Bowers v. TKA Inc.

Decision Date06 March 2023
Docket Number1669-2021
CourtCourt of Special Appeals of Maryland

Circuit Court for Montgomery County Case No. 420656V

Kehoe Zic, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.



On 30 March 2017, Christopher McCauley Bowers, Appellant, filed a third amended complaint in the Circuit Court for Montgomery County against TKA Inc., its president, Dale R. Tompkins Jr., and its vice-president, Kim Bernhardt-Moake, Appellees. In that complaint, Appellant sought a declaratory judgment and damages, alleging, among other things, tortious interference with a contract (Count III) and tortious interference with a business relationship (Count V). Specifically, Appellant claimed that Appellees, by whom he was employed formerly as a martial arts instructor, misrepresented to the Montgomery County Department of Recreation ("the Department") that a restrictive covenant in his TKA Employment Agreement prohibited him from competing with TKA, resulting in the Department's "ceasing to do business with" him.

Following a three-day jury trial, Appellees renewed their motion for judgment on all counts made previously at the close of Appellant's case-in-chief. The court denied their motion as to Count III (alleging tortious interference with a contract), but granted it with respect to Count V (alleging tortious interference with a business relationship). The court then entered a declaratory judgment in favor of Appellant, ruling: "If Defendant, TKA, Inc., had an enforceable non-compete agreement with the Plaintiff, Christopher Bowers, the non-compete clause of that agreement expired three (3) years from October 18th, 2007." The court submitted Count III to the jury, which found in favor of Appellant, awarding him economic damages in the amount of $89,500.[1] Appellees noted an appeal from the judgment on Count III. Appellant, in turn, cross-appealed, challenging the court's decision to grant Appellees' motion for judgment on Count V. We reversed both judgments in an unreported opinion filed on 11 February 2019. As to Count III, we held that the trial court erred in denying Appellees' motion for judgment, reasoning that Appellant presented neither evidence of a binding contract nor proved damages. TKA Inc., et al. v. Bowers, No. 1185, Sept. Term 2017, slip op. at 13, 16 (filed 11 February 2019). With respect to Count V, we concluded that Appellant had "presented sufficient evidence for the jury to infer that the representations were made with reckless disregard as to whether they were truthful or not." Id., slip op. at 27. Accordingly, we "remanded [the case] . . . for a new trial as to Count V[.]" Id., slip op. at 28 (capitalization omitted).

On remand, Appellees moved in limine to exclude, among other things, testimony pertaining to "damages alleged and previously tried under Count III[.]" The circuit court granted that motion. A second three-day trial ensued, at the conclusion of which a jury found Appellees not liable on Count V.

Appellant noted another appeal and presents five issues for our review, which we have rephrased as follows:[2]

1. Did the trial court commit reversible error by granting Appellees' motion in limine?
2. Did the trial court err in denying Appellant's motion for judgment made at the close of his case-in-chief?
3. Did the trial court abuse its discretion in limiting Appellant's theory of liability?
4. Did the trial court exhibit bias, to the prejudice of Appellant?
5. Did the trial court abuse its discretion in denying Appellant's motion for summary judgment?

For the reasons set forth below, we shall affirm the judgment of the circuit court.


The resolution of this appeal does not turn upon the evidence adduced on remand. Accordingly, we reproduce the facts presented in our prior opinion to provide context for the issues presented on appeal.

On April 27, 2001, Bowers signed an Employment Agreement ("Agreement") with TKA. The Agreement contained a restrictive covenant stating that for a period of three years after the termination of the employment relationship, Bowers was prohibited from competing with TKA's business at any location whose "ten (10) mile radius [would] invade or overlap any area within a ten (10) mile radius of any business location" of TKA. On October 17, 2007, Bowers resigned from TKA and ceased performing any work for them.

Almost four years later, on September 16, 2011, Bowers again began teaching martial arts for TKA. When Bowers rejoined TKA, he did not sign a new Agreement with them.

