The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
22-402
KJ’S SERVICES, INC. and LANDMARK WINDOW & DOOR, LLC
VERSUS
CASEY LANE JOHNSON, CREATIVE ARCHITECTURAL, LLC and
CREATIVE DOOR & WINDOW, LLC
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2020-2516
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE
**********
CANDYCE G. PERRET
JUDGE
**********
Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald,
Judges.
JUDGMENT AFFIRMED;
MOTION TO FILE LATE REPLY BRIEF DENIED;
MOTION TO STRIKE REPLY BRIEF MOOT;
REQUEST FOR SANCTIONS DENIED.
Stephen C. Carleton
J. Jacob Chapman
Carleton Shoenfelt & Chapman, LLC
400 Convention Street, Suite 550
Baton Rouge, LA 70802
(225) 282-0602
COUNSEL FOR PLAINTIFF/APPELLANT:
KJ’S Services, Inc., D/B/A/ Landmark Window & Door
Billy E. Loftin, Jr.
Loftin & LeBlanc, L.L.C.
410 E. College Street, Suite A
Lake Charles, LA 70605
(337) 310-4300
COUNSEL FOR DEFENDANTS/APPELLEES:
Creative Architectural, L.L.C.
Creative Door & Window, L.L.C.
Christopher J. Guillory
Post Office Box 13195
Lake Charles, LA 70612
(337) 855-2130
COUNSEL FOR DEFENDANT/APPELLEE:
Casey L. Johnson
PERRET, Judge.
This appeal stems from an employment dispute between plaintiff, KJ’s
Services, Inc., d/b/a Landmark Window and Door (“Plaintiff”), and defendants,
Casey Lane Johnson (“Mr. Johnson”), Creative Door & Window, L.L.C. (“Creative
Door”), and Creative Architectural, L.L.C. (“Creative Architectural”) (collectively,
“Defendants”). After a hearing, the trial court granted summary judgment in favor
of Defendants, dismissing Plaintiff’s claims and causes of action with prejudice. For
the following reasons, we affirm the trial court judgment. Additionally, upon
consideration of the motions, we deny Plaintiff’s motion to file a late reply brief, we
find Defendants’ joint motion to strike reply brief moot, and we deny Defendants’
request for sanctions.
FACTS AND PROCEDURAL HISTORY
In March 2015, Plaintiff and Mr. Johnson entered into a signed agreement
entitled “Confidential Information, Trade Secrets, and Covenant Not to Compete”
(hereinafter “the Agreement”). Thereafter, Mr. Johnson, who had previous
experience in the residential door and window industry, began working as a
salesman for Plaintiff from March 9, 2015, until November 22, 2019. Plaintiff
alleges that Mr. Johnson was terminated after it “learned from others in the
community that Johnson was leaving to join their competitor, (Creative
Door/Creative Architectural) in violation of the terms of his non-competition
agreement.” On November 25, 2019, Mr. Johnson became employed by Creative
Door and shortly thereafter, became a member of Creative Architectural.
On June 29, 2020, Plaintiff filed suit against Defendants alleging that Mr.
Johnson has violated, and continues to violate, the March 2015 agreement “by
accepting employment and/or an independent contractor position with Creative
Door, a direct competitor of his former employer, and/or by creating a new business,
Creative Architectural, to directly compete with his former employer.” Plaintiff also
alleges that Defendants violated the Louisiana Uniform Trade Secrets Act
(“LUTSA”), La.R.S. 51:1431, and the Louisiana Uniform Trade Practice Act
(“LUTPA”), La.R.S. 51:1401, when they “participated in the direct solicitation of
various projects involving customers of KJ’s Landmark business using confidential
and proprietary information, including but not limited to the use of confidential
customer lists, special pricing lists, marketing strategies, and list of works in
progress.” Plaintiff seeks damages against Mr. Johnson for breach of contract and
against all Defendants for tortious interference with business relations,
misappropriation of trade secrets pursuant to La.R.S. 51:1431, usurpation of
corporate opportunities, unjust enrichment, and unfair trade practices pursuant to
La.R.S. 51:1401. Following Hurricanes Laura and Delta, Plaintiff amended its suit
in December 2020 to convert all claims against Defendants to claims for monetary
damages.
