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Metcalfe Investments, Inc. v. Garrison et. al. (6/28/96), 919 P 2d 1356
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
METCALFE INVESTMENTS, INC., )
) Supreme Court No. S-6772
Appellant, )
) Superior Court No.
) 3AN-93-6359 Civil
v. )
) O P I N I O N
LINDA S. GARRISON, DAVID A. )
GARRISON and ALL ALASKA )
REALESTATE INVESTMENTS, INC., )
) [No. 4361 - June 28, 1996]
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Milford H. Knutson, Bledsoe &
Knutson, Anchorage, for Appellant. H. Frank
Cahill, McNall & Associates, P.C., Anchorage,
for Appellee Linda S. Garrison. Clifford J.
Groh, Sr. and Todd J. Timmermans, Groh, Eggers
& Price, Anchorage, for Appellees David A.
Garrison and All Alaska Realestate
Investments, Inc.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
FABE, Justice.
I. INTRODUCTION
Metcalfe Investments appeals from the trial court's grant
of summary judgment in favor of Linda Garrison, David Garrison, and
All Alaska Realestate. We conclude that there are genuine issues
of material fact that require us to reverse the grant of summary
judgment.
II. FACTS AND PROCEEDINGS
The parties presented contradictory versions of the
events that culminated in this lawsuit. Because Metcalfe
Investments opposed summary judgment below, we must review the
record in the light most favorable to Metcalfe Investments and draw
all reasonable inferences in its favor. Wilson v. Pollet, 416 P.2d
381, 383-84 (Alaska 1966); Charles A. Wright et al., Federal
Practice and Procedure  2716, at 643 (1983). For purposes of
reviewing the trial court's grant of summary judgment, we examine
Metcalfe Investments' proffered evidence to determine whether it
raises genuine issues of material fact.
Ray Metcalfe is the president and sole shareholder of
Metcalfe Investments, Inc., a real estate brokerage firm. Metcalfe
Investments specializes in the sale of homes acquired by the U.S.
Department of Housing and Urban Development. The company attracts
potential buyers with extensive advertising. People who call in
response to the ads have their names placed on a list of people in
the Anchorage area who are interested in purchasing residential
property.
Toward the end of December 1990, Ray Metcalfe hired Linda
Garrison (Garrison) to work for Metcalfe Investments as an
independent contractor. Metcalfe told her that she would be
responsible for paying her own federal income taxes, social
security, workers' compensation, and unemployment insurance.
Garrison's job was primarily to sell real estate for the
company. She was to do so from the list of names generated by
company advertising and to add to the list as new contacts came
into the office. Metcalfe told her how the list had been developed
and how to maintain it. He also asserts that he told her that the
list was company property and that she could not use it or take it
with her in the event of her departure.
Metcalfe claims that he instructed Garrison that if she
left Metcalfe Investments, she would receive no commissions on
sales made to customers she had worked with if those sales were
completed after her termination. Further, she would have to
"refrain from participating in sales to any potential buyers who
had made first contact with Metcalfe Investments, Inc. during the
term of her employment"unless Metcalfe granted permission to do
so. The division of any commissions from transactions in closing
at the time of her departure would be negotiated and subject to
agreement between the two of them.
According to Metcalfe, Garrison acknowledged that she
fully understood the requirement that she refrain from contacting
Metcalfe Investments' customers after her departure, and she
accepted it as a condition of her employment. While Metcalfe
admits that there was no discussion as to how long this agreement
would remain in effect, he assumed that it would last for one year
after Garrison left Metcalfe Investments. He believed that
Garrison had a similar understanding because of the nature of the
Anchorage real estate market and Metcalfe Investments' manner of
doing business. Garrison denies the existence of any such
agreement.
While working as an independent contractor, Garrison
initially was paid solely on a commission basis (fifty percent of
all commissions). Shortly thereafter, Garrison asked Metcalfe to
make her a salaried employee so that she could have a reliable
source of income every month. Metcalfe agreed to pay Garrison a
salary of $4,800 per month in addition to a productivity bonus to
be determined in Metcalfe's discretion. Metcalfe recounts that
after numerous discussions between himself, Garrison, and the
company bookkeeper, it was agreed that Garrison would receive as a
bonus whatever was left over after Metcalfe Investments took its
fifty percent share of all sales commissions earned on property
sold as a result of Garrison's efforts and covered Garrison's
salary of $4,800 per month and the costs of having made her an
employee. These costs included workers' compensation, unemployment
insurance, all employer's matching funds for social security,
Medicare and other incidental items.
During the period of negotiations Garrison had been
receiving her salary of $4,800 plus a bonus of a full fifty percent
of her sales commissions over $9,600. Metcalfe alleges that he
realized that he had overpaid Garrison from February through
September based on the bonus arrangement which was ultimately
devised. Therefore, according to Metcalfe, Garrison's subsequent
paychecks were held to the minimum $4,800 until Metcalfe
Investments recouped the employer's share of the taxes and
contributions and until a $4,800 reserve was created to pay her
salary in a month when she might earn no commissions. Garrison
denies that she ever agreed to have her commissions reduced by the
costs of making her an employee.
When Metcalfe later hired another employee to assist
Garrison with her administrative duties, he reduced Garrison's
share of her commissions from fifty percent to forty percent to pay
the new employee's wages. Metcalfe also deducted certain legal
fees from Garrison's commissions when a client sued Garrison and
Metcalfe Investments.
Metcalfe maintains that Garrison was paid all of the
salary and bonuses due to her on January 15, 1992. Garrison
resigned that same day. The next day, Garrison opened All Alaska
Realestate Investments (AAR). She placed an ad in the Anchorage
Daily News classified section announcing the opening of her new
office and informing the public that she was now with AAR.
Garrison admits to having notified a few potential customers with
whom she had been working of her new affiliation so that they would
have a choice of continuing to work with her or with another broker
at Metcalfe Investments. Garrison also claims that when her
clients called Metcalfe Investments, Metcalfe refused to advise the
callers of her new business and telephone number.
Metcalfe alleges that at least five people on Metcalfe's
list subsequently made purchases through AAR in violation of the
noncompetition agreement. Metcalfe also asserts that some of these
people originally had the properties shown to them by Metcalfe
Investments employees other than Garrison.
When Garrison resigned, the reserve account created in
August 1991 held $3,343.10. Metcalfe instructed the bookkeeper not
to pay this amount to Garrison because she had taken Metcalfe
Investments' customers. Garrison claims that she only contacted
Metcalfe Investments' customers with whom she had worked
personally.
Garrison filed suit in district court against Metcalfe
Investments to recover the balance of her reserve account and other
monies she claimed Metcalfe Investments owed to her. Metcalfe
Investments denied the claim and filed a counterclaim for
commissions collected by Garrison after starting AAR.
Approximately eighteen months later, Metcalfe Investments filed a
new action in the superior court against Garrison, her husband, and
AAR. This complaint alleged that Garrison had breached her
employment contract by contacting potential buyers from Metcalfe
Investments' list, that AAR was unjustly enriched when it received
commissions that should have gone to Metcalfe Investments, and that
all three defendants intentionally interfered with Metcalfe
Investments' prospective economic advantage or contractual
relations. The defendants answered, Garrison filed a counterclaim
re-asserting the claims for unpaid wages, and the cases were
consolidated in the superior court.
Following preliminary discovery, Garrison moved for
summary judgment on all issues. Garrison's husband, David, and AAR
joined the motion through their separate counsel. Metcalfe
Investments opposed summary judgment and submitted a number of
supporting affidavits, as well as a list of six genuine issues of
fact which it argued should preclude the entry of summary judgment.
The court found that Garrison was entitled to summary
judgment on her wage claim and awarded her the employer's
contribution to unemployment insurance ($814.20), social security
and Medicare ($4,920.76), and workers' compensation premiums
($1,011.62). The court also awarded Garrison $881.22 as the
undisputed balance of the reserve account. It awarded Garrison an
additional penalty of $14,400 for improper withholding of her pay
under AS 23.05.140(d). The court reserved for trial Garrison's
claims for reimbursement of the deduction for attorney's fees and
for an unpaid commission on a sale. The court denied Metcalfe
Investments' contract claim on the ground that the noncompetition
agreement was too vague to be enforced. Finally, the court granted
summary judgment to Garrison's husband and AAR on all claims
against them.
Final judgment was entered on all issues in favor of
Garrison, her husband, and AAR. (EN1) This appeal followed.
