Orkin Exterminating Company, Inc., appeals from a judgment of the trial court holding that a noncompetition covenant in an employment contract entered into between Orkin and Tim Etheridge was void under Ala.Code 1975, § 8-1-1.
Orkin is engaged in the business of pest control. It has numerous residential and commercial customer accounts in central and south Alabama.
In December 1988, Orkin hired Etheridge as a technician to service Orkin's clients in central and south Alabama. Etheridge's duties included servicing the pest control needs of existing customers. There was conflicting testimony regarding whether Etheridge also solicited new accounts for Orkin or merely serviced new accounts for Orkin once Orkin had obtained the accounts. Etheridge testified that each month he received lists of the customers that he was to service that month. Etheridge further testified that he returned these lists to Orkin when he left its employment.
In January 1989, Etheridge signed an employment contract that contained the following provisions:
Etheridge left Orkin's employ in September 1989, after working for Orkin for approximately nine months. He moved to Montgomery to work at a Delchamps supermarket. Etheridge lived in Montgomery for approximately three months and then returned to Dothan. Upon his return, Etheridge worked for Rollins Bakery for a short time. After leaving Rollins Bakery,
Ricky Chilton, an employee of Orkin's, testified that he had personally seen Etheridge soliciting customers away from Orkin. He further testified that Orkin had received phone calls from several Orkin customers concerning attempts made by Etheridge to persuade them to employ Southeastern Pest Control. However, Etheridge testified that he had never intentionally tried to solicit any of Orkin's customers.
Orkin brought this suit, seeking to enforce the covenant not to compete. The trial court entered a judgment stating:
When a trial court has heard ore tenus evidence, as in this case, its judgment based upon that evidence is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126 (Ala.1989); Copeland v. Richardson, 551 So.2d 353 (Ala. 1989); and Pilalas v. Baldwin County Sav. & Loan Ass'n, 549 So.2d 92 (Ala. 1989). Keeping this standard in mind, we must now consider the law applicable to noncompetition clauses in employment contracts.
Ala.Code 1975, § 8-1-1, expresses the public policy of Alabama concerning contracts restraining employment:
Although a covenant not to compete fits literally within the exception of § 8-1-1, the courts will enforce its terms only if:
Calhoun v. Brendle, Inc., 502 So.2d 689, 691 (Ala.1986), and the cases cited therein.
Orkin contends that it has a protectable interest in its customer lists. It makes no other claim of a protectable interest. In Greenlee v. Tuscaloosa Office Products & Supply, Inc., 474 So.2d 669, 671 (Ala.1985), we cited Cullman Broadcasting Co. v. Bosley, 373 So.2d 830, 836 (Ala.1979), and held:
See Calhoun v. Brendle, Inc., at 691.
The burden is upon the person or entity seeking to enforce a contract that restrains the exercise of a lawful trade or business to show that it is not void under
Because we hold that the trial court could have reasonably found that Orkin did not have a protectable interest in its customer lists and, therefore, could have found the agreement invalid on this ground, we decline to discuss Orkin's other arguments.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.