                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 70

                                                                     APRIL TERM, A.D. 2013


                                                                              June 5, 2013


KAREN M. OLIVER, d/b/a CRAZY TONY’S
RESTAURANT,

Appellant
(Defendant),

v.                                                                  No. S-12-0161

KEVIN M. QUYNN and NIKKI L. QUYNN,
husband and wife,

Appellees
(Plaintiffs).


                        Appeal from the District Court of Platte County
                           The Honorable John C. Brooks, Judge

Representing Appellant:
      Eric E. Jones, Eric E. Jones, PC, Wheatland, Wyoming.

Representing Appellees:
      Keith J. Dodson and Brian J. Marvel, Williams, Porter, Day and Neville, P.C., Casper,
      Wyoming. Argument by Mr. Marvel.


Before KITE, C.J., HILL, BURKE, DAVIS, JJ., and GOLDEN, J., Retired.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] This case stems from a dispute about a Party Wall Agreement between Appellant,
Karen Oliver, 1 and Appellees, Nikki and Kevin Quynn.2 The Quynns filed suit seeking a
declaration that the Agreement was unenforceable. On summary judgment, the district
court ruled that the Agreement’s provision prohibiting the Quynns from selling alcohol
was void and unenforceable. Ms. Oliver challenges that decision in this appeal. We will
reverse and remand for entry of summary judgment in favor of Ms. Oliver.

                                             ISSUES

[¶2]   Ms. Oliver presents the following issues for our consideration:

               1.     Whether the terms of the agreement in dispute are
               equitable servitudes binding on the real property and parties;
               and

               2.    Whether the prohibition of the sale of alcoholic
               beverages is enforceable.

The Quynns present the same issues for our consideration, but organize Ms. Oliver’s
issues into four more focused questions:

               1.     Whether the district court properly held the covenant
               not to compete restraining the Quynns’ sale of alcohol is
               unenforceable due to unreasonable duration;

               2.     Whether the district court properly held the covenant
               not to compete restraining the Quynns’ sale of alcohol is
               unenforceable because Ms. Oliver failed to prove it bears a
               reasonable, fair, and necessary relation to the business
               interests Ms. Oliver seeks to protect;

               3.     Whether the district court properly held the covenant
               not to compete preventing the Quynns’ sale of alcohol is



1
 At sometime during this litigation, Ms. Oliver married Wayne Geuke and changed her name to Karen
Geuke. We will follow the district court’s practice and continue to refer to her as Ms. Oliver.
2
   The Quynn’s company, Guernsey Bowl, LLC, was joined as an indispensable party plaintiff after the
litigation had commenced.




                                                 1
             unenforceable because the restraint is greater than needed to
             protect Ms. Oliver’s legitimate interest; and

             4.    Whether the district court properly held the covenant
             not to compete restricting the Quynns’ sale of alcohol is
             unenforceable because the threatened harm to the Quynns
             outweighs the need and harm of Ms. Oliver.

                                         FACTS

[¶3] In 1965, Anthony and Nancy Testolin owned and operated Crazy Tony’s
restaurant and bar on Lot C-2 in the West Subdivision of Guernsey, Wyoming. In
September of that year, the Testolins sold a portion of Lot C-2 (the west fifty-two feet,
four-and-a-half inches of Lot C-2) to the Nickses. The Nickses intended to operate a
bowling alley on the property. The Testolins and Nickses entered into a Party Wall
Agreement, which was recorded in the property records a few days after the conveyance.
The pertinent provisions of the Agreement read as follows:

             That the parties have, heretofore, constructed on the boundary
             line between their respective properties, a Party Wall.

             That the parties, for and in consideration of these premises
             and of the mutual covenants and agreements herein contained,
             do for themselves, their respective heirs, executors,
             administrators and assigns, covenant and agree to and with
             each other, as follows: . . .

             4.      That said Party Wall, as now constructed, has a
             doorway or doorways from the Nicks property, which shall be
             used for a bowling alley, into the TESTOLIN property, which
             shall be used for a restaurant and bar and lounge. NICKS do
             hereby agree that they will not lock said doors, but shall
             permit free access to TESTOLIN’S building through the
             doorways in said Party Wall, at all hours when said bowling
             alley is open for business.

