¶ 16. Streiff and Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis. 2d 733, 625 N.W.2d 648, dealt with clauses in insurance agents' agreements with their respective insurance-company employers that conditioned receipt of post-termination income on the agents not attempting to take customers from their employers and compete with them once they left their employment. Streiff, 118 Wis. 2d at 605-607, 348 N.W.2d at 507-508; Mutual Service, 2001 WI App 92, ¶¶ 7-8, 242 Wis. 2d at 738-740, 625 N.W.2d at 652-653.
¶ 20 We first address the standard of review. This court applies the same method of analysis to a motion for summary judgment as does a circuit court. Summary judgment is appropriate where, based on the pleadings, depositions, interrogatories, and affidavits on file, there is no genuine dispute as to any material fact, and a party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) ; Star Direct, 319 Wis. 2d 274, ¶ 18, 767 N.W.2d 898 ; Belding v. Demoulin, 2014 WI 8, ¶ 13, 352 Wis. 2d 359, 843 N.W.2d 373 ; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315–17, 401 N.W.2d 816 (1987) ; Mut. Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92, ¶ 4, 242 Wis. 2d 733, 625 N.W.2d 648, overruled on other grounds by Star Direct, 319 Wis. 2d 274, ¶ 78 n.12, 767 N.W.2d 898. ¶ 21 The instant case requires us to interpret both a statute and a written contract.
This is because Wisconsin law favors the mobility of workers and "therefore, a contract that operates to restrict trade or competition is prima facie suspect." Mut. Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92, ¶ 6, 242 Wis.2d 733, 738, 625 N.W.2d 648, 652 (citation omitted). Accordingly, such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires.
The court of appeals also examined the divisibility question. Applying Streiff as interpreted by Mut. Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92, 242 Wis. 2d 733, 625 N.W.2d 648, the court of appeals concluded that the business clause was indivisible from the customer clause, and thus neither was enforceable. Id., ¶ 29.
Id.¶ 20 When determining whether a restrictive covenant is overbroad, our cases demonstrate that we look not at the particular facts or circumstances of a case, but to the plain language of the agreement itself. See Mutual Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92, ¶¶ 2, 15, 242 Wis.2d 733, 625 N.W.2d 648, overruled on other grounds by Star Direct, 319 Wis.2d 274, 767 N.W.2d 898 (finding that a restrictive covenant was overbroad because it prohibited an insurance agent from working for a competitor in any capacity, even as a janitor, when the insurance agent in fact went to work for a competitor in the same capacity); Equity Enters., Inc. v. Milosch, 2001 WI App 186, ¶ 15 n. 4, 247 Wis.2d 172, 633 N.W.2d 662 (concluding that a provision prohibiting an employee from doing business with any customers the employee serviced during his fifteen years of employment, including one he hypothetically only serviced during his first weeks of employment, was overbroad). Thus, if the text of the NSE provision restrains trade impermissibly, it is unenforceable even if the acts complained of in this action could have been proscribed by a more narrowly written and permissible restrictive covenant.
"Wisconsin law favors the mobility of workers; therefore, a contract that operates to restrict trade or competition is prima facie suspect and will be liberally construed in favor of the employee." Mutual Service Casualty Ins. Co. v. Brass, 242 Wis. 2d 733, 739, 625 N.W.2d 648, 652 (Wis.Ct.App. 2001). "Such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires."
"Wisconsin law favors the mobility of workers; therefore, a contract that operates to restrict trade or competition is prima facie suspect and will be liberally construed in favor of the employee." Mutual Service Casualty Ins. Co. v. Brass, 242 Wis. 2d 733, 739, 625 N.W.2d 648, 652 (Wis.Ct.App. 2001). "Such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires."
"Wisconsin law favors the mobility of workers; therefore, a contract that operates to restrict trade or competition is prima facie suspect and will be liberally construed in favor of the employee." Mutual Service Casualty Ins. Co. v. Brass, 242 Wis. 2d 733, 738, 625 N.W.2d 648, 652 (Ct.App. 2001). (Although the parties' agreement contains a forum selection clause providing that it is to be decided under Michigan law and that venue is to be in Kent County, Michigan, neither party has challenged venue or the application of Wisconsin law.
Plaintiff's non-competition agreement does not appear to be one that Wisconsin courts would uphold, given the state's strong presumption in favor of the mobility of workers. See, e.g., Equity Enterprises, Inc. v. Milosch, 2001 WI App 186, ¶ 11, 247 Wis. 2d 172, 183, 633 N.W.2d 662 (Ct. App. 2001) ("covenants not to compete are generally disfavored in the law"); Mutual Service Casualty Ins. Co. v. Brass, 2001 WI App 92, ¶ 8, 242 Wis. 2d 733, 738, 625 N.W.2d 648, 652(Ct.App. 2001) (contracts that operate to restrict trade or competition are construed liberally in favor of employee). The non-competition agreement imposes an eighteen-month ban on defendant Smith's association with any organization or person that competes with plaintiff in the portions of plaintiff's business in which Smith provided services and in the geographical area in which he provided those services.
¶ 2 We conclude, based on the undisputed facts, that one of the clauses is overbroad and therefore invalid and unenforceable under WIS. STAT. § 103.465. We also conclude that under Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis. 2d 733, 625 N.W.2d 648, the two clauses are one indivisible covenant under WIS. STAT. § 103.465. Because they are one indivisible covenant, the invalidity of one clause renders the entire covenant — including the other clause invalid and unenforceable under § 103.465. Accordingly, the circuit court properly entered summary judgment dismissing the complaint and we affirm.