On July 6, 2021, Mr. Johnson filed a motion for summary judgment, with
twenty-one exhibits, alleging the following:
(1) The non-compete provisions of the “Confidential Information,
Trade Secrets and Covenant Not to Compete” attached to Plaintiffs’
Petition as Exhibit “A” are invalid pursuant to La.R.S. 23:921 and
applicable jurisprudence interpreting same;
(2) The “Confidential Information, Trade Secrets and Covenant Not to
Compete” attached to Plaintiffs’ Petition as Exhibit “A” is only as to
KJ’s Services, Inc., and thus is inapplicable to business of Landmark
Window and Door, L.L.C.[;]
(3) KJ’s Services, Inc., and/or Landmark Window and Door, L.L.C.,
has/have not carried on a like business in the residential door and
window industry, particularly the higher end residential door and
window industry, since November 22, 2019;
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(4) Casey Johnson’s knowledge of the residential door and window
industry, especially the higher end of that industry, was not confidential
or proprietary to KJ’s Services, Inc., or Landmark Window and Door,
L.L.C.;
(5) Certain information in relation to projects identified by KJ’s
Services, Inc., and Landmark Window and Door, L.L.C., in their
Petition, such as house plans or measurements, was not confidential or
proprietary to KJ’s Services, Inc., or Landmark Window and Door,
L.L.C.;
(6) Certain information that was voluntarily provided to Casey Johnson
independently of KJ’s Services, Inc., and Landmark Window and Door,
L.L.C., by third parties who voluntarily chose to continue to do business
with Casey Johnson after he left employment of KJ’s Services, Inc.,
and/or Landmark Window and Door, L.L.C., was not confidential or
proprietary to KJ’s Services, Inc., or Landmark Window and Door,
L.L.C.;
(7) Casey Johnson did not violate the Louisiana Unfair Trade Practices
Act and Consumer Protection Law;
(8) Casey Johnson did not violate the Louisiana Uniform Trade Secrets
Act;
(9) Casey Johnson owed no fiduciary duty to KJ’s Services, Inc., or
Landmark Window and Door, L.L.C., or alternatively, did not breach
any fiduciary duty to KJ’s Services, Inc., or Landmark Window and
Door, L.L.C.;
(10) Casey Johnson did not breach any duty of loyalty to KJ’s Services,
Inc., or Landmark Window and Door, L.L.C.;
(11) Casey Johnson did not tortiously interfere with any business
relationship of KJ’s Services, Inc., or Landmark Window and Door,
L.L.C.;
(12) Casey Johnson did not engage in any intentional civil conspiracy
against KJ’s Services, Inc., or Landmark Window and Door, L.L.C.;
and
(13) Casey Johnson is entitled to recovery from KJ’s Services, Inc., and
Landmark Window and Door, L.L.C., of all attorney fees and court
costs he has incurred in defending this case.
3
On that same date, Defendants Creative Door and Creative Architectural filed
a motion for summary judgment with exhibits and also adopted and joined in Mr.
Johnson’s motion for summary judgment in its entirety.
On July 22, 2021, Plaintiff filed a motion to dismiss Defendants’ motions for
summary judgment asserting that it had received the motion and all exhibits via
email, but was not served with same by a sheriff’s deputy within the requisite time
period pursuant to La.Code Civ.P. art. 966(B)(1), and that the motions should be
dismissed. Shortly thereafter, Defendants dismissed their motions for summary
judgment without prejudice.
On September 30, 2021, Mr. Johnson re-filed his motion for summary
judgment, which included the same twenty-one exhibits and arguments that were
made in his first motion for summary judgment filed on July 6, 2021. On October
1, 2021, Creative Architectural and Creative Door also re-filed its motion for
summary judgment with exhibits and, again, adopted and joined in Mr. Johnson’s
second motion for summary judgment in its entirety. A hearing on the motions for
summary judgment was scheduled for November 8, 2021.
On October 22, 2021, Plaintiff e-filed an opposition to Defendants’ motions
for summary judgment with the trial court. Plaintiff also emailed Defendants the
opposition; however, the opposition received by Defendants was not signed and was
not an exact match to the memorandum filed in the trial court. Additionally, Plaintiff
did not serve Defendants with the exhibits refenced in its memorandum in opposition
to summary judgment.
On November 2, 2021, Defendants filed a reply to Plaintiff’s opposition to the
summary judgment arguing that Plaintiff failed to serve them with a signed
opposition and that Plaintiff’s exhibits referenced in the opposition have never been
4
served on them. Accordingly, Defendants allege Plaintiff failed to properly serve its
opposition on them and that their motions for summary judgment are thus
unopposed.
On November 4, 2021, Plaintiff filed a sur-reply in opposition to Defendants’
motions for summary judgment arguing that its opposition “was timely filed and
served on all parties and the exhibits were timely filed and, with the exception of a
single affidavit, already in Defendants’ possession.” Plaintiff argues “[t]he copy that
[Defendants] received via email was a PDF and was identical to the one sent to [the
trial court], apart from the fact that the latter had an electronic signature.” With
respect to the supporting exhibits, Plaintiff argues that “all of the exhibits, with the
exception of the Affidavit of James Nabours were already in Defendants’ possession
and were clearly identified in the body of the Opposition Memorandum.” Plaintiff
also argues that “a copy of the [James Nabours] affidavit was provided to Defendants
after they raised this concern in their Reply Memorandum.” Further, Plaintiff alleges
that there was “an unexpected internet outage [that] occurred in Lafayette, Baton
Rouge, and several surrounding areas” on Friday, October 22, the day the opposition
was emailed to Defendants. Plaintiff argues that “[a]s a result of the internet outage,
[its] office was unable to use its printer (which is connected via its internet network),
fax machine, or internet (for online filing).” In the alternative, Plaintiff requested
for the trial court to grant a short continuance of the hearing.