             That NICKS does hereby agree with TESTOLIN that he will
             not, nor will he permit others, to sell any beer, liquor or other
             alcoholic beverages i n his building located upon said
             premises. The parties understand and agree that this covenant
             is included herein for the purpose of prohibiting any
             competition in the sale of alcoholic beverages between the
             parties and their respective businesses.


                                            2
Through mesne conveyances, Ms. Oliver now owns the bar and restaurant, and the
Quynns own the bowling alley. The Quynns were aware of the Agreement when they
purchased the bowling alley in 2009.

[¶4] Despite their knowledge of the Agreement, the Quynns sought and obtained a
liquor license to sell beer and wine in the bowling alley. They also built an interior wall
blocking the doorway between the establishments. Ms. Oliver sent the Quynns a letter
protesting their violation of the Agreement. The Quynns responded by filing a
declaratory judgment action contesting the enforceability of the Agreement.

[¶5] Both parties filed motions for summary judgment. After a hearing on the motions,
the district court entered summary judgment, ruling that: (1) the “covenant not to
compete in the sale of alcoholic beverages is unenforceable and void as a matter of law,”
(2) the covenant not to compete is severable, and other provisions of the Agreement are
enforceable, and (3) the Quynns are enjoined to remove the interior wall blocking the
doorway and permit ingress and egress between the businesses as provided in the
Agreement. Ms. Oliver appealed the district court’s determination that the restriction
prohibiting the sale of alcohol in the bowling alley is unenforceable. The district court’s
ruling with regard to the enforceability of the remainder of the Agreement is not at issue.3

                                    STANDARD OF REVIEW

[¶6] Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Comet Energy
Services, LLC v. Powder River Oil & Gas Ventures, LLC, 2008 WY 69, ¶ 5, 185 P.3d
1259, 1261 (Wyo. 2008). “Because summary judgment involves a purely legal
determination, we undertake de novo review of a trial court’s summary judgment
decision.” City of Cheyenne v. Board of County Comm’rs of Laramie, 2012 WY 156,
¶ 4, 290 P.3d 1057, 1058 (Wyo. 2012).

                                           DISCUSSION

[¶7] In her first issue, Ms. Oliver contends that the terms of the Agreement are
equitable servitudes binding on the real property and parties. Though not entirely clear,
her argument seems to be that the Agreement is an equitable servitude rather than a



3
  We note in particular that the district court ruled that the Quynns “may sell ‘food and food stuffs’ in
direct competition” with Ms. Oliver. That portion of the district court’s decision was not appealed. In
addition, the Quynns did not appeal the district court’s ruling that the Agreement prohibited them from
blocking the doorway between the businesses.




                                                   3
covenant that runs with the land. The key distinction is that a covenant that runs with the
land is enforceable whether or not the owner has notice of it, while an equitable servitude
is enforceable only if the owner took the property with notice of the servitude. Streets v.
J M Land & Developing Co., 898 P.2d 377, 379 (Wyo. 1995), citing 20 Am.Jur.2d
Covenants, Conditions, and Restrictions § 304, 868 (1965). In this case, it is undisputed
that the Quynns took the property with notice of the Agreement. The Agreement is
therefore enforceable to the same extent whether it is deemed an equitable servitude or a
covenant that runs with the land.

[¶8] In its summary judgment decision, the district court ruled that Ms. Oliver had the
burden of proving that the Agreement was reasonable. In its order, the district court
stated:

                    In Wyoming, a valid and enforceable covenant not to
             compete requires a showing that the covenant is “(1) in
             writing; (2) part of a contract of employment; (3) based on
             reasonable consideration; (4) reasonable in durational and
             geographical limitations; and (5) not against public policy.”
             Hopper, D.V.M. v. All Pet Animal Clinic, Inc., 861 P.2d 531,
             540 (Wyo. 1993) (citations omitted). “The reasonableness of
             a covenant not to compete is assessed based upon the facts of
             the particular case and a review of all of the circumstances.”
             Id. (citation omitted).

