                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        January 28, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 JAMES MAJORS, an individual,                                      No. 52414-7-II
                                                          (consolidated with No. 52644-1-II)
                               Appellant,

        v.

 MULTICARE HEALTH SYSTEM, a                                  UNPUBLISHED OPINION
 Washington non-profit corporation,

                               Respondent.

       CRUSER, J. — James Majors appeals the trial court’s denial of his summary judgment

motion and grant of MultiCare Health System’s summary judgment motion. The trial court found

a noncompetition covenant between the parties to be enforceable. Majors claims that the trial court

erred in finding the covenant enforceable because the covenant was (1) unnecessary to protect

MultiCare’s business interests, (2) unreasonable in scope, and (3) harmful to public policy.

       We hold that Majors does not present a justiciable controversy on appeal because the

noncompetition covenant has expired and is no longer enforceable.

       Affirmed.

                                             FACTS

       In 2003, Majors moved to Washington and accepted a job as an obstetrician-gynecologist

at Good Samaritan Community Healthcare in Puyallup, Washington. In 2011, MultiCare acquired
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Good Samaritan through a merger. MultiCare is a not-for-profit healthcare organization that

consists of several hospitals and clinics in Washington.

        MultiCare hired Majors as a part of its own expansion efforts. As a condition of his

employment with MultiCare, MultiCare required Majors to sign an agreement that contained a

noncompetition covenant with MultiCare. The covenant prohibited the practice of medicine within

a 20-mile radius from the physician’s clinic for two years upon termination of the employment

relationship with MultiCare. The employment agreement also stated that in the event of a dispute,

attorney fees and costs shall be awarded to the prevailing party. Majors signed the agreement in

2010 and signed subsequent agreements with identical noncompetition covenants in 2014 and

2017.

        MultiCare terminated Majors without cause on September 15, 2017.           Majors asked

MultiCare to either release him from the noncompetition covenant or to modify the covenant by

reducing the area where Majors was prohibited from practicing from a 20-mile radius from

Majors’s previous clinic to a 2-mile radius. MultiCare refused to release Majors from the covenant

or reform the covenant.

        In February 2018, Majors filed a declaratory relief action against MultiCare seeking

declaration that the noncompetition covenant in his employment agreement was unenforceable. In

the alternative, Majors sought reformation of the noncompetition covenant “so as to make it

reasonable under Washington law.” Clerk’s Papers (CP) at 3. In his complaint, Majors also sought

attorney fees and damages allegedly resulting from MultiCare’s violation of the Consumer




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Protection Act,1 tortious interference with a business expectancy, and tortious interference with a

prospective economic advantage.

         Both Majors and MultiCare moved for partial summary judgment. The court granted

MultiCare’s motion for partial summary judgment and denied Majors’s motion for partial

summary judgment, concluding that the noncompetition covenant was enforceable.

         Majors sought discretionary review of the trial court’s decision on partial summary

judgment. Before we could rule, the parties stipulated to the voluntary dismissal of Majors’s

remaining claims in order to “facilitate appellate review” of the trial court’s decision. CP (Sept.

6, 2018) at 4. The parties also agreed that the stipulation would not preclude MultiCare from

pursuing attorney fees and costs in the future, including while this appeal was pending. Majors

sought appellate review on September 5, 2018.         The noncompetition covenant expired on

September 15, 2019.

                                          DISCUSSION

                                        Ⅰ. JUSTICIABILITY

A. LEGAL PRINCIPLES

         Justiciability is a threshold requirement that must be satisfied before we may address

Majors’s claims. Eyman v. Ferguson, 7 Wn. App. 2d 312, 319, 433 P.3d 863 (2019). “We review

justiciability de novo.” Id. In the absence of issues of “broad overriding public import,” a case

must be a justiciable controversy under the Uniform Declaratory Judgments Act, ch. 7.24 RCW.