On November 8, 2021, a hearing was held on the motions for summary
judgment. On December 20, 2021, the trial court rendered a signed judgment ruling
as follows: (1) the Plaintiff’s opposition and exhibits were untimely and
inadmissible; (2) Defendants’ motions for summary judgment would be treated as
unopposed; (3) Plaintiff’s sur-reply and exhibits were in violation of La.Code Civ.P.
5
art. 966 and thus not considered for purposes of ruling on the motions for summary
judgment; (4) Plaintiff’s motion to continue hearing was denied; and (5) granted
Defendants’ motions for summary judgment in full, except as to Defendants’ request
for attorney fees.
Plaintiff now appeals this judgment, alleging the following four assignments
of error:
1. The Trial Court erroneously refused to consider Appellant’s timely
filed Opposition to Appellees’ Motions for Summary Judgment.
2. The Trial Court committed legal error by finding contrary to the
controlling jurisprudence of the Court of Appeal, that the contract
entered between Appellant and Johnson was unenforceable as a matter
of law.
3. The Trial Court committed factual and legal errors by granting a
summary judgment as to Appellees on Appellant’s claims of violations
of LUTPA, LUTSA, breach of fiduciary duties, breach of loyalty,
tortious interference with a business relationship, and civil conspiracy,
without considering the disputed facts raised by Appellant in its
Opposition.
4. The Trial Court committed legal error by failing to grant the Motion
for Partial Summary Judgment filed by Appellant.
STANDARD OF REVIEW
An appellate court reviews a trial court’s granting of a motion for summary
judgment de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d
544. Under this standard of review, the appellate court uses the same criteria as the
trial court in determining if summary judgment is appropriate: whether there is a
genuine issue of material fact and whether the mover is entitled to judgment as a
matter of law. Id.
A motion for summary judgment shall be granted “if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” La.Code
6
Civ.P. art. 966(A)(3). “The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits, depositions, answers
to interrogatories, certified medical records, written stipulations, and admissions.”
La.Code Civ.P. art. 966(A)(4).
Louisiana Code of Civil Procedure Article 966(D)(1) discusses the mover’s
burden of proof on summary judgments, and states:
The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
MOTIONS
Before addressing the merits of this appeal, we will address three preliminary
matters: (1) a motion for leave of court to file a late reply brief; (2) a motion to strike
the reply brief; and (3) a request for sanctions. According to the Uniform Rules—
Courts of Appeal, Rule 2-12.6, “[t]he appellant may file a reply brief, if he has timely
filed an original brief, but it shall be strictly confined to rebuttal of points urged in
the appellee’s brief. No further briefs may be filed except by leave of court.”
Uniform Rules—Courts of Appeal, Rule 2-12.7 states, “[t]he reply brief, if any, of
the appellant shall be filed not later than 10 calendar days after the appellee’s brief
is filed.”
In this case, Plaintiff filed a reply brief with this court on September 23, 2022;
however, the reply brief is untimely because it was filed more than ten calendar days
7
after the appellees’ brief was filed on September 2, 2022. Thereafter, Plaintiff filed
a motion for leave of court to file a reply brief.
On September 28, 2022, Defendants filed a joint motion to strike reply brief
and for sanctions. On October 11, 2022, Plaintiff filed an opposition to Defendants’
joint motion to strike and for sanctions. After considering the Uniform Rules of
Courts of Appeal, we hereby deny Plaintiff’s motion for leave of court to file a late
reply brief and, consequently, find the joint motion to strike Plaintiff’s reply brief
moot. Additionally, we deny Defendants’ request for sanctions.
DISCUSSION
The issue presented for our consideration on appeal is whether the trial court
erred in granting Defendants’ motions for summary judgment upon finding that: (1)
the noncompetition agreement between the parties was not enforceable; and (2) there
were no genuine issues of fact as to Plaintiff’s claims of LUTPA, LUTSA, breach
of fiduciary duty, duty of loyalty, tortious interference with a business relationship
and civil conspiracy.
In SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 4 (La. 6/29/01), 808
So.2d 294, 298, the supreme court addressed noncompetition agreements and
explained that “Louisiana has long had a strong public policy disfavoring
noncompetition agreements between employers and employees.” The court stated
that “Louisiana’s strong public policy restricting these types of agreements is based
upon an underlying state desire to prevent an individual from contractually depriving
himself of the ability to support himself and consequently becoming a public burden.”
Id. Thus, “[b]ecause such covenants are in derogation of the common right, they
must be strictly construed against the party seeking their enforcement.” Id. The
court then provided the following legal principles:
8
The starting point for the interpretation of any statute is the
language of the statute itself. Cat’s Meow, Inc. v. City of New Orleans,
98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v.
Williams, 617 So.2d 885 (La.1993). The language of La. R.S. 23:921
[titled “Restraint of business prohibited; restraint on forum prohibited;
competing business; contracts against engaging in; provisions for”] at
issue provides that every contract by which anyone is restrained from
exercising a lawful profession, trade or business of any kind shall be
null and void except that any person who is employed as an employee
may agree with his employer to refrain from carrying on or engaging in
a business similar to that of the employer within a specified parish so
long as the employer carries on a like business therein, not to exceed a
period of two years from termination of employment.
