

also Wilkes v. St. Paul Fire and Marine Insurance Company, 92 S.W.3d 116, 123 (Mo.

App. E.D. 2002).

       It would not be fair to apply collateral estoppel in this case. The contempt and

trademark infringement cases were proceeding simultaneously, and both the federal and

the state court took pains to ensure that nothing they did in one case improperly impacted

the other. The federal court found it was permitted to interpret the provisions of the 2012

MSA and Judgment and the 2014 Settlement and Judgment, stating it was doing so under

principles of Missouri contract law and consistently with federal trademark law and the

parties’ intentions. But, it also expressly stated that it was “not the proper forum to re-

litigate Smith’s and Zweifel’s divorce proceedings or otherwise encroach on the state

court’s jurisdiction over domestic matters” and that “nothing in this Court’s decision

purports to set aside or alter” the terms of the 2012 MSA and Judgment and the 2014

Settlement and Judgment. Likewise, the state court in the contempt case stated—in its

denial of the motion to reopen evidence and in its final judgment in this case—that

“[n]othing in this Court’s decision purports to set aside or alter” the federal court’s

judgment.

       Moreover, the federal court did not assess Zweifel’s conduct in the context of

whether it was contemptuous. As discussed in greater detail later in this opinion, one

cannot be held in contempt of a court order unless that order is “so definite and specific as

to leave no reasonable basis for doubt of its meaning.” Wuebbeling, 574 S.W.3d at 327–

28.   The federal court did not analyze the 2012 MSA and Judgment and the 2014



                                             10
Settlement and Judgment under this strict standard and therefore the conclusions that court

drew about the provisions therein—and whether Zweifel’s conduct was permitted

thereunder—do not unambiguously answer the identical question presented to the contempt

court.    Fairness dictates that those conclusions should not supplant the state court’s

examination of what precisely was prohibited in that court’s judgments and whether

Zweifel was in contempt. Under these circumstances, it would be inequitable for us to give

the federal judgment preclusive effect and hold that it is dispositive of whether the 2012

MSA and Judgment and the 2014 Settlement and Judgment permitted sending the “We

Want You Back” letter.

         Point I is denied.

         In a similar argument, Zweifel contends Smith should have been barred under the

doctrine of res judicata (also known as claim preclusion) from re-litigating claims relating

to the 72 customers who he began servicing after 2012 when they approached him. He

contends all such claims were resolved by the 2014 Settlement and Judgment reflecting

resolution of their 2013 cross-motions for contempt. Of course, those earlier proceedings

addressed only the conduct that occurred prior to the 2014 Settlement and Judgment; the

current motion for contempt alleged that he continued servicing those 72 customers after

the 2014 Settlement and Judgment. Zweifel’s argument as to why Smith is precluded from

litigating these claims is difficult to follow, but appears to be premised on the notion that

he somehow was awarded those 72 customer accounts during the proceedings on those

2013 cross motions for contempt. He claims to have “already had” those 72 customer

accounts at the time the parties settled those motions and by virtue of that settlement, Smith

agreed she had been fully compensated for any claim relating to those customers. Thus,



                                             11
the argument continues, he was not violating the 2014 Settlement and Judgment when he

continued to service the “accounts that he had” at that time and “retained after that date.”

Zweifel has pointed to nothing in the record that indicates these 72 customers became

Zweifel’s property at any point—prior to, during or after the 2014 Settlement and

Judgment—and the argument based on that unsupported factual assertion is therefore

without merit.

       Point IV is denied.

       Contempt

       Alternative to his argument that the above judgments compel the conclusion that

Zweifel’s conduct was permissible under the 2012 MSA and Judgment and the 2014

Settlement and Judgment, he contends his conduct was not clearly and unambiguously

prohibited thereunder and thus he could not be held in contempt of those judgments. We

agree that there was no explicit directive in the 2012 MSA and Judgment and the 2014

Settlement and Judgment regarding the parties’ obligations with respect to existing

residential customers, which required the trial court to find a prohibition of Zweifel’s

conduct by implication. The court did not have authority to hold him contempt under these

circumstances.

        “Contempt is available only where a party has been ordered to perform or not to

perform a specific act and yet refuses to do so.” State ex rel. Euclid Plaza Associates,

L.L.C. v. Mason, 81 S.W.3d 573, 577 (Mo. App. E.D. 2002). Our Court recently reiterated

the limitations on a court’s authority to hold a party in contempt of a court order,

concluding that “clarity in the order itself is essential so the process may comport with

fundamental principles of fairness”:



                                            12
       To support a charge of contempt for disobedience of a judgment, decree or
       order, the court’s pronouncement may not be expanded by implication in
       the contempt proceeding and must be so definite and specific as to leave no
       reasonable basis for doubt of its meaning. Before a court may impose
       sanctions on a party for disobeying a court order, the order itself must
       precisely advise the individual of what conduct is forbidden.

