Kansas Supreme Court - 99536 â Wolfe Electric, Inc. v. Duckworth

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"(c) Furthermore, and upon the same consideration as before, Employee expressly stipulates and agrees that he shall not solicit, seek or obtain from any active or inactive customers of Employer, any business or trade on his own behalf or on the behalf of any future employer, which said business or trade activity would be competitive of Employer for a period of one (1) year commencing from the date of Employee's termination." (Emphasis added.) We conclude the language in Instruction 3's first paragraph is general enough to authorize the jury to find Duckworth breached his contract for the simple act of forming Global to compete against Wolfe Electric. This specific action, however, clearly is not prohibited by the contract's narrow restrictive covenant. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (legal effect of a written instrument is a question of law; it may be construed and its legal effect determined by the appellate court). Consequently, as a matter of law, Duckworth could not be in breach for performing this action. Accordingly, whether substantial competent evidence supports the jury finding of Duckworth's material breach of the contract by forming Global to compete against Wolfe Electric is irrelevant. For these reasons, we conclude the trial court should not have allowed Wolfe Electric to include this specific allegation in its Instruction 3 claims "that it sustained damages due to . . . alleged breach or breaches of the Employment Agreement/Contract by the Defendant, Terry Duckworth." And unlike with the KUTSA instructional error previously discussed, the elements instruction (Number 4) does not ameliorate any effect of the error. It instructs the jury that an essential element of the breach of contract cause of action includes "defendant's breach of the contract." But like with the KUTSA instructional error, this contract instructional error is also repeated on the jury verdict form. On the page captioned "Wolfe Electric's Claim Against Terry Duckworth for Breach of Contract," the jury is asked if it finds that Duckworth breached his employment agreement by (1) simply "forming defendant Global . . . within 20
the period prohibited by the restrictive covenants in the Employee Agreement for the purpose of competing with plaintiff Wolfe Electric." The jury answered this question "yes." Whether this repeated error requires reversal depends upon our analysis of other alleged instructional errors. c. Global's allegation that Instruction 3 was further contrary to the plain language of Duckworth's employment contract, which then improperly allowed Global to be held liable for tortious interference with the contract for simply inducing Duckworth to solicit business from Wolfe Electric's prospective customers or from its vendors or suppliers Global also argues that the trial court erred in giving another part of Instruction 3 because it improperly allowed Global to be held liable for tortious interference with Duckworth's employment contract for simply inducing him to solicit business from Wolfe Electric's prospective customers or from its vendors or suppliers. As support, Global points out that the restrictive covenant contained in paragraph 7(c) of Duckworth's contract quoted verbatim earlier was limited to "any active or inactive customers of" Wolfe Electric for 1 year after termination. It also points out that paragraph 7(c) makes no reference whatsoever to "vendors or suppliers." To the extent Wolfe Electric can be said to respond, it argues: "There is substantial competent evidence to support the jury's finding that Duckworth materially breached the employment agreement by . . . soliciting Wolfe Electric's current, former and prospective customers and suppliers." (Emphasis added.) We observe that the relevant provision in Instruction 3 concerning the tortious interference claim against Global states: 21
Page 1 and 2: IN THE SUPREME COURT OF THE STATE O
Page 3 and 4: 9. As a general rule, issues not ra
Page 5 and 6: —which otherwise would perhaps al
Page 7 and 8: The circumstances surrounding Duckw
Page 9 and 10: Duckworth counterclaimed against Wo
Page 11 and 12: While nothing in the record on appe
Page 13 and 14: together and read as a whole, and w
Page 15 and 16: secrets, not of any confidential in
Page 17 and 18: "Plaintiff may recover damages from
Page 19: Duckworth additionally argues that
Page 23 and 24: Like with the KUTSA instructional e
Page 25 and 26: fairly compensate plaintiff for dam
Page 27 and 28: the XLT [Wolfe Electric's oven], se
Page 29 and 30: We conclude that even when construi
Page 31 and 32: allocation were made for lost profi
Page 33 and 34: Despite Wolfe Electric's concession
Page 35 and 36: "2) using or attempting to use Wolf
Page 37 and 38: opportunity to fully brief and argu
Page 39 and 40: "Stated another way, the inquiry is
Page 41 and 42: that they actually stole any trade
Page 43 and 44: "So now that we have those [specifi
Page 45 and 46: testimony of an expert witness of W
Page 47 and 48: Similarly, the trial court's posttr

Kansas Supreme Court - 99536 â Wolfe Electric, Inc. v. Duckworth

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Kansas Supreme Court - 99536 â Wolfe Electric, Inc. v. Duckworth