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                                                                                                     2813 DEC 17       AM 8: 48
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    IN THE COURT OF APPEALS OF THE STATE OF WASHY

                                                    DIVISION II

WILL MCKASSON,                                                                       No. 43486 -5 -II


                                     Appellant,


         MAI




BRIAN JOHNSON and DANIELLE                                                      PUBLISHED OPINION
JOHNSON, husband and wife; and
ACADEMY OF BRIAN JOHNSON, LLC, a
Washington limited liability company,



         HUNT, J. —       Will McKasson appeals the superior court' s denial of summary judgment on

the issue of enforceability of a noncompete clause in his employment contract with the Academy

of Brian Johnson, LLC ( the Academy) which he sued for damages and a temporary restraining

order   to     prohibit enforcement of     the   noncompete clause.           McKasson argues that the noncompete


clause is unenforceable as a matter of law because the employment contract states that the


Academy gave him no consideration for this new employment restriction other than continuing

his at -will employment. The Academy responds that it gave McKasson additional consideration

in exchange for this noncompete restriction, which created a material issue of fact precluding

summary          judgment.      We    agree       with   McKasson,          hold   that   the   noncompete    clause    is


unenforceable as a matter of law, and reverse and remand for entry of summary judgment in

favor   of     McKasson   on   the issue   of   enforceability   of   the   noncompete clause.
No. 43486 -5 -II



                                                        FACTS


                                            I. EMPLOYMENT CONTRACT


         Brian and Danielle Johnson own the Academy of Brian Johnson, LLC, a fitness business

with   approximately 400         members.     The Academy provides group classes, individual instruction,

and on -site equipment for self-directed exercise in its facility.

         Will McKasson worked for the Academy without a contract as an at - ill employee from
                                                                          w
                                                    Brianl

2004 to 2009.       At     some   future   point,            wanted to transfer the Academy' s ownership to

McKasson; these two agreed on a transfer plan, which included, among other things, Brian' s

desire to formalize McKasson'          s employment          in   a written contract.     In 2009, the Academy and

McKasson      signed   a   written employment contract,            drafted   and presented      by   the   Academy.   This


employment contract, however, did not mention any such plan to transfer ownership of the

business to McKasson; nor did it provide any change in McKasson' s employment other than

adding a noncompete restriction.


         This employment contract provided that McKasson would remain an at -will employee at


his                        wage of $16.       The contract also included a noncompete clause, stating that
      previous   hourly

after termination of his employment, McKasson could not work for any business in competition

with   the   Academy for     three   years.   The, contract stated explicitly that the Academy did not give

McKasson any consideration for this employment restriction, other than continuing his at -will




1
  For clarity,    we     refer   to Brian and Danielle Johnson               by   their first   names.      We intend no
disrespect.




                                                              2
No. 43486 -5 -II



employment.      2 The contract also contained an integration clause, which provided:

          T] his    instrument     contains       the   entire   agreement         between the       parties.        No
         amendment or variations of the terms and conditions of this Agreement shall be
         valid unless it is in writing and signed by all parties hereto.          Any prior
         agreements between the parties are revoked in their entirety by this Agreement.

Clerks Papers ( CP) at 15 ( emphasis added).


         Brian     never     transferred    the      Academy         to    McKasson.     Instead,    the Academy fired

McKasson in 2011,            alleging that he had engaged in a sexual relationship with a customer.

Thereafter, the Academy' s attorney informed McKasson' s new prospective employer about

McKasson' s noncompete restriction and alleged misconduct.


         The parties disputed whether McKasson received additional employment benefits as

consideration      for the   noncompete restriction.           Brian asserted that before signing the contract the

two agreed that McKasson would take on a management role, that the Academy would allow

McKasson to teach            private   lessons       and "   open"        classes in the Academy' s facility, and that

McKasson       would   be    permitted     to   sell exercise equipment           inside the   facility.   CP   at   26.   Brian


further claimed that if McKasson had not agreed to the noncompete restriction, he ( Brian) would_

not have allowed McKasson to conduct these additional business activities and to keep the

revenue     they   generated.      Brian implied that he had also sought the noncompete restriction




2
    Specifically, the contract provided:
                    The consideration for Employee' s agreement under this Section 2 is the
          execution of this Agreement by Employer and Employer' s agreement hereunder
          to   employ      Employee.            No    additional          consideration for Employee' s          post -
          termination competition agreement hereunder is intended by the parties and the
          parties hereby acknowledge the adequacy and sufficiency of said consideration.
CP at 13.




