Myx Bom Inc, V. Cskk Corporation

• Court: Court of Appeals of Washington
• Decided: January 20, 2026
• Docket: 87707-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MYX BOM, INC., a Washington corporation, No. 87707-1-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

CSKK CORPORATION, a Washington corporation; LJK ENTERPRISES, INC., a Washington corporation; and CHU AH KIM and JUHNEE YIM, and the marital community composed thereof,

Appellants.

DÍAZ, J. — Chu Ah Kim and Juhnee Yim (collectively Kim) sold Myx Bom,

Inc., a teriyaki restaurant, pursuant to a purchase and sale agreement (PSA) which

included a noncompete covenant. A superior court granted summary judgment in

Myx Bom’s favor on both liability and damages (order), finding that Kim breached

the covenant and that a thrice-revised addendum to the PSA fixed the amount of

damages for such breaches. Kim here challenges both decisions.

We conclude that there is no genuine issue of material fact that Kim

breached the noncompete covenant by opening a teriyaki restaurant within five No. 87707-1-I/2

miles of the restaurant it had sold, using similar menu displays, the same vendors,

and the same chef. But we hold that a fact finder must decide the amount of money

damages to which Myx Bom may be entitled because of the breach. Thus, we

affirm the order in part, reverse the order in part, and remand this matter to the

court for further proceedings.

I. BACKGROUND

On February 5, 2021, buyer Dong Il Yoon entered into a PSA with seller

LJK Enterprises, Inc., by and through its owner Chu Kim, for the sale of Ichi

Teriyaki, a restaurant located in Lynnwood. 1 The total purchase price was

$800,000 plus the cost of inventory. The PSA contained the following noncompete

provision:

COVENANT NOT TO COMPETE. Seller, and all partners, members, shareholders, officers and directors of Seller, agree that for a period of 60 months following Closing, neither Seller nor its partners, members, shareholders, officers or directors will participate in the ownership or operation of any business that competes directly with the business sold to Buyer that is located within a radius of 5 miles of any business location sold to Buyer under this Agreement. If Seller breaches this covenant, Buyer will be entitled to obtain an injunction to prevent the competitive activity, as well as to recover any money damages, attorney fees, and costs to which Buyer may be entitled.

(Emphasis added.)

On March 18, 2021, the parties executed an “addendum/amendment” to the

PSA in which they agreed to change the name of the buyer to Myx Bom Inc., with

“[t]he purchase price to be allocated as following [sic.]:”

Equipment: $10,000 Goodwill: $650,000

1 LJK Enterprises Inc. was administratively dissolved in June 2021.

2 No. 87707-1-I/3

Non-compete: $140,000

On April 19, 2021, two days before Myx Bom took possession of Ichi

Teriyaki, the parties executed an “Allocation Addendum” “for the purpose of

allocat[ing] the purchase price.” In March 2022, Yoon’s accountant had noticed

that the valuations in the allocation addendum were left blank and had asked Yoon

to provide the numbers so he could prepare Yoon’s tax return. Yoon

acknowledged that, “[i]n the flurry of documents,” he did not recall the March 2021

addendum/amendment containing this information. On September 14, 2022, the

parties re-signed the allocation addendum with the same numbers filled in.

Meanwhile, in May 2022, Kim and former Ichi Teriyaki chef Taeyoung Kim

formed CSKK Corporation and purchased PNW Teriyaki, a restaurant in Everett.

The radial distance between PNW Teriyaki and Ichi Teriyaki is 4.18 miles. After

CSKK took over, PNW Teriyaki modified its menu, menu displays—becoming

similar to Ichi Teriyaki’s—and contracted with the same vendors.

In October 2022, Yoon learned that Kim was operating PNW Teriyaki. In

February 2023, Myx Bom asked Kim to cease and desist from violating the

noncompete covenant by operating a teriyaki restaurant within a five-mile radius

of Ichi Teriyaki. Kim did not do so.

In May 2023, Myx Bom filed a complaint against Kim and CSKK for

damages and injunctive relief based on breach of the noncompete covenant. Kim

immediately divested his interest in PNW Teriyaki by transferring his shares in

CSKK Corp. to Taeyoung Kim. 2

2 CSKK was dismissed from the lawsuit in September 2023.

3 No. 87707-1-I/4

Myx Bom moved for summary judgment, which the court granted. In its

order, the court held that no issues of material fact exist that Kim breached the

noncompete clause; that the parties agreed the noncompete clause is valued at

$140,000; that Myx Bom lost the entire value of the benefit of its bargain because

the competing restaurant is still operating within a five-mile radius of Ichi Teriyaki;

that the damages are liquidated; and that Myx Bom is entitled to prejudgment

interest from the date of breach. The court entered judgment, awarding Myx Bom

over $220,000.