Id. at 302.
In this case, the Agreement provides the following relevant clauses
(underlining added for emphasis):
Confidential Treatment for Trade Secrets.
Section 1: Confidential Treatment for Trade Secrets: Employee
hereby agrees that, during the Term of Employment and after
termination of his employment with Employer, he will not, without the
written consent of Employer, disclose to any person, enterprise, entity
or association or otherwise use or exploit for himself or others any of
the proprietary or confidential information regarding Employer, its
subsidiaries, affiliates, ventures or shareholders (individually the
“Company” and collectively the “Companies”), or any of their
businesses, properties or affairs obtained by him at any time prior to or
subsequent to the execution of this Agreement, except to the extent
required by his performance of assigned duties for Employer, including
without limitation: trade secrets; processes; inventions; engineering
records or data; interpretive or analytical information or data; drilling
logs; operating agreements and records; records of research; proposals;
manuals; records or information; reports; methods; techniques; lists;
memoranda; computer software; programming or records; or budgets
or other financial information, regarding the Companies (collectively,
“Trade Secrets”). Provided, however; that this Section 1 shall not apply
to information or technology which (a) was known to Employee or the
public prior to disclosure to Employee in the course of his employment,
by Employer hereunder or prior hereto with a predecessor in interest to
Employer; (b) becomes generally known to the public through no fault
of Employee or others owing duties of trust or confidentiality to
Employee, (c) is lawfully obtained by Employee from another source
not under obligation to Employer or its affiliates regarding disclosure
of such information or technology, or (d) is developed after the Term
of Employment and independently by Employee or its sublicensees or
9
agents without access to or reliance on the information or technology
disclosed hereunder.
Return of Trade Secrets.
Section 2: Return of Trade Secrets. Upon termination of his
employment with Employer, Employee will deliver to the Companies
all tangible displays and repositories of proprietary or confidential
information or knowledge, including without limitation: Trade Secrets;
and other materials or records or writings of any other type (including
any copies thereof) made, used or obtained by Employee in connection
with his employment by Employer in interest prior to or subsequent to
the execution of this Agreement. Employee agrees that all inventions,
improvements in any of the Companies’ methods of conducting their
businesses or innovations (in each case, including, by way of expansion
and not limitation, policies, procedures, products, improvements,
software, ideas and discoveries, whether or not patentable or
copyrightable) that fall within the term “Trade Secrets” as defined by
the Louisiana Uniform Trade Secrets Act, La. R.S. 51:1431, conceived
or made by him during any time of his employment by Employer prior
to or subsequent to the execution of this Agreement belong to the
appropriate the Company or Companies and to the extent Employee
participated in the creation of the Trade Secrets he did so on a work for
hire basis. Upon termination of his Employment with Employer,
Employee shall promptly disclose such inventions, improvements or
innovations to the Board of Directors and perform all actions
reasonably requested by the Board of Directors to establish and confirm
such ownership by the Companies and to protect the intellectual
property of Employer contained therein or represented thereby.
Employee acknowledges:
(1) Immunity—An individual shall not be held criminally or
civilly liable under any federal or state trade secret law for the
disclosure of a trade secret that—(A) is made—(i) in confidence
to a federal, state or local government official, either directly or
indirectly, or to an attorney, and (ii) solely for the purpose of
reporting or investigating a suspect violation of law; or (B) is
made in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal.
(2) Use of Trade Secret Information in Anti-Retaliation
Lawsuit—An individual who files a lawsuit for retaliation by an
employer for reporting a suspected violation of law may disclose
the trade secret to the attorney of the individual and use the trade
secret information in the court proceeding, if the individual—(A)
filed any document containing the trade secret under seal; and
(B) does not disclose the trade secret, except pursuant to court
order.
10
Covenant Not to Compete.
Section 3: Covenant Not to Compete. Employee hereby agrees that:
3.1. During the Term of Employment and for one (1) year following the
termination or resignation of Employee’s employment under this
Agreement (the “Non-Compete Period”), Employee will not, in
association with or as an officer, principal, member, advisor, agent,
partner, director, stockholder, employee or consultant of any
corporation (or sub-unit, in the case of a diversified business) or other
enterprise, entity or association that competes with the Business of
Employer (as defined in Section 3.6. below) in the Territory (as defined
in Section 3.3 below). The Employee also agrees, in addition to all
other covenants contained in this Section 3, that during the Non-
Compete Period, Employee will not serve or act as an employee of any
corporation, entity, association or other enterprise that competes with
the Business of Employer in the Territory.
3.2. During the Term of Employment and during the Non-Compete
Period, he will not solicit or induce any person who is or was employed
by the Employer at any time during such term or period (A) to interfere
with the activities or businesses of the Employer in the Territory or (B)
to discontinue his or her employment with the Employer, or employ any
such person in a business or enterprise which competes with the
Employer in the Territory. In addition, during the Term of Employment
and during the Non-Compete Period, he will not (C) request any
customer or supplier of the Employer to curtail or cancel its business
with Employer in the Territory, or (D) unless otherwise required by law,
disclose to any person, firm or corporation any details of organization
or business affairs of the Employer, any names of past or present
customers of the Employer or any other non-public information
concerning the Employer.
