Torbett v. Wheeling Dollar Sav. & Trust Co.

• Court: West Virginia Supreme Court
• Writing for the Court: HARSHBARGER; NEELY
• Citation: Torbett v. Wheeling Dollar Sav. & Trust Co., 314 S.E.2d 166, 173 W.Va. 210 (W. Va. 1983)
• Decision Date: 14 December 1983
• Docket Number: No. 15594,15594
• Parties: , 116 L.R.R.M. (BNA) 2969 Catherine I. TORBETT v. WHEELING DOLLAR SAVINGS & TRUST COMPANY.

Page 166

314 S.E.2d 166

173 W.Va. 210, 116 L.R.R.M. (BNA) 2969

Catherine I. TORBETT v. WHEELING DOLLAR SAVINGS & TRUST COMPANY.

No. 15594.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Dissenting Opinion Feb. 17, 1984.

[173 W.Va. 211] Syllabus by the Court

1. W.Va. Rules of Civil Procedure, Rule 57, permits a trial court to grant further relief, including damages, in a declaratory judgment proceeding. Syllabus Point 5 of Tharp v. Tharp, 131 W.Va. 529, 48 S.E.2d 793 (1948), is overruled.

2. To establish prima facie proof of tortious interference, a plaintiff must show:

(1) existence of a contractual or business relationship or expectancy;

(2) an intentional act of interference by a party outside that relationship or expectancy;

(3) proof that the interference caused the harm sustained; and

(4) damages.

If a plaintiff makes a prima facie case, a defendant may prove justification or privilege, affirmative defenses. Defendants are not liable for interference that is negligent rather than intentional, or if they show defenses of legitimate competition between plaintiff and themselves, their financial interest in the induced party's business, their responsibility for another's welfare, their intention to influence another's business policies in which they have an interest, their giving of honest, truthful requested advice, or other factors that show the interference was proper.

Patrick S. Cassidy, O'Brien, Cassidy & Gallagher, Wheeling, for appellee.

Paul T. Boos & James C. Gardill, Phillips, Gardill, Hazlett & Kaiser, Wheeling, for appellant.

HARSHBARGER, Justice.

Catherine Torbett sued her former employer, Wheeling Dollar Savings & Trust Company in Ohio County Circuit Court for a declaratory judgment that a not-to-compete restrictive covenant in her employment contract was unreasonable, and for damages. The case was tried to the court and to an advisory jury ¹ that answered special interrogatories, finding consideration for the covenant, ² but that its restriction was unreasonable; and that awarded Torbett $35,000 for lost income. The trial judge agreed, and on September 1, 1981, found facts and a legal conclusion, and entered judgment for $35,000 and interest against Wheeling Dollar, whose motions for judgment notwithstanding the verdict and a new trial were denied.

FACTS

Ms. Torbett was hired by the bank in February, 1969, and in October, 1974, was promoted to trust officer with no salary increase. She was offered a job at another bank in November of that year, informed her employer that she would leave unless she received an immediate raise and an assistant, and Wheeling Dollar agreed to her terms and granted her a twenty-three percent (23%) raise effective November 20. On November 27, she was asked to sign a contract that included this paragraph:

(4) If Employee voluntarily terminates the employment provided for herein, Employee shall not, for a period of two years following such termination, in the City of Wheeling, West Virginia, or within a radius of twenty-five miles thereof, accept employment by or in any other bank, or engage or participate, directly or indirectly, in any phase of banking or any other business enterprise which is competitive with Bank, its operations and activities.

She protested the clause but signed anyway.

In December, 1978, Torbett voluntarily quit her job and she alleged she was offered employment with another bank provided that she was safe from Wheeling Dollar's covenant. ³ The advisory jury was not convinced that an offer was made, see our fn. 4, infra (Page 3 of Jury Interrogatories), but the court found in its final order that employment was available to her:

7. That since the time of her termination there had been employment opportunities for the Plaintiff at Security National Bank and/or Half Dollar Bank in Wheeling, West Virginia.

8. That the Plaintiff knew that the Defendant would attempt to hold her to the contract and take necessary action to prevent her from working, because they had previously taken such steps as to another former employee, therefore, she filed this Complaint and action for declaratory judgment.

In January, 1979, she sought a preliminary injunction and declaratory judgment to prevent defendant from enforcing the covenant. The injunction was denied on March 1, 1979, and her declaratory judgment trial was in September, 1980.