III. DISCUSSION
A. Standard of Review
We review the superior court's grant of summary judgment
de novo. Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
The judgment will be affirmed only if no genuine issues of material
fact exist and the moving parties are entitled to judgment as a
matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
We will consider any matter in the record that indicates the
existence of a genuine issue of material fact. American Restaurant
Group v. Clark, 889 P.2d 595, 597-98 (Alaska 1995). Finally, the
non-moving party is entitled to have the record reviewed in the
light most favorable to it and to have all reasonable inferences
drawn in its favor. Wilson v. Pollet, 416 P.2d at 381-84. (EN2)
B. Garrison Is Not Entitled to Summary Judgment on Her
Claims for Back Wages and Penalties.
The court granted Garrison summary judgment on her claim
for back wages and awarded her treble damages under AS
23.05.140(d). While she may prevail on her wage claim at trial,
she is not entitled to summary judgment. Furthermore, AS
23.05.140(d) does not support an award of treble damages. (EN3)
According to Metcalfe, after Garrison became a salaried
employee, the amount of her bonus was to be determined solely in
his discretion. Metcalfe recalls telling Garrison that he
"promised to be fair"but that his decision would be based upon a
number of factors, including "costs to the employer resulting from
changing her status to one of employee." He alleges that some
months later, he and Garrison agreed that her bonuses would be the
net of one-half of commissions received as a result of her efforts,
less all the costs of having her as an employee, including her base
salary and "incidental costs which the employer was required to pay
as a result of her status as an employee." Garrison disputes the
nature of the agreement over commissions, claiming among other
things that Metcalfe retroactively reduced her commissions.
Metcalfe does not dispute that the law prohibits an
employer from deducting the employer's share of workers'
compensation premiums and social security, Medicare, and
unemployment taxes from an employee's wages. (EN4) Wages include
commissions and bonuses. See, e.g., AS 23.20.530(a) (defining
wages as "all remuneration for service from whatever source,
including . . . commissions [and] bonuses."). Garrison argues that
Metcalfe deducted the employer's share of these taxes from her
commissions, and is therefore liable to repay her those amounts.
According to Metcalfe, the parties agreed to a payment
plan under which Garrison's bonus would be defined as fifty percent
of her sales commissions less all expenses of her being an
employee. We cannot say as a matter of law that an employer and
employee may never agree to payment of a discretionary bonus on
such a basis. The question of whether the parties agreed to
payment of a discretionary bonus under the terms described by
Metcalfe cannot be determined on summary judgment and will have to
be answered at trial.
Metcalfe Investments has raised a genuine issue of
material fact as to what the parties agreed Garrison's bonus would
be. We must therefore reverse the trial court's grant of summary
judgment and remand for trial so that the jury may determine what
the salary agreement was and whether it violated state or federal
law.
C. Garrison Was Not Entitled to Summary Judgment on Metcalfe
Investments' Claim that She Violated the Covenant Not to
Compete.
The trial court found that the noncompetition agreement
described by Ray Metcalfe was too vague to be enforced.
1. The noncompetition agreement was not impermissibly
vague.
The trial court had before it Metcalfe's version of the
agreement, as well as supporting affidavits from other Metcalfe
Investments employees. This evidence indicated that Garrison had
agreed not to make use of Metcalfe Investments' client list after
departing and not to participate in sales to potential buyers who
had first made contact with Metcalfe Investments during her
employment. The evidence, when viewed in the light most favorable
to Metcalfe Investments, indicates that the agreement contained
terms which were sufficiently well defined, and thus Garrison was
not entitled to summary judgment on the ground that the agreement
was too vague.
2. The noncompetition agreement is not void for lack
of a geographic or durational limitation.
Garrison argues that the noncompetition agreement lacked
any geographical or durational limitation. She further claims that
there is no way for the court to determine such limitations,
rendering the agreement unenforceable.
In Data Management, Inc. v. Greene, 757 P.2d 62 (Alaska
1988), we held that so long as an overly broad covenant not to
compete was drafted in good faith, the court would make reasonable
alterations to render it enforceable. Id. at 64-65. However, it
is not necessary to turn to Data Management to imply a geographical
or durational limitation to the agreement before us, because this
agreement is enforceable even without such limits. This is not the
type of noncompetition agreement that courts typically see,
limiting a former employee's ability to engage in a trade or
profession within a given area for some period of time. Instead,
it is an agreement that left Garrison free to set up a carbon copy
of Metcalfe Investments right down the street if she wished. The
only thing she was prohibited from doing was expropriating
information and customers that Metcalfe Investments had procured at
its own expense. Thus the lack of a geographical limitation is
irrelevant because the covenant was not a blanket prohibition on
competition, but rather a selective restraint on doing business
with people who were potential Metcalfe Investments customers at
the time of her termination. Such restrictive covenants are
subject to a less stringent test of reasonableness than blanket
prohibitions of competition. See Restatement (Second) of Contracts
 188, cmt. g (1981) ("[A] restraint is easier to justify . . . if
the restraint is limited to the taking of his former employer's
customers as contrasted with competition in general."); Corroon &
Black of Ill., Inc. v. Magner, 494 N.E.2d 785, 793 (Ill. App. 1986)
(activity restraints subject to less stringent test of
reasonableness than geographic restraints). We conclude that the
noncompetition agreement is not rendered unenforceable by the lack
of a geographical or durational limitation. The limited scope of
the activity restraint is narrowly drawn to protect Metcalfe
Investments' interests in its customer lists. (EN5)
3. The noncompetition agreement does not violate the
statute of frauds.
The question of whether an oral noncompetition agreement
of unlimited duration violates the statute of frauds is one of
first impression in Alaska. In Howarth v. First National Bank of
Anchorage, 540 P.2d 486, 491 (Alaska 1975), we held that a contract
is not subject to the statute of frauds if it may be fully
performed within one year from the time it is made. "In order for
the statute of frauds to apply, it must appear that the parties
intended, when they made the contract, that it should not be
performed within the year." Id. (citations omitted); see also AS
09.25.010.
In his sworn affidavit, Metcalfe stated that there was no
discussion of a time limitation on the noncompetition agreement;
however, he assumed it would last for only a year. While it
appears to be a question of first impression in Alaska, it is well-
settled elsewhere that a promise to forebear or not to compete for
an indefinite period of time is not within the statute of frauds.
See, e.g., Restatement (Second) of Contracts  130, cmt. b. and
illus. 9 (1981) (taking position that even promise to forebear for
specific number of years is not within statute of frauds); Arthur
L. Corbin, 2 Corbin on Contracts  453, at 568 (1950); Walter H. E.
Jaeger, 3 Williston On Contracts  495, at 581 (3d ed. 1960); 72
Am. Jur. 2d Statute of Frauds  30 (1974); Hall v. Solomon, 23 A.
876, 878 (Conn. 1892); Frantz v. Parke, 729 P.2d 1068, 1071 (Idaho
App. 1986); Hampton v. Caldwell, 129 S.W. 816, 816 (Ark. 1910);
Barash v. Robinson, 252 P. 680, 683 (Wash. 1927). The rationale
for this rule is that if the promisor were to die within a year,
the promise not to compete would be fully performed. Corbin, supra
at 569. A promise to forebear from competition is distinguished
from an affirmative promise, where the contract might well be
terminated by death, but the performance would still be incomplete.
Id. at 569-70.
We agree with the authorities cited above that a promise
to refrain from an activity, such as using customer lists in a new
business, for an unlimited period of time is not subject to the
statute of frauds. The noncompetition agreement in this case is
thus enforceable despite the fact that it was not in writing.
4. The noncompetition agreement does not injure the
public interest.
Garrison argues that any agreement restricting the
freedom of real estate purchasers to choose a broker injures the
public interest. She also notes that because Alaska lawyers are
prohibited from restraining the rights of other lawyers to take
clients with them if they leave their firms, real estate brokers
should operate under the same rules. See Alaska Rules of
Professional Conduct, Rule 5.6(a). She argues that "a buyer of
real estate should have the same freedom to choose a realtor as a
person would have to choose an attorney."(EN6)
Covenants not to compete for real estate brokers have
been found to be enforceable and unenforceable, depending upon the
facts of the case. (EN7) Covenants have been struck down because
they were too broad in time and scope or because there were no
trade secrets or threats of unfair competition involved, but never
because noncompetition agreements for real estate brokers amounted
to a per se injury to the public interest. See cases cited supra,
note 7.
Garrison has provided us with no persuasive reason or
legal precedent for her proposition that this covenant not to
compete constitutes a violation of public policy. Accordingly, we
find that such an agreement does not injure the public interest.
(EN8)
We conclude that there are genuine issues of material
fact that remain to be resolved regarding the covenant not to
compete, both as to its existence and as to its terms. Taking the
facts as Metcalfe Investments alleges, Garrison is not entitled to
judgment as a matter of law on this question.
D. Garrison Was Not Entitled to Summary Judgment on Metcalfe
Investments' Tort Claims.
In her motion for summary judgment, Garrison moved "for
an order granting her summary judgment on her claim for wages due
and on claims brought against her by Metcalfe Investments, Inc."In
her supporting memorandum, Garrison's counsel framed only two
issues for resolution:
This consolidated action concerns a
single dispute . . . regarding Garrison's
claim for unpaid wages and Metcalfe
Investment's [sic] counterclaim for damages
resulting from Garrison's alleged breach of an
oral employment contract.
The memorandum in support of Garrison's motion never
mentioned nor argued Metcalfe Investments' tort claims. When AAR
joined the motion for summary judgment, it too failed to
specifically address the tort claims. When Metcalfe Investments
filed its opposition, the briefing again only addressed Garrison's
claims for back wages and the noncompetition agreement. The tort
claims were not addressed by any party or the court at the July 13,
1994 hearing on the motion.
Based on this record, we conclude that Metcalfe
Investments' tort claims were not properly before the trial court
for summary adjudication. Our Civil Rules require the moving party
to file with a motion for summary judgment "a memorandum showing
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Alaska
R. Civ. P. 56(c). Garrison and AAR did not even attempt to do so
on Metcalfe Investments' tort claims. While they did include
language in their motion that indicated they sought summary
judgment on all issues, Rule 56(c) places on the moving party the
burden of proving that there is no issue of material fact and
entitlement to judgment as a matter of law. Indeed, Rule 56(e)
states that:
When a motion for summary judgment is made and
supported as provided in this rule . . . the
adverse party's response, by affidavits or as
otherwise provided in this rule, must set
forth specific facts showing that there is a
genuine issue for trial.
Alaska R. Civ. P. 56(e) (emphasis added).
Only after the moving party meets this burden is the
nonmoving party obligated to demonstrate the existence of genuine
material factual disputes or that the moving party is not entitled
to judgment as a matter of law. Alaska R. Civ. P. 56(e). Because
Garrison and AAR never met this initial burden as to the tort
claims, it was improper for the trial court to grant summary
judgment on them.
IV. CONCLUSION
Because of our resolution of these issues, it is not
necessary to reach the other errors asserted by the parties in this
appeal. The judgment of the trial court is REVERSED and REMANDED
for further proceedings consistent with this opinion.
ENDNOTES:
1. Garrison provisionally waived her claim for the commission and
legal expenses in order to obtain a final judgment.
2. In its argument before this court, Metcalfe Investments relies
upon many facts that were not presented to the trial court until
after its ruling granting summary judgment to Garrison and AAR.
Garrison argues that this court should not consider the affidavits
that Metcalfe Investments presented for the first time in support
of its motion for reconsideration of the trial court's decision
granting summary judgment. Garrison cites State Dep't of Natural
Resources v. Transamerica Premier Ins. Co., 856 P.2d 766, 776
(Alaska 1993) (post-trial affidavit could not be considered) and
Moffitt v. Moffitt, 749 P.2d 343, 347 n.4 (Alaska 1988) (appraisal
appended to opposition to proposed findings and conclusions
submitted before final decision made was properly part of record
but could be given no evidentiary value). A number of courts in
other jurisdictions have held that the trial court is not required
to consider affidavits filed for the first time with a motion for
reconsideration of a decision granting summary judgment. See,
e.g., Bukulmez v. Hertz Corp., 710 P.2d 1117, 1121 (Colo. App.
1985) (Civil Rule 56 does not allow for affidavits to be filed
after court has rendered judgment), rev'd on other grounds, Blue
Cross of Western New York v. Bukulmez, 736 P.2d 834, 838-39 (Colo.
1987); Wells v. Great Atl. & Pac. Tea Co., 525 N.E.2d 1127, 1129-30
(Ill. App. 1988) (court properly rejected affidavit attached to
motion for reconsideration).
We need not reach this issue because Metcalfe's initial
opposition to the motion for summary judgment included an affidavit
containing all of the critical allegations regarding the covenant
not to compete and Garrison's bonus arrangement.
