COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70696 H.R. GRAPHICS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION RUTH LAKE-PERRY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-302862 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ROBERT J. HOFFMAN (#0061246) DWORKEN & BERNSTEIN CO., L.P.A. 153 EAST ERIE STREET, SUITE 304 PAINESVILLE, OHIO 44077 PATRICK A. PEROTTI (#0005481) DWORKEN & BERNSTEIN CO., L.P.A. 55 PUBLIC SQUARE - SUITE 950 CLEVELAND, OHIO 44113 For Defendant-Appellee: EDWARD G. KRAMER (#0024873) JAMES M. TIGHE (#0013847) KRAMER & NIERMANN, L.P.A. 3214 PROSPECT AVENUE E. CLEVELAND, OHIO 44115-2600 - 2 - LEO M. SPELLACY, J.: Plaintiff-appellant H.R. Graphics ("appellant") appeals the denial of its request for injunctive relief. Appellant sought to enforce a non-competition agreement signed by defendant-appellee Ruth Lake-Perry ("appellee"). Appellant assigns the following error for review: THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S REQUEST FOR INJUNCTIVE RELIEF TO ENFORCE THE TERMS OF THE PARTIES' NON- COMPETITION AGREEMENT. Finding appellant's assignment of error to be meritorious, the judgment of the trial court is reversed. I. Appellant H.R. Graphics is an Ohio corporation doing business throughout the United States. Appellant's business involves providing schools with textbook covers and folders for their students. The textbook covers and folders are given to the schools free of charge and the schools sign a five-year agreement to deal strictly with appellant. Appellant's income source comes from solicitation of advertising for the textbook covers and folders from local businesses. In 1988, appellant hired appellee as a sales representative. Prior to being hired by appellant, appellee, from 1984 through 1987, had worked in the business of text-book cover advertising sales for a similar company. In her new position with appellant, appellee would set up the majority of her own meetings with the - 3 - schools, visit the schools once a year, and solicit the necessary advertising for the textbook covers and folders. On January 1, 1992, appellee entered into a sales representative contract with appellant which included a noncompete agreement. The sales representative contract provided that each salesperson could choose which commission schedule they wanted to be paid under. The following two schedules were set forth in the sales representative contract: Plan "A" A salesperson will receive 20% commission on all sales (with $1309.00 for covers, $1609.00 for folders being the minimum in each school). Expenses: A sales person will receive $100.00 per week for their expenses (ie. motel, food). A salesperson will receive $50.00 per week for automobile expenses. (ie. gas, oil, etc.) Bonus: A salesperson will receive weekly bonus money as listed below for ads completed while away from home during the course of a week. 6 Ads - $50 Bonus 9 Ads - $100 Bonus 12 Ads - $150 Bonus Note: Ads can be sold in one or more schools during the week Plan "B" A sales person will receive 40% of the first $1309.00 for covers, $1609.00 for folders in a school. (With $1309.00 for covers, $1609.00 for folders still being the minimum) and 50% of all money collected above $1309.00 for covers, $1609.00 for folders in each school. Prior to signing the sales representative contract on January 1, 1992, appellee had not been required to sign any contract or noncompete agreement with appellant. - 4 - On December 28, 1995, appellant terminated appellee. Appellee had started her own textbook cover advertising sales business and named it R. Graphics. In January 1996, appellant learned about R. Graphics when appellee's replacement attempted to call upon Nazareth Academy, a school in Victoria, Texas, and was informed by the school that appellee had already been there. Appellant filed a complaint on February 6, 1996, seeking injunctive relief; and a motion for a temporary restraining order pending hearing and determination of appellant's request for injunctive relief. The hearing on appellant's motion for a preliminary injunction was consolidated with its request for permanent injunctive relief. On April 26, 1996, the trial court, after a full hearing, dismissed appellant's complaint with prejudice and held: 1) There was no clear and convincing evidence presented by plaintiff to justify the issuance of a preliminary injunction; 2) The sales kit provided to Defendant does not constitute a trade secret and Plaintiff failed to demonstrate any injury suffered as a result of Defendant's possession and use of the sales information; and 3) The non-compete clause is unreasonable as a matter of law and thus, unenforceable. (Judgment Entry, April 26, 1996). II. In its sole assignment of error, appellant contends that the trial court erred in denying its request for injunctive relief to enforce the terms of the parties' non-competition agreement. - 5 - Appellant contends that its employment covenant was reasonable to protect its interests, did not unduly restrict appellee and, therefore, was enforceable. In the case sub judice, the sales representative contract states, in part, the following: 8. Territory of sales is to be within a 350 miles radius of Beeville, Texas. 