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No. 43486 -5 -II



                                                                                                             3
because McKasson            would receive        valuable        knowledge      during   his   employment.       McKasson,


however, asserted that he received no pay raise, no promotion, and no improvement in his

employment after he signed the contract.


                                                          II. PROCEDURE


         McKasson sued the Johnsons and the Academy for damages; he also sought a temporary

restraining   order   prohibiting them from enforcing the                 noncompete clause.        He moved for partial


summary judgment,            asking the superior court to rule that the noncompete restriction was

unenforceable      as   a    matter    of      law.       The     superior     court   denied his   motion,      ruling that


enforceability of the noncompete restriction remained a factual issue that precluded resolution as

a matter of law. The superior court also denied McKasson' s motion to reconsider.


         McKasson sought discretionary review, in connection with which the parties stipulated

that ( 1) the superior court' s orders involve a controlling question of law, about which there is

substantial   ground    for    a   difference        of   opinion;     and (   2)   immediate review would materially

advance    the   ultimate     termination       of    the   litigation.      Our commissioner granted discretionary

review.




                                                            ANALYSIS


          McKasson argues that the noncompete clause in his employment contract with the


Academy is       unenforceable        as   a   matter       of   law because ( 1)      Washington case law holds that


continuing employment is not consideration for a noncompete restriction after employment has

begun; ( 2)   the employment contract explicitly stated that the Academy did not give McKasson


3
    More specifically, Brian       asserted, "    Knowing the integral value of the techniques and business
practices we use, Will and I agreed that he should sign an Employment Agreement that included
      compete provision."
a non -                             CP at 26.



                                                                   0
No. 43486 -5 -II




any    consideration    for the   noncompete       restriction   other   than continuing      employment; (     3)   the


contract also contained an integration clause, which invalidated any agreement made before

execution of the contract as well as any amendment to the contract not in writing and signed by

both parties; and ( 4) therefore, the Academy' s evidence of other oral agreements or amendments

to the contract was not admissible under the parol evidence rule to contradict the written


contract' s terms, and the Academy could not prove it had provided independent consideration for

the noncompete restriction to create an enforceable noncompete clause.


         The Academy primarily argues in response that ( 1) the parties' intent to create a partially

integrated contract remains an issue of fact, precluding summary judgment on the issue of

enforceability   of   the   noncompete restriction; (    2) its additional consideration for the noncompete


restriction was not incorporated in the written agreement; and ( 3) the contract' s language was

deficient.   These     arguments     do   not   defeat McKasson'    s entitlement    to summary judgment.            We


hold that the noncompete restriction was unenforceable as a matter of law for lack of

consideration and reverse on that basis; thus, we do not address the other arguments.


      I. CONTINUING EMPLOYMENT NOT SUFFICIENT CONSIDERATION FOR NONCOMPETE CLAUSE


          Courts will enforce a noncompete clause if the restriction is reasonable and the clause


was    validly incorporated into      an employment agreement.             Labriola    v.   Pollard   Grp.,   Inc., 152


Wn.2d 828, 833, 100 P. 3d 791 ( 2004).             Valid incorporation of a noncompete clause requires the


employer to give the employee consideration in exchange for the employee' s employment


restriction; consideration in this context is an employer' s promise to do something for the

employee or to give the employee an additional benefit in exchange for the employee' s


agreement    to the   restriction.   See RESTATEMENT ( SECOND)           OF   CONTRACTS § 71( 1) -( 3) ( 1981).




                                                           5
No. 43486 -5 -II



         Whether employment alone            constitutes sufficient consideration for an employee' s


noncompete restriction depends on when the employer and employee agree to it. If a prospective


employee agrees to a noncompete restriction when he or she is first hired, employment by itself

may be    sufficient consideration.      Labriola, 152 Wn.2d        at   834.    But when an existing at -will

employee agrees to a noncompete restriction some time after he or she was hired, the restriction


is enforceable only if the employer gives the employee independent consideration at the time of

their   agreement.   Id.   Such independent consideration in exchange for the employee' s new


employment restriction requires the employer to undertake an obligation or promise, other than

                                                                                             4
continuing     employment,   that it   was   not   previously   required   to   undertake.       Id.   Examples of


independent consideration for a noncompete restriction include increased wages, a promotion, a


bonus, or access to protected information. Id.