3.3. The covenants contained in Section 3 shall constitute and be
deemed to constitute separate and severable covenants in respect of
each of the areas collectively comprising the following geographical
areas (collectively, the “Territory”), to-wit:
(i) any county within the state of Texas within 25 miles from the
Louisiana/Texas border, (ii) the following Parishes of Louisiana:
Calcasieu, Cameron, and Beauregaurd and as to all other terms and
conditions of the covenants. The unenforceability of any specific,
covenant shall not affect the provisions of any other covenant. If it is
judicially determined that any provision of this Section 3 or any part
thereof is unenforceable under applicable law(s) (statute, common law,
or otherwise), then it is hereby agreed that the unenforceable portion
shall be redrafted to the extent necessary to render it enforceable, while
leaving the remaining portions intact. Employee and the Employer
further agree that in the event the said non-competition covenants
11
should be held by any court or other constituted legal authority to be
effective in any particular area or jurisdiction only if said covenant is
modified to limit its duration or scope, then the parties hereto shall
consider such non-competition covenants to be amended and modified
with respect to that particular area or jurisdiction so as to comply with
the order of any such court or other constituted legal authority, and, as
to all other jurisdictions or political subdivisions thereof, the said non-
competition covenant shall remain in full force and effect as originally
written. By agreeing to this contractual modification prospectively at
this time, the parties intend to make this provision enforceable under
the law(s) of all applicable states so that the entire agreement not to
compete or to solicit and/or this Agreement as prospectively modified
shall remain in full force and effect and shall not be rendered void or
illegal. Thus, if for any reason, the Agreement should be found to be
unenforceable in one jurisdiction, the separate and severable covenants
of Section 3 covering the other jurisdictions will remain in full force
and effect. Furthermore, it is the intention of Employer and Employee
that Section 3, insofar as its provisions affect the Parishes of Louisiana
listed herein be enforceable under La. R.S. 23:921; and the parties agree
that, within the Parishes in Louisiana listed herein, the said covenants
contained in Section 3 should be interpreted to fully comply with La.
R.S. 23:921. As to the portion of the Territory including the State of
Texas, Texas law shall govern.
3.4. Employee understands that the provisions of Section 3 hereof may
limit his ability to earn a livelihood in a business that violates this
Agreement, but as an executive officer of Employer he nevertheless
agrees and hereby acknowledges that (i) such provisions do not impose
a greater restraint than is necessary to protect the goodwill or other
business interests of Employer and the Companies; (ii) such provisions
contain reasonable limitations as to time and scope of activity to be
restrained; and (iii) the consideration provided hereunder, including
without limitation, any amounts or benefits provided hereunder, is
sufficient to compensate Employee for the restrictions contained in
Section 3 hereof. In consideration of the foregoing and in light of
Employee’s education, skills and abilities, Employee agrees that he will
not assert that, and it should not be considered that, any provisions of
Section 3 otherwise are void, voidable or unenforceable or should be
voided or held unenforceable.
3.5. In the event the reformation provision contained in Section 3 above
is invalid or unenforceable for any reason, Employee and the Employer
agree that in the event the foregoing non-competition covenants should
be held by any arbitrator court or other constituted legal authority to be
void or otherwise unenforceable in any particular area or jurisdiction or
for any particular period or with regard to any competitive activity, then
the parties hereto shall consider this Agreement to be amended and
modified so as to eliminate therefrom that particular area or jurisdiction
or period or competitive activity as to which such non-competition
12
covenants are so held to be void or otherwise unenforceable, and, as to
all other areas and jurisdictions covered by this Agreement, the terms
and provisions hereof shall remain in full force and effect as originally
written.
Of note, the covenant not to compete provides the following at section 3.6:
“For the purposes of this Section 3, the business of the Employer is described as
follows (the “Business”)[.]” However, the covenant not to compete is silent with
respect to any language describing the business of Plaintiff. Thus, while the
Agreement defines the parishes and a one-year time period in which Mr. Johnson
should not compete, it fails to define the business of KJ’s Services, Inc., which is a
necessary factor in a noncompetition agreement under La.R.S. 23:921.1 Moreover,
Plaintiff admitted, on July 2, 2021, that “prior to Casey Johnson’s employment with
KJ’s, that KJ’s was not engaged in the residential door and window business.” As
such, we agree with the trial court that the Agreement does not inform Mr. Johnson
of what business he is not to compete against and what activity is prohibited. Again,
considering noncompete agreements are disfavored and are to be strictly construed,
we find no error in the trial court’s ruling that “these non-compete provisions are
null and void as they do not comport with [La.R.S. 23:921,]” and that “[t]he
Agreement is null and void on its face.”
We have carefully reviewed the Louisiana statutory law and jurisprudence and
conclude that the trial judge, in his well-written reasons, accurately sets forth the
facts of this case and correctly disposes of all of the legal issues presented.