9. The Second Party [appellee] covenants and agrees that he/she will not during the term of this contract and for 1 (one) year thereafter, directly, or indirectly enter the employment of, or render any services to, any other person, partnership, or corporation, engaged in a similar type of business as the First Party [appellant] (within the radius of set miles) from the residence of the Second Party. In Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, the Ohio Supreme Court held that a noncompete agreement is reasonable if the restraint is no greater than is required for the protection of the employer, it does not impose undue hardship on the employee, and is not injurious to the public. Id. at paragraph two of the syllabus. Factors to be considered in accessing reasonableness include: "'(t)he absence or presence of limitations as to time and space, * * * whether the employee represents the sole contact with the customer; whether the employee is possessed with confidential information or trade secrets; whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to eliminate ordinary competition; whether the covenant seeks to stifle the inherent skill and experience of the employee; whether the benefit to the employer is disproportional to the detriment to employee; whether the covenant operates as a bar to the employee's sole means of support; whether the employee's talent which the employer seeks to suppress was actually - 6 - developed during the period of employment; and whether the forbidden employment is merely incidental to the main employment.'" Id.at 25 quoting Extine v. Williamson Midwest (1964), 176 Ohio St. 403, 406. The validity of each agreement must be decided on its own facts. Id. Further, a covenant not to compete which imposes unreasonable restrictions upon an employee will be enforced to the extent necessary to protect the employer's legitimate interests. Id. Thus, it is the burden of the plaintiff to produce clear and convincing evidence as to each element of Raimonde. Additionally, where a plaintiff seeks enforcement of a noncompetition clause, he must show actual, irreparable harm. Levine v. Beckman (1988), 48 Ohio App.3d 24, 27. This court has held that, in order to enforce a noncompetition agreement, a balancing should occur. S&S Inc. v. Kuret (May 13, 1993), Cuyahoga App. Nos. 62478, 63042, unreported, citing Professional Investigations and Consulting Agency, Inc. Kingsland (1990), 69 Ohio App.3d 753, 760. In particular, a trial court, though not required to modify a covenant, must balance the restraints and protected hardships with the employer's interests. Id. Appellant has exclusive five-year contract agreements with various schools to distribute textbook covers and folders. Appellee was the sole contact with appellant's customers. Appellee possesses a list of appellant's Texas customers. The business of textbook-cover advertising solicitation is highly competitive. - 7 - Appellee had three years of experience in textbook-cover advertising solicitation prior to working nine years for appellant. Appellee, prior to leaving her employment with appellant, formed her own textbook-cover advertising sales company and named it R. Graphics. Although appellee did not testify at trial, evidence was presented that appellee, using a name remarkably similar to appellant's trade name, contacted schools and advertisers who were appellant's clients. Appellee's use of a name so similar to appellant's name, as well as appellee's use of appellant's client list, art work and materials, is exactly the type of unfair competition the noncompetition covenant sought to eliminate and is reasonably related to protecting appellant's interests. Enforcement of the covenant would not disproportionately benefit appellant to the detriment of appellee. Furthermore, appellant has shown that appellee's actions in contacting other schools have caused appellant actual, irreparable harm, in that, appellant has lost the business of various clients. Appellee argues that the covenant not to compete is unenforceable because she was given no additional consideration for signing the contract which contained the non-compete clause. Generally, courts will not inquire into the adequacy of consideration. Rogers v. Runfola & Associates, Inc. (1991), 57 Ohio St.3d 5. It has been held that continued employment serves as sufficient consideration to support a non-compete agreement. Cole - 8 - National Corporation, et al. v. Koos (December 22, 1994), Cuyahoga App. No. 66760, unreported, citing Copeco, Inc. v. Caley (1992), 91 Ohio App.3d 474. In addition to continued employment, appellee received a sales commission and expenses, as well as weekly bonuses. Thus, there was sufficient consideration to support the agreement. We must now address the time and space restrictions incorporated into the parties' noncompetition agreement. In the instant case, we cannot find that the restrictions and resultant hardships on appellee exceed that which is reasonable to protect appellant's business interests. The time limitation set forth by the noncompetition agreement is one year. This court has previously determined a one year time restriction to be reasonable. See Kuret, supra. Next, we must address whether the space restriction imposed by the noncompetition agreement is reasonable. Appellee's territory while working in her capacity of sales representative for appellant was a three hundred fifty mile radius around Beeville, Texas. Based upon this territory, the noncompetition agreement provided that appellee could not engage in a similar type of business as appellant within this territory. As stated supra, it is not mandatory for the court to modify the covenant. Kingsland, supra. Therefore, the trial court did not abuse its discretion by declining to modify the covenant. In light of the fact that the space restriction incorporated the - 9 - territory appellee maintained while she was an employee of appellant, we do not find the restriction imposed by the noncompetition agreement to be unreasonable. Accordingly, appellant's sole assignment of error is sustained. Judgment reversed. - 10 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court 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. Exceptions. ANN DYKE, P.J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .