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Bernard v. S.B., Inc.

Court of Appeals of Oregon

May 6, 2015

Carol BERNARD, Plaintiff-Appellant,
v.
S.B., INC., an Oregon corporation, dba Sherman Brothers Heavy Trucking, Defendant-Respondent

Argued and Submitted September 17, 2014.

161208924. Lane County Circuit Court. Charles D. Carlson, Judge.

Michael Vergamini argued the cause and filed the briefs for appellant.

Laura T.Z. Montgomery argued the cause for respondent. With her on the brief was Gleaves Swearingen, LLP.

Before DeVore, Presiding Judge, and Ortega, Judge, and Garrett, Judge.[*]

OPINION

Page 461

[270 Or.App. 712] GARRETT, J.

Plaintiff brought this action for intentional interference with economic relations, misrepresentation, and injunctive relief, based on allegations that defendant, her former employer, threatened to enforce an invalid noncompetition agreement. Plaintiff's legal theories rely on her contention that her noncompetition agreement with defendant is unenforceable under ORS 653.295 because defendant failed to notify her two weeks before she started work that a noncompetition agreement would be required. The trial court granted summary judgment in favor of defendant. As explained below, we conclude that plaintiff's evidence established, at most, that the noncompetition agreement was voidable (not void) but remained valid and in effect at the time that defendant invoked it. Plaintiff, therefore, failed to raise a triable issue of fact as to whether defendant acted with an " improper means" or for an " improper purpose" --a necessary element of the intentional interference claim--when defendant invoked its contractual rights. Accordingly, the trial court correctly granted summary judgment to defendant on that claim. As to the misrepresentation claim, we reject plaintiff's arguments without written discussion. We reject plaintiff's claim for injunctive relief as moot.[1]

The relevant facts are undisputed. Plaintiff commenced her employment with defendant, a trucking company, on June 9, 2008. She was employed in defendant's logistics department, where she had access to confidential customer and pricing information. On or about the date that plaintiff began her employment, she executed two agreements, a " Confidentiality Agreement" and a " Noncompetition and Nonsolicitation Agreement." In the former agreement, plaintiff promised that she would not, during and after her employment with defendant, disclose any of defendant's confidential information (as defined in the agreement) without defendant's consent. The Confidentiality Agreement is not at issue in this appeal. In the latter agreement, plaintiff [270 Or.App. 713] promised that, during her employment and for a period of three years after the termination of her employment, she would not compete directly or indirectly with defendant, solicit its customers, or recruit its employees.

Plaintiff voluntarily left defendant's employment on August 3, 2011. She began working for T. R. Points Trucking, Inc., a competitor of defendant, on August 8, 2011. At about the same time, defendant learned of her new employment and made contact with both plaintiff and her new employer, reminding them of plaintiff's contractual obligations to defendant. On August 13, plaintiff voluntarily quit her job with T. R. Points. Apparently unaware of that departure, defendant's attorney sent a letter to plaintiff and T. R. Points, dated August 24, describing plaintiff's contractual obligations to defendant.

Plaintiff sued defendant for intentional interference with economic relations and misrepresentation. She also requested injunctive relief. In her complaint, plaintiff alleged that defendant entered into the noncompetition agreement in bad faith and sought to enforce the agreement, which it knew to be unenforceable, by intimidation and threat of legal action.

Defendant moved for summary judgment, arguing, among other things, that plaintiff had failed to demonstrate that the agreement is unenforceable; that plaintiff had failed to show any " interference" with her relationship with T. R. Points; that defendant had sought to enforce only the nonsolicitation and confidentiality provisions, which are not subject to ORS 653.295; and that plaintiff had failed to show any misrepresentation. Defendant produced testimony from one of its executives that he believed the noncompetition agreement

Page 462

was valid and unenforceable at the time that ...


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