                    The common law policy against contracts in restraint
                    of trade is one of the oldest and most firmly
                    established. The traditional disfavor of such restraints
                    means covenants not to compete are construed against
                    the party seeking to enforce them. The initial burden
                    i s o n t h e e m p l o y e r t o p r o v e the covenant is
                    reasonable and has a fair relation to, and is
                    necessary for, the business interests for which
                    protection is sought.

             Id. at 539 [(citations omitted)].

(Emphasis added.) The district court determined that Ms. Oliver had not carried her
burden of proving that the Agreement was reasonable.

[¶9] Ms. Oliver asserts that the district court incorrectly placed the burden of proof.
She points out that Hopper, the case relied upon by the district court, addressed the
enforceability of a covenant not to compete included in an employment contract.
Hopper, 861 P.2d at 535. The Agreement at issue here is not part of an employment


                                             4
contract, and on that basis, Ms. Oliver contends that a more directly applicable case is
Holland v. Holland, 2001 WY 113, 35 P.3d 409 (Wyo. 2001), which addressed a lifetime
non-competition agreement between an ex-husband and an ex-wife. In that case, we
considered Mr. Holland’s claim that the agreement was unenforceable as a matter of law:

                     As a starting point for his contentions, Husband posits
             that non-competition agreements are void and unenforceable.
             Of course, that is a considerable exaggeration. To bolster his
             argument, Husband relies in significant part on our decision
             in Hopper. In that case, we set out some of the basic policies
             with respect to the enforcement of a covenant not to compete
             between an employer and an employee. 861 P.2d at 539-47.
             However, Hopper is a case that deals with the covenant not to
             compete in the context of the employer-employee relationship
             and has only tangential applicability to the facts and
             circumstances of this case. In Ridley v. Krout, 63 Wyo. 252,
             180 P.2d 124, 127 (Wyo. 1947), we referred to the principle
             that is specifically at issue in this case, i.e., that courts are
             less disposed to sustain an agreement which forms part of a
             contract for employment, than where similar agreements
             are attached to a contract of sale. Also see 17 C.J.S.
             Contracts § 96 at 564 (1999). The reason for that difference
             is that in a case such as this, there is less likely to be hardship
             to the promissor and less chance of any injury to the public.
             An important part of our analysis must include a weighing of
             the right to contract with the public policy to the effect that, in
             some circumstances, such covenants are not favored. We
             conclude that the covenant at issue here most closely
             resembles one incident to a contract of sale.

Holland, ¶ 12, 35 P.3d at 413 (emphasis added). We recognized that the non-competition
agreement in Holland was not part of a contract of employment, but instead “most
closely resemble[d] one incident to a contract of sale.” Id. Thus, “[u]nlike the situation
in the employer-employee covenant not to compete, in the circumstance of the sale of a
business, the burden is on the one challenging the covenant not to compete.” Id., ¶ 10, 35
P.3d at 413. Ultimately, we concluded that Mr. Holland had “failed to demonstrate that
the lifetime covenant not to compete is unreasonable.” Id., ¶ 20, 35 P.3d at 415.

[¶10] In the case before us now, the Agreement was not part of an employment contract.
It was made in connection with the sale of property. Consistent with Holland, the burden
is on the Quynns to prove that the Agreement is unreasonable. The district court erred in
placing the burden on Ms. Oliver to prove the Agreement reasonable.