Wuebbeling, 574 S.W.3d at 328 (internal quotation marks and citations omitted). Thus,

the finding of contempt must be predicated on a clear, unambiguous and express directive

of the court explicitly mandating or prohibiting the conduct at issue. See id. at 328-29. If

the provision on which the contempt court relies is too vague, any mandate for or

prohibition against the conduct at issue could only be found by implication. See id. at 328-

30. Expanding an earlier pronouncement by implication exceeds the court’s authority in a

contempt proceeding, and a contempt judgment that relies on such an implication must be

reversed. See id.; see also Missouri Hospital Association v. Air Conservation Commission,

900 S.W.2d 263, 267 (Mo. App. W.D. 1995).

       Here, Zweifel does not challenge the court’s findings regarding the conduct he

engaged in—namely, that he solicited and serviced existing residential accounts awarded

to Smith in 2012 and 2014—only the conclusion that this conduct violated a clear and

unambiguous provision of either of those judgments. According to the trial court, the

parties were forever prohibited from soliciting or servicing those accounts. The court’s

conclusion that such a prohibition existed appears to have been derived from a series of

inferences drawn from the actual language of the judgment. The court began by finding

the existing residential customer accounts were business assets and were properly divided

as marital property in Section 5.02 of the 2012 MSA and Judgment. Therefore, like any

other division of property, the court found it was not subject to modification. It appears

the court then concluded that the non-modifiable nature of a division of marital property


                                            13
equated to the parties having “in perpetuity, a property interest” in the accounts they were

awarded. The court also construed the two-year non-solicitation provision in the 2012

MSA and Judgment as applicable only to “new business,” and noted that the two-year non-

compete in the 2014 Settlement and Judgment was expressly applicable only to new

accounts. The court then seems to have implied—from both the perpetual property interest

and its conclusion that the two-year non-solicitation and non-competition provisions only

applied to new business—that there was a permanent ban on the parties’ ability to ever

compete for each other’s existing customer accounts.

       None of the provisions relied on by the court to reach this conclusion contain a

clear, unambiguous and express directive that explicitly and permanently prohibits

solicitation and servicing of the existing residential accounts awarded to the other party.

In Section 5.02 in the 2012 MSA and Judgment, the parties agreed to give each other “all

right, title and interest” in certain customer accounts. Even assuming “customer accounts”

have value and are capable of division like other business assets, that fact does not

necessarily mean that they must be treated like other business assets for all intents and

purposes. Contrary to Smith’s claim that the division of accounts is analogous to the

division of the lawn care company’s vehicles, it is at least arguable that there are

fundamental differences between an award of an inanimate object like a truck and an award

of customer account, which necessarily involved a relationship with another person. An

award of a business asset like a truck may be permanent in the sense that the other party

would be forever barred from taking it back, but it is at least reasonable to doubt that the

same is true with an award of a business relationship. A truck, of course, has no interest in

or ability to decide who owns it, but the customers whose accounts were awarded to these



                                             14
parties do have an interest in who services their lawns—an interest recognized by the court

when it found that the 2012 MSA and Judgment did not prohibit the customers awarded to

Smith and Zweifel from seeking out lawn care services from companies other than the

parties’ companies.    In short, there is a reasonable basis to doubt what was meant by the

award of these accounts in Section 5.02 and whether it included a perpetual property

interest to the parties in the existing customer accounts and an attending permanent ban on

efforts to regain those customer’s business.

        Smith cites a provision in the 2012 MSA and Judgment in which the parties agreed

that if either of them “wishes to sell” any of the accounts referenced in Section 5.02, they

“will give the other party the first opportunity to purchase the accounts that are up for sale.”