Kim timely appeals.

II. ANALYSIS

A. Standard of Review

We review summary judgment orders de novo. Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate when the

pleadings, affidavits, depositions, and admissions on file demonstrate the absence

of any genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c).

Summary judgment is subject to a burden-shifting scheme. Ranger Ins. Co.

v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). The party moving

for summary judgment bears the initial burden of demonstrating that there is no

disputed issue of material fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225,

770 P.2d 182 (1989). If the moving party satisfies its burden, the burden then shifts

to the nonmoving party to present evidence that an issue of material fact remains.

Id. at 225. “A material fact is one on which the litigation’s outcome depends in

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whole or in part.” TT Props., LLC v. City of Tacoma, 192 Wn. App. 238, 245, 366

P.3d 465 (2016). Summary judgment is also proper if, after reviewing all the

evidence, a reasonable person could reach only one conclusion. Kelsey Lane

Homeowners Ass’n v. Kelsey Lane Co., Inc., 125 Wn. App. 227, 232, 103 P.3d

1256 (2005).

B. Remedy for Breach of the Noncompete Clause

The parties devote most of their briefing to the question of damages,

namely, whether the parties contractually agreed to fix money damages for any

breach of the noncompete clause at $140,000. We conclude that the contracts in

question, as a matter of law, did not include such a liquidated damage clause and,

when properly so understood, there are several genuine issues of material fact as

to the amount of money damages to which Myx Bom may be entitled because of

the breach.

1. Legal Principles

a. Contract Interpretation

“Washington courts ‘are loath[ ] to interfere with the rights of parties to

contract as they please between themselves.’” Salewski v. Pilchuck Veterinary

Hosp., Inc., P.S., 189 Wn. App. 898, 908, 359 P.3d 884 (2015) (alteration in

original) (quoting Mgmt., Inc. v. Schassberger, 39 Wn.2d 321, 326, 235 P.2d 293

(1951)). The goal of contract interpretation is to ascertain the parties' mutual intent.

U.S. Life Credit Life Ins. Co. v. Williams, 129 Wn.2d 565, 569, 919 P.2d 594 (1996).

We “determine the parties’ intent at the time they executed the contract rather than

‘the interpretations the parties are advocating at the time of the litigation.’” Radliff

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v. Schmidt, 27 Wn. App. 2d 205, 210, 532 P.3d 622 (2023) (quoting Int’l Marine

Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 282, 313 P.3d 395 (2013)

(plurality opinion)).

We give “undefined terms their plain, ordinary, and popular meaning.”

Nishikawa v. U.S. Eagle High, LLC, 138 Wn. App. 841, 849, 158 P.3d 1265 (2007).

Further, we impute to the parties an intention that corresponds with the reasonable

meaning of the words used in their contract. Hearst Commc’ns, Inc. v. Seattle

Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). “If only one reasonable

meaning can be ascribed to the agreement when viewed in context, that meaning

necessarily reflects the parties’ intent; if two or more meanings are reasonable, a

question of fact is presented.” Interstate Prod. Credit Ass'n v. MacHugh, 90 Wn.

App. 650, 654, 953 P.2d 812 (1998). When reliance on extrinsic evidence is

unnecessary, contract interpretation is a question of law. Wash. State Major

League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit

Const. Co., 176 Wn.2d 502, 517, 296 P.3d 821 (2013).

b. Measure of Damages

To prevail on a breach of contract claim, the plaintiff must establish that the

contract imposed a duty, that the defendant breached that duty, and that the

breach proximately caused damage to the plaintiff. Nw. Indep. Forest Mfrs. v.

Dep't of Labor & Indus., 78 Wn. App. 707, 712, 899 P.2d 6 (1995).

The applicable measure of damages in a contract action is the “benefit of

the bargain rule.” Reichl v. State Farm Mut. Auto. Ins. Co., 75 Wn. App. 452, 455,

880 P.2d 558 (1994). “Contract damages are ordinarily based on the injured

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party’s expectation interest and are intended to give the injured party the benefit

of its bargain.” Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc.,

102 Wn. App. 422, 427, 10 P.3d 417 (2000). A party injured by breach of contract

“is entitled (1) to recovery of all damages that accrue naturally from the breach,

and (2) to be put into as good a pecuniary position as he would have had if the

contract had been performed.” Eastlake Constr. Co., Inc. v. Hess, 102 Wn.2d 30,

39, 686 P.2d 465 (1984)).

“A ‘liquidated damages’ clause in a contract specifies a sum of money

agreed upon in advance by the parties to serve as a reasonable forecast of just

compensation for the predicted harm caused by breach.” 25 DAVID K. DEWOLF ET

AL., WASHINGTON PRACTICE: CONTRACT LAW AND PRACTICE § 14:13 (3d ed.