                                             5
[¶11] The district court ruled, and the parties do not dispute, that the Agreement’s
prohibition on the sale of alcoholic beverages in the Quynns’ bowling alley acts as a
restraint on trade. Long ago, in Dutch Maid Bakeries v. Schleicher, 131 P.2d 630, 634
(Wyo. 1942), we recognized that a “bargain is in restraint of trade when its performance
would limit competition in any business or restrict a promisor in the exercise of a gainful
occupation, and the bargain is illegal if the restraint is unreasonable.” The rule is
articulated this way in the Restatement (Third) of Property: Servitudes § 3.6 (2000): “A
servitude that imposes an unreasonable restraint on trade or competition is invalid.” As
explained in Comment b to this section of the Restatement:

             The common law of unreasonable restraints on competition
             looks to the purpose, the geographic extent, and the duration
             of the restraint to determine whether it is reasonable.
             Covenants against competition that are tied to ownership of a
             particular parcel of land are seldom unreasonable because the
             impact is limited to one piece of land. The owner is free to
             engage in the activity elsewhere. However, if the restricted
             land is extensive, or it is the only land available in a market
             area for a particular use, the restriction is unreasonable if it
             will tend toward a monopoly or substantially restrict
             competition in the relevant market.

[¶12] This approach is supported by decisions from other jurisdictions dealing with
restraints on trade. For example, in Exit 1 Properties Ltd. Partnership v. Mobil Oil
Corp., 692 N.E.2d 115, 116-17 (Mass. App. 1998), the owner of a gas station agreed not
to sell certain foods, and the owner of the nearby restaurant agreed not to sell petroleum
products. Twenty-three years after this agreement was made, the owner of the gas station
expanded his business to include food sales. The owner of the restaurant sued to enforce
the non-competition agreement.

[¶13] The Massachusetts Court of Appeals stated that “Purpose, geographic extent, and
duration are among criteria for testing reasonability.” Id. at 117. In support of this
approach, it cited the Restatement (Third) of Property: Servitudes § 3.6 cmt. b and
several decisions from other states. Id. at 117-18. Even though the non-competition
agreement had a fifty-year duration, it was still found reasonable:

             In its origins, the restriction was reasonable. Each party
             invested capital on the strength of an arrangement that it
             would draw customers travelling on the Boston and New
             York run, reinforced by the other’s business, and not compete
             with one another. It is no less reasonable twenty years later
             because the successor of one of the parties finds it tempting to
             be in both businesses.


                                            6
Id. at 117. The covenant was deemed reasonable because its geographic extent was
limited to a single parcel of property, and because its restriction applied only to food. Id.
at 118.

[¶14] A similar result was reached in Allemong v. Frendzel, 363 S.E.2d 487 (W. Va.
1987). The owner of 256 acres in West Virginia conveyed three acres to another party
subject to a restriction providing that, “no alcoholic beverages of any kind” could be sold
on the three-acre parcel. Id. at 489. The successor in interest opened a convenience store
on the parcel, applied for a beer license, and engaged in retail sale of beer for off-
premises consumption. Id. Successors in interest to the larger parcel sued to enforce the
restrictive covenant. The West Virginia Supreme Court of Appeals ruled that the
covenant was enforceable, explaining as follows:

                 The principal issue before us in this appeal is whether a
                 restrictive covenant prohibiting the sale of alcoholic
                 beverages as contained in a deed is enforceable against the
                 current owners of the land who purchased the parcel with full
                 notice of the terms of the restrictive covenant and took their
                 property subject to the restrictions therein. . . .

                 A restrictive covenant which provides “that no alcoholic
                 beverages shall be sold on said premises, and this covenant
                 shall run with the land” is valid. Where the grantor included
                 the covenant in all subsequent deeds conveying a particular
                 parcel of property with the intention to preserve and protect
                 the quality of the neighborhood, a trial court may grant
                 injunctive relief against a grantee who took the property with
                 full notice of the restrictive covenant, provided that changes
                 in the neighborhood’s character are not so radical as to
                 destroy the essential objects and purposes of the
                 neighborhood’s original plan of development.

Id. at 491-92.

[¶15] Consistent with the analysis in Dutch Maid Bakeries, Exit 1 Properties, and
Allemong, we consider the purpose, geographic scope, and duration of the Agreement’s
restriction in order to determine whether it is reasonable. Significantly, “the
reasonableness of a covenant not to compete is a question of law to be determined by the
court and reviewed de novo.” CBM Geosolutions, Inc. v. Gas Sensing Tech. Corp., 2009
WY 113, ¶ 13, 215 P.3d 1054, 1059 (Wyo. 2009). The parties represented to the district
court that there were no genuine issues of material fact, and that the matter could be
decided on their cross-motions for summary judgment. We agree that there are no


                                               7
genuine issues of material fact.

