Ackerman v. Kimball International, Inc.

634 N.E.2d 778, 1994 Ind. App. LEXIS 585, 1994 WL 199479
CourtIndiana Court of Appeals
DecidedMay 23, 1994
Docket19A04-9311-CV-416
StatusPublished
Cited by23 cases

This text of 634 N.E.2d 778 (Ackerman v. Kimball International, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ackerman v. Kimball International, Inc., 634 N.E.2d 778, 1994 Ind. App. LEXIS 585, 1994 WL 199479 (Ind. Ct. App. 1994).

Opinion

NAJAM, Judge.

STATEMENT OF THE CASE

John C. Ackerman brings a mandatory interlocutory appeal pursuant to Appellate Rule 4(B)(8) from the trial court's entry of a preliminary injunction against him and in favor of Ackerman's former employer, Kim-ball International, Inc. Kimball terminated Ackerman's employment in August of 1998 under a provision in Ackerman's employment agreement reserving that right. After executing a termination agreement which granted him severance pay and other benefits, Ackerman immediately accepted a position with one of Kimball's competitors. Kimball then sought a temporary restraining order and preliminary injunction against Ackerman to enforce a covenant not to compete in Ackerman's employment agreement and to enforce its remedies under both the termination agreement and the Indiana Trade Secrets Act for Ackerman's threatened disclosure or use of Kimball's trade secrets. The trial court held an evidentiary hearing, granted Kimball's request for a preliminary injunction and enjoined Ackerman from accepting employment with a Kimball competitor and from using or disclosing Kimball's trade secrets.

We affirm.

ISSUES

We restate the issues presented on appeal as follows:

1. Whether the covenant not to compete in Ackerman's employment agreement with Kimball is unenforceable for lack of consider *780 ation where under the agreement Kimball reserved the right to terminate Ackerman's employment at will.

2. Whether Kimball's customer lists, supplier list and pricing information constitute trade secrets.

3. Whether Kimball was entitled to a preliminary injunction against Ackerman.

FACTS

Ackerman commenced employment with a division of Kimball known as Evansville Veneer & Lumber Company in 1968. Evansville Veneer manufactures and sells wood veneer products, specializing in pecan and cherry veneer. 1 Evansville Veneer acquires veneer logs from suppliers in more than ten different states and sells veneer to customers in 28 states, as well as Canada and Europe.

In 1974, after 11 years of employment, Ackerman executed an employment agreement with Kimball. The agreement provided that Kimball agreed to continue Ackerman's employment in exchange for Ackerman's promise not to compete directly or indirectly with Kimball within one year following his termination and his promise to safeguard Kimball's confidential business information. Kimball reserved the right in the agreement to terminate Ackerman's employment "at any time." Record at 46.

By the late 1970's, Ackerman had advanced to the position of Executive Vice President of Kimball's Ply-Products Division. Ackerman was responsible for oversight of four of Kimball's veneer plants, including the Evansville facility. However, in 1992, Kim-ball demoted Ackerman to General Manager of Evansville Veneer where he was responsible for the day-to-day operation of the plant. In June of 1998, Ackerman responded to a trade journal employment listing placed by Genwove, a competitor of Evansville Veneer and Kimball in the veneer industry. Acker-man declined an offer of employment from Genwove at that time.

Genwove made Ackerman another offer on August 16, 1998, this time for a more Iucra-tive position as Vice President of Genwove's United States operations with a salary exceeding Ackerman's salary before his demotion. Ackerman's responsibilities in that position were to include oversight of four Gen-wove divisions, including two in the veneer business. Ackerman neither accepted nor declined Genwove's second offer.

The following morning, August 17, 1998, Ackerman requested and received a comprehensive list of Evansville Veneer's log suppliers. Ackerman also requested and was provided with two lists of Evansville Veneer's customers which were produced from the company's data base. During a meeting the next day, August 18, Kimball's Vice President for Raw Materials Operations, James R. Hampton, informed Ackerman that his employment was terminated.

Hampton then presented Ackerman with an agreement outlining the conditions of his termination. The agreement ("Termination Agreement") offered Ackerman a "transitional salary allowance" of $15,000.00 and outplacement counseling benefits not to exceed $35,000.00. As a condition for receiving those benefits Ackerman agreed not to use Kimball's trade secrets. The Termination Agreement also specifically stated that it did not supersede the terms of Ackerman's 1974 employment agreement, which was attached to it. Ackerman executed the Termination Agreement at the conclusion of the meeting with Hampton and received the $15,000.00 transitional salary allowance sometime thereafter. On August 19, 1998, Ackerman accepted Genwove's outstanding offer of employment. Kimball then filed suit to enjoin Ackerman's employment with Genwove and alleged that in addition to obtaining its customer and supplier lists, Ackerman had divulged Kimball's pricing information to Kim-bail's competitors. We will state other, relevant facts in our discussion as needed.

DISCUSSION AND DECISION

Issue One: Consideration for At-Will Employment Contract

We first address Ackerman's claim that the employment agreement he executed in 1974 with Kimball ("Employment Agree *781 ment"), which contained a covenant not to compete, is unenforceable for lack of consideration. Ackerman had been employed at Kimball as an at-will employee for 11 years when Kimball requested that he sign the Employment Agreement. The Employment Agreement provided in pertinent part:

"1. Employer agrees to employ or continue to employ Employee at the salary or wage as now or from time to time agreed on. Nothing herein contained shall affect the right of either party to terminate Employee's employment with Kimball International, Inc. at any time.
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3. Employee agrees that he will carefully guard and keep all information, knowledge or data of Employer or of any customer of Employer which Employee may obtain during the course of his employment, and further agrees that he will not disclose at any time any such information, knowledge or data of Employer or any customer of Employer to others, except such information, knowledge or data as may be generally known to the public.
4. Employee agrees that he will not, without prior written consent of Employer, either during the period of his employment or within one year after the termination thereof, become directly or indirectly engaged in inventing, improving, designing, developing or manufacturing, any products directly competitive with the products of Employer."

Record at 18. According to Ackerman, the Employment Agreement, including the covenant not to compete in Paragraph 4, is unen-foreeable for lack of consideration because Kimball "gave nothing," was not required to provide any additional benefits to him and reserved the right to terminate his employment at will. See Brief of Appellant at 19.

We agree that the Employment Agreement favors Kimball.

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Bluebook (online)
634 N.E.2d 778, 1994 Ind. App. LEXIS 585, 1994 WL 199479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ackerman-v-kimball-international-inc-indctapp-1994.