Lucht’s Concrete Pumping, Inc.V Horner

255 P.3d 1058 (2011)

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Nature of the Case

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Facts

P hired D as mountain division manager on an at-will basis. About two years later, on April 15, 2003 D was asked to sign and did sign, a noncompetition agreement. D was not offered any pay increase, promotion, or additional benefits at the time he signed the agreement. D resigned on March 12, 2004, and began working for Everist, a competitor of P. P sued D for breach of contract, breach of duty of loyalty, breach of fiduciary duty, and misappropriation of trade value. It also sued Everist for intentional interference with contract, aiding and abetting a breach of duty of loyalty, aiding and abetting a breach of fiduciary duty, and misappropriation of trade value. The trial court granted summary judgment against P on its claims for breach of contract and intentional interference with contract, concluding that the noncompetition agreement was unenforceable due to lack of consideration. P appealed. The court of appeals concluded that continued employment of an at-will employee cannot, by itself, constitute consideration for a noncompetition agreement if the employee had already begun working for an employer. The court of appeals reasoned that, even though an employer may agree to continue an at-will employee's employment if the employee agrees to sign the covenant, nothing prevents the employer from discharging the employee at a future date and therefore the employee receives nothing more than what was already promised in the original at-will agreement.