                                                          
                    In the Missouri Court of Appeals
                            Eastern District
                                       DIVISION FOUR

WHELAN SECURITY CO.,                                )        ED101847
                                                    )
       Plaintiff/Respondent/Cross-Appellant,        )        Appeal from the Circuit Court
                                                    )        of St. Louis County
v.                                                  )
                                                    )
CHARLES KENNEBREW, SR.,                             )        Honorable Maura B. McShane
                                                    )
       Defendant/Appellant/Cross-Respondent.        )        Filed: September 29, 2015

                                          Introduction

       Charles Kennebrew, Sr. (Kennebrew) appeals from the trial court’s October 10, 2013

Summary Judgment in favor of Whelan Security Co. (Whelan) on its claims that Kennebrew

breached the customer non-solicitation clause and the 50-mile non-competition clause in his

employment agreement (Agreement). Whelan appeals from the trial court’s June 26, 2014 Order

and Judgment awarding it, in part, $165,000 in attorney’s fees. We reverse and remand.

                              Factual and Procedural Background

       Whelan is a Missouri corporation based in St. Louis County that provides security

services in a number of cities throughout the country, including Houston, Texas and Dallas,

Texas. In November 2007, Whelan hired Kennebrew, who signed the Agreement, which
included a covenant not to compete against Whelan.1 Kennebrew, who had previously worked

for a competitor of Whelan, executed the Agreement on November 26, 2007. Its restrictive

covenants provided that:

              During the term of this Agreement, and for a period of two (2) years thereafter,
              whether the termination of this Agreement is initiated by EMPLOYER or
              EMPLOYEE, EMPLOYEE shall not, without the prior written consent of
              EMPLOYER, in any manner, directly or indirectly, either as an employee,
              employer, lender, owner, technical assistant, partner, agent, principal, broker,
              advisor, consultant, manager, shareholder, director, or officer, for himself or in
              behalf of any person, firm, partnership, entity, or corporation, or by any agent or
              employee:

              (a) Solicit, take away or attempt to take away any customers of EMPLOYER or
              the business or patronage of any such customers or prospective customer(s)
              whose business was being sought during the last twelve (12) months of
              EMPLOYEE’s employment; or

              (b) Solicit, interfere with, employ, or endeavor to employ any employees or
              agents of EMPLOYER,

              (c) Work for a competing business within a fifty (50) mile radius of any location
              where EMPLOYEE has provided or arranged for EMPLOYER to provide
              services.

              (d) Work for a customer of EMPLOYER or prospective customer(s) whose
              business was being sought during the last twelve (12) months of EMPLOYEE’s
              employment, if the work would include providing, or arranging for, services the
              same as, or similar to, those provided by EMPLOYER.

              “Competing business” means any business engaged in providing guard and/or
              security services the same as, or similar to, those offered by EMPLOYER.

              Whelan hired Kennebrew because of his reputation in the security guard business, his

business contacts, and his ability to attract clients, especially in Houston. Kennebrew began

working at Whelan as the Director of Quality Assurance and was assigned to Dallas in




                                                            
1
 W. Landon Morgan (Morgan) was also a former employee of Whelan and a defendant in this case, but was
eventually dismissed by Whelan after appeal and remand. Morgan is not involved in this appeal but is occasionally
mentioned.

                                                               2
 
November 2007, in part to comply with a non-compete agreement2 Kennebrew had with his

previous employer. Kennebrew’s duties included managing “all operations, clients, [and]

customers” and he had access to employee records, including compensation, and to Whelan’s

financial information. Kennebrew contacted Whelan customers in different parts of Texas,

including Houston, where he had more than ten clients.

              On March 30, 2009, Kennebrew submitted a letter of resignation to Whelan but

continued to work for Whelan until August 2009. Kennebrew started his own security guard

company, Elite Protective Services, LLC (Elite).

              Park Square Condominiums (Park Square) was a customer of Whelan in Houston

from 2007 until the end of 2009. On December 17, 2009, Park Square signed a contract

with Kennebrew on behalf of Elite to provide security services. Park Square terminated

its relationship with Whelan effective January 2, 2010, and was replaced by Elite, which

retained the services of a number of Whelan security personnel who had worked at the

Park Square location.

