Porter Indus., Inc. v. Higgins - 680 P.2d 1339 (Colo. App. 1984)

Rule:

In order to be entitled to a preliminary injunction, an employer must establish, inter alia, that the covenant not to compete is not void under Colo. Rev. Stat. § 8-2-113(2).

Facts:

Plaintiff employer, a janitorial services contractor, terminated the defendant employee, a sales representative. Shortly thereafter, the employee solicited several current customers of the employer. The employer sought a preliminary injunction, alleging that the employee had violated a covenant not to compete with the employer. The district court denied the motion. The plaintiff employer appealed. 

Issue:

Was the covenant not to compete enforceable, thereby rendering the decision of the district court an error? 

Answer:

No.

Conclusion:

The court affirmed the trial court's denial of the injunction because the employer failed to establish the validity of the covenant. Under Colo. Rev. Stat. § 8-2-113(2), a covenant not to compete was unenforceable unless certain exceptions applied. The court held that the employer had not shown either that the covenant was for the protection of trade secrets or that the employee was a member of executive or management personnel or professional staff to executive and management personnel. Hence, no statutory exception was established, and the covenant could not be enforced.