2014). The party asserting a right to liquidated damages is not required to prove

actual damages. Wallace Real Estate Investment Inc. v. Groves, 124 Wn.2d 881,

892, 881 P.2d 1010 (1994). A liquidated damages clause is enforceable “if the

sums involved do not amount to a penalty or are otherwise unlawful.” Watson v.

Ingram, 124 Wn.2d 845, 850, 881 P.2d 247 (1994). “The main inquiry is ‘whether

the specified liquidated damages were reasonable at the time of contract

formation.’” Salewski, 189 Wn. App. at 909 (quoting Watson, 124 Wn.2d at 853).

An award of prejudgment interest is available if the damages are liquidated.

Scoccolo Const., Inc. v. City of Renton, 158 Wn.2d 506, 519, 145 P.3d 371 (2006).

2. Allocation Addendum

The various iterations of the addendum state that the parties agreed to

“allocate[]” $140,000 of the $800,000 purchase price to the noncompete covenant

7 No. 87707-1-I/8

and that the addendum was signed “for the purpose of allocation purchase price

[sic.].”

Myx Bom argues that this language unambiguously entitles it to damages

equal to what it paid for Kim’s promise not to compete, so the trial court properly

awarded $140,000 for complete loss of the benefit of its bargain plus prejudgment

interest on these liquidated damages. Kim contends in part that the allocation

addendum did not convert the noncompete clause into a liquidated damages

provision, so Myx Bom is required to prove actual damages and proximate cause.

We agree with Kim.

“When interpreting contracts, we attempt ‘to determine the parties’ intent by

focusing on the objective manifestations of the agreement, rather than on the

unexpressed subjective intent of the parties,’ imputing an intention corresponding

to the reasonable meaning of the words used.” In re Estate of Petelle, 195 Wn.2d

661, 665, 462 P.3d 848 (2020) (quoting Hearst Commc’ns, Inc., 154 Wn.2d at

503). Here, neither the PSA nor the allocation addendums make any mention of

damages for breach of the noncompete clause at all, let alone agree to fix, set, or

specify damages in advance at $140,000, thereby converting the noncompete

clause or any other provision into a liquidated damages agreement.

If we were to stretch the plain meaning of the addendums to unearth a

liquidated damages clause, we would be “[a]dding terms to the contract,” which

“would amount to writing a new contract.” In re Marriage of Mudgett, 41 Wn. App.

337, 341, 704 P.2d 169 (1985). We may not do so.

The parties could have specified that, in the event of a breach, Myx Bom is

8 No. 87707-1-I/9

entitled to the amount set out in the allocation addendums. They did not. Instead,

importantly, the noncompete covenant in the PSA goes on to state that Myx Bom

“will be entitled to obtain an injunction to prevent the competitive activity, as well

as to recover any money damages, attorney fees, and costs to which [Myx Bom]

may be entitled.” (Emphasis added.) Myx Bom’s interpretation of the allocation

provision would render the remedy of “recover[ing] any money damages”

superfluous because the former would set the latter as the amount of damages

regardless of the nature or scope of the breach. See Fitness Int’l, LLC v. Nat’l

Retail Props, LP, 25 Wn. App. 2d 606, 613, 524 P.3d 1057 (2023) (holding that

contracts should be construed as a whole to effectuate all provisions if reasonably

possible).

It is also telling that nowhere does Myx Bom explain either why the

addendum’s purported liquidated damages provision “do[es] not amount to a

penalty or [is] otherwise unlawful,” or how “the specified liquidated damages were

reasonable at the time of contract formation.” Watson, 124 Wn.2d at 850, 853.

We decline to do its work for them.

Moreover, even if we were to read such a clause into the contracts or create

some kind of ambiguity, the parties agreed that the allocation addendums did not

alter the terms of the noncompete clause, and the only evidence in the record is

that the addendum was created for tax purposes, which is the well-settled purpose

of such an agreement. 3 To this extent, Myx Bom did not carry its burden on

3 Purchase price allocation agreements are “driven by the well-settled principle that

a trade or business is comprised of multiple assets or categories of assets, each

9 No. 87707-1-I/10

summary judgment even under a more generous interpretation of the contract—

which we do not adopt. See Young, 112 Wn.2d at 225.

We conclude, as a matter of law, that the trial court erred in interpreting the

contract as it did when awarding $140,000 as the full benefit of the bargain, plus

prejudgment interest for liquidated damages. Huber, Hunt & Nichols-Kiewit Const.

Co., 176 Wn.2d at 517.