              On January 4, 2010, Whelan filed a petition seeking injunctive relief against Kennebrew,

as well as damages for breach of contract, unjust enrichment, and civil conspiracy. After a

hearing over a period of several days, the trial court denied Whelan’s request for a preliminary

injunction. Whelan filed a motion to modify, and the parties filed cross-motions for summary

judgment. On January 7, 2011, the trial court issued summary judgment in favor of Kennebrew,

concluding the employment agreement was overbroad, not reasonable as to time and space, and




                                                            
2
 The term “non-compete agreement” refers to all restrictive covenants entered into between the employer and
employees that restrict post-employment activities of the employees, including non-competition and non-solicitation
clauses. Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 609 n. 2 (Mo.banc 2006).


                                                               3
 
therefore invalid as a matter of law. The trial court denied Whelan’s motion for summary

judgment and dismissed the case with prejudice.

              Whelan appealed this judgment, which, after being reversed by this Court based on our

finding that the agreement was not per se unreasonable, was transferred to the Missouri Supreme

Court at Kennebrew’s request. The Supreme Court vacated this Court’s opinion and issued its

own, reversing the trial court’s summary judgment based on its finding that the non-compete

agreement was unreasonably overbroad as written but could be modified. Whelan Sec. Co. v.

Kennebrew, 379 S.W.3d 835, 839 (Mo.banc 2012). The Supreme Court modified the terms of

the non-compete agreement by eliminating the provision prohibiting Kennebrew from soliciting

existing Whelan customers, except those customers with whom Kennebrew dealt during his

employment, and eliminating the prohibition against soliciting Whelan’s prospective customers.

Id. at 844-45. The Court held the employee non-solicitation clause and the 50-mile non-

competition clause were enforceable. The Court remanded the case for resolution of whether the

employee non-solicitation clause was motivated by a valid purpose under Section 431.202(3)3

and whether Kennebrew’s actions violated his covenant not to compete.

              On remand, the trial court again entertained cross-motions for summary judgment. On

October 10, 2013, the trial court granted summary judgment in Whelan’s favor on its claims that

                                                            
3
    All statutory references are to RSMo 2006. Section 431.202 provides in pertinent part:

              1. A reasonable covenant in writing promising not to solicit, recruit, hire or otherwise interfere with the
              employment of one or more employees shall be enforceable and not a restraint of trade pursuant to
              subsection 1 of section 416.031 if:
              …
                       (3) Between an employer and one or more employees seeking on the part of the employer to
                       protect:

                                            (a) Confidential or trade secret business information; or

                                            (b) Customer or supplier relationships, goodwill or loyalty, which shall be deemed to be
                                            among the protectable interests of the employer….


                                                                           4
 
Kennebrew (1) breached the customer non-solicitation clause, as modified, and (2) breached the

50-mile non-competition clause. The court found no genuinely disputed issues of fact that

Kennebrew had breached these two clauses of the agreement.

          The trial court denied Whelan’s motion for summary judgment on its claim Kennebrew

breached the employee non-solicitation clause. The trial court found, in accordance with the

Supreme Court’s opinion, that additional parol evidence needed to be adduced to determine the

purpose of this clause, because such purpose could not be discerned from the four corners of the

agreement alone. Whelan, 379 S.W.3d at 846 (lack of any language regarding purpose of

employee non-solicitation clause prevents Court’s determination of clause’s purpose as matter of

law … intent of parties must instead be determined by use of parol evidence on remand). The

trial court denied Kennebrew’s motion for summary judgment.

          On November 7, 2013, Whelan filed separate motions for continuance, summary

judgment on its damages, and sanctions. On November 14, 2014, the trial court granted

Whelan’s motion for continuance, pursuant to which the case was removed from its jury trial

setting of December 2, 2013, and continued to such time as the court could hear and rule on

Whelan’s motions for summary judgment and sanctions. The court also ruled discovery was

closed.

          On January 21, 2014, the trial court heard Whelan’s motions for summary judgment on

damages and for sanctions. On February 11, 2014, the court denied both motions. On February

25, 2014, by consent of the parties and order of the court, a one-day bench trial on damages was

set for April 28, 2014.

