COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70634 THOMAS McGUIRE, ET AL. : : Plaintiff-appellees : : JOURNAL ENTRY -vs- : AND : OPINION MARK BEDELL, ET AL. : : Defendant-appellants : : DATE OF ANNOUNCEMENT : JANUARY 30, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-283788 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellants: GEORGE FORBES, ESQ. KALAM MUTTALIB, ESQ. DENNIS N. LOCONTI, ESQ. 1965 East 6th Street, #1000 700 Rockefeller Bldg. Cleveland, OH 44114 614 Superior Avenue, N.W. Cleveland, OH 44113-1332 LISA M. HERBERT, ESQ. Assistant Law Director Room 106, City Hall 601 Lakeside Avenue Cleveland, OH 44114 - 2 - PATTON, J. Defendant-appellant Mark Bedell ("defendant") appeals the order of the trial court granting an injunction in favor of plaintiff-appellee Thomas McGuire, et. al., ("plaintiff"). The trial court granted the injunction in order to enforce a noncompete clause in an employment contract. On March 7, 1992 defendant entered into a contract of employment with plaintiff wherein Plaintiff would train defendant to be a bail bondsman and defendant would then write bonds for plaintiff. Contained in this written contract was a clause containing a covenant not to compete. The covenant stated upon termination of the contract defendant shall not directly or indirectly within Cuyahoga County and the surrounding counties engage in competition with plaintiff for a period of four (4) years. Also contained in the covenant was a provision which said defendant will not divulge any information regarding plaintiff's business including customer's names, prices, manner of operation, or data of any kind. In 1995 the employment relationship between plaintiff and defendant terminated. Plaintiff discovered defendant was working for a competitor, in violation of the contract, and thereinafter sought to enforce the noncompete clause. Plaintiff then obtained a temporary restraining order and eventually a preliminary injunction preventing defendant from violating the noncompete clause. Defendant continued to disobey the preliminary injunction so the - 3 - trial court held several show cause hearings. The last show cause hearing occurred on February 23, 1996. At this hearing defendant did not appear but his attorney appeared and notified the trial court that defendant had notice that a trial was scheduled for February 27, 1996. Defendant was subsequently found to be in contempt of court for violating the preliminary injunction. After the hearing, defendant filed a motion for continuance which requested the trial set for February 27 be continued because defendant had recently discharged his attorney and needed four months to hire a new attorney and prepare for trial. The trial court denied this motion. On February 27, 1996 a trial on the merits of the case was held. Neither defendant nor counsel for defendant appeared. The trial court went ahead with the proceedings and heard testimony from plaintiff. Plaintiff stated defendant signed an employment contract with a noncompete clause and defendant was violating the contract and the preliminary injunction previously ordered by the court. On April 15, 1996 the trial court issued its judgment entry and permanent injunction in favor of plaintiff thereby enforcing the noncompete clause against defendant. Defendant now appeals from this order of the court. - 4 - I. Defendant argues first that the trial court had a duty to modify its order barring him from the Justice Center before proceeding with the ex parte trial of this matter. Plaintiff counters by asserting defendant cites no cases or statutes in support of his argument. In addition, plaintiff maintains defendant was never barred from attending trial or those parts of the Justice Center necessary to proceed to the courtrooms. The order defendant refers to is the trial court's February 17, 1996 order which granted plaintiff's preliminary injunction. The order restrained defendant from "[l]oitering on the first floor of the Justice Center; and From being on the second, third and fourth floor of the Justice Center." [sic]. Defendant was not prohibited from entering the Justice Center nor was he restrained from going to the upper levels where the courtrooms are located. There is no evidence in the record that supports defendant's argument that he was unable to attend the trial as a result of the trial court's order. Therefore, defendant's first assignment of error fails because the trial court had no duty to modify the February 28, 1996 order. II. Defendant next argues the trial court had a duty and responsibility to ensure that the "covenant not to compete" met all the necessary tests under the law prior to enforcement. - 5 - Plaintiff maintains his unrefuted testimony at trial was sufficient to establish the need for enforcement of the noncompete clause. A noncompete agreement which restrains an employee from competing with a former employer must be reasonable to be enforceable. A noncompete agreement is reasonable if (1) its restrictions are not greater than that which is required to protect the employer, (2) it does not impose an undue hardship on the employee, and (3) it is not injurious to the public. Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21. Thus, the sole question before this court is whether the noncompete clause in defendant's employment contract is reasonable in light of the test in Raimonde. We hold that the noncompete clause is reasonable. At trial, plaintiff's testimony revealed the need for enforcement of the noncompete clause in order to protect his business. Plaintiff stated defendant had insider's knowledge of his companies methods; i.e., how his company rated bonds and the requirements a bond must have before it is approved. This information would let plaintiff's competitors know if plaintiff's company was more lenient or not when it came to rating bonds. Also, plaintiff stated defendant's actions resulted in a loss of business. This occurred because defendant started writing bonds for a competitor, he trained people to become bondsmen for the - 6 - competitor, and he forfeited a number of plaintiff's bonds by writing them for people who were not plaintiff's customers. In addition, the record reveals the enforcement of the noncompete agreement would not impose an undue hardship on defendant. The trial court's order enforcing the noncompete provision only restrains defendant from working in seven counties in the state which still leaves defendant with the rest of the state to work in. Furthermore, plaintiff stated defendant had previously worked in the insurance business which provides defendant with an employment alternative if he does not want to work as a bondsman in another geographical area. Lastly, there is no evidence that as a result of the enforcement of the noncompete clause the public will suffer harm. In fact, the testimony revealed that bail bonds will still be available to the public while defendant is out of the market. Defendant argues enforcement of the noncompete clause is too restrictive and overly protects plaintiff because plaintiff has other employees who will fill the void in defendant's absence and plaintiff will not suffer economic loss. Defendant also argues enforcement of the noncompete clause presents economic hardship to him because being a bondsman is his only occupation since 1992 and leaving the bondsman profession would inhibit his ability to work. Essentially, defendant claims the noncompete clause is overbroad and seeks to punish him and force him out of the business rather than acting as protection for plaintiff. - 7 - While on their face defendant's arguments appear to be valid, in actuality they only mask the major defect in defendant's reasoning. These arguments are completely unsubstantiated. Defendant did not appear at trial and thus there is no evidence that enforcement of the noncompete clause is too restrictive or imposes an undue hardship on defendant. Defendant's second assignment of error is overruled. Based on the foregoing we affirm the judgment of the trial court. - 8 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. SPELLACY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .