ALAN E. HIGHERS, J.

This case involves the enforcement of a non-competition clause in an owner/independent contractor agreement. Plaintiff, Patricia K. Baker ("Baker" or "plaintiff"), d/b/a Patty's Pampered Nails, appeals from the trial court's judgment in favor of defendants, Tiffany Hooper ("Hooper") and Julia Ellison ("Ellison"). The trial court granted defendants' motion for summary judgment finding the non-competition clause in plaintiff's contract to be an unreasonable restraint on trade and, therefore, unenforceable. For reasons stated hereinafter, we reverse the judgment of the trial court.

Baker is the owner and operator of a nail salon in Athens, Tennessee, known as Patty's Pampered Nails. The nail salon has been in business since 1993. Before opening her salon, Baker received her instruction and training as a manicurist at Bobbie's School of Beauty.

Hooper and Baker entered into a contract on March 20, 1996, and Ellison followed shortly thereafter signing her contract with Baker on March 25, 1996. In doing so, Hooper and Ellison obtained and maintained manicure stations in Baker's salon in order to practice their profession.

The contracts provides in pertinent part:

THE OWNER AND CONTRACTOR AGREE TO OBSERVE THE FOLLOWING MUTUAL STIPULATIONS:

5. To keep a Client Profile and record which will be the property of Owner and information not to be taken from premises.

8. Contractor is not to compete by opening another licensed nail salon in Contractors name or being the managing nail technician of a competitive nail salon in McMinn County for one (1) year subsequent to termination date from Patty's Pampered Nails, or working as a nail technician in another salon or store for six (6) months in McMinn County subsequent to termination date from Patty's Pampered Nails.

14. Contractor shall be responsible for and pay all her withholding taxes, including, but not limited to, federal withholding, medicare and social security. Owner will provide Contractor with 1099 form annually.

15. Advertising expenses will be divided pro-rata among Contractors and Owner except for telephone advertising expenses which will be paid by the Owner.

In accordance with the contract, Baker paid $3,962.44 for advertising in 1996 in order to build her and the contractors' business. Hooper paid $142.85 and Ellison paid $94.25 toward advertising for 1996. As part of their responsibilities, Hooper and Ellison were to maintain client profile cards on each of their customers.

On January 9, 1997, Hooper and Ellison's business relationship with Baker took a turn for the worse. Thereafter, Hooper acknowledges that she went to work for Vogue Salon on January 10, 1997. Ellison began working with the same salon on or about February 7 of that same year. The Vogue Salon is approximately one-half of a block away from Patty's Pampered Nails.

Baker alleges in her brief that Hooper and Ellison contacted fifty-two of the salon's clients in order to solicit them therefrom. Of the fifty-two clients, Baker avers that thirty-four of them were clients of the salon prior to Hooper and Ellison's "employment." Approximately eighteen of the clients were friends or family of Hooper and Ellison. Along these lines, Baker contends she lost $7,244.00 and $6,483.55 respectively as a result of Hooper and Ellison's January 9 termination.

In her deposition, Hooper substantially admitted that she did contact many salon clients and identified some of the salon's client profile cards.

Baker filed this lawsuit alleging that Hooper and Ellison breached their contracts by not only soliciting clients away from the salon, but also for working in McMinn County for another nail salon within six months of their termination from Patty's Pampered Nalls. Baker filed a motion with the court requesting a restraining order against Hooper and Ellison to prevent them from providing manicuring services in McMinn county for the six months subsequent to their termination.

The complaint also names Annette Goines and Dawn Weir as defendants. Baker alleges that these defendants induced Hooper and Ellison to breach their respective contracts.

Hooper and Ellison filed their answer to the complaint denying that they were hired as employees by plaintiff. These defendants admit to signing contracts with plaintiff which allows the defendants to work a manicure station at the plaintiff's salon. Defendants further deny that the plaintiff's business involves any confidential trade secrets or practices. Hooper and Ellison allege that any language in their contracts which attempts to serve as a general covenant not to compete is unenforceable as a unreasonable restraint on trade.

After hearing proof from Baker and the partial testimony from Hooper, the court entered an order denying Baker's request for injunctive relief.

Subsequent to this hearing, discovery depositions were taken by the parties, motions for summary judgment were filed by the defendants with supporting affidavits, and a motion for partial summary judgment with supporting affidavits was filed by plaintiff.

A hearing on the motions was held in Kingston, Tennessee, on June 2, 1997, after which the court entered an order granting the defendants' motion for summary judgment stating that there were no genuine issues of material fact that the covenant not to compete in plaintiff's contract constituted an unreasonable restraint on trade and was unenforceable. Consequently, the court dismissed the complaint as to all defendants. Baker perfected this appeal and presents the following issue for our review:

Whether the trial court erred in denying plaintiff injunctive relief for Hooper and Ellison's alleged breach of the covenant not to compete in the contract between the parties; and whether the trial court erred in granting defendants' motion for summary judgment declaring the contract provision to be an unreasonable restraint on trade.

