Appeal from Thurston Superior Court. Docket No: 11-2-02760-8. Date filed: 04/27/2012. Judge signing: Honorable Lisa L Sutton.
Jon E. Cushman and Kevin Hochhalter (of Cushman Law Offices ), for petitioner.
C. Scott Kee (of Dixon Rodgers Kee & Pearson PS ), for respondents.
AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Jill M Johanson, J.
[178 Wn.App. 423] Hunt, J. --
¶ 1 Will McKasson appeals the superior court's denial of summary judgment on the issue of enforceability of a noncompete clause in his employment contract [178 Wn.App. 424] with the Academy of Brian Johnson LLC (Academy), which he sued for damages and a temporary restraining order to prohibit enforcement of the noncompete clause. McKasson argues tat 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.
I. Employment Contract
¶ 2 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.
¶ 3 Will McKasson worked for the Academy without a contract as an at-will employee from 2004 to 2009. At some future point, Brian  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 plan to transfer ownership of the business to McKasson; nor did it [178 Wn.App. 425] provide any change in McKasson's employment other than adding a noncompete restriction.
¶ 4 This employment contract provided that McKasson would remain an at-will employee at his previous hourly wage of $16. The contract also included a noncompete clause, stating that 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 ...