[¶16] The purpose of the Agreement from Ms. Oliver’s point of view is to prevent the
Quynns from competing with her in the sale of alcoholic beverages. Ms. Oliver
presented unchallenged evidence that she considered the prohibition a valuable factor
when she purchased the restaurant and bar, and that sales in her business declined when
the Quynns started selling alcoholic beverages in their bowling alley. It is also
significant that the restriction is quite limited in scope. It “restricts the sale of only one
type of item – alcoholic beverages.” Allemong, 363 S.E.2d at 493 n.2. The Agreement
serves the legitimate purpose of protecting Ms. Oliver’s business, and based on its limited
scope, it is not unreasonable.

[¶17] The geographic scope of the Agreement is quite limited. The restriction applies
only to the Quynn’s bowling alley property. The Agreement does not prevent the
Quynns from selling alcohol or operating a bowling alley at any other location they might
choose. As noted earlier, “Covenants against competition that are tied to ownership of a
particular parcel of land are seldom unreasonable because the impact is limited to one
piece of land. The owner is free to engage in the activity elsewhere.” Restatement
(Third) of Property: Servitudes § 3.6 cmt. b. The Agreement is not unreasonable in
geographic scope.

[¶18] The Agreement does not establish a time limit on its restrictions, and the district
court found that the prohibition on alcohol sales was unenforceable “primarily because of
its forty-six year duration.” However, a “covenant will not be declared invalid merely
because it is unlimited in duration if the other restrictions on geographic area and scope
are limited and reasonable.” Town Line Repairs, Inc. v. Anderson, 455 N.Y.S.2d 28, 29
(N.Y. App. 1982); 54A Am.Jur.2d Monopolies and Restraints of Trade § 859 (2013)
(“Covenants limited as to area may be enforced, even though they fail to specify a time
limitation.”).    We have already discussed the Agreement’s limited scope and
geographical coverage. Our decision to uphold a lifetime non-competition agreement in
Holland, ¶ 20, 35 P.3d at 415, suggests that otherwise reasonable restrictions may be
enforced even if they are of long duration. In this case, the district court upheld other
provisions in the agreement, even though their duration is identical to that of the
prohibition against sales of alcoholic beverages.

[¶19] In Allemong, 363 S.E.2d at 492, the court indicated that a perpetual restriction on
the sale of alcohol remained enforceable “provided that changes in the neighborhood’s
character are not so radical as to destroy the essential objects and purposes of the
neighborhood’s original plan of development.” This is consistent with our statement in
Keller v. Branton, that, “[f]or a change in neighborhood to justify termination of an
equitable servitude, such change must be of a radical and permanent nature.” Id., 667
P.2d 650, 654 (Wyo. 1983), quoting 7 Thompson on Real Property, § 3174 (Bobbs-
Merrill Company, Inc. (1962)). In the case before us now, the district court took judicial


                                              8
notice of the fact that liquor licenses are easier to obtain now than when the Agreement
was made in 1965. However, the Quynns have provided no authority to demonstrate that
this is such a radical and permanent change that it justifies termination of the prohibition
on alcohol sales.

[¶20] The undisputed evidence shows that the two buildings are still used for a
restaurant and bar and a bowling alley, the identical businesses contemplated when the
Agreement was made. In Exit 1 Properties, 692 N.E.2d at 116, the prohibition on food
sales had a stated duration of fifty years. The court found that this duration was
reasonable, explaining that “the duration at this juncture is not inconsistent with the
useful life of buildings.” Id. at 118. Ms. Oliver continues to use her building as a
restaurant, bar, and lounge, and the Quynns continue to use their building as a bowling
alley, just as contemplated in the Agreement. Measured by the useful life of the
buildings, the duration of the Agreement is not unreasonable at this juncture.