She then asks why such a provision would be included if the parties did not intend to have

a perpetual property interest in the accounts awarded to them in Section 5.02. She also

cites to an administrative provision of the 2012 MSA and Judgment containing the

following language: “This Agreement shall be binding on the heirs, representatives, and

assigns of the parties except as to the specific paragraphs that contain provisions for

termination of obligations on the death of either party.” And, again, she asks why such a

provision would be included if the parties did not intend to have a property right over the

accounts awarded to them in perpetuity in Section 5.02. Beyond positing the questions,

Smith has not demonstrated that these provisions contain a clear and unambiguous

permanent prohibition on competition with the existing residential customer accounts

awarded to each party in Section 5.02

        Likewise, there is considerable reason to doubt that by expressly imposing a two-

year ban on solicitation and competition for new accounts in the 2012 MSA and Judgment



                                               15
and the 2014 Settlement and Judgment, there was an intent to impose a permanent ban on

such conduct with respect to the existing accounts awarded to each other. One simply does

not necessarily follow from the other. If the non-solicitation and non-compete only apply

to new customers, then it is at least arguable that rather than implying a permanent ban on

competing for existing customer, there was no such ban on competition for those customers

at any point. If there was never any such restriction, then one could argue that the day after

the customers were divided in Section 5.02 of the 2012 MSA and Judgment, the parties

were entitled to immediately compete for their business. As much as there is reason to

doubt the existence of a permanent ban on competition for these accounts, there would be

equal reason to doubt that no ban existed either. Neither of these extremes—both of which

are possible under the trial court’s interpretation—is supported by the actual language in

the 2012 MSA and Judgment or the 2014 Settlement and Judgment. Because the judgments

do not clearly and unambiguously set forth any particular directive with respect to one

party’s conduct with the existing customer accounts awarded to the other, the court’s

permanent prohibition on competition with those customers was imposed by implication.

It was impermissible to hold Zweifel in contempt of that implied provision.               See

Wuebbeling, 574 S.W.3d at 328.

       Importantly, we note that we are not tasked in this appeal with clarifying any of the

doubts discussed herein. Nor should anything in the above discussion be taken as a

dispositive conclusion about the actual meaning of the 2012 MSA and Judgment or the

2014 Settlement and Judgment. Rather, we are faced with a much narrower question in

determining the propriety of this contempt judgment: whether the provisions of the 2012

MSA and Judgment or the 2014 Settlement and Judgment were specific and definite



                                             16
enough such that Zweifel could be held in contempt thereof. Our conclusion on that

question is that they were not and therefore it was error to hold him in contempt for

soliciting and servicing the existing residential accounts awarded to Smith. In other words,

we do not conclude that Zweifel’s conduct was permissible under the 2012 MSA and

Judgment or the 2014 Settlement and Judgment—only that the judgments are too vague

for the trial court to have determined that the conduct was contemptuous.

       Point II is granted. The judgment must be reversed to the extent it holds Zweifel in

contempt for soliciting and servicing existing customer accounts awarded to Smith in the

2012 MSA and Judgment and the 2014 Settlement and Judgment. Reversal of that finding

of contempt renders the following points on appeal moot: Point III (challenging the award

of damages based on that contempt finding) and Point V (challenging the evidence of a

factual matter underlying that contempt finding).

       Improvidently Granted Injunctive Relief

       Zweifel filed in the trial court a counterclaim to the motion for contempt, claiming

the preliminary injunction was improvidently granted and seeking damages. He argues

that “if this Court rules that Smith never had a permanent, perpetual non-compete,” then

that means the preliminary injunction was improvidently granted and the matter must be

remanded to the trial court to dissolve that injunction and determine his damages. A

definitive holding that Smith did not have a permanent non-compete and therefore

Zweifel’s conduct was permissible under the judgments might have, as Zweifel suggests,

automatically resulted in a conclusion that the injunction prohibiting that conduct was

improvidently granted and is therefore dissolved. See generally Citizens for Ground Water

Protection v. Porter, 275 S.W.3d 329, 352 (Mo. App. S.D. 2008) (when party procuring



                                            17
temporary injunctive relief ultimately receives an adverse judgment on the merits of the

case, the issuance of the injunction is deemed improper and is dissolved). But we have not

made any definitive conclusions about the meaning of the 2012 MSA and Judgment or the

2014 Settlement and Judgment. Again, our conclusion is that those judgments were not

clear as to the parties’ obligations and restrictions regarding the existing residential

customers awarded to each of them. While this conclusion means that Zweifel cannot be

held in contempt of the 2012 MSA and Judgment or the 2014 Settlement and Judgment,

that is not the same as a dispositive holding that his conduct was permissible under those

judgments. Zweifel has not cited any authority that would support deeming the preliminary

injunction improvident and dissolving it under these circumstances.

       Point VI is denied.

                                          Conclusion

       The judgment is reversed to the extent it holds Zweifel in contempt for soliciting

and servicing existing customer accounts awarded to Smith in the 2012 MSA and Judgment

and the 2014 Settlement and Judgment.




                                                ROBERT G. DOWD, JR., Judge

Robert M. Clayton III, P.J. and
Roy L. Richter, J., concur.




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