RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0703-MR
BRIDGET MICHELLE CLAVERY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JULIE KAELIN, JUDGE ACTION NO. 20-CI-004523
ART EATABLES, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, JUDGES.
THOMPSON, CHIEF JUDGE: Bridget Michelle Clavery (“Appellant”) appeals
from an order of the Jefferson Circuit Court granting summary judgment in favor
of Art Eatables, LLC (“Appellee”) on her claim of tortious interference with a
business relationship. Appellant argues that the circuit court erred in its
interpretation of a non-disclosure and non-compete agreement, and that a question of fact remains on the issue of whether Appellee acted with an improper motive.
After careful review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
Appellee is a chocolatier engaged in the business of producing and
selling bourbon-infused chocolate candies and other products. In March 2019,
Appellee hired Appellant as an associate to sell products in its retail location. As a
condition of her employment, Appellant was required to sign a Confidentiality,
Non-Compete, and Non-Solicitation Agreement (“the Agreement”). The
Agreement was broadly drafted to prohibit Appellant’s employment in Kentucky
or any adjoining state with any entity in the business of selling candy. The
confidentiality requirement lasted in perpetuity, and the non-compete provision
lasted for 24 months after Appellant’s employment with Appellee ended.
Appellant read the Agreement and signed it at the time of her hiring.
In January 2020, Appellant informed Appellee that she was leaving
her employment with Appellee, and had applied for and received an offer for part-
time employment with Evan Williams Bourbon Experience (“Evan Williams”).
Appellee told Appellant that employment with Evan Williams would violate the
terms of the Agreement because Evan Williams sold competitors’ chocolates.
Appellee also told Appellant that it could sue her for breach of contract if she
accepted employment with Evan Williams.
-2- Appellee sent a letter to Evan Williams informing it that Appellant’s
employment with Evan Williams would violate the terms of Appellant’s agreement
with Appellee. Thereafter, Evan Williams withdrew its offer of employment with
Appellant. Appellant then filed the instant action against Appellee alleging that
Appellee’s letter to Evan Williams was malicious, improper, and constituted
tortious interference with employment.
The matter proceeded in Jefferson Circuit Court, where Appellee filed
a motion for summary judgment. In support of the motion, Appellee argued that
there was no genuine issue of material fact that the Agreement prohibited
Appellant’s employment with competing candy vendors in Kentucky for two
years; that Evan Williams was a competitor in the candy business; and that
Appellee was entitled to a judgment as a matter of law on Appellant’s claim of
tortious interference.
After considering the arguments of counsel, the Jefferson Circuit
Court concluded that Appellee was entitled to summary judgment. The court
determined that Appellee’s letter to Evan Williams was sent in good faith, as
Appellant had executed the Agreement voluntarily, and Evan Williams was a
competitor in the candy business. The court was not persuaded by Appellant’s
contention that Evan Williams was not a competitor of Appellee due to candy
being only a small portion of Evan Williams’ overall sales. Lastly, the court
-3- rejected Appellant’s argument that the Agreement was overly broad and could not
be enforced in good faith. The court found that the Agreement was drafted in a
manner to reasonably protect Appellee’s interest of guarding its information and
customer base, and was therefore enforceable. This appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
-4- issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court erred in concluding
that Appellee was entitled to summary judgment on her claim of tortious
interference with a prospective business relationship. In support of this argument,
she directs our attention to the elements of tortious interference as set out in Snow
Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. App. 2012). In Snow
Pallet, a panel of this Court recited the elements of tortious interference with a
prospective business relationship as follows: 1) the existence of a valid business
relationship or expectancy; 2) the defendant’s knowledge of that business
relationship or expectancy; 3) intentional interference; 4) improper motive; 5)
causation; and 6) damages.
Appellant argues that the record clearly proves all but one element of
her tortious interference claim. In her view, the only question for this Court is
whether she is entitled to present to a jury the question of whether the “improper
motive” element is satisfied. To demonstrate Appellee’s improper motive,
Appellant argues that, 1) she presented evidence upon which a jury could conclude
that Evan Williams is not a competitor in the candy business; 2) the circuit court
improperly failed to consider that Appellee’s co-owners cannot agree as to the
-5- application of the Agreement; and, 3) the Agreement is so overly broad that it
could not have been executed in good faith. She requests an opinion reversing the
order of summary judgment.