[¶21] In its summary judgment order, the district court correctly ruled that the
Agreement must be tested by the “rule of reason.” For the test of such a rule, it quoted
Restatement (Second) of Contracts § 188 (1981):

              (1) A promise to refrain from competition that imposes a
              restraint that is ancillary to an otherwise valid transaction or
              relationship is unreasonably in restraint of trade if

                     (a) the restraint is greater than is needed to protect the
                     promisee’s legitimate interest, or

                     (b) the promisee’s need is outweighed by the hardship
                     to the promisor and the likely injury to the public.

Analyzing the Agreement under subsection (b), the district court found that it
“unreasonably restrains trade because of the hardship threatened to the [Quynns],” based
on the Quynns’ testimony that “their business would fail without a liquor license.” It
concluded that while Ms. Oliver “certainly needs profits and business, a potential
business failure outweighs a loss of business and profits.”

[¶22] We are not in accord with the district court’s analysis. We have cited § 188 of the
Restatement (Second) of Contracts in two previous cases, but only in support of the
general principle that the common law disfavored contracts in restraint of trade. Hopper,
861 P.2d at 539; Preston v. Marathon Oil Co., 2012 WY 66, ¶ 15, 277 P.3d 81, 86 (Wyo.
2012). We did not mention the factors of hardship to the promissor and injury to the
public. It has been asserted that § 188’s focus on hardship to the promissor and injury to
the public is misplaced and unsupported by authority. “Public injury or personal hardship
alone have never been dispositive elements for not enforcing noncompetition covenants


                                             9
otherwise reasonable in purpose, geographic scope, and duration. . . . In none of these
cases [cited in the Appendixes] is enforcement denied because of the idiosyncratic
hardship to the promisor, or any perceived harm to the pubic absent the creation or threat
of monopoly.” Milton Handler and Daniel E. Lazaroff, Restraint of Trade and the
Restatement (Second) of Contracts, 57 N.Y.U. L. Rev. 669, 731 (1982). It seems more
consistent with our Wyoming precedent to test the reasonableness of the Agreement by
focusing on its purpose, geographic scope, and duration.

[¶23] Even if we were to adopt § 188 as Wyoming law, the hardship claimed by the
Quynns is not the sort of hardship that courts rely on to find a restraint on trade
unreasonable. Certainly the failure of a business would be a hardship. However, in order
to render a restraint unreasonable, hardship to the promissor must be “excessive,” as, for
example, “if the restraint necessitates his complete withdrawal from business.”
Restatement (Second) of Contracts § 188 cmt. c (1981). An agreement not to compete
may cause excessive hardship if it prevents the promissor from doing business anywhere
in the relevant market. See, e.g., Durapin, Inc. v. American Products, Inc., 559 A.2d
1051, 1058 (R.I. 1989) (covenant imposed “undue hardship on Durapin by completely
excluding it from access to almost all segments of the . . . market for a period of up to
three years”). In contrast, a covenant prohibiting a dentist from practicing dentistry
within five miles of his former office for a period of two years was found not to impose
undue hardship. Deutsch v. Barsky, 795 A.2d 669, 679 (D.C. 2002), quoting Karlin v.
Weinberg, 390 A.2d 1161, 1166 n.3 (N.J. 1978): A “mere showing of personal hardship
does not amount to an ‘undue hardship’ that would prevent enforcement of the covenant.”
Similarly, in Hopper, 861 P.2d at 536, 543, we concluded that a restriction on a
veterinarian was not unreasonable, in part because it applied only to the practice of small
animal veterinary medicine in Laramie. The veterinarian could still engage in a large
animal practice in Laramie, or in general practice anywhere except Laramie. The
restraint did not cause the veterinarian to withdraw completely from the practice of
veterinary medicine.

[¶24] The Agreement prohibiting the Quynns from selling alcohol in their bowling alley
does not require their complete withdrawal from business. The restriction is limited to
the current location of the bowling alley. It does not prohibit them from conducting their
business at another location and selling alcohol there. The fact that their business might
fail at its current location is not the sort of undue hardship that, under § 188 of the
Restatement (Second) of Contracts, renders a restriction unreasonable and unenforceable.