          On April 28, 2014, trial was had, at which the court heard evidence and argument and

took the matter under submission, allowing the parties to file post-trial briefs. On June 26, 2014,



                                                 5
 
the trial court entered its Order and Judgment. The trial court assessed Whelan’s damages in lost

profits from Kennebrew’s breach of the Agreement’s client non-solicitation clause and 50-mile

non-competition clause at $69,375.75, entering judgment thereon in Whelan’s favor. The court

found insufficient evidence had been adduced to establish the purpose of the employee non-

solicitation clause, and thus Whelan’s claim it had been breached was denied along with any

associated claim for damages or injunctive relief. The trial court also awarded Whelan $165,000

in attorney’s fees. The trial court denied Whelan’s claim for unjust enrichment because it invited

duplicative damages. The court further held that “all arguments submitted and not addressed

have been considered and denied.” This appeal follows.

                                         Points on Appeal

       In his first point, Kennebrew claims the trial court erred in granting Whelan summary

judgment that Kennebrew had violated the customer non-solicitation clause in § 3(a) of the

Agreement by soliciting Park Square’s business because Kennebrew presented evidence in

response to Whelan’s motion for summary judgment that he had not solicited Park Square’s

business and, rather, Park Square’s manager had solicited his business.

       In his second point, Kennebrew maintains the trial court erred in granting Whelan

summary judgment that Kennebrew had violated the 50-mile non-competition clause in § 3(c) of

the Agreement by operating Elite in Houston because Kennebrew raised an affirmative defense

that Whelan had waived the Agreement and, in opposition to Whelan’s motion for summary

judgment, presented evidence Whelan had waived § 3(c) by his superiors at Whelan knowing

about his operation of Elite in Houston, tolerating it, and expressly agreeing to allow him to do

so.




                                                 6
 
              In his third point, Kennebrew contends the trial court erred in granting Whelan summary

judgment that Kennebrew had violated the 50-mile non-competition clause in § 3(c) of the

Agreement by operating Elite in Houston because Kennebrew presented evidence that he only

provided services for Whelan in Dallas, not Houston, and merely assisted with some Houston

contacts while providing services for Whelan in Dallas.

              On cross-appeal, Whelan challenges the trial court’s judgment awarding it $165,000 in

attorney’s fees as arbitrary, capricious and unreasonable and asserts its reasonable attorney’s fees

were $707,410.

                                                               Standard of Review

              Our review of the trial court’s grant of summary judgment is de novo. ITT Comm. Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The propriety of

summary judgment is purely an issue of law. Id. We need not defer to the trial court’s order, as

its judgment is founded on the record submitted and the law. Id. The criteria on appeal for

testing the propriety of summary judgment are no different from those which should be used by

the trial court to determine the propriety of sustaining the motion initially. Id.

              Summary judgment is proper only in those situations in which the movant can establish

there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law.

Rule 74.044; ITT, 854 S.W.2d at 377. The movant has the burden to show a right to judgment

flowing from facts about which there is no genuine dispute. ITT, 854 S.W.2d at 378. A court, in

considering a motion for summary judgment, tests simply for the existence, not the extent, of

these genuine disputes. Id. A genuine dispute exists where the record contains competent

materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at

382. If a trial court, in order to grant summary judgment, must overlook material in the record
                                                            
4
    All rule references are to Mo. R. Civ. P. 2014.

                                                                       7
 
that raises a genuine dispute as to the facts underlying the movant’s right to judgment, then

summary judgment is not proper. Id. at 378.

       In determining the propriety of summary judgment, we are guided by three overriding

principles. First, we review the record in the light most favorable to the party against whom

judgment was entered. ITT, 854 S.W.2d at 376. Any evidence in the record that presents a

genuine dispute as to the material facts defeats the movant’s prima facie showing. Id. at 382.

Second, the facts set forth by affidavit or otherwise in support of a party’s motion are taken as

true unless contradicted by the non-moving party’s response to the summary judgment motion.

Id. at 376. The movant must establish that the material facts are not in genuine dispute. Id. at

382. If there is no contradiction and the movant has shown a right to judgment as a matter of

law, the non-movant must create a genuine dispute by supplementing the record with competent

materials that establish a plausible, but contradictory, version of at least one of the movant’s

essential facts. Id. It is not the “truth” of the facts upon which the court focuses, but whether

those facts are disputed. Id. Where they are not, the facts are admitted for purposes of analyzing

a summary judgment motion. Id. Finally, we accord the non-movant the benefit of all

reasonable inferences from the record. Id. at 376.

