## Facts

- Lucht’s Concrete Pumping, Inc., hired Tracy Horner in 2001 as an at-will “mountain division manager,” responsible for customer relationships in the mountain region.
- On April 15, 2003—after Horner had already been employed for roughly two years—Lucht’s required Horner to sign a confidentiality agreement containing a 12-month noncompetition/nonsolicitation provision and restrictions on disclosure of confidential information.
- Horner resigned on March 12, 2004, and began working for competitor Everist Materials, LLC, on March 15, 2004; Everist then entered the concrete-pumping business in the same region with Horner in a management role.
- Lucht’s alleged Horner and Everist violated the restrictive covenant and caused Lucht’s loss of business in the mountain region.
- Horner sought summary judgment, arguing the noncompetition agreement lacked consideration because it was signed after employment began.

## Issues

1. Whether an employer’s continuation of an existing at-will employment relationship (forbearance from immediate termination) constitutes adequate consideration for a noncompetition agreement signed after employment has begun.

## Decision

- The Colorado Supreme Court reversed the court of appeals.
- The court held that an employer’s forbearance from terminating an existing at-will employee is forbearance from exercising a legal right and therefore is adequate consideration for a post-hire noncompetition agreement.
- The case was remanded for further proceedings, including any remaining questions regarding enforceability under Colorado law.

## Legal Principles

- Forbearance from exercising a legal right may constitute consideration for a contract.
- Because an at-will employer has a legal right to terminate employment at any time, the employer’s choice to continue employing an at-will employee in exchange for a noncompetition promise can supply adequate consideration.
- A finding of adequate consideration does not itself establish enforceability of a restrictive covenant; the covenant must still satisfy statutory and common-law limits, including Colorado’s restrictions on covenants not to compete (C.R.S. § 8-2-113) and general reasonableness requirements.

## Conclusion

The Colorado Supreme Court held that continued at-will employment can supply adequate consideration for a noncompetition agreement executed after employment begins, and it remanded for determination of any remaining enforceability issues under Colorado law.


Lucht’s Concrete Pumping, Inc. v. Horner, 255 P.3d 1058 (Colo. 2011)