1
    Ch. 19.86 RCW.


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Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 814-15, 514 P.2d 137 (1973). A justiciable

controversy is defined as

       “(1) . . . an actual, present and existing dispute, or the mature seeds of one, as
       distinguished from a possible, dormant, hypothetical, speculative, or moot
       disagreement, (2) between parties having genuine and opposing interests, (3) which
       involves interests that must be direct and substantial, rather than potential,
       theoretical, abstract or academic, and (4) a judicial determination of which will be
       final and conclusive.”

Branson v. Port of Seattle, 152 Wn.2d 862, 877, 101 P.3d 67 (2004) (emphasis omitted) (quoting

To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)). Unless all elements

are met, the reviewing court steps into the prohibited area of advisory opinions. Diversified, 82

Wn.2d at 815.

       Within the four-part justiciability test set forth above are the related restraint doctrines. To-

Ro Trade Shows, 144 Wn.2d at 417. “An actual, immediate dispute cannot be moot and must be

ripe, and a party lacking a direct, substantial interest in the dispute will lack standing.” Id. The

first prong of the test requires us to address mootness. “A case is moot, and should be dismissed,

when it involves only abstract propositions or questions, the substantial questions in the trial court

no longer exist, or a court can no longer provide effective relief.” Eyman, 7 Wn. App. 2d at 320.

B. MOOTNESS

       Majors contends that his appeal is not moot even though the terms of the noncompetition

covenant have expired. We disagree.

       We have previously applied the mootness doctrine to noncompetition covenants. In

National School Studies v. Superior School Photo Service, Inc., 40 Wn.2d 263, 268, 242 P.2d 756

(1952), an employer sought injunctive relief and damages against a former employee for breach

of a noncompetition covenant, the terms of which had expired on appeal. The trial court refused

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to order injunctive relief and concluded that the employer was not entitled to damages because he

failed to bring forth adequate proof of lost profits. Id. at 268, 275. On appeal, the court refused to

address the merits of the covenant because it had expired, therefore the question was moot. Id. at

268. The court reasoned that “‘[w]e have always held that we will not decide a case where the

controversy between the contending parties has ceased, and when there would be nothing on which

our judgment could operate.’” Id. at 269 (quoting Pac. Savings & Loan Ass’n v. Smith, 121 Wash.

595, 597, 209 P. 1086 (1922)). The court then assumed the validity of the covenant in order to

affirm the trial court’s finding that the employer failed to show adequate proof of loss. Id. at 274,

275.

       Similarly, in Alexander & Alexander, Inc. v. Wohlman, 19 Wn. App. 670, 672, 578 P.2d

530 (1978), an employer sought injunctive relief and damages against former employees for

violations of their noncompetition covenants. The trial court dismissed the complaint, finding that

the covenants were unenforceable. Id. at 672, 677. The employer appealed. Id. at 671. During

this time, the terms of covenant expired. Id. at 688. On appeal, the court held that the trial court

erred because part of the covenants were reasonable, therefore the covenants were not totally

unenforceable. Id. at 687-88. However, due to the expiration of the terms, the court held that it

could not grant injunctive relief. Id. at 688. The only remedy available to the employer was to

reverse and remand for a trial on the issue of damages. Id. at 688.

       Emerick v. Cardiac Study Center, Inc., 189 Wn. App. 711, 730-31, 357 P.3d 696 (2015),

distinguished both Alexander and National School as well as addressed the merits of a

noncompetition covenant after the terms had expired. In Emerick, the trial court ordered injunctive

relief and attorney fees and costs to the employer when the terms of the noncompetition covenant


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were in effect. Id. at 719. On appeal, the employee argued that the trial court erred when it granted

injunctive relief and fees and costs. Id. at 720. The employee also challenged the appellate court’s

authority to grant injunctive relief under Alexander and National School because the terms had

expired. Id. at 730-31.