[¶25] Further, if we were to apply § 188(1)(b), the Quynns would be required to
demonstrate both that “the promisee’s need is outweighed by the hardship to the promisor
and the likely injury to the public.” (Emphasis added.) The district court made no
findings explicitly relating to public injury. It took judicial notice that bowling alleys in
other nearby communities “have closed in recent years.” This may have been meant to
suggest that the public might be harmed if the Quynns closed their bowling alley.


                                             10
However, the Quynns have cited no authority indicating that this is the kind or degree of
pubic injury needed to render a restraint on trade unreasonable and unenforceable. “[I]n
the few decisions directly addressing the issue, public injury as a defense against
enforcement of an otherwise valid agreement has been rejected. Indeed, we have found
no case declaring unenforceable, on public injury grounds, an otherwise valid covenant,
absent the creation of a monopoly.” Handler, supra, 57 N.Y.U. L. Rev. at 734. There is
no evidence that the Agreement under review creates a monopoly.

[¶26] In Field Surgical Assocs., Ltd. v. Shadab, 376 N.E.2d 660 (Ill. App. 1978), the
court upheld an agreement prohibiting a doctor from practicing medicine within five
miles of his former office. With regard to whether the public was harmed because it was
deprived of the services of this doctor, the court wrote,

             A restraint such as the present one is certainly not injurious to
             the public at large. Defendant can be equally useful to the
             public interest by practicing his medical specialty in some
             location other than the prohibited area since the health of
             individuals living elsewhere in this State is just as important.
             As was stated in Canfield v. Spear (1969), 44 Ill. 2d 49, 52,
             254 N.E.2d 433, 435:

                    It cannot be said that the public interest is adversely
                    affected if a physician decides to move from one
                    community to another, nor does it become so if the
                    move results from some agreement made in advance.
                    If a severe shortage exists in any particular place
                    young doctors will tend to move there, thus alleviating
                    the shortage.

Id., 376 N.E.2d at 664. Similarly, the fact that the public might be deprived of the
opportunity to bowl at the Quynns’ current location is not a public harm severe enough to
render the Agreement unreasonable.

[¶27] Although the Agreement may impose some personal hardship on the Quynns, we
will not rewrite the Agreement “to rescue parties from the consequences of their unwisely
made bargains.” Hunter v. Reece, 2011 WY 97, ¶ 23, 253 P.3d 497, 503 (Wyo. 2011),
quoting Sowerwine v. Keith, 997 P.2d 1018, 1020-21 (Wyo. 2000). When we test the
enforceability of a restraint on trade, we encounter a conflict between two principles: the
freedom to contract and the freedom to work or conduct business. See Hopper, 861 P.2d
at 539; Ridley, 180 P.2d at 128. As noted before, we are more disposed to sustain an
agreement in restraint of trade when it is between two businesses than when it is between
an employer and an employee. We do “not lightly interfere with the freedom of contract
between parties.” Pennant Serv. Co. v. True Oil Co., LLC, 2011 WY 40, ¶ 30, 249 P.3d


                                            11
698, 710 (Wyo. 2011); see also Sinclair Oil Corp. v. Columbia Casualty Co., 682 P.2d
975, 978-79 (Wyo. 1984). The Quynns were aware of the Agreement’s restrictions when
they purchased the bowling alley in 2009, and they have not demonstrated that equity
compels us to relieve them of the burdens imposed by the Agreement. See Cash v.
Granite Springs Retreat Ass’n, 2011 WY 25, ¶ 33, 248 P.3d 614, 623 (Wyo. 2011).

[¶28] Given the undisputed facts in this case, we conclude that the Agreement’s
prohibition of alcohol sales in the bowling alley is not unreasonable. The Agreement is
limited in its purpose and scope, and quite limited in its geographical coverage. Its long
duration, by itself, is insufficient to render the Agreement unreasonable at this point in
time. The provision of the Agreement prohibiting the Quynns from selling alcohol in
their bowling alley is therefore enforceable. We reverse the district court’s decision with
regard to this provision, and remand with instructions to enter summary judgment for
Ms. Oliver on this issue.




                                            12