The trial court decided that the permanent injunction issue was moot because the covenant's term had expired, but that the covenant violated public policy and Torbett was entitled to damages of $35,000 for lost income since she left her job. Her order embraced the jury's answers ⁴ and additionally recited that she was required to sign the contract and knew that the bank would attempt to hold her to it and try to prevent her from working, because it had previously done so with another former employee.

THE COVENANT

We summarized the general law about restrictive noncompetition covenants in employment contracts in Syllabus Points 1-5 of Reddy v. Community Health Foundation, W.Va., 298 S.E.2d 906 (1982), ⁵ and in the Syllabus of Helms Boys, Inc. v. Brady, W.Va., 297 S.E.2d 840 (1982). ⁶

The parties' primary dispute is whether Wheeling Dollar has a protectible employer interest. ⁷ A protectible interest involves confidential information unique to an employer, customer lists generated by it, or trade secrets. Reddy v. Community Health Foundation, supra; Helms Boys, Inc. v. Brady, supra. The existence of a protectible interest is a question of fact for a jury or trial court sitting as a fact finder. An employer can prove its protectible interest. ⁸ Reddy, supra.

Wheeling Dollar presented evidence to persuade the judge and jury that there was confidential information and a protectible interest, but they were unconvinced.

"The verdict of a jury will be held sacred by this Court, unless there is a plain preponderance of credible evidence against it, evincing a miscarriage of justice from some cause, such as prejudice, bias, undue influence, misconduct, oversight, or some misconception of the facts or law." Syllabus Point 1, Young v. West Virginia & P.R. Co., 44 W.Va. 218, 28 S.E. 932 (1894).

Syllabus Point 3, W.L. Thaxton Const. Co. v. O.K. Const. Co., W.Va., 295 S.E.2d 822 (1982).

"A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding." Syl. pt. 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).

Syllabus Point 2, Carey v. Campbell, W.Va., 295 S.E.2d 32 (1982).

We will not disturb this factual finding. Wheeling Dollar did not prove a protectible legitimate interest, and the absence of such protectible interest makes the covenant unenforceable because it violates public policy. Reddy v. Community Health Foundation, supra.

DECLARATORY JUDGMENT

A declaratory judgment action is a proper way for a restricted employee to test the enforceability of a noncompetition covenant in his or her employment contract. Watkins v. Avnet, 122 Ga.App. 474, 177 S.E.2d 582 (1970); Annot., Relief against covenant restricting right to engage in business or profession, as subject of declaratory judgment, 10 A.L.R.2d 743 (1950 and Later Case Service). Actions for declaratory judgments are covered by our Declaratory Judgment Act, W.Va.Code, 55-13-1 et seq., and Rule 57, W.Va.Rules of Civil Procedure. The act states that our courts of record "shall have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed." W.Va.Code, 55-13-1. Code, 55-13-8 allows further relief (beyond the declaration of rights) upon petition made to a court having jurisdiction:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

We have construed this provision to require a separate complaint and have disallowed claims for other relief asked for in a declaratory judgment petition. Syllabus Point 5, Tharp v. Tharp, 131 W.Va. 529, 48 S.E.2d 793 (1948); West Virginia-Pittsburgh Coal Co. v. Strong, 129 W.Va. 832, 42 S.E.2d 46, 48 (1947).

West Virginia Rules of Civil Procedure, effective 1960, include Rule 57:

The procedure for obtaining a declaratory judgment pursuant to the West Virginia Uniform Declaratory Judgments Act, Code, chapter 55, article 13 [ § 55-13-1 et seq.], shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. A party may demand declaratory relief or coercive relief or both in one action. Further relief based on a declaratory judgment may be granted in the declaratory action or upon petition to any court in which the declaratory action might have been instituted. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. (Emphasis supplied.)

This rule clearly permits a trial court to grant further relief in the declaratory action. Code, 55-13-8, to the extent it is procedural, has been superseded by Rule 57. ⁹ Therefore, Syllabus Point 5, Tharp v. Tharp, supra, is overruled. Torbett could ask for damages with her declaratory judgment. ¹⁰

TORTIOUS INTERFERENCE

Wheeling Dollar challenges Torbett's right to get damages: her complaint did not charge that the bank...