3. If Garrison prevails on her wage claim at trial, the trial
court has the discretion to impose a statutory penalty pursuant to
AS 23.05.140(d). See Klondike Industries Corp. v. Gibson, 741 P.2d
1161, 1171 (Alaska 1987). However, that penalty is not "automatic"
as was erroneously argued to the trial court by Garrison's counsel.
Nor is Garrison correct in her characterization of AS 23.05.140(d)
as a "treble damages"provision. AS 23.05.140(d) provides that an
"employer may be required to pay the employee a penalty in the
amount of the employee's regular wage, salary, or other
compensation from the time of demand to the time of payment, or for
90 working days, whichever is the lesser amount."
4. For example, AS 23.20.165(a) prohibits an employer from
deducting the employer's share of unemployment taxes from an
employee's wages. Similarly, AS 23.30.245 makes an agreement by an
employee to pay a portion of workers' compensation premiums
invalid, and provides for the imposition of criminal penalties on
the employer for making such a deduction from the employee's pay.
5. This is not to say that all restraints on contacting former
customers will be found to be reasonable. For instance, if a
business is so large that a restraint on contacting former clients
would amount to a bar prohibiting the employee from practicing his
or her specialty, the court will require the restraint to be
drafted more narrowly. See Harlan M. Blake, Employee Agreements
Not to Compete, 73 Harv. L. Rev. 625, 677 (1960). A covenant not
to contact former customers will also be unreasonable if the former
employee did not have access to confidential information.
Restatement (Second) of Contracts  188, illus. 7. If the trier of
fact finds that a noncompetition agreement did exist between
Garrison and Metcalfe Investments, Garrison remains free to
challenge the reasonableness of the restraint on this ground.
6. Courts have upheld covenants not to compete when applied to
doctors on many occasions. See Ferdinand S. Tinio, Annotation,
Validity and Construction of Contractual Restrictions on Right of
Medical Practitioner to Practice, Incident to Employment Agreement,
62 A.L.R.3d 1014 (1975).
7. See Rector-Phillips-Morse, Inc. v. Vroman, 489 S.W.2d 1, 2-3
(Ark. 1973) (refusing to enforce covenant not to compete for three
years in employer's county where there was no evidence employee
attempted to use employer's confidential information); Welles v.
O'Connell, 183 A.2d 287, 288-89 (Conn. C.P. 1962) (upholding
covenant not to compete within town for two years); Darlrymple v.
Hagood, 271 S.E.2d 149, 150-51 (Ga. 1980) (upholding covenant not
to compete in same county for three years); Mike Bajalia, Inc. v.
Pike, 172 S.E.2d 676, 678 (Ga. 1970) (upholding covenant not to
compete within the county for eighteen months); Vander Werf v.
Zunica Realty Co., 208 N.E.2d 74, 77 (Ill. App. 1965) (striking
covenant not to compete for two years within five miles of
employer's offices where no trade secrets involved and no client
enticement occurred); Blackwell v. E.M. Helides, Jr., Inc., 331
N.E.2d 54, 56 (Mass. 1975) (upholding covenant not to compete for
three years in multiple towns where employee had access to files
with confidential information on properties not available to
public); Abramson v. Blackman, 166 N.E.2d 729, 730 (Mass. 1960)
(striking covenant not to use information from employer's files or
information gained verbally for indefinite period); Dunfey Realty
Co. v. Enwright, 138 A.2d 80, 82-83 (N.H. 1957) (refusing to uphold
covenant not to compete for three years within local area);
Steinfeld v. Hausen, 40 N.Y.S.2d 683, 684 (Sup. 1943) (upholding
covenant not to compete for one year within twenty square blocks
from employer's office), modified, 55 N.Y.2d 722 (App. Dep't 1945);
Cohen Realty, Inc. v. Marinick, 817 P.2d 747, 749 (Okla. App. 1991)
(refusing to enforce covenant that contained no limit on geography
and too long a time limit); Pancake Realty Co. v. Harber, 73
S.E.2d 438, 443 (W. Va. 1952) (striking covenant not to compete for
one year without territorial limits).
8. Garrison also makes a claim that she could have been
violating state law if she refused to work with a buyer because of
the noncompetition agreement. She cites provisions prohibiting
discrimination in housing on the basis of race, sex, and
disability. See AS 18.80.240(1) and 12 AAC 64.130(19). It is
difficult to see how her compliance with the noncompetition
agreement would cause her to violate Alaska's housing
discrimination laws.
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