WATT, J.
¶ 1 Three issues
¶ 2 We determine that the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement. Our determination is supported by our prior jurisprudential pronouncements in: Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, 13 P.3d 474; Cardiovascular Surgical Specialists, Corp. v. Mammana, 2002 OK 27, 61 P.3d 210; Thompson v. Bar-S Foods Co., 2007 OK 75, 174 P.3d 567; and Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16.
¶ 3 As drafted, we hold that the non-competition covenants are void and unenforceable as against Oklahoma's public policy expressed by the Legislature's enactment of 15 O.S.2001 § 219A.
¶ 4 Howard was hired by Nitro-Lift initially on August 18, 2008 at its offices in Tishomingo. At that time, Howard had approximately twenty (20) years' experience in the oil and gas industry. Due to a dispute over hours worked, compensation paid, and time off, Howard quit in November of 2009. Approximately a month later, Nitro-Lift rehired him. Based on similar concerns to those he had in 2009, Howard again resigned in April of 2010.
¶ 5 In July of 2009, Nitro-Lift hired Schneider at its office in Tishomingo. The employee had prior experience in the oil field with Halliburton. Harboring complaints similar to those of Howard, Schneider quit on June 11, 2010.
¶ 6 Both employees signed confidentiality/non-compete agreements with Nitro-Lift at their hiring.
¶ 7 After July 8, 2010, Nitro-Lift served the employees with a demand for arbitration alleging that the employees had breached the non-compete agreement and should be ordered to refrain: a) from disclosing or using Nitro-Lift's confidential information; b) from inducing its employees to leave their employment with the company; and c) from competing or interfering with the employer's business relationships or soliciting its customers.
¶ 8 The instant cause arises out of the employee's petition for declaratory judgment and injunctive relief filed in the District Court of Johnston County on October 14, 2010. The employees sought judgment declaring the non-compete agreement null and void and enjoining enforcement of the same. The district court granted the employees a temporary restraining order pending a hearing. On November 9, 2010, Nitro-Lift filed a motion to dismiss. The cause was heard on November 23, 2010. An order issued that same day in which the district court found the arbitration agreement to be valid on its face and reasonable in its terms and scope. Nitro-Lift's motion to dismiss was granted. The district court denied the employees' motion for a stay pending appeal filed on December 2, 2010. We also declined to issue a stay. However, we granted the employees' motion to retain the cause on January 19, 2011.
¶ 9 On October 18, 2011, we issued a show cause order directing the parties to address the effect of 15 O.S.2001 § 219A on the cause. Briefs were filed on October 28
¶ 10 In Oklahoma, the rules governing appellate review in regard to injunctive relief are settled. Matters involving the granting or denying of injunctive relief are of equitable concern.
¶ 11 We remain mindful that injunctions are extraordinary remedies that should not be lightly granted.
¶ 13 Nitro-Lift argues that the issue of the validity of the covenants not to compete is for the arbitrator. In doing so, the employers rely upon United States Supreme Court jurisprudence. The employees assert that jurisdiction lies in this Court based on our pronouncements addressing the issue. We agree with the employees.
¶ 14 Our jurisprudence controls this issue.
¶ 15 Most instructive on Nitro-Lift's arguments is Bruner v. Timberlane Manor Ltd. Partnership,
¶ 17
¶ 18 Nitro-Lift argues that the covenants not to compete are reasonable and necessary to protect the confidential information and technical knowledge imparted to the employees during training. The employer asserts that the covenants should be enforced as a necessary step in protecting Nitro-Lift in the marketplace. The employees contend that they received no confidential information during their employment with Nitro-Lift and that the non-compete provisions of the employment contract are void
¶ 19 The primary goal of statutory interpretation is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed by the statutory language.
¶ 20 Title 15 O.S.2001 § 219A is the Legislature's pronouncement on Oklahoma's public policy
¶ 21 Subsection A utilizes the mandatory term, "shall,"
¶ 22 The covenants not to compete contain provisions, for the period of two years, prohibiting
¶ 23 The non-competition contracts go well beyond the bounds of what is allowable under § 219A and violate the legislatively expressed public policy. Therefore, we hold that, pursuant to 15 O.S.2001 § 219A, the covenants not to compete are void and unenforceable as against Oklahoma's public policy expressed through legislative mandate.
¶ 24
¶ 25 To bring the non-competition agreement within the bounds of what is allowable under 15 O.S.2001 § 219A, we would have to decimate its provisions. Essentially, subsections (k)(i) and (k)(iii) would have to be stricken in their entirety, leaving only subsection (k)(ii) relating to solicitation of past or present customers or suppliers of Nitro-Lift. However, that subsection also suffers shortcomings and infirmities.
¶ 26 Subsection (k)(ii) prohibits the employee from canvassing, soliciting, approaching or enticing away Nitro-Lift's
¶ 27 The covenant not to compete contains a severability provision. Judicial modification is justified if the contractual defect can be cured by imposition of reasonable limitations concerning the activities embraced, time, or geographical limitations. Nevertheless, "there is more amiss here than can be reformed effectively."
¶ 28 We will not reform a covenant not to compete so offensive that it would require us to supply material terms.
¶ 29 Through the enactment of 15 O.S.2001 § 219A, the Legislature has expressed its intent with relation to the viability of covenants not to compete in the employment context. This Court does not extend its auspices, in determining the validity of a statute, to consider its propriety, desirability, wisdom or practicability. These matters are left to the legislative department.
¶ 30 In conformance with our prior jurisprudence, we hold that the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement. As drafted, we determine that the non-competition covenants are void and unenforceable as against Oklahoma's public policy as expressed by the Legislature's enactment of 15 O.S.2001 § 219A. Finally, because judicial modification cannot be accomplished without rewriting the agreement to cure multiple defects, leaving only a shell of the original agreement, and would require the addition of at least one material term, it is inappropriate.
¶ 31 Discretion is abused, so as to warrant reversal, when a trial judge makes a clearly erroneous conclusion and judgment, against reason and the evidence.
ALL JUSTICES CONCUR.
Inergy Propane, LLC v. Lundy, 2009 OK CIV APP 8, 219 P.3d 547 involved a covenant not to compete executed in association with a sale of goodwill, a situation not presented here. In consideration for employment, Lundy signed a confidentiality and non-solicitation agreement protecting Inergy's customer information and lists, pricing, business strategies, and trade secrets. It also prohibited Lundy, for one year, from soliciting the hiring of Inergy employees, and, for two years, soliciting or diverting customers within fifty (50) miles of the company's business locations where Lundy had worked. The COCA determined, at least in some instances, the rule of reason would be applicable even under the confines of 15 O.S.2001 § 219A. It held that the statute addressed the balance of competitive effects under a rule of reason analysis finding the non-solicitation agreement enforceable. Pronouncement by an inferior federal court, although not binding of this Court, may have persuasive value. See, Boswell v. Schultz, 2007 OK 94, ¶ 15, 175 P.3d 390; Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶ 18, 90 P.3d 546. Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1; 20 O.S. 2001 §§ 30.5 and 30.14.
The parties agree and acknowledge that the limitations as to time, geographical area and scope of activity to be restrained as set forth in Section 4(k) are reasonable and do not impose any greater restraint than is necessary to protect the legitimate business interests of Nitro-Lift. To the extent that any part of this Section 4(k) may be invalid, illegal or unenforceable for any reason, it is intended that such part shall be enforceable to the extent that a court of competent jurisdiction shall determine that such part, if more limited in scope, would have been enforceable, and such part shall be deemed to have been so written and the remaining parts shall as written be effective and enforceable in all events."
See also, Matter of McNeely, 1987 OK 19, ¶ 1, 734 P.2d 1294.