                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 November 16, 2006 Session

   BFS RETAIL AND COMMERCIAL OPERATIONS, LLC v. CHARLES
                         SMITH

                   Appeal from the Chancery Court for Davidson County
                        No. 05-636-II Carol McCoy, Chancellor



                 No. M2006-00163-COA-R3-CV - Filed on February 12, 2007



WILLIAM C. KOCH , JR., P.J., M.S., concurring.

        I concur with the court’s opinion. However, I have prepared this separate opinion to point
specifically to the provisions of Mr. Smith’s employment agreement that undermine the summary
judgment in this case.

        Paragraph 12(a) of the employment contract prohibits Mr. Smith from entering into or
engaging in any business which competes with the “Company’s Business” for eighteen months
following his departure from the Company. Paragraph 12(e) limits the scope of this prohibition to
“only those areas where you worked or had responsibilities at the time of your separation from the
Company or at any time during the five (5) year period prior to your separation.”

       Paragraph 1(b) defines “Company’s Business” in terms of products and services, not simply
geographic areas. It states that the Company’s Business” is

               the research, development, manufacture, marketing, sale, and
               distribution of tires, tire components, polymers used in tires or
               elsewhere, roofing materials, air springs, or any other products or
               services of the Company or contemplated by the Company.

       According to the record, Mr. Smith worked exclusively in Bridgestone’s tire business.
Therefore, at the time of his separation and for the five preceding years, the tire business was the
“area” in which Mr. Smith worked for the purpose of Paragraph 12(a). Thus, one reasonable
construction of Paragraph 12(a) is that Mr. Smith agreed that he would not take a job with a
company that manufactured, marketed, sold, or distributed tires for eighteen months following his
departure from Bridgestone. However, he was free to accept employment with a company that sold
polymers, roofing materials, or air springs.
         If the focus of Paragraph 12(a) is on product lines rather than geography, then Bridgestone’s
noncompetition covenant has no geographic limits. Covenants of this sort must be reasonable with
regard to duration and geographical limits. Vantage Tech., LLC. v. Cross, 17 S.W.3d 637, 647
(Tenn. Ct. App. 1999). Thus, if Bridgestone desires to enforce Mr. Smith’s contract, it must
demonstrate that a nation-wide, or perhaps worldwide, prohibition against Mr. Smith’s employment
in the tire business is reasonable. If Bridgestone cannot prove that the limitation is reasonable, then
the trial court may reform it. A summary judgment is not the proper procedural vehicle for making
determinations of this sort.



                                                       ______________________________
                                                       WILLIAM C. KOCH, JR., P.J., M.S.




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