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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

R & T HOOD AND DUCT SERVICES,               )
INC., a Washington corporation,             )
                                            )       No. 65802-6-I
                      Respondents,          )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
RICKY SPRUEL and JANE DOE                   )
SPRUEL, husband and wife, and the           )
marital community comprised thereof;        )
                                            )
                      Appellants,           )
                                            )
JAMES WHEELDON and JANE DOE                 )
WHEELDON, husband and wife, and             )
the marital community comprised             )
thereof; KENNY HENDERSON and                )
JANE DOE HENDERSON, husband                 )
and wife, and          the marital community        )
comprised thereof;                          )
                      Defendants,           )
                                            )
SAFE HAVEN HOOD AND                         )
DUCT SERVICES, an unknown entity,           )       FILED: June 4, 2012
                                            )
                      Appellant.            )

       Grosse, J.  --  While working for R & T Hood and Duct Services, Inc. (R & T), 

Ricky Spruel set up a competing company and, unbeknownst to R & T, began 

soliciting business from R & T's customers.         Finding that Spruel had violated the 

terms of his employment agreement, the trial court entered a preliminary injunction, 

found Spruel in contempt after he failed to comply with the preliminary injunction, 

and entered a judgment in favor of R & T for lost revenue as a sanction for the 

contempt.  On appeal, Spruel fails to demonstrate any error or abuse of discretion in  

No. 65802-6-I / 2

the trial court's actions.  We therefore affirm.

                                          FACTS

       R & T Hood and Duct Services, Inc., a Washington corporation, provides fire 

protection services to businesses, including hood, duct, and fan cleaning.  Starting in 

August 2007, R & T employed defendants  Ricky Spruel, James Wheeldon, and 

Kenny Henderson to provide hood, duct, and fan cleaning services to R & T's 

customers.  Spruel, Wheeldon, and Henderson entered into employment 

agreements with R & T providing,  among other things, that they would not (1) 

disclose or use confidential information about R & T's customers; (2) provide 

services to R & T's clients within two years of termination; or (3) solicit R & T 

employees to leave R & T.

       In January 2008, while still employed with R & T, Spruel set up Safe Haven

Hood & Duct Services (Safe Haven), and Spruel, Wheeldon, and Henderson began 

providing hood, duct, and fan cleaning services under the name of Safe Haven to 

some of R & T's clients without R & T's knowledge or consent.  On June 5, 2009, 

after discovering Safe Haven's actions, R & T fired Spruel, Wheeldon, and 

Henderson.    After their termination, Spruel, Wheeldon, and Henderson continued to 

solicit and provide services to R & T's clients.

       On August  26, 2009, R & T filed this action against Safe Haven, Spruel, 

Wheeldon, and Henderson, alleging breach of contract, tortious interference with 

business relations, and unfair competition.         On November 24, 2009, the court 

entered a preliminary injunction, enjoining the defendants from (1) utilizing R & T's 

confidential and proprietary information, (2) soliciting business from R & T clients, (3) 

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No. 65802-6-I / 3

providing hood, duct, or fan cleaning services to R & T's customers, and (4) soliciting 

R & T employees to work for Safe Haven.  

       On June 9, 2010, R & T moved for an order of contempt, alleging that Safe 

Haven had continued to service R & T's customers in violation of the preliminary 

injunction.  R & T supported the motion with declarations and documentary evidence.  

In addition to a finding of contempt, R & T requested the imposition of sanctions,

including a judgment for the revenue lost as a result of the defendants' contempt and 

an award of attorney fees.  

       Safe Haven and Spruel disputed R & T's contentions, denying having 

knowingly solicited or serviced any of R & T's clients in violation of the preliminary 

injunction and alleging that R & T was attempting to drive Safe Haven out of 

business.  Spruel also maintained that because Safe Haven was able to provide only 

cleaning services, R & T remained free to provide other fire prevention services to its 

former customers.  Spruel raised a general challenge to the sufficiency of R & T's 

evidence, but submitted no contravening evidence.

       On June 29, 2010, the trial court found defendants Safe Haven, Spruel, 

Wheeldon, and Henderson in contempt.  The court ordered the defendants to pay R 

& T's attorney fees and reserved entering judgment on R & T's alleged loss of 

business "pending further verification of the actual amounts of lost revenue."           The 

court denied Spruel's motion for reconsideration.