Accordingly, we hereby adopt the trial court’s excellent reasons for judgment,
signed on December 15, 2021, as set forth below (seventh alteration in original):
1
Louisiana Revised Statutes 23:921 is set forth on page 16, infra.
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WRITTEN REASONS FOR JUDGMENT
THIS MATTER CAME BEFORE THE COURT ON November
8, 2021 for hearing and oral arguments on Motions for Summary
Judgment filed by defendants, Casey Lane Johnson, Creative
Architectural, LLC and Creative Door and Window, LLC, (Creative
Defendants).
....
The Motions for Summary Judgment are GRANTED in favor of
the Defendants, Casey Lane Johnson, Creative Architectural, LLC, and
Creative Door and Window, LLC.
The request for attorney[] fees and court costs are DENIED.
DEFENDANT’S OBJECTIONS:
Defendants objected to the Plaintiffs’ Opposition and Exhibits
because they were unsigned and untimely served. The Court sustained
the objection. Plaintiffs’ Memorandum in Opposition and attached
exhibits were ruled inadmissible and thus were not considered. See La.
C.C.P Art. 966(D)(2). The Motions for Summary Judgment were heard
as unopposed motions.
The hearing was scheduled for November 8, 2021. By rule, any
opposition was due fifteen (15) days prior to the hearing on the motion.
See La. C.C.P. Art. 966(B)(2). The due date for any opposition was
October 25, 2021 (the actual fifteenth day was October 24, 2021, but it
being Sunday, a legal holiday, the deadline was extended to the next
day which is not a legal holiday).
It is understandable why Plaintiffs would have used October 22,
2021 as their internal deadline since it was the Friday before the actual
deadline. On that day, it is undisputed from the facts that Plaintiffs
served an unsigned version of the Memorandum in Opposition without
exhibits. It is confirmed that a signed version with exhibits was not
served until November 4, 2021. This occurred three (3) days prior to
the hearing. The chronology is not in dispute. Plaintiffs failed to timely
serve a signed version of their Memorandum in Opposition and exhibits
in contravention of the statutory requirement.
Plaintiffs argued “good cause” existed for a continuance of the
hearing. See La. C.C.P. Art. 966 (C)(2). The Court rejected the “good
cause” argument and denied the continuance request. Similar versions
of the Motions for Summary Judgment were filed in July 2021. While
Plaintiffs had not filed any opposition at that time, Plaintiffs were
certainly aware of Defendants intentions. Plaintiffs[] argued technical
difficulties prevented the timely filing of the Opposition. The Court
rejected this argument because Plaintiffs were able to upload a signed
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version of the Opposition and the exhibits to the Clerk of Court yet not
send the same copies to the opposing parties. Further, even after
apparently realizing the error, Plaintiffs still failed to send the full
versions until a mere 3 days before the hearing. The deadlines are
critical because they are grounded on notice and a fair opportunity to
challenge the opposition arguments on reply. The Reply was due five
days before the hearing, yet Defendants were prejudiced in this case
because they did not receive the opposition formally and correctly until
3 days prior to the hearing.
It is important to also note that every pleading must be signed by
at least one attorney of record. La. C.C.P. Art. 863. Any pleading not
signed must be stricken from the record unless promptly signed. Here,
the Court finds the pleadings were not promptly signed under the
circumstances and due to the untimely service issue discussed above.
The Court is mindful of controlling authority on the issue and
follows Doucet v. Superior Gauging Servs. [Inc., 18-861 (La.App. 3
Cir. 04/17/19), 268 So.3d 1082] (opposition served untimely just
thirteen (13) days before the hearing). See also Miller v. Acadian
Ambulance Serv. [Inc., 17-1096 (La.App. 3 Cir. 05/23/18), 248 So.3d
469, writ denied, 18-1452 (La. 11/20/18), 256 So.3d 990] (opposition
filed and served 10 days prior to hearing).
The time limitations contained in La. C.C.P. Art. 966 are
mandatory. Considering the parties did not agree to an extension, the
court was prevented from granting an extension sua sponte. See La.
C.C.P. Art. 966(B).
For these reasons, the Court ruled the Opposition inadmissible
and did not consider it. To rule otherwise deprives a party the chance
to timely respond to opposition arguments, which ultimately deprives
the court of a full understanding of the issues that are paramount to
making a decision. Fundamental fairness is inherent in procedural
deadlines like those set forth in La. C.C.P. Art. 966.
MOTION FOR SUMMARY JUDGMENT
La. C.C.P. Art[.] 966 instructs the Court on the applicable
standards:
A. (1) A party may move for a summary judgment for all
or part of the relief for which he has prayed. A plaintiff’s
motion may be filed at any time after the answer has been
filed. A defendant’s motion may be filed at any time.
(2) The summary judgment procedure is designed to
secure the just, speedy, and inexpensive determination of
every action, except those disallowed by Article 969. The
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procedure is favored and shall be construed to accomplish
these ends.
(3) After an opportunity for adequate discovery, a motion
for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover
is entitled to judgment as a matter of law.