                                             Discussion

                       Point I – Customer Non-solicitation Clause in § 3(a)

       Kennebrew maintains the fact of his solicitation of Park Square cannot be established by

relying on the Supreme Court’s finding that he did so under the “law of the case” doctrine.

       In Whelan’s statement of uncontroverted facts in support of its motion for summary

judgment on its claim that Kennebrew breached the customer non-solicitation clause, it cites only

to the Whelan opinion as evidence in the record supporting its statement of fact that Kennebrew



                                                  8
 
solicited Whelan’s customer Park Square. In Whelan, the Court stated, “In November and

December 2009, Mr. Kennebrew solicited the business of Park Square Condominiums, a client

of Whelan in Houston….” Id. at 840. Kennebrew maintains the Supreme Court’s statement that

he solicited the business of Park Square while employed by Whelan cannot be given “law of the

case” status thus establishing it as beyond dispute for purposes of the summary judgment

proceedings after remand.

       This statement was not part of the holding in Whelan. As such, a citation to Whelan is

inadequate evidentiary support for this fact for the purposes of summary judgment. In Whelan,

the holding was limited to the enforceability of the contract:

       This Court holds the customer non-solicitation clauses in Mr. Kennebrew’s and
       Mr. Morgan’s contracts are overbroad. It modifies the contracts to eliminate the
       provision prohibiting Mr. Kennebrew and Mr. Morgan from soliciting existing
       Whelan customers, except those customers with whom Mr. Kennebrew and Mr.
       Morgan dealt, respectively, during their employment and to eliminate the
       prohibition against soliciting Whelan’s prospective customers. The employee
       non-solicitation clauses in both contracts and the non-competition clause in Mr.
       Kennebrew’s contract are enforceable.

Whelan, 379 S.W.3d at 847. After stating its holding, the Court set out what it deemed to be

outstanding disputed issues of fact, precluding summary judgment:

       There remain genuine issues of fact that must be resolved by the trier of fact-
       namely, whether the employee non-solicitation clause in Mr. Kennebrew’s
       contract was motivated by a valid purpose under section 403.202(3) and whether
       Mr. Kennebrew’s actions violated his covenant not to compete.

Id. The Court then reversed the judgment of the trial court and remanded the case. Id.

        Kennebrew also claims the trial court erred in granting summary judgment to

Whelan because he presented evidence that he had not solicited Park Square’s business,

but rather Park Square’s manager had solicited his business. We find this issue of fact

remains controverted, in that there is evidence in the summary judgment record



                                                 9
 
supporting both sides of the controversy. For this additional reason, summary judgment

on the issue was inappropriate. Point I is granted.

                Point II − Fifty-Mile Non-Competition Clause in § 3(c) – Waiver

       Kennebrew maintains the trial court erred in granting Whelan summary judgment that

Kennebrew violated the 50-mile non-competition clause by operating Elite in Houston because

Kennebrew raised an affirmative defense that Whelan had waived the terms of the Agreement by

having knowledge of his operation of Elite in Houston, tolerating it, and expressly agreeing to

allow him to do so.

       Whether Whelan waived its right to enforce the 50-mile non-competition clause by

having knowledge of and accepting Kennebrew’s competing business is an issue of fact

precluding summary judgment. See, e.g., JumboSack Corp. v. Buyck, 407 S.W.3d 51, 53

(Mo.App. E.D. 2013) (“whether Employer waived its right to enforce the non-compete

agreement against Employee is an issue of fact”). Further, both Kennebrew and Whelan set forth

evidentiary support from the summary judgment record for their respective opposing positions

on whether Whelan waived said right. This issue also involves determinations of credibility that

must be made by the trier of fact and are not appropriately decided on summary judgment.

Accordingly, summary judgment should not have been granted on this claim. Point II is granted.