       On November 12, 2010, in response to  the trial court's request in the 

contempt order for  additional evidence, R & T filed a "Motion for Entry of Final 

Judgment."  Alleging that Spruel continued to violate the terms of the injunction by 

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No. 65802-6-I / 4

attempting to "poach" R & T's clients, R & T requested, among other things, entry of 

judgment for the revenue lost from the clients that Safe Haven had stolen.            R & T 

submitted invoices establishing the services that R & T had provided to 11 former 

clients in the last full year and the resulting revenue totaling $38,233.20.  Based on 

the two-year period specified in the defendants' employment agreements, the trial 

court entered judgment against the defendants in favor of R & T for $76,466.40.

       Spruel and Safe Haven appeal.             On  appeal, Spruel advances         several 

arguments on behalf of defendants Wheeldon and Henderson.  But neither 

defendant has participated in this appeal.  Moreover, because Spruel is not an 
attorney, he is not permitted to represent other parties in court.1

                                        ANALYSIS

       Spruel first contends that the trial court erred in entering final judgment 

without granting him an opportunity to present "oral argument on the pleadings."  

This contention rests solely on Spruel's conclusory assertion that R & T's motion for 

final judgment was a motion for summary judgment and that he was therefore entitled 
to oral argument under KCLCR 56(c)(1).2

       But R & T's motion was filed in response to the issue of sanctions, which the 

trial court had expressly reserved in the June 29, 2010, order of contempt.  Spruel 

has not identified anything in R & T's motion suggesting that it was based, either in 

1 See APR 1(b); GR 24; RCW 2.48.170; Jones v. Allstate Ins. Co., 146 Wn.2d 291, 
301, 45 P.3d 1068 (2002); Washington State Bar Ass'n v. Great W. Union Fed. Sav. 
& Loan Ass'n, 91 Wn.2d 48, 57, 586 P.2d 870 (1978).
2 KCLCR 56(c)(1) provides that the court shall decide "all summary judgment 
motions after oral argument, unless the parties waive argument."

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No. 65802-6-I / 5

form or in substance, on CR 56.  Nor has Spruel made any showing that the trial 

court applied, or should have applied, the standards governing CR 56 when entering 

final judgment.

       Moreover, oral argument on a motion is not a due process right:
       Due process does not require any particular form or procedure. . . . [It] 
       requires only that a party receive proper notice of proceedings and an 
       opportunity to present [its] position before a competent tribunal.[3]

The record shows that Spruel had           a  full and fair opportunity to present his 

arguments and any supporting evidence in response to the motion for contempt and 

the motion for final judgment.  He has therefore failed to demonstrate any error or 

abuse of discretion in the trial court's entry of final judgment.

       Spruel next contends that the trial court erred in calculating the amount of R & 

T's  business loss as  $76,466.40.  He argues that a formula for remedies  in the 

employment agreement provided for a lesser amount.

       But Spruel's employment agreement expressly provided that the enumerated 

remedies "shall be in addition to any other such remedies available to the Employer 

hereunder."    The trial court has broad discretion to impose sanctions following a 
finding of contempt.4   The amount of the judgment does not violate the terms of the 

employment agreement.

       Spruel  further  asserts that  because  Safe Haven was able to provide only 

3 Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 
697, 41 P.3d 1175 (2002) (internal quotation marks omitted) (alteration in original) 
(citations omitted).
4 See In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462 (1993); RCW 
7.21.030.

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No. 65802-6-I / 6

hood, duct, and fan cleaning services, R & T could still provide "an array of fire 

protection services" to its former clients.  Spruel reasons that R & T therefore did not 

lose that portion of its business.

       But  Spruel has not identified any evidence in the record supporting this

assertion.  Moreover, R & T's calculation of lost revenue was based on evidence that 

Safe Haven had taken over the accounts of R & T's former customers, causing a 

complete loss of revenue.  Spruel has not demonstrated any error in the court's 

calculation of lost revenue.

       Spruel  next  contends that the trial court erred in entering a preliminary 

injunction.  The trial court has discretion to provide injunctive          relief if a party 

demonstrates that (1) it has a clear legal or equitable right; (2) it has a well grounded 

fear of immediate invasion of that right; and (3) the acts it complains of are either 
resulting in or will result in actual and substantial injury.5  But injunctive relief will 

generally not be granted when there is "a plain, complete, speedy and adequate 
remedy at law."6

       Spruel asserts that because the alleged employment agreement provided an 

adequate remedy of monetary damages, R & T was not entitled to injunctive relief.  