         The noncompete clause at issue here expressly stated that the Academy did not give

McKasson any consideration other than continuing at -will employment in exchange for his

noncompete restriction.      The Academy concedes that the employment contract does not provide

independent consideration for the noncompete restriction and that continued at -will employment


is not sufficient to create an enforceable restriction.


                   II. NONCOMPETE CLAUSE UNENFORCEABLE AS A MATTER OF LAW


         Nevertheless, the Academy argues that it did give McKasson additional consideration for

the   noncompete clause ( e. g.,   additional business opportunities) in separate oral agreements not


4
  Conversely, mere continuing employment, without any new promise or benefit by the
employer, is not sufficient consideration when an existing employee agrees to a noncompete
restriction.     See Labriola,     152    Wn.2d.      at   836 ( employer       did not provide         independent
consideration where employer' s duties to employee did not change after agreement; instead,
remained same as before).



                                                           n
No. 43486 -5 -II



included in the         written       employment    contract.         The plain language of the written contract' s


integration clause, however, expressly states that ( 1) the contract " contains the entire agreement

between the       parties "; (      2) no variations in its terms are valid if not in writing and signed by the

parties;   and (   3)    any    prior    agreements     between the      parties   are    revoked.   CP   at   15.   But the


Academy asserts that the contract' s inclusion of this integration clause was a mistake and,

therefore, we should ignore it in favor of contrary separate oral agreements, which it further

argues create issues of material fact that defeat summary judgment.

           The   Academy' s          argument   lacks   merit.   First, the plain language of the written contract' s


integration clause expressly precluded the enforceability of the Academy' s alleged oral
                                                                                          5
agreement        providing      consideration    for the   noncompete restriction.            Second, we do not entertain


the Academy' s proffered excuse that it included the integration clause in the written contract by

mistake because we construe written contracts against their drafters such that they cannot later

benefit from " mistakes" that they were in a position to prevent. See Pierce County v. State, 144

Wn.     App.   783, 813, 185 P. 3d 594 ( 2008) ( ambiguous contracts are generally construed against


the    drafter); Emter         v.   Columbia Health Servs., 63 Wn.            App.       378, 384, 819 P. 2d 390 ( 1991)


    drafter cannot take advantage of ambiguities it could have prevented with greater diligence);

Cont' l Ins. Co.        v.   PACCAR, Inc., 96 Wn:2d 160, 167, 634 P. 2d 291 ( 1981) ( party who created




5
    When a contract' s term is plain and unambiguous, we interpret the term' s meaning and, thus,
the   parties'    intentions, according to its plain language. Cornish Coll. ofthe Arts v. 1000 Va.                     Ltd.
P' ship, 158 Wn.       App. 203, 231, 242 P. 3d 1 ( 2010), review denied, 171 Wn.2d 1014 ( 2011).



                                                                 VA
No. 43486 -5 -II



                                                                                                     6
the   contract     is in better   position   to   prevent ambiguous       language   or mistakes).       Based on the


record here, it is undisputed that the Academy drafted the employment contract and presented it

to McKasson to sign; the Academy cannot now escape the contract' s clear provisions by

claiming ambiguity in its favor.             Thus, the Academy cannot present unenforceable separate oral

agreements to create issues of material fact in the summary judgment context.

           There are no issues of material fact that prevent summary judgment to McKasson on the

enforceability of the noncompete clause in his employment contract with the Academy. Looking

to the fully integrated written employment contract, we hold, as a matter of law, that the

noncompete restriction is legally unenforceable and that, therefore, the superior court should

have      granted,    rather      than   denied,    McKasson' s motion for partial summary judgment.

Accordingly, we reverse the superior court' s denial of McKasson' s motion for summary




6
    See   also   the Restatement,    which echoes          The party who drafts the contract ( 1)
                                                         these   rationales:

is more likely to protect his or her own interests over the other party' s interests; and ( 2) may
intentionally leave a term ambiguous, hoping to decide at a later date what meaning the term
should     hold. RESTATEMENT ( SECOND)              OF   CONTRACTS, § 206( a) ( 1981).

7
    The    superior    court   acknowledged        that the noncompete         clause   was   unenforceable.    But it
nevertheless denied summary judgment to McKasson because it viewed the Academy' s
representation of additional business opportunities for McKasson as creating a material issue of
fact, distinguishing this case from Labriola.


                                                                 3
No. 43486 -5 -II




judgment and remand for entry of summary judgment on his behalf on the issue of enforceability

of   the   noncompete clause.                            E




                                                 f   x




                                                Hunt, J