On Appellant’s first assertion that Evan Williams is not a competitor
in the candy business and is, therefore, not an entity contemplated by the
Agreement, she argued before the circuit court that though Evan Williams does sell
candy, the amount of candy sold is negligible. In considering this argument, the
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RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0703-MR
BRIDGET MICHELLE CLAVERY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JULIE KAELIN, JUDGE ACTION NO. 20-CI-004523
ART EATABLES, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, JUDGES.
THOMPSON, CHIEF JUDGE: Bridget Michelle Clavery (“Appellant”) appeals
from an order of the Jefferson Circuit Court granting summary judgment in favor
of Art Eatables, LLC (“Appellee”) on her claim of tortious interference with a
business relationship. Appellant argues that the circuit court erred in its
interpretation of a non-disclosure and non-compete agreement, and that a question of fact remains on the issue of whether Appellee acted with an improper motive.
After careful review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
Appellee is a chocolatier engaged in the business of producing and
selling bourbon-infused chocolate candies and other products. In March 2019,
Appellee hired Appellant as an associate to sell products in its retail location. As a
condition of her employment, Appellant was required to sign a Confidentiality,
Non-Compete, and Non-Solicitation Agreement (“the Agreement”). The
Agreement was broadly drafted to prohibit Appellant’s employment in Kentucky
or any adjoining state with any entity in the business of selling candy. The
confidentiality requirement lasted in perpetuity, and the non-compete provision
lasted for 24 months after Appellant’s employment with Appellee ended.
Appellant read the Agreement and signed it at the time of her hiring.
In January 2020, Appellant informed Appellee that she was leaving
her employment with Appellee, and had applied for and received an offer for part-
time employment with Evan Williams Bourbon Experience (“Evan Williams”).
Appellee told Appellant that employment with Evan Williams would violate the
terms of the Agreement because Evan Williams sold competitors’ chocolates.
Appellee also told Appellant that it could sue her for breach of contract if she
accepted employment with Evan Williams.
-2- Appellee sent a letter to Evan Williams informing it that Appellant’s
employment with Evan Williams would violate the terms of Appellant’s agreement
with Appellee. Thereafter, Evan Williams withdrew its offer of employment with
Appellant. Appellant then filed the instant action against Appellee alleging that
Appellee’s letter to Evan Williams was malicious, improper, and constituted
tortious interference with employment.
The matter proceeded in Jefferson Circuit Court, where Appellee filed
a motion for summary judgment. In support of the motion, Appellee argued that
there was no genuine issue of material fact that the Agreement prohibited
Appellant’s employment with competing candy vendors in Kentucky for two
years; that Evan Williams was a competitor in the candy business; and that
Appellee was entitled to a judgment as a matter of law on Appellant’s claim of
tortious interference.
After considering the arguments of counsel, the Jefferson Circuit
Court concluded that Appellee was entitled to summary judgment. The court
determined that Appellee’s letter to Evan Williams was sent in good faith, as
Appellant had executed the Agreement voluntarily, and Evan Williams was a
competitor in the candy business. The court was not persuaded by Appellant’s
contention that Evan Williams was not a competitor of Appellee due to candy
being only a small portion of Evan Williams’ overall sales. Lastly, the court
-3- rejected Appellant’s argument that the Agreement was overly broad and could not
be enforced in good faith. The court found that the Agreement was drafted in a
manner to reasonably protect Appellee’s interest of guarding its information and
customer base, and was therefore enforceable. This appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
-4- issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court erred in concluding
that Appellee was entitled to summary judgment on her claim of tortious
interference with a prospective business relationship. In support of this argument,
she directs our attention to the elements of tortious interference as set out in Snow
Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. App. 2012). In Snow
Pallet, a panel of this Court recited the elements of tortious interference with a
prospective business relationship as follows: 1) the existence of a valid business
relationship or expectancy; 2) the defendant’s knowledge of that business
relationship or expectancy; 3) intentional interference; 4) improper motive; 5)
causation; and 6) damages.
Appellant argues that the record clearly proves all but one element of
her tortious interference claim. In her view, the only question for this Court is
whether she is entitled to present to a jury the question of whether the “improper
motive” element is satisfied. To demonstrate Appellee’s improper motive,
Appellant argues that, 1) she presented evidence upon which a jury could conclude
that Evan Williams is not a competitor in the candy business; 2) the circuit court
improperly failed to consider that Appellee’s co-owners cannot agree as to the
-5- application of the Agreement; and, 3) the Agreement is so overly broad that it
could not have been executed in good faith. She requests an opinion reversing the
order of summary judgment.