(4) The only documents that may be filed in support of or
in opposition to the motion are pleadings, memoranda,
affidavits, depositions, answers to interrogatories,
certified medical records, written stipulations, and
admissions. The court may permit documents to be filed
in any electronically stored format authorized by court
rules or approved by the clerk of the court.
....
D. (1) The burden of proof rests with the mover.
Nevertheless, if the mover will not bear the burden of
proof at trial on the issue that is before the court on the
motion for summary judgment, the Mover’s burden on the
motion does not require him to negate all essential
elements of the adverse party's claim, action, or defense,
but rather to point out to the court the absence of factual
support for one or more elements essential to the adverse
party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact
or that the mover is not entitled to judgment as a matter of
law.
E. A summary judgment may be rendered dispositive of a
particular issue, theory of recovery, cause of action, or
defense, in favor of one or more parties, even though the
granting of the summary judgment does not dispose of the
entire case as to that party or parties.
Casey Lane Johnson was employed as a salesperson for KJ’s
Services, Inc. and Landmark Window and Door, hereinafter as KJ’s,
(the distinction between the two were of no import to the court and did
not factor into any decision in this matter as the distinction, if any, is
immaterial) from March 9, 2015, to November 22, 2019. KJ’s was in
the residential window and door business. Subsequent to Johnson’s
termination, he was employed/affiliated with the Creative Defendants.
KJ’s sued Johnson and the Creative Defendants for several
reasons, stemming primarily from breach of the employment agreement
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executed by Johnson and KJ’s prior to Johnson’s employment with
KJ’s.
KJ’s alleges that Johnson and the Creative Defendants breached
the agreement and several provisions within. Additionally, KJ’s alleges
violation of the LUTSA, LUTPA, breach of fiduciary duty, duty of
loyalty, tortious interference with a contract, and civil conspiracy.
Pursuant to La. C.C.P. Art. 966, jurisprudential interpretations of
employment agreements and the impressive testimony from various
affiants, the Court granted the Summary Judgment in favor of
Defendants, finding no genuine issue of material fact that:
1) The agreement is null and void and against public
policy;
2) Casey Lane Johnson was the window and door business
of KJ’s and that any expertise, knowledge, skill, or
information he took with him was confined within him
from his experience and skill as a door and window
salesperson;
3) Vendors and clients voluntarily chose to do business
with Casey Lane Johnson as a separate institutional figure
in the business;
4) Casey Lane Johnson did not steal or use any secrets or
information from KJ’s following his employment
termination;
5) No egregious actions or malice are proven;
6) There was no breach of any duty by Casey Lane
Johnson that he may have had toward KJ’s;
7) Any loss of business or clients by KJ’s as alleged was
due to inaction or actions of KJ’s and not through any
actions or activities of Casey Lane Johnson; and
8) KJ’s voluntarily chose not to continue in the door and
window business after its termination of Casey Lane
Johnson.
These findings were not a result of weighing testimony or
judging credibility. This was an unopposed motion so any evidence to
the contrary was not considered. It is important to note the uncontested
facts were proven and not challenged.
17
The main considerations for the Court were whether Casey Lane
Johnson violated the agreement and whether his actions/activities after
termination in some way harmed intentionally KJ’s. The Court
answered both in the negative.
KJ’s has the burden of proof at trial. In order to succeed on
Summary Judgment, all the Defendants had to do is successfully prove
any one of the many elements could not be proven by KJ’s. KJ’s cannot
prove the agreement was valid. Thus, KJ’s cannot succeed on any
breach claims.
[“][N]on-competition agreements are highly disfavored in our
State, save for the specific exception for salesmen owning a proprietary
or equity interest in a car dealership.[”] Navarre Chevrolet, Inc. v.
Begnaud, [16-465, p. 4 (La.App. 3 Cir. 11/2/16), 205 So.3d 973, 976,
writ denied, 16-2122 (La.1/13/17), 215 So.3d 248.] [“]Louisiana
strongly disfavors non-competition agreements.[”] H&E Equipment
Services, Inc. v. Kleinpeter, [20-798, p. 4 (La.App. 1 Cir. 4/26/21)
(unpublished opinion)]. [“]Such agreements are deemed to be against
public policy, except under the limited circumstances delineated by
statute.[”] Id. (citations omitted.) [“]Because non-competition
agreements are in derogation of common right, they must be strictly
construed against the party seeking their enforcement.[”] Id. (citations
omitted.)
La.R.S. 23:921 provides in pertinent part:
A. (1) Every contract or agreement, or provision thereof,
by which anyone is restrained from exercising a lawful
profession, trade, or business of any kind, except as
provided in this Section, shall be null and void. However,
every contract or agreement, or provision thereof, which
meets the exceptions as provided in this Section, shall be
enforceable.
....
C. Any person . . . may agree with his employer to refrain
from carrying on or engaging in a business similar to that
of the employer and/or from soliciting customers of the
employer within a specified parish or parishes,
municipality or municipalities, or parts thereof, so long as
the employer carries on a like business therein, not to
exceed a period of two years from termination of
employment.
[“]An agreement limiting competition must strictly comply with
the requirements of La.R.S. 23:921.[”] Zanella’s Wax Bar, L.L.C. v.