                      Point III − Fifty-Mile Non-Competition Clause in § 3(c)

       Kennebrew contends the trial court erred in granting Whelan summary judgment that

Kennebrew had violated the 50-mile non-competition clause by operating Elite in Houston in

that Kennebrew presented evidence that he only provided services for Whelan in Dallas, not

Houston. The parties do not dispute Kennebrew immediately began working for a competing

business in Houston after leaving Whelan’s employment. The issue is whether Kennebrew



                                                10
 
provided services or arranged for Whelan to provide services in Houston while employed with

Whelan in the Dallas office.

              Kennebrew insists he merely assisted Whelan with some Houston contacts while

providing services for Whelan in Dallas. However, there is also contradictory evidence in the

record. For example, in his deposition, Kennebrew testified Whelan used his contacts in

Houston to get Whelan new customers and he was successful in moving some Houston

customers to Whelan. Kennebrew also testified at the preliminary injunction hearing on

September 10, 2010, that he had contact with no fewer than ten customers of Whelan in Houston

including, but not limited to, Park Square.

              After determining the 50-mile non-competition clause in the Agreement was valid and

enforceable as written,5 the Supreme Court in Whelan held:

                       As an enforceable covenant against Mr. Kennebrew, a genuine factual
              issue exists as to whether Mr. Kennebrew’s actions violated the covenant.
              Specifically, the parties dispute whether Mr. Kennebrew provided services in
              Houston while employed with Whelan in the Dallas office. Resolution of this
              factual issue is necessary to determine if a violation of the non-compete
              agreement occurred. Entry of summary judgment on this ground, therefore, is
              improper.

Whelan, 379 S.W.3d at 847.

              The parties espouse and the record supports two plausible but contradictory accounts of

material facts with regard to this issue. Further, as in Count II, there are credibility issues to be

weighed and the issue of waiver as asserted in Count II comes into play as well with regard to

                                                            
5
    Specifically, the Court said:

              The non-competition clause in Mr. Kennebrew’s employment contract prohibits him, for a period of two
              years, from working for a competing business within 50 miles of any location where he provided or
              arranged for Whelan to provide services. Considerable precedent in Missouri supports the reasonableness
              of a two-year non-compete agreement for an operations manager that is limited to 50 miles from where
              services were rendered by the employee.

Whelan, 379 S.W.3d at 846-47. 

                                                               11
 
Point III,, especially when
                       w    Kenneebrew assertss Todd McC
                                                       Cullough, Whhelan’s Vicee President oof

Operation
        ns for the So
                    outhern Unitted States, to
                                             old him any w
                                                         work he proovided on behhalf of Whellan

while in Houston did
                   d not count to
                                oward violatting the 50-m
                                                        mile non-com
                                                                   mpetition claause when thhese

acts, on their
         t     face, co
                      ould be considered to be in contravenntion of the parties’ writtten agreemeent.

        For these reassons, the triaal court shou
                                                uld not have granted judggment as a m
                                                                                    matter of law
                                                                                                w on

this issuee. Point III is
                       i granted.

                                    Cross-Appeal – Attorneey’s Fees

        Whelan
        W      main
                  ntains its reassonable attorrney’s fees w
                                                          were $707,410 and the trrial court’s

award off $165,000 was
                   w arbitrary, capricious and unreasoonable. Becaause this Couurt has reverrsed

the trial court’s
          c       summ
                     mary judgmeent in Whelaan’s favor, W
                                                        Whelan is no longer the pprevailing paarty

and thus no longer merits
                   m      attorneey’s fees und
                                             der the Agreeement. Accordingly, wee vacate the

award off attorney’s fees
                     f    and deny
                                 y Whelan’s point on crooss-appeal ass moot.

                                              Conclusion
                                              C

        The
        T trial courrt’s October 10, 2013 Su
                                           ummary Judggment is revversed. The ttrial court’s June

26, 2014 Order and Judgment
                   J        aw
                             warding Wheelan $69,3755.75 in lost pprofit damages and $165,000

in attorneey’s fees is vacated,
                       v        sincce the underllying judgmeent on liabiliity has been reversed byy this

Court on appeal. Thiis cause is reemanded forr proceedinggs consistent with this oppinion.



                                                        Sherrri B. Sullivaan, P.J.


Patricia L.
         L Cohen, J.,, and
Kurt S. Odenwald,
        O          J.., concur.


 




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