Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc.

19 P.3d 934, 172 Or. App. 399, 17 I.E.R. Cas. (BNA) 521, 2001 Ore. App. LEXIS 156
CourtCourt of Appeals of Oregon
DecidedFebruary 14, 2001
Docket16-98-18369, CA A105112
StatusPublished
Cited by5 cases

This text of 19 P.3d 934 (Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc., 19 P.3d 934, 172 Or. App. 399, 17 I.E.R. Cas. (BNA) 521, 2001 Ore. App. LEXIS 156 (Or. Ct. App. 2001).

Opinion

*401 HASELTON, P. J.

Plaintiff appeals from a judgment dismissing his complaint for failure to state ultimate facts sufficient to constitute a claim for wrongful discharge. ORCP 21 A(8). The issue is whether plaintiff, fired for refusing to sign a noncom-petition agreement, has stated a claim for wrongful discharge against his former employer. For the reasons set forth below, we reverse and remand.

In reviewing a judgment of dismissal, we consider only the facts alleged in the complaint. Well pleaded allegations, and reasonable inferences that can be drawn from those allegations, are accepted as true. “A pleading that contains an allegation of material fact as to each element of the claim for relief, even if vague, is sufficient to survive a motion to dismiss." McAlpine v. Multnomah County, 131 Or App 136, 138, 883 P2d 869 (1994), rev den 320 Or 507 (1995).

Plaintiffs complaint alleges that in March 1998, after 17 years of employment, defendant ordered him to sign an agreement. Paragraph two of the agreement states:

“Nonsolicitation. Employee agrees, during the term of employment and for a period of five years thereafter, that he/she shall not:
“2.1 Solicit the business of any business entity which was a customer of Company at any time during Employee’s employment, or where such entity was a target of Company’s marketing; and
“2.2 Offer employment to any employee or employees of Company who were employees at any time during Employee’s employment with the Company.”

Plaintiff further alleges that employer’s order to sign the agreement did not occur upon plaintiffs initial employment, nor did it occur in connection with a bona fide advancement in plaintiffs employment. Finally, plaintiff alleges that he was fired for refusing to sign the agreement and suffered economic and emotional harm as a result.

*402 Defendant moved to dismiss plaintiffs complaint on the ground that the agreement in question was not a “non-competition agreement” for purposes of ORS 653.295(1). That statute provides:

“A noncompetition agreement entered into between an employer and employee is void and shall not be enforced by any court in this state unless the agreement is entered into upon the:
“(a) Initial employment of the employee with the employer; or
“(b) Subsequent bona fide advancement of the employee with the employer.” 1

Defendant also argued that, even if the agreement is a “non-competition agreement” within the meaning of ORS 653.295, discharging an employee for refusing to sign such an agreement does not fall within the recognized exceptions to the at-will employment doctrine. Finally, defendant asserts that a common-law wrongful discharge remedy is unnecessary because plaintiff is adequately protected by an existing statutory remedy. The trial court dismissed plaintiffs claim on the ground that the agreement was not a “noncompetition agreement” within the meaning of ORS 653.295.

On appeal, plaintiff assigns error to the court’s ruling, arguing that an agreement that hinders the ability to compete equally in an open marketplace is a “noncompetition agreement.” Defendant counters that the agreement is not a noncompetition agreement because it would not have prohibited plaintiff from engaging in the same business as employer. Instead, it would have prohibited plaintiff only from soliciting defendant’s customers, entities that defendant had targeted for marketing, or defendant’s employees. Defendant also argues that the trial court’s dismissal was correct in any event because discharging an employee for refusing to sign such an agreement cannot, as a matter of law, constitutes wrongful discharge.

*403 We first turn to the question whether the agreement is a “noncompetition agreement” within the meaning of ORS 653.295. “Noncompetition agreement” is defined in ORS 653.295(6) as:

“[A]n agreement, written or oral, express or implied, between an employer and employee under which the employee agrees that the employee, either alone or as an employee of another person, shall not compete with the employer in providing products, processes or services, that are similar to the employer’s products, processes or services for a period of time or within a specified geographic area after termination of employment.”

Here, the disputed agreement is in writing, it is between an employer and an employee, and it purports to last for five years after termination. The remaining question is whether an agreement not to solicit business from any entity that was a customer of defendant or from any entity that is targeted for marketing by defendant, and not to offer employment to anyone who worked for defendant, constitutes an agreement not to “compete * * * in providing products, processes or services, that are similar to [defendant’s].” Resolving that question requires us to interpret “compete.”

Interpretation of statutory language begins with the plain, natural, and ordinary meaning of the text. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Equally important is the context, which includes “other provisions of the same statute and related statutes, prior enactments and prior judicial interpretations of those and related statutes[.]” Young v. State of Oregon, 161 Or App 32, 35-36, 983 P2d 1044, rev den 329 Or 447 (1999) (citations omitted). We consider legislative history only if the intended meaning is not clearly expressed by the text and context of the statute. Id.

To “compete” means “to seek or strive for something (as a position, possession, reward) for which others are also contending: vie with another or others for or as if for a prize.” Webster’s Third New Int’l Dictionary, 463 (unabridged ed 1993). Plaintiff asserts that the agreement here prohibits competition within the plain meaning of that term. The thrust of defendant’s response, as we understand it, is that *404 an agreement must completely prohibit an employee from engaging in the same business as employer to be considered a “noncompetition agreement” — and that the agreement at issue here, while precluding plaintiff from soliciting business from customers with whom defendant had done business or sought to do business, nevertheless would have allowed plaintiff to engage in the same business, albeit subject to those limitations.

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19 P.3d 934, 172 Or. App. 399, 17 I.E.R. Cas. (BNA) 521, 2001 Ore. App. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dymock-v-norwest-safety-protective-equipment-for-oregon-industry-inc-orctapp-2001.