APPEAL FROM THE POPE COUNTY CIRCUIT COURT. NO. CV-14-29. HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE.
Gill Ragon Owen, P.A., by: Christopher L. Travis, and Drake Mann, for appellant.
The Streett Law Firm, P.A., by: Alex G. Streett, James A. Streett, and Robert M. Veach, for appellee.
WAYMOND M. BROWN, Judge. GLADWIN, C.J., and KINARD, J., agree.
WAYMOND M. BROWN, Judge
Azzore Veterinary Specialists, LLC (Azzore) appeals from an order of the Pope County Circuit Court granting summary judgment in favor of appellee Dr. Mario Hodgson. Azzore argues that summary judgment was inappropriate because (1) Azzore has a valid interest in protecting its customer list, (2) a genuine dispute of material fact remains as to what services Dr. Hodgson performs at his practice, and (3) a genuine dispute of material fact remains as to whether Azzore permanently waived its right to collect monies owed it at the end of 2010 by Dr. Hodgson. Because genuine issues of material fact remain to be tried, we reverse and remand.
In August 2010, Azzore hired Dr. Hodgson to work as a veterinary ophthalmology specialist. The parties entered into an employment agreement that contained the following covenant:
9. Covenant Not To Compete. For a period of two (2) years after the termination of his employment for any reason, Employee shall not directly or indirectly, as an employee, independent contractor, partner, stockholder, proprietor, consultant, joint venturer, investor or in any other capacity:
(a) engage in, or own, manage, operate or control, or participate in the ownership, management, operation or control of, any business or entity which engages anywhere within Pope County, Arkansas, or within a fifty (50) mile radius of any location at which Employee performs services on behalf of the Corporation hereinafter (the " Territory" ) in the provision of veterinary internal medicine, diagnostic and surgical services or remote veterinary diagnostic services;
(b) hire or solicit to perform services (as an employee, consultant or otherwise) any employees of the Corporation or take any actions which are intended to persuade any employee of the Corporation to terminate his or her association with the Corporation; or
(c) solicit any customer of the Corporation to purchase veterinary products or services that could be supplied by the Corporation.
(d) Employee acknowledges that the Corporation would not enter into this Agreement unless the Employee agrees to the restrictive covenants set forth in this Agreement. Employee acknowledges that, given the nature of the Corporation's business the covenants contained in this Agreement contain reasonable limitations as to time, geographical area and scope of activity to be ...