Ordinarily, when we review a finding of fact by the trial court, we must conduct our review de novo upon the record accompanied by a presumption of correctness, and we may reverse only if the evidence preponderates against the findings of the trial court. T.R.A.P. 13(d). This same presumption, however, does not exist with regard to the trial court's legal determinations. Prost v. City of Clarksville, 668 S.W.2d 425, 427 (Tenn. 1985). In appeals from grants of summary judgment, this Court must decide whether the court below correctly applied Rule 56.03 and, in so doing, must make an entirely fresh determination because only questions of law are presented; no presumption of correctness accompanies the trial court's decision. Hill v. Chattanooga, 533 S.W.2d 311 (Tenn.Ct.App. 1975). In this case, the trial court granted defendants' motion for summary judgment. Thus, on appeal, this Court must review the findings of the trial court de novo without the accompanying presumption of correctness.

There is some question as to the relationship between Baker and defendants Hooper and Ellison. In her complaint, Baker characterizes the contracts signed with Hooper and Ellison as "contracts of employment." However, the contract itself identifies both Hooper and Ellison as "contractor." Additionally, Hooper and Ellison were responsible for withholding their own taxes. Thus, there is a threshold issue as to whether covenants not to compete apply to independent contractors. Neither party directs us to, nor does our research reveal a Tennessee case in which a covenant not to compete was enforced or not enforced against an independent contractor.

It is no secret that an agreement by a person to refrain from exercising his or her trade or calling, standing alone, is not favored in Tennessee. Not only is this antithetical to the interest of society in a free competitive market but also injurious to the interests of the person refrained in earning a livelihood. However, if a covenant not to compete forms a part of a legitimate transaction, a different problem is presented. Such a covenant can be described as an ancillary restraint to indicate its connection with a legitimate transaction. Such ancillary restraints may be valid if they are reasonable in light of the particular circumstances of each case. Non-compete agreements flow from the purpose of protecting a business entity from unfair competition by a former business associate without imposing unreasonable restraints on the latter.

Promises imposing restraints that are ancillary to a valid transaction or relationship include the employer-employee, partner-partnership, and buyer-seller relationships. However, as noted in the Restatement Second of Contracts § 188 (1979), this is not an exclusive list. There may be other situations in which a "valid transaction or relationship would give a promisee legitimate interest sufficient to sustain a promise not to compete." Restatement (Second) of Contracts § 188 (1979).

In reviewing decisions of other jurisdictions, we find that non-compete covenants are applicable to an independent contractor relationship. In Amstell, Inc. v. Bunge Corp., 443 S.E.2d 706, 707 (Ga.Ct.App. 1994), the terms of the covenant not to compete were ancillary to an independent contractor agreement. The court held that the agreement would be treated as an employment contract and that in order for the non-compete to be enforceable it must be limited in time and territorial effect and otherwise reasonable.

Similarly, the North Carolina Court of Appeals, in Starkings Court Reporting Serv. v. Collins, 313 S.E.2d 614, 616 (N.C.Ct.App. 1984), held that covenants not to compete are applicable to the independent contractor relationship. The court found that the covenant was an unreasonable restraint on trade because it provided for greater restraint than was reasonably required for the protection of the owner. Id.

Generally, agreements in restraint of trade, such as covenants restricting competition, are not invalid per se. Although disfavored by law, such agreements are valid and will be enforced provided they are deemed reasonable under the particular circumstances. Heyer-Jordan Associates, Inc. v. Jordan, 801 S.W.2d 814, 820 (Tenn.Ct.App. 1990).

If the circumstances indicate no bad faith on part of the employer, the covenant not to compete may be enforced to the extent reasonably necessary to protect the employer's interest without imposing undue hardship on the employee when the public interest is not adversely affected. Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28, 37 (Tenn. 1984).

The issue before this Court boils down to a question of reasonableness. The Supreme Court has set forth some factors which should be considered in making the determination:

There is no inflexible formula for deciding the ubiquitous question of reasonableness, insofar as noncompetitive covenants are concerned. Each case must stand or fall on its own facts. However, there are certain elements which should always be considered in ascertaining the reasonableness of such agreements. Among these are: the consideration supporting the agreements; the threatened danger to the employer in the absence of such an agreement; the economic hardship imposed on the employee by such a covenant; and whether or not such a covenant should be inimical to public interest.

All Right Auto Parks Inc. v. Berry, 219 Tenn. 280, 285, 409 S.W.2d 361, 363 (1966).

In the case under submission, the consideration in support of the agreement is not in issue, and the question of public interest is not a relevant factor in this case. As such, they will not be considered. Therefore, we must balance the threat to the employer and the economic hardship imposed on the employee. More particularly, the issue is whether the employer has a legitimate business interest for the protection of which a restrictive covenant is reasonable. See Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 473 (Tenn. 1984). The Supreme Court has recognized certain legitimate business interests that are entitled to protection:

Such legitimate business interests include trade or business secrets or other confidential information. Restrictive covenants have been held reasonable where the employee closely associates or has repeated contact with the employer's customers so that the customer tends to associate the employer's business with the employee. Covenants have also been held reasonable in order to prevent misuse of customer lists.

