COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71378 NORTHERN FROZEN FOODS, INC., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : PATRICIA McNAMARA, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 6, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 303540 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: John A. Hnat Lawrence D. Pollack Isaac Schulz ULMER & BERNE, P.L.L. Bond Court Building 1300 E. 9th Street, #900 Cleveland, Ohio 44114-1583 For defendants-appellees: Paul D. Eklund Marc A. Sanchez DAVIS & YOUNG 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 2 NAHRA, J.: Appellant, Northern Frozen Foods, Inc. (hereinafter Northern ), brings this appeal following the trial court's verdict for appellees Patricia McNamara and Sysco Food Services of Cleveland, Inc. (hereinafter Sysco ) for injunctive and legal relief. In June, 1988, McNamara was hired by Northern, a food distributer in northeast Ohio. As a condition of her employment, she signed an employment agreement (the Agreement ) which contained a non-competition clause prohibiting her from working for a competitor for six months after leaving Northern. In January, 1996, McNamara voluntarily left her employment with Northern and began working for Sysco, Northern's competitor. In February, 1996, Northern filed an action against McNamara and Sysco to 1) enforce the Agreement, and 2) for monetary damages for misappropriation of trade secrets and tortious interference with business contracts. Northern moved the trial court for a temporary restraining order ( T.R.O. ), which the court granted. The T.R.O. prohibited McNamara from soliciting customers with whom she had contact during her employment at Northern and also prohibited McNamara and Sysco from using or disclosing any information about Northern's customer accounts, price lists, product lines, pricing methods, sources and costs of product supply or any other confidential information or trade secrets revealed to or acquired by McNamara in the course of employment with [Northern]. 3 In March, 1996, the court held a hearing on Northern's complaint for injunctive relief. In August, 1996, the trial court denied injunctive relief to Northern and in September, 1996, dissolved the T.R.O.. I. Appellant's first assignment of error reads: . THE LOWER COURT ERRED IN DISMISSING THE CASE ON THE MERITS WITHOUT ISSUING AN ORDER CONSOLIDATING THE HEARING ON PLAINTIFF-APPELLANT'S MOTION FOR A PRELIMINARY INJUNCTION WITH A TRIAL ON THE MERITS. Civ.R. 65 reads, in part: (B) Preliminary Injunction (1) Notice. No preliminary injunction shall be issued without reasonable notice to the adverse party. The application for preliminary injunction may be included in the complaint or may be made by motion. (2) Consolidation of Hearing With Trial on Merits. Before or after commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. *** This subdivision (B)(2) shall be so construed and applied as to save to the parties any rights they may have to a jury trial. In Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 475 N.E.2d 189, we held that under Civ.R. 65(B)(2), the court must issue an order of consolidation to the parties to provide notice that the case will be heard on its merits. In this case, the court made the following journal entry on March 8, 1996: T.R.O. to continue by agreement of the parties. Preliminary and permanent injunction hearing is reset for 3-11-96 at 10:00 AM. The court gave sufficient notice to the parties that it would hold only one hearing, rather than a preliminary injunction hearing 4 and then a trial. However, Northern's complaint stated causes of action for both injunctive and legal relief, and the court gave no notice it would hear appellant's tort claims. Additionally, at the hearing appellant did not address the merits of its torts claims other than arguing its position that McNamara held confidential information in support of its claim that the Agreement was reasonable. We find that the court erred by dismissing appellant's entire complaint where it did not issue an explicit order that it would hear appellant's misappropriation of trade secrets and tortious interference with contract claims at the hearing for injunctive relief. Accordingly, we find appellant's first assignment of error to be well taken. II. Appellant's second assignment of error states: II. IF THE LOWER COURT PROPERLY CONSOLIDATED THE MOTION FOR A PRELIMINARY INJUNCTION WITH A HEARING ON THE MERITS, THEN THE LOWER COURT ERRED AS A MATTER OF LAW BY REFUSING TO GRANT PLAINTIFF-APPELLANT INJUNCTIVE RELIEF. As we determined in Part I, the court properly heard appellant's claims for injunctive relief. However, we find the court erred by not granting the relief sought as the Agreement was valid and enforceable. In Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, 325 N.E.2d 544, the first and second paragraphs of the syllabus state: 1. A convenant (sic) not to compete which imposes unreasonable restrictions upon an employee will be enforced to the extent necessary to protect an employer's legitimate interests. (Paragraphs two and three of the 5 syllabus in Extine v. Williamson Midwest, 176 Ohio St. 403, overruled.) 2. A covenant restraining an employee from competing with his former employer upon termination of employment is reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious to the public. In this case, the Agreement prohibited McNamara from working for a relatively short period of time for a direct competitor of appellant's, protected legitimate interests of Northern, and did not impose undue hardship on McNamara. Although appellee correctly asserts that the covenant could theoretically be read to prohibit McNamara from working anywhere in the country; under Raimonde, the Agreement is enforceable to encompass a reasonable geographic area. In this case that is the area in which Northern directly competes with Sysco. Appellees assert that because McNamara had a financial burden brought on by a recent divorce she was subject to undue hardship by the Agreement. We do not agree as she was only prohibited from competing with Northern for a short period of time. Undue hardship cannot be determinated on a post hoc basis, but rather by the terms of the agreement at the time it was entered into. As longer restraints upon post-employment competition have been upheld, see e.g., Rogers v. Runfola & Assoc. (1991), 57 Ohio St.3d 5, 556 N.E.2d 540 (one year non-competition agreement for stenographer throughout Franklin county reasonable); Shury v. Rocco (Mar. 30, 1989), Cuyahoga App. No. 56214, unreported (two year non- competition agreement for bonding agent in Cuyahoga and adjacent 6 counties reasonable), the Agreement does not impose undue hardship. We find the non-competition agreement was reasonable and the court should have granted Northern the injunctive relief requested. However, McNamara and Sysco were subject to the court's T.R.O. prohibiting them from using confidential information, and prohibiting McNamara from contacting Northern's customers. Because injunctive relief in favor of appellant would be moot at this time, we remand this case for consideration of appellant's tort claims against McNamara and Sysco, and consideration of damages sustained by appellant due to the breach of the Agreement by McNamara. 7 This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees 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. BLACKMON, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE 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 .