       The court disagreed. The court reasoned that because the trial court properly granted

injunctive relief when the terms of the noncompetition covenant were still in effect, the court had

no need to order injunctive relief on appeal. Id. at 730-31. In contrast, the trial courts in both

Alexander and National School did not order injunctive relief when the noncompetition covenant

was still in effect. And when the disputes were addressed on appeal, the covenants had expired,

therefore the controversies between the parties had ceased to exist. Alexander, 19 Wn. App. at

688; Nat’l Sch., 40 Wn.2d at 268.

       Here, the parties concede that the terms of the noncompetition covenant at issue on appeal

have expired. Majors was subject to a noncompetition covenant that restricted his ability to

practice medicine within a 20-mile radius of his previous clinic for two years. MultiCare

terminated Majors on September 15, 2017.             Majors sought declaratory relief from the

noncompetition covenant and damages under multiple theories against MultiCare in February

2018, well within the two-year duration of the covenant. However, the terms expired on September

15, 2019, over a month before we heard Majors’s appeal.




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       Majors relies on Spokane Research & Defense Fund v. City of Spokane to argue that his

appeal is not moot because the attorney fee provision of his employment contract is still undecided.

155 Wn.2d 89, 117 P.3d 1117 (2005); Wash. Court of Appeals oral argument, Majors v. MultiCare

Health System, No. 52414-7-II (Oct. 29, 2019), at 2 min. 05 sec.—2 min. 19 sec. (on file with

court). We disagree.

       In Spokane Research, the appellant sought disclosure of documents under the “Public

Disclosure Act” (PDA), former ch. 42.17 RCW,2 from the City of Spokane, arguing that the

documents he sought were not privileged. 155 Wn.2d at 95, 96. The appellant also sought fees,

costs, and sanctions pursuant to the PDA for the city’s nondisclosure. Id. at 96. The city argued

that because it disclosed the documents to the appellant pursuant to another litigation, the case was

moot. Id. at 99. Our Supreme Court disagreed. Id. at 99, 102. The court held that the previous

disclosure of the documents did not render the appellant’s claims moot because the question of

whether the city was required to make the disclosures pursuant to the PDA was still an existing

controversy. Id. Additionally, if the appellant prevailed, he was entitled to fees, costs, and

sanctions pursuant to the PDA. Id.

       We are unpersuaded that Majors’s case is analogous. Here, Majors seeks only declaratory

relief against the enforcement of the noncompetition covenant on appeal. Below, Majors moved




2
 Spokane Research cited to the PDA, which has since been renamed and recodified as the Public
Records Act (PRA), ch. 42.56 RCW. LAWS OF 2005, ch. 274 (effective July 1, 2006).
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for partial summary judgment on his declaratory action claim and did not request the court to rule

on his other claims. MultiCare also moved for partial summary judgment, arguing that the

noncompetition covenant was enforceable. The trial court granted MultiCare’s motion, concluding

that the covenant was enforceable, and dismissed Majors’s declaratory judgment claim. Majors

now asks us to either conclude that the covenant is unenforceable or reform the covenant to make

the restrictions reasonable. However, regardless of the covenant’s validity or reasonableness, the

covenant is no longer enforceable because the terms expired. Therefore, Majors does not have an

existing need for declaratory relief.

       Furthermore, unlike Alexander, National School, and Spokane Research, Majors does not

seek any other remedy for which he has an existing need. Majors voluntarily dismissed his

remaining claims and neither party sought attorney fees or costs as the prevailing party below or

on this appeal. Because the terms of the noncompetition covenant have expired and there are no

other claims existing at this time, “‘there would be nothing on which our judgment could operate.’”

Nat’l Sch., 40 Wn.2d at 269 (quoting Pac. Savings, 121 Wash. at 597). Therefore, we decline to

address the merits of Majors’s appeal because it has become moot.

                                         CONCLUSION

       We hold that Majors does not present a justiciable issue under the Uniform Declaratory

Judgments Act because the terms of noncompetition covenant expired, therefore any disagreement




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regarding enforceability of the covenant is moot. Because Majors does not present a justiciable

issue, we decline to address the merits of his appeal. We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    CRUSER, J.
 We concur:



 WORSWICK, P.J.




 GLASGOW, J.




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