In the Missouri Court of Appeals 

Eastern District 

DIVISION FOUR 

WHELAN SECURITY CO., ) ED101847 

 ) 

Plaintiff/Respondent/Cross-Appellant, ) Appeal from the Circuit Court 

) of St. Louis County 

v. ) 

 ) 

CHARLES KENNEBREW, SR., ) Honorable Maura B. McShane 

 ) 

 Defendant/Appellant/Cross-Respondent. ) Filed: September 29, 2015 

Introduction 

 Charles Kennebrew, Sr. (Kennebrew) appeals from the trial court’s October 10, 2013 

Summary Judgment in favor of Whelan Security Co. (Whelan) on its claims that Kennebrew 

breached the customer non-solicitation clause and the 50-mile non-competition clause in his 

employment agreement (Agreement). Whelan appeals from the trial court’s June 26, 2014 Order 

and Judgment awarding it, in part, $165,000 in attorney’s fees. We reverse and remand. 

Factual and Procedural Background 

Whelan is a Missouri corporation based in St. Louis County that provides security 

services in a number of cities throughout the country, including Houston, Texas and Dallas, 

Texas. In November 2007, Whelan hired Kennebrew, who signed the Agreement, which 
2 

included a covenant not to compete against Whelan.1 Kennebrew, who had previously worked 

for a competitor of Whelan, executed the Agreement on November 26, 2007. Its restrictive 

covenants provided that: 

During the term of this Agreement, and for a period of two (2) years thereafter, 

whether the termination of this Agreement is initiated by EMPLOYER or 

EMPLOYEE, EMPLOYEE shall not, without the prior written consent of 

EMPLOYER, in any manner, directly or indirectly, either as an employee, 

employer, lender, owner, technical assistant, partner, agent, principal, broker, 

advisor, consultant, manager, shareholder, director, or officer, for himself or in 

behalf of any person, firm, partnership, entity, or corporation, or by any agent or 

employee: 

(a) Solicit, take away or attempt to take away any customers of EMPLOYER or 

the business or patronage of any such customers or prospective customer(s) 

whose business was being sought during the last twelve (12) months of 

EMPLOYEE’s employment; or 

(b) Solicit, interfere with, employ, or endeavor to employ any employees or 

agents of EMPLOYER, 

(c) Work for a competing business within a fifty (50) mile radius of any location 

where EMPLOYEE has provided or arranged for EMPLOYER to provide 

services. 

(d) Work for a customer of EMPLOYER or prospective customer(s) whose 

business was being sought during the last twelve (12) months of EMPLOYEE’s 

employment, if the work would include providing, or arranging for, services the 

same as, or similar to, those provided by EMPLOYER. 

“Competing business” means any business engaged in providing guard and/or 

security services the same as, or similar to, those offered by EMPLOYER. 

Whelan hired Kennebrew because of his reputation in the security guard business, his 

business contacts, and his ability to attract clients, especially in Houston. Kennebrew began 

working at Whelan as the Director of Quality Assurance and was assigned to Dallas in 

                                                            

1

 W. Landon Morgan (Morgan) was also a former employee of Whelan and a defendant in this case, but was 

eventually dismissed by Whelan after appeal and remand. Morgan is not involved in this appeal but is occasionally 

mentioned. 
3 

November 2007, in part to comply with a non-compete agreement2 Kennebrew had with his 

previous employer. Kennebrew’s duties included managing “all operations, clients, [and] 

customers” and he had access to employee records, including compensation, and to Whelan’s 

financial information. Kennebrew contacted Whelan customers in different parts of Texas, 

including Houston, where he had more than ten clients. 

On March 30, 2009, Kennebrew submitted a letter of resignation to Whelan but 

continued to work for Whelan until August 2009. Kennebrew started his own security guard 

company, Elite Protective Services, LLC (Elite). 

Park Square Condominiums (Park Square) was a customer of Whelan in Houston 

from 2007 until the end of 2009. On December 17, 2009, Park Square signed a contract 

with Kennebrew on behalf of Elite to provide security services. Park Square terminated 

its relationship with Whelan effective January 2, 2010, and was replaced by Elite, which 

retained the services of a number of Whelan security personnel who had worked at the 

Park Square location. 

On January 4, 2010, Whelan filed a petition seeking injunctive relief against Kennebrew, 

as well as damages for breach of contract, unjust enrichment, and civil conspiracy. After a 

hearing over a period of several days, the trial court denied Whelan’s request for a preliminary 

injunction. Whelan filed a motion to modify, and the parties filed cross-motions for summary 

judgment. On January 7, 2011, the trial court issued summary judgment in favor of Kennebrew, 

concluding the employment agreement was overbroad, not reasonable as to time and space, and 

                                                            

2

 The term “non-compete agreement” refers to all restrictive covenants entered into between the employer and 

employees that restrict post-employment activities of the employees, including non-competition and non-solicitation 

clauses. Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 609 n. 2 (Mo.banc 2006). 
4 

therefore invalid as a matter of law. The trial court denied Whelan’s motion for summary 

judgment and dismissed the case with prejudice. 

Whelan appealed this judgment, which, after being reversed by this Court based on our 

finding that the agreement was not per se unreasonable, was transferred to the Missouri Supreme 

Court at Kennebrew’s request. The Supreme Court vacated this Court’s opinion and issued its 

own, reversing the trial court’s summary judgment based on its finding that the non-compete 

agreement was unreasonably overbroad as written but could be modified. Whelan Sec. Co. v. 

Kennebrew, 379 S.W.3d 835, 839 (Mo.banc 2012). The Supreme Court modified the terms of 

the non-compete agreement by eliminating the provision prohibiting Kennebrew from soliciting 

existing Whelan customers, except those customers with whom Kennebrew dealt during his 

employment, and eliminating the prohibition against soliciting Whelan’s prospective customers. 

Id. at 844-45. The Court held the employee non-solicitation clause and the 50-mile noncompetition clause were enforceable. The Court remanded the case for resolution of whether the 

employee non-solicitation clause was motivated by a valid purpose under Section 431.202(3)3

and whether Kennebrew’s actions violated his covenant not to compete. 

On remand, the trial court again entertained cross-motions for summary judgment. On 

October 10, 2013, the trial court granted summary judgment in Whelan’s favor on its claims that 

                                                            

3

All statutory references are to RSMo 2006. Section 431.202 provides in pertinent part: 

1. A reasonable covenant in writing promising not to solicit, recruit, hire or otherwise interfere with the 

employment of one or more employees shall be enforceable and not a restraint of trade pursuant to 

subsection 1 of section 416.031 if: 

... 

(3) Between an employer and one or more employees seeking on the part of the employer to 

protect: 

 (a) Confidential or trade secret business information; or 

(b) Customer or supplier relationships, goodwill or loyalty, which shall be deemed to be 

among the protectable interests of the employer.... 

 
5 

Kennebrew (1) breached the customer non-solicitation clause, as modified, and (2) breached the 

50-mile non-competition clause. The court found no genuinely disputed issues of fact that 

Kennebrew had breached these two clauses of the agreement. 

The trial court denied Whelan’s motion for summary judgment on its claim Kennebrew 

breached the employee non-solicitation clause. The trial court found, in accordance with the 

Supreme Court’s opinion, that additional parol evidence needed to be adduced to determine the 

purpose of this clause, because such purpose could not be discerned from the four corners of the 

agreement alone. Whelan, 379 S.W.3d at 846 (lack of any language regarding purpose of 

employee non-solicitation clause prevents Court’s determination of clause’s purpose as matter of 

law ... intent of parties must instead be determined by use of parol evidence on remand). The 

trial court denied Kennebrew’s motion for summary judgment. 

On November 7, 2013, Whelan filed separate motions for continuance, summary 

judgment on its damages, and sanctions. On November 14, 2014, the trial court granted 

Whelan’s motion for continuance, pursuant to which the case was removed from its jury trial 

setting of December 2, 2013, and continued to such time as the court could hear and rule on 

Whelan’s motions for summary judgment and sanctions. The court also ruled discovery was 

closed. 

On January 21, 2014, the trial court heard Whelan’s motions for summary judgment on 

damages and for sanctions. On February 11, 2014, the court denied both motions. On February 

25, 2014, by consent of the parties and order of the court, a one-day bench trial on damages was 

set for April 28, 2014. 

On April 28, 2014, trial was had, at which the court heard evidence and argument and 

took the matter under submission, allowing the parties to file post-trial briefs. On June 26, 2014, 
6 

the trial court entered its Order and Judgment. The trial court assessed Whelan’s damages in lost 

profits from Kennebrew’s breach of the Agreement’s client non-solicitation clause and 50-mile 

non-competition clause at $69,375.75, entering judgment thereon in Whelan’s favor. The court 

found insufficient evidence had been adduced to establish the purpose of the employee nonsolicitation clause, and thus Whelan’s claim it had been breached was denied along with any 

associated claim for damages or injunctive relief. The trial court also awarded Whelan $165,000 

in attorney’s fees. The trial court denied Whelan’s claim for unjust enrichment because it invited 

duplicative damages. The court further held that “all arguments submitted and not addressed 

have been considered and denied.” This appeal follows. 

Points on Appeal 

In his first point, Kennebrew claims the trial court erred in granting Whelan summary 

judgment that Kennebrew had violated the customer non-solicitation clause in § 3(a) of the 

Agreement by soliciting Park Square’s business because Kennebrew presented evidence in 

response to Whelan’s motion for summary judgment that he had not solicited Park Square’s 

business and, rather, Park Square’s manager had solicited his business. 

In his second point, Kennebrew maintains the trial court erred in granting Whelan 

summary judgment that Kennebrew had violated the 50-mile non-competition clause in § 3(c) of 

the Agreement by operating Elite in Houston because Kennebrew raised an affirmative defense 

that Whelan had waived the Agreement and, in opposition to Whelan’s motion for summary 

judgment, presented evidence Whelan had waived § 3(c) by his superiors at Whelan knowing 

about his operation of Elite in Houston, tolerating it, and expressly agreeing to allow him to do 

so. 
7 

In his third point, Kennebrew contends the trial court erred in granting Whelan summary 

judgment that Kennebrew had violated the 50-mile non-competition clause in § 3(c) of the 

Agreement by operating Elite in Houston because Kennebrew presented evidence that he only 

provided services for Whelan in Dallas, not Houston, and merely assisted with some Houston 

contacts while providing services for Whelan in Dallas. 

 On cross-appeal, Whelan challenges the trial court’s judgment awarding it $165,000 in 

attorney’s fees as arbitrary, capricious and unreasonable and asserts its reasonable attorney’s fees 

were $707,410. 

Standard of Review 

 Our review of the trial court’s grant of summary judgment is de novo. ITT Comm. Fin. 

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The propriety of 

summary judgment is purely an issue of law. Id. We need not defer to the trial court’s order, as 

its judgment is founded on the record submitted and the law. Id. The criteria on appeal for 

testing the propriety of summary judgment are no different from those which should be used by 

the trial court to determine the propriety of sustaining the motion initially. Id. 

 Summary judgment is proper only in those situations in which the movant can establish 

there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. 

Rule 74.044

; ITT, 854 S.W.2d at 377. The movant has the burden to show a right to judgment 

flowing from facts about which there is no genuine dispute. ITT, 854 S.W.2d at 378. A court, in 

considering a motion for summary judgment, tests simply for the existence, not the extent, of 

these genuine disputes. Id. A genuine dispute exists where the record contains competent 

materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 

382. If a trial court, in order to grant summary judgment, must overlook material in the record 

                                                            

4

 All rule references are to Mo. R. Civ. P. 2014. 
8 

that raises a genuine dispute as to the facts underlying the movant’s right to judgment, then 

summary judgment is not proper. Id. at 378. 

 In determining the propriety of summary judgment, we are guided by three overriding 

principles. First, we review the record in the light most favorable to the party against whom 

judgment was entered. ITT, 854 S.W.2d at 376. Any evidence in the record that presents a 

genuine dispute as to the material facts defeats the movant’s prima facie showing. Id. at 382. 

Second, the facts set forth by affidavit or otherwise in support of a party’s motion are taken as 

true unless contradicted by the non-moving party’s response to the summary judgment motion. 

Id. at 376. The movant must establish that the material facts are not in genuine dispute. Id. at 

382. If there is no contradiction and the movant has shown a right to judgment as a matter of 

law, the non-movant must create a genuine dispute by supplementing the record with competent 

materials that establish a plausible, but contradictory, version of at least one of the movant’s 

essential facts. Id. It is not the “truth” of the facts upon which the court focuses, but whether 

those facts are disputed. Id. Where they are not, the facts are admitted for purposes of analyzing 

a summary judgment motion. Id. Finally, we accord the non-movant the benefit of all 

reasonable inferences from the record. Id. at 376. 

Discussion 

Point I – Customer Non-solicitation Clause in § 3(a) 

Kennebrew maintains the fact of his solicitation of Park Square cannot be established by 

relying on the Supreme Court’s finding that he did so under the “law of the case” doctrine. 

In Whelan’s statement of uncontroverted facts in support of its motion for summary 

judgment on its claim that Kennebrew breached the customer non-solicitation clause, it cites only 

to the Whelan opinion as evidence in the record supporting its statement of fact that Kennebrew 
9 

solicited Whelan’s customer Park Square. In Whelan, the Court stated, “In November and 

December 2009, Mr. Kennebrew solicited the business of Park Square Condominiums, a client 

of Whelan in Houston....” Id. at 840. Kennebrew maintains the Supreme Court’s statement that 

he solicited the business of Park Square while employed by Whelan cannot be given “law of the 

case” status thus establishing it as beyond dispute for purposes of the summary judgment 

proceedings after remand. 

This statement was not part of the holding in Whelan. As such, a citation to Whelan is 

inadequate evidentiary support for this fact for the purposes of summary judgment. In Whelan, 

the holding was limited to the enforceability of the contract: 

This Court holds the customer non-solicitation clauses in Mr. Kennebrew’s and 

Mr. Morgan’s contracts are overbroad. It modifies the contracts to eliminate the 

provision prohibiting Mr. Kennebrew and Mr. Morgan from soliciting existing 

Whelan customers, except those customers with whom Mr. Kennebrew and Mr. 