Hasty, 671 S.W.2d at 473 (citations omitted).

The employer cannot use a restrictive covenant to prevent ordinary competition from former employees. To enforce a covenant not to compete, the employer must be able to show the presence of special facts above and beyond ordinary competition that would give an unfair advantage to the employee when competing with his former employer.

The first critical issue is whether Baker had a legitimate business interest in order to employ the use of a non-competition clause in her contracts with Hooper and Ellison. The evidence in the record illustrates that Baker paid approximately ninety-four percent of the advertising costs for 1996 with Hooper and Ellison providing six percent. In doing so, Hooper and Ellison greatly benefitted from Baker's advertising by receiving approximately twenty-five new customers each. After acquiring a substantial number of clients primarily at the expense of Baker, what is to keep Hooper and Ellison from leaving Patty's Pampered Nails to the detriment of Baker? Without some form of protection, this would seem to give Hooper and Ellison an unfair advantage when competing with Baker.

Defendants cite this Court to Amarr Co. v. Depew, 1996 WL 600330 (Tenn.Ct.App. Oct. 16, 1996) and Cherry, Bekaert Holland v. Childree, No. 01A01-9410-CH-00498 (Tenn.Ct.App. May 26, 1995) wherein the respective courts held that an employees access to employer's customer lists did not give employee an unfair advantage over employer. Hooper and Ellison's reliance on these two cases is misplaced. In both Amarr and Childree the identity of potential customers could be determined from the Yellow Pages and a study of their respective industries. In contrast to Amarr and Childree, Hooper and Ellison cannot merely look in the phone book or the Yellow Pages and study their industry in order to apprise themselves of potential customers. Customers primarily seek them out for their nail services and not vice versa. When considering the amount of advertising done by Patty's Pampered Nails in order to procure clients for Hooper and Ellison and when considering the disparity in the advertising cost shared by Baker, Hooper, and Ellison, it is the opinion of this Court that Baker does have a legitimate business interest which merits her including the non-compete clause in the contracts at issue. However, once it is established that Baker has a legitimate interest to protect, she must do so in a reasonable manner.

Along these lines, the scope of a covenant not to compete is an important factor when determining whether or how to enforce the clause. To be enforceable, the restriction must not be overly broad in its territorial scope, or in the time period during which it applies. Dabora, Inc. v. Kline, 884 S.W.2d 475, 478 (Tenn.Ct.App. 1994).

When looking at Baker's contracts with Hooper and Ellison, the non-compete clause in part eight forbids contractors from doing three things:

(1) Opening another licensed nail salon in contractor's name in McMinn County for one year subsequent to the termination date from Patty's Pampered Nails; or

(2) Being the managing technician of a competitive nail salon in McMinn County for one year subsequent to the termination date from Patty's Pampered Nails; or

(3) Working as a nail technician in another salon or store for six months in McMinn County subsequent to the termination date from Patty's Pampered Nails.

Here, Hooper and Ellison have violated the third prohibition within the non compete clause by working as nail technicians in Vogue Salon in McMinn County within the six months following their departure from Patty's Pampered Nails. Therefore, at the heart of this matter is this: whether or not the territorial and time limitations placed upon Hooper and Ellison are reasonable.

It is imperative to note that the trial court disposed of this matter by summary judgment under Tennessee Rule of Civil Procedure 56. After reviewing the evidence in the record, it is the opinion of this Court that summary judgment was not an appropriate means of disposing of this matter.

As mentioned above, Baker had a legitimate business interest which justified her placement of a non-compete clause within Hooper and Ellison's contracts. However, in doing so, she must draft this non-compete clause so as to make it reasonable. When, as here, the material facts are not in dispute, whether or not the non-compete clause at issue is reasonable or not is, indeed, a question of law appropriate for summary judgment. In spite of this, there is scant evidence in the record as to the reasonableness of the territorial limitation imposed upon Hooper and Ellison. There is no evidence in the record concerning the distance which Hooper and Ellison would have to travel or the time in which it would take them to traverse this distance in order to procure employment outside of McMinn County. There is no evidence in the record concerning whether the surrounding townships outside of McMinn County have available employment for nail technicians. These all are issues of fact necessary in determining whether or not Baker's non-compete clause was reasonable. In light of the scarcity of evidence concerning the reasonableness of Baker's non-compete clause limitations, it is the opinion of this court that summary judgment was not the appropriate vehicle with which to dispose of this matter. Accordingly, the trial court's order granting summary judgment in favor of defendants is reversed and this cause is remanded for further proceedings necessary and consistent with this opinion. Costs are adjudged against the appellees, for which execution may issue if necessary.

JUDGMENT

This cause came on to be heard and regularly considered by the Court on the record, and for the reasons stated in the Opinion of this Court filed this date, it is ORDERED that:

1. The judgment of the trial court is reversed and remanded.

2. Costs are adjudged against the appellees for which execution may issue if necessary.

Concur: David R. Farmer, J., Holly Kirby Lillard, J.