Spruel fails, however, to address or even mention that the trial court entered detailed

findings of fact and conclusions of law in support of the preliminary injunction.  We 
will treat unchallenged findings of fact as verities on appeal.7

       Based on unrebutted evidence raising doubts about the extent of Safe 

5 Kucera v. State, Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000).
6 Kucera, 140 Wn.2d at 209.
7 Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).

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No. 65802-6-I / 7

Haven's compliance with Washington business regulations and its ability to pay any 

future monetary damages, the court concluded that although R & T had a legal 

remedy, it was not adequate under the circumstances.  The record before the trial 
court supported this determination.8  The trial court did not abuse its discretion in 

entering the preliminary injunction.9

       Spruel  next  contends that the trial court should have ordered R & T to 

produce a client list before entering a preliminary injunction.        His reliance on Ed 
Nowogroski Insurance, Inc. v. Rucker10         for this proposition is misplaced.  The 

primary issue in Nowogroski        involved whether the Uniform Trade Secrets Act, 

chapter 19.108 RCW, displaced the common law rule that prohibited the use of 

memorized confidential information to solicit a former employer's business.  Although 

R & T alleged that Safe Haven was using confidential information, the crux of its 

request for injunctive relief was the  defendants'         violation of their  employment

agreements by soliciting or servicing R & T's clients.        To the extent it is relevant, 
Nowogroski supports the enforceability of non-compete agreements.11

       Spruel generally challenges the validity of some of the evidence that R & T 

submitted in support of the preliminary injunction, the order of contempt, and the final 

8 See   Cline Piano Co. v. Sherwood,         57 Wash. 239, 241, 106 P. 742 (1910) 
(injunctive relief appropriate when it is the speedier and more efficacious remedy). 
9 See Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 233, 635 
P.2d 108 (1981) (granting of an injunction is within the sound discretion of the trial 
court).
10 88 Wn. App. 350, 944 P.2d 1093 (1997), aff'd, 137 Wn.2d 427, 971 P.2d 936 
(1999).
11 See also Nowogroski, 137 Wn.2d at 437 (even in the absence of enforceable 
covenant not to compete, former employee remains under duty not to disclose trade 
secrets acquired in previous employment).

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No. 65802-6-I / 8

judgment.  Among other things, he asserts that the employment agreement that he 

signed (1) lacks page numbers; (2) has no signature or initials on page 2; (3) lacks a 

provision on geographical boundaries; (4) contains potentially inconsistent fonts; (5) 

was not signed by R & T; (6) contains "no independent consideration" introduced 

after Spruel's termination; and (7) "is unreasonable in many respects."

       But Spruel makes no showing that any of these allegations are in any way 

relevant to the validity of the employment agreement.  Nor did he  submit any 

evidence to support his bare allegations that the non-compete provision was added 

"after employment."      Spruel  further  alleges that R & T's invoices cannot be 

"authenticated" or "substantiated." But because he provides no citation to the record 

or meaningful argument to support these allegations, they                 merit no further 
consideration.12

       Finally,  Spruel asserts that he did not violate the preliminary injunction 

because it "protected only clients that [R & T] possessed while [the defendants] were 

in its employ."     But  the preliminary injunction expressly enjoined Spruel           from 

providing hood, duct, or fan cleaning work for any customers that R & T had serviced 

"after June 5, 2007."

       Spruel has appended several "exhibits" and a declaration to his opening brief 

in support of his challenge to the validity of R & T's evidence.  With one exception, 

these documents were not part of the record before the trial court.  Those documents 
that are not part of the record are stricken.13

12 See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) 
(appellate court will decline to consider issues unsupported by cogent legal 
argument and citation to relevant authority).  

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No. 65802-6-I / 9

                                    ATTORNEY FEES

       The trial court awarded R & T attorney fees based on a provision in Spruel's 

employment agreement.  R & T's request for attorney fees on appeal is granted, 

subject to compliance with RAP 18.1(d).

       Affirmed.

       WE CONCUR:

13 See RAP 10.3(8).

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