Morgan dealt, respectively, during their employment and to eliminate the 

prohibition against soliciting Whelan’s prospective customers. The employee 

non-solicitation clauses in both contracts and the non-competition clause in Mr. 

Kennebrew’s contract are enforceable. 

Whelan, 379 S.W.3d at 847. After stating its holding, the Court set out what it deemed to be 

outstanding disputed issues of fact, precluding summary judgment: 

There remain genuine issues of fact that must be resolved by the trier of factnamely, whether the employee non-solicitation clause in Mr. Kennebrew’s 

contract was motivated by a valid purpose under section 403.202(3) and whether 

Mr. Kennebrew’s actions violated his covenant not to compete. 

Id. The Court then reversed the judgment of the trial court and remanded the case. Id. 

 Kennebrew also claims the trial court erred in granting summary judgment to 

Whelan because he presented evidence that he had not solicited Park Square’s business, 

but rather Park Square’s manager had solicited his business. We find this issue of fact 

remains controverted, in that there is evidence in the summary judgment record 
10 

supporting both sides of the controversy. For this additional reason, summary judgment 

on the issue was inappropriate. Point I is granted. 

Point II − Fifty-Mile Non-Competition Clause in § 3(c) – Waiver 

Kennebrew maintains the trial court erred in granting Whelan summary judgment that 

Kennebrew violated the 50-mile non-competition clause by operating Elite in Houston because 

Kennebrew raised an affirmative defense that Whelan had waived the terms of the Agreement by 

having knowledge of his operation of Elite in Houston, tolerating it, and expressly agreeing to 

allow him to do so. 

Whether Whelan waived its right to enforce the 50-mile non-competition clause by 

having knowledge of and accepting Kennebrew’s competing business is an issue of fact 

precluding summary judgment. See, e.g., JumboSack Corp. v. Buyck, 407 S.W.3d 51, 53 

(Mo.App. E.D. 2013) (“whether Employer waived its right to enforce the non-compete 

agreement against Employee is an issue of fact”). Further, both Kennebrew and Whelan set forth 

evidentiary support from the summary judgment record for their respective opposing positions 

on whether Whelan waived said right. This issue also involves determinations of credibility that 

must be made by the trier of fact and are not appropriately decided on summary judgment. 

Accordingly, summary judgment should not have been granted on this claim. Point II is granted. 

Point III − Fifty-Mile Non-Competition Clause in § 3(c) 

Kennebrew contends the trial court erred in granting Whelan summary judgment that 

Kennebrew had violated the 50-mile non-competition clause by operating Elite in Houston in 

that Kennebrew presented evidence that he only provided services for Whelan in Dallas, not 

Houston. The parties do not dispute Kennebrew immediately began working for a competing 

business in Houston after leaving Whelan’s employment. The issue is whether Kennebrew 
11 

provided services or arranged for Whelan to provide services in Houston while employed with 

Whelan in the Dallas office. 

Kennebrew insists he merely assisted Whelan with some Houston contacts while 

providing services for Whelan in Dallas. However, there is also contradictory evidence in the 

record. For example, in his deposition, Kennebrew testified Whelan used his contacts in 

Houston to get Whelan new customers and he was successful in moving some Houston 

customers to Whelan. Kennebrew also testified at the preliminary injunction hearing on 

September 10, 2010, that he had contact with no fewer than ten customers of Whelan in Houston 

including, but not limited to, Park Square. 

After determining the 50-mile non-competition clause in the Agreement was valid and 

enforceable as written,5

 the Supreme Court in Whelan held: 

 As an enforceable covenant against Mr. Kennebrew, a genuine factual 

issue exists as to whether Mr. Kennebrew’s actions violated the covenant. 

Specifically, the parties dispute whether Mr. Kennebrew provided services in 

Houston while employed with Whelan in the Dallas office. Resolution of this 

factual issue is necessary to determine if a violation of the non-compete 

agreement occurred. Entry of summary judgment on this ground, therefore, is 

improper. 

Whelan, 379 S.W.3d at 847. 

The parties espouse and the record supports two plausible but contradictory accounts of 

material facts with regard to this issue. Further, as in Count II, there are credibility issues to be 

weighed and the issue of waiver as asserted in Count II comes into play as well with regard to 

                                                            

5

 Specifically, the Court said: 

The non-competition clause in Mr. Kennebrew’s employment contract prohibits him, for a period of two 

years, from working for a competing business within 50 miles of any location where he provided or 

arranged for Whelan to provide services. Considerable precedent in Missouri supports the reasonableness 

of a two-year non-compete agreement for an operations manager that is limited to 50 miles from where 

services were rendered by the employee. 

Whelan, 379 S.W.3d at 846-47.
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