Trudy’s Wax Bar, L.L.C., [19-43, p. 7 (La.App. 1 Cir. 11/7/19), 291
18
So.3d 693, 698, writ denied, 19-1931 (La. 1/28/20), 291 So.3d 1052]
(citations omitted).
The Court finds the non-compete provisions of the Agreement
ambiguous and unenforceable. “When the words of a contract are clear
and explicit and lead to no absurd consequences, no further
interpretation may be made in search of the parties’ intent.” La. C.C.
Art[.] 2046. Here, the words of the contract are not clear and explicit.
It does not set forth the business KJ’s is in. It fails to describe the
business despite a separate paragraph, 3.6, with such title. Casey Lane
Johnson is not informed in the agreement what business he is not to
compete against. Further, paragraph 3.1 is blatantly unclear as to what
activity is prohibited. Considering non-compete agreements are
disfavored, considering they must be strictly construed, these non-
compete provisions are null and void as they do not comport with La.
R.S. 23:921. The Court did not weigh any intent of the parties with this
finding. The Agreement is null and void on its face.
The Louisiana First Circuit Court of Appeal heard a similar
matter in Lafourche Speech & Language Services, Inc. v. Juckett, [94-
1809 (La.App. 1 Cir. 3/3/95), 652 So.2d 679, writ denied, 95-850 (La.
5/12/95), 654 So.2d 351]. In Lafou[r]che, the non-compete agreement
did not define the business with sufficient specificity. Id., 680. The
First Circuit wrote:
The present case illustrates the inherent problem created
when the employer’s business is not defined in the
contract. The non-compete clause merely states that
Juckett is prohibited from engaging in a business similar
to that of LSLSI. The nature of LSLSI’s business is not
described anywhere in the contract. However, since
LSLSI stated in its petition that it is a “rehabilitation
agency providing therapy services in the field of speech
pathology, vocational rehabilitation, occupational therapy,
physical therapy, and social work services”, acceptance of
LSLSI’s position would prohibit Juckett from
employment in any of these areas, although she was hired
by LSLSI specifically as a speech therapist.
Given the public policy involved and the requirement of
strict construction, we conclude, as did the Fifth Circuit in
Daiquiri’s III [on Bourbon, Ltd. v. Wandfluh, 608 So.2d
222 (La.App. 5 Cir. 1992), writ denied, 610 So.2d 801
(La.1993)] that in order to be valid a non-compete
agreement must specifically define the employer’s
business. Thus, the agreement not-to-compete in the
present case is void as a matter of law since it contains no
definition of LSLSI’s business. (Emphasis added.)
19
[Id. at 681.]
See also Paradigm Health System, L.L.C. v. Faust, [16-1276, p.
7 (La.App. 1 Cir. 4/12/17), 218 So.3d 1068, 1073] (“Noncompetition
agreements are strictly construed in favor of the employee and against
the party attempting enforcement. Noncompetition clauses that contain
overly broad definitions of the employer’s business violate La.R.S.
23:921(C) and are null and void. It is not sufficient to merely prohibit
an employee from engaging in a business similar to the employer.”)
AFFIDAVITS
The affiants clearly establish the undisputed material facts that
Casey Lane Johnson did not “compete” against KJ’s following his
termination; that he did not exhibit any intent or ill-will toward KJ’s;
that he in fact encouraged former clients to stay with KJ’s; and that he
in essence employed himself after the termination carrying with him
internally his own set of skills expertise and the like. One cannot take
or steal from another that which is within one’s self. Thereby, there can
not [sic] be theft of trade secrets from a company like KJ’s if the
individual is the trade secret.
The affiants are fact witnesses who refute allegations contained
in the petition proving there are no genuine issues of material fact as to
the alleged facts. The affiants further establish that Casey Lane
Johnson did not act in an egregious manner toward KJ’s.
Considering all the above, the undisputed facts, and the lack of
any evidence against Casey Lane Johnson, Plaintiffs are not able to
make out claims pertaining to LUTSA, LUTPA, fiduciary breaches,
tortious interference, civil conspiracy, or loss of distributorship.
....
The request for attorney’s fees and court costs are denied. The
court denies these requests based on reasonableness, equity, and lack of
bad faith on the part of KJ’s. Under the circumstances of losing former
customers and the gravy train leaving the station, it is understandable
that KJ’s would believe Casey Lane Johnson committed some type of
breach of the agreement or violated some type of loyalty. Here[,] it is
simply unproven as to either.
Considering the foregoing, we affirm the trial court’s December 20, 2021
judgment that granted Defendants’ motions for summary judgment. Additionally,
we hereby deny Plaintiff’s motion to file a late reply brief, we find Defendants’ joint
motion to strike reply brief moot, and we deny Defendants’ request for sanctions.
20
Costs of this appeal are assessed against Plaintiff, KJ’s Services, Inc., d/b/a
Landmark Window and Door.
JUDGMENT AFFIRMED; MOTION TO FILE LATE REPLY BRIEF
DENIED; MOTION TO STRIKE REPLY BRIEF MOOT; REQUEST FOR
SANCTIONS DENIED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.
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