On Appellant’s first assertion that Evan Williams is not a competitor
in the candy business and is, therefore, not an entity contemplated by the
Agreement, she argued before the circuit court that though Evan Williams does sell
candy, the amount of candy sold is negligible. In considering this argument, the
circuit court determined that the amount of candy sold by Evan Williams is
immaterial, as the Agreement does not specify how much candy a competitor must
sell in order to implicate the terms of the Agreement. According to the record, the
Agreement prohibits Appellant from accepting employment with any “entity in the
business of selling candy products including, but in no way limited to, bourbon
and/or chocolate candies.” Evan Williams sells candy products, thus
characterizing it as “an entity in the business of selling candy products” per the
terms of the Agreement. The circuit court did not err in concluding that the
amount or type of candy sold by Evan Williams is immaterial. We find no error on
this issue.1
1 In her Reply Brief, Appellant also argues that Heaven Hill, Inc. or Heaven Hill Brands was her actually prospective employer, and that Heaven Hill is not a competitor of Appellee. We are not persuaded by this argument because Heaven Hill Brands owns Evan Williams, and the Jefferson Circuit Court properly so found.
-6- Appellant’s second contention is that the circuit court improperly
failed to consider that Appellee’s co-owners cannot agree as to the scope of the
Agreement. According to Appellant, one co-owner believed that the Agreement
applied to any candy vendor, while the other opined that it applied only to sellers
of bourbon candies who offer a bourbon candy experience. In Appellant’s view,
this disagreement demonstrates that Appellee’s communication with Evan
Williams was made with an improper motive per Snow Pallet, supra.
The co-owners were asked in deposition to give their opinions as to
the applicability of the Agreement in various hypothetical situations. We agree
with Appellee that even if their answers were not always identical, the underlying
issue of summary judgment does not center on hypothetical scenarios but rather on
what actually occurred and is memorialized in the record. As noted above, the
Agreement which Appellant voluntarily read and executed prevented her from
accepting employment with any entity in the business of selling candy. It is
uncontroverted that Evan Williams sells candy. We find no error and cannot
conclude that this issue forms a basis for reversing the order of summary judgment.
Lastly, Appellant argues that the circuit court erred in failing to find
that Appellee’s interpretation of the Agreement is so overly broad that it cannot
have been made in good faith. She argues that having not made this interpretation
in good faith, it follows that Appellee’s communication with Evan Williams was
-7- made with an improper motive per Snow Pallet. According to Appellant, Appellee
believes the Agreement prohibits employment by every entity that sells candy,
from office supply stores to chain general merchandise stores, as well as
restaurants, distilleries, coffee shops, hotels, and museums. Appellant argues that
such an interpretation is overly broad and unreasonable, and demonstrates that
something other than protecting its legitimate business interests motivated its
communication with Evan Williams. Appellant argues that this issue should have
gone before a jury, thus rendering the entry of summary judgment premature and
unsupported by the record.
We believe it is immaterial as to what Appellee may – or may not –
subjectively believe about the Agreement’s application to coffee shops, hotels, or
museums. Rather, the underlying issue of summary judgment centers on the
express terms of the Agreement, whether those terms apply to Evan Williams, and
whether the circuit court properly concluded that Appellee is entitled to summary
judgment on Appellant’s claim of tortious interference with a business relationship.
Again, the Agreement is broadly drafted to prohibit Appellant from engaging in
any business relationship, including employment “with an entity in the business of
selling candy[.]” The prohibition continues for two years after Appellant’s
employment with Appellee and applies to entities located in Kentucky and
-8- adjoining states, as well as those doing business on the internet. Evan Williams is
an entity contemplated by the Agreement.
We find no basis for concluding that Appellee had an improper
motive per Snow Pallet in its execution and enforcement of the Agreement. The
Jefferson Circuit Court determined that Appellee is a small business which may
properly protect its business interests from larger companies via the Agreement.
This conclusion is supported by the record and the law. Nothing in the record
points to an improper motive sufficient to sustain Appellant’s claim for relief.
CONCLUSION
We conclude that there are no genuine issues of material fact and
Appellee is entitled to a judgment as a matter of law. Steelvest, supra. The
Jefferson Circuit Court properly so found. Accordingly, we affirm the opinion and
order of the Jefferson Circuit Court granting summary judgment in favor of
Appellee.
ALL CONCUR.
-9- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michele Henry Ruby D. Fenton Louisville, Kentucky Ayala Golding Louisville, Kentucky
-10-