DAN B. JAMES and SHAWN L. EBY, Appellants (Plaintiffs),
TACO JOHN'S INTERNATIONAL, INC., Appellee (Defendant).
from the District Court of Laramie County The Honorable
Steven K. Sharpe, Judge.
Representing Appellant: C.M. Aron of Aron & Henning, LLP,
Laramie, Wyoming. Argument by Mr. Aron.
Representing Appellee: Harold R. Bruno III and Elisabeth S.
Michaels of Robinson Waters & O'Dorisio, P.C.,
Denver, Colorado. Samantha Caselli, Associate General Counsel
for Taco John's International, Inc., Cheyenne, Wyoming.
Argument by Mr. Bruno.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Dan B. James and Shawn L. Eby appeal from the district
court's order granting summary judgment, which found Taco
John's International, Inc. (TJI) properly terminated the
two corporate executives for violating their employment
agreements. We affirm.
We condense, rephrase, and reorganize the issues on appeal as
TJI entitled to summary judgment because the employment
agreements unambiguously prohibited Mr. James and Mr. Eby
from forming a new company and seeking other franchise
opportunities while employed by TJI?
a. Are the employment agreements ambiguous, thus requiring
consideration of parol evidence to determine the parties'
b. Do genuine issues of material fact preclude summary
TJI's President and Chief Executive Officer (CEO) have
apparent authority to allow Mr. James' and Mr. Eby's
participation in a business venture unrelated to TJI and
contrary to the terms of their employment agreements?
Mr. James and Mr. Eby were franchise executives with decades
of experience in the fast food industry. In May 2013, TJI
hired Mr. James as its Chief Development Officer, and Mr. Eby
as its Vice President of Operations, at the behest of Jeff
Linville, TJI's recently hired President and CEO
(collectively referred to as the Linville Team). At the time
they were hired, Mr. James and Mr. Eby executed nearly
identical employment agreements requiring both to
"devote all of [their] time, attention, knowledge and
skills solely to the business and interest of Employer."
Employment Agreements, Section V. The employment agreements
permit termination for cause without advance notice
"[i]n the event of any violation by Employee of any of
the terms of this Agreement. . . ."Employment
Agreements, Section XII (B).
In mid-2016, Mr. Linville informed TJI's compensation
committee of his wife's desire to become a Beef Jerky
Outlet (BJO) franchisee as her "hobby" and that he,
Mr. James, and Mr. Eby would be investors in her business.
The compensation committee informed TJI's general counsel
of the Linville Team's plan to invest in the BJO
franchise. Around this time, TJI's Chief Financial
Officer (CFO) became concerned about a trip the Linville Team
took to Tennessee. TJI's general counsel and CFO
investigated the matters and discovered the Linville
Team's participation in the BJO venture included more
than investing capital as represented by Mr. Linville. They
discovered the following information.
Mr. James and Mr. Eby participated in a conference call to
learn about the BJO franchise and viewed a BJO webinar from
TJI's corporate offices in Cheyenne, Wyoming in the
spring of 2016. On April 25, 2016, Mr. Linville created and
registered a Colorado entity, Last Bite Jerky, LLC, for their
BJO venture and listed the Linville Team as its sole members.
In May of 2016, the Linville Team drafted a business plan to
present to BJO and to aid in obtaining financing. The
business plan stated Mr. Linville, Mr. James, and Mr. Eby
were the company's sole "partners" and provided
the following "ownership responsibilities":
Each member of our management team will share in all
decisions, however, we will use our expertise in the
following manner. Shawn Eby will have the responsibilities of
all operational decisions, including hiring, training, inside
sales building, cleanliness, and inventory management. Dan
James will be responsible for all real estate decisions,
market viability and lease negotiations. He will also oversee
the buildout process. Jeff Linville will handle some
administrative costs and marketing of the business. Also,
Sharon Linville is a C.P.A. and will handle the
administrative side (taxes, accounting, payroll, etc.).
business plan also stated the company's goal of owning
two franchises by the end of 2016 and progressively acquiring
more for a total of fifteen by the end of 2021. Mr. Linville
saved the business plan on TJI's internal network. The
Linville Team also executed a comprehensive operating
agreement for Last Bite Jerky, LLC, stating Mr. James, Mr.
Eby, and Mr. Linville would manage the business as members.
Mr. Linville provided the operating agreement to BJO. On June
13, 2016, Mr. James sought financing to fund the new business
venture, and, in July 2016, loan applications were circulated
using the Linville Team's TJI email accounts. The
Linville Team also visited BJO headquarters and met with BJO
executives while on a trip to Tennessee for TJI business
purposes. They also scouted for potential BJO locations in
Colorado and Wyoming. TJI's general counsel and CFO
reported these findings to TJI's board of directors. The
board terminated Mr. James' and Mr. Eby's employment
for cause on August 12, 2016, effective immediately.
Mr. James and Mr. Eby filed a lawsuit against TJI asserting
breach of the employment agreements and seeking damages in
excess of $1, 000, 000 each. TJI moved for summary judgment.
On October 30, 2017, the district court granted the motion,
finding the employment agreements unambiguously precluded Mr.
James and Mr. Eby from forming a new company and seeking
other franchise opportunities while still employed as senior
executives at TJI. The district court determined the
undisputed facts detailing Mr. James' and Mr. Eby's
involvement in forming a new company and pursuing other
franchise opportunities were sufficient to support their
termination even though they never invested any money in Last
Bite Jerky, LLC, and the BJO venture never materialized. Mr.
James and Mr. Eby timely filed a notice of appeal on November
We review an order granting summary judgment de novo, giving
no deference to the district court's determinations.
Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d
873, 880 (Wyo. 2011) (citations omitted). Summary judgment is
appropriate when there are no genuine issues as to any
material fact and the moving party is entitled to judgment as
a matter of law. Id. (citing W.R.C.P.
56(c); Snyder v. Lovercheck, 992 P.2d
1079, 1083 (Wyo. 1999)). "We review a summary judgment
in the same light as the district court, using the same
materials and following the same standards." Leeks
Canyon Ranch, LLC v. Callahan River Ranch, LLC, 2014 WY
62, ¶ 12, 327 P.3d 732, 737 (Wyo. 2014) (citations
omitted). We examine "the record from the viewpoint most
favorable to the party opposing the motion, giving to him all
favorable inferences to be drawn" therefrom. Fayard
v. Design Comm. of Homestead Subdivision, 2010 WY 51,
¶ 9, 230 P.3d 299, 302 (Wyo. 2010) (citations omitted).
"The party requesting summary judgment bears the initial
burden of establishing a prima facie case that no genuine
issue of material fact exists, and that summary judgment
should be granted as a matter of law." Bogdanski v.
Budzik, 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160 (Wyo.
2018) (citations omitted). After making a prima facie
showing, the burden shifts to the opposing party to provide
"competent evidence admissible at trial showing there
are genuine issues of material fact." Jones v.
Schabron, 2005 WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo.
2005) (citations omitted); see also Bogdanski,
¶ 18, 408 P.3d at 1160 (citations omitted). "The
party opposing the motion must present specific facts;
relying on conclusory statements or mere opinion will not
satisfy that burden, nor will relying solely upon allegations
and pleadings." Bogdanski, ¶ 18, 408 P.3d
at 1161 (citations omitted). "A material fact is one
which, if proved, would ...