On September 8, 2014, Bowers once again resigned from TKA. He began teaching karate under the name "Zen Budo Karate." Shortly thereafter, Kim Moake (TKA's Vice President) phoned an agent of the Montgomery County Department of Recreation, an organization with which TKA regularly did business, and advised that Bowers had left the employ of TKA, and that he was currently subject to a non-compete agreement.

* * *

On June 30, 2015, counsel for TKA wrote the Montgomery County Department of Recreation a letter that said, in material part, the following:

It has come to our attention that . . . Bowers has applied to teach martial arts through the Montgomery County Department of Recreation. Mr. Bowers is a former employee of [TKA] who is subject to a non-competition agreement. Mr. Bowers' agreement precludes him from offering martial arts instruction in Montgomery County in competition with [TKA].
I will appreciate your office notifying us if Mr. Bowers has applied or does apply to instruct students in any martial arts program for or through the Montgomery County Department of Recreation.

On September 8, 2015, Bowers entered into a contract negotiated by Sara Swarr, a representative of Montgomery County, whom Bowers dealt with in regard to a program called "Excel Beyond the Bell" ("EBB"). In regard to the EBB program, Bowers' company was hired to teach martial arts for three (3) months at Montgomery Village Middle School, Argyle Middle School, and Roberto Clemente Middle School. The EBB program was open to students at the aforementioned middle schools. The EBB contract was documented by a direct purchase order and a letter of intent showing that the services were to be provided between September 28, 2015 and January 22, 2016. For those services, Bowers was to be paid $9,945.

On December 26, 2015, Bowers, and Sara Swarr, began to negotiate, by email, a contract for Bowers to provide karate instructors for the EBB program starting in January of 2016.
* * *
In addition to the EBB program, Bowers was interested in contracting with the Montgomery County Recreational Department to have his organization provide karate instructors for high school students. The anticipated karate program would be fee based, meaning that a fee would be paid for each student in attendance and the fee would be divided, in some fashion, between Montgomery County and Bowers' company. In regard to the possible fee based contract, Bowers dealt with Patricia Walsh, who was employed by the division in the Recreation Department that oversaw class programs offered in the Department's guide book. . . . As part of her job she discusses with contractors, like Bowers, the prices they would charge for their work, but, as part of her job, she did not negotiate the contract prices. In a fee based program, such as the one Bowers proposed, the county keeps a portion of the fee and the contractor keeps the rest. She had discussions with Bowers about a fee based program and discussed locations where classes might be held. But during their negotiation, nothing was decided as to where the classes were to take place, how many students were to attend, what fees would be charged or how the fees would be split.
Sometime, at the beginning of 2016, Ms. Walsh was told to break off negotiations with Bowers because TKA had informed the county that Bowers was bound by a non-compete agreement.

Id., slip op. at 4-8.

We shall include additional facts as relevant to our discussion of the questions presented.


Appellant contends that the court committed reversible error in granting Appellees' motion in limine to exclude evidence of damages resulting from their alleged tortious interference with the EBB contract. In support of that motion, Appellees argued that "[a]ny claims related to EBB transactions are barred under res judicata (claim preclusion), and collateral estoppel (issue preclusion), as the EBB claims were litigated in full during the earlier trial and a valid final judgment has been entered on that claim." Appellant challenges that position arguing that res judicata and collateral estoppel only apply "to separate actions, that is, separate lawsuits[,]" rather than to "different counts within the same lawsuit."[3] (Internal quotation marks omitted.) Appellant asserts further that the court's purported error was compounded by "prevent[ing] any mention of the EBB classes" and precluding him from recovering emotional damages. (Emphasis omitted.)

Appellees maintain that Appellant was estopped collaterally from introducing evidence of damages, arguing that "[t]here are no underlying facts asserted under the business interference claim that were not asserted and tried earlier in support of the EEB claim." Alternatively, they argue that "[e]ven if the [c]ourt had erred, it would have been harmless error, because the jury found that TKA was not liable for any damage."

In reversing the jury's verdict in favor of Appellant on his tortious interference with a contract claim, we held that "the trial judge erred in denying [Appellees'] motion for judgment as to that count." TKA Inc., slip op. at 13. "Taking the evidence in the light most...

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