Finally, with this proper understanding of the contractual provision at issue,

we further hold that Kim has demonstrated the existence of numerous questions

of material fact as to the amount of “money damages” Myx Bom may be entitled to

for the breach under the PSA. See Br. of Appellant at 29-30; Reply Br. of Appellant

at 20-21. 4 These include contested questions of proximate cause (i.e., those

“damages that accrue naturally from the breach”) and the economic loss suffered

as a result (i.e., what it will take to put Myx Bom “into as good a pecuniary position

as he would have had if the contract had been performed.”). Hess, 102 Wn.2d at

39.

In short, we reverse the summary judgment order as to the amount of

money damages Myx Bom may be entitled to as a result of the breach and remand

this matter for trial on this question.

C. Breach of Noncompete Clause

In pertinent part, the noncompete clause required Kim not to participate in

of which gives rise to separate tax determinations.” Jay A. Soled, Leonard Goodman, Alan Kornstein, & Daniela C. Gallagher, Purchase Price Allocations: Tax and Contractual Assets, 78 TAX LAW. 317, 317 (2025). 4 Because Myx Bom will be required to present evidence of damages caused by

the breach at trial, we do not review the evidence here. 10 No. 87707-1-I/11

the "ownership or operations of any business” located within a five-mile radius that

“competes directly” with Ichi Teriyaki for a period of 60 months following closing.

Kim argues that the trial court erred in concluding he violated the

noncompete clause because Myx Bom failed to present evidence that PNW

Teriyaki “directly competed” with Ichi Teriyaki. This is so, he contends, because

Myx Bom failed to prove that PNW Teriyaki was a “threat” to Ichi Teriyaki. He

points out that PNW Teriyaki was located in a different city over four miles away,

PNW Teriyaki existed before he purchased it, and there were other teriyaki

restaurants in the area. He also notes that there is no evidence that PNW Teriyaki

marketed to bring in new business or that it started using Ichi Teriyaki’s sauce

recipe or stole its employees. Without such proof, Kim asserts, the clause would

unreasonably prohibit him from operating any business within five miles.

The term “directly compete” is not defined in the contract. “[C]ompetition”

is defined as the “struggle for commercial advantage; the effort or action of two or

more commercial interests to obtain the same business from third parties.”

BLACK’S LAW DICTIONARY 357 (12th ed. 2024).

We conclude, as a matter of law, that the noncompete covenant is subject

to only one reasonable interpretation: Kim agreed not to open or operate “any”

restaurant within five miles of Ichi Teriyaki, which would struggle for or seek to

obtain the same customers. Huber, Hunt & Nichols-Kiewit Const. Co., 176 Wn.2d

at 517.

And we conclude that that summary judgment was properly granted on the

facts adduced in this case. There is no dispute that PNW Teriyaki is located within

11 No. 87707-1-I/12

five miles of Ichi Teriyaki or that both restaurants sell the same type of cuisine, with

the word “Teriyaki” in both their businesses’ names. Further, Kim admitted that he

changed the menu displays, vendors, and “other things” when he took ownership

of PNW Teriyaki, which he does not (in discovery or in his briefing) contest

rendered them similar to Ichi Teriyaki’s. 5 And Ichi’s Teriyaki’s former chef

Taeyoung Kim helped Kim purchase the offending restaurant. After reviewing all

the evidence, a reasonable person could reach only one conclusion: PNW Teriyaki

was directly competing with Ichi Teriyaki, in violation of the covenant. Kelsey Lane

Homeowners Ass’n, 125 Wn. App. at 232.

There is nothing in the contract that requires the competing restaurant to be

a true economic “threat” or that excuses a restaurant if it is in a different

municipality, if the market is saturated with teriyaki restaurants, or if Kim refrains

from marketing to certain potential customers or promises not to use Ichi Teriyaki’s

sauce recipe. The facts Kim adduces, thus, are immaterial to plain terms of the

contract because “the litigation’s outcome” does not “depend[] in whole or in part”

on them. TT Props., 192 Wn. App. at 245. In short, they do not prevent summary

judgment.

III. CONCLUSION

We reverse and remand for trial on the damages for breach of the

5 In contrast, in their briefing and in discovery, Kim contested only that the menu

and recipe for the proprietary sauce were not the “same” as Ichi Teriyaki’s after he joined PNW Teriyaki. Given the other uncontested facts in this record reviewed above, whether or not the menu or recipes are identical is not material to the dispute. 12 No. 87707-1-I/13

noncompete covenant and otherwise affirm. 6

WE CONCUR:

6 On remand, after the matter is fully adjudicated, the trial court shall determine the

proper amount of attorney fees to be awarded. RAP 18.1(i). Any decision at this time would be premature, even if one party had prevailed on each issue on appeal, which did not occur here. Bogen v. City of Bremerton, 18 Wn. App. 2d 676, 685, 493 P.3d 774 (2021). 13