The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 21, 2024
2024COA123
No. 24CA0321, LTCPRO v. Johnson — Contracts — Effect of
Integrated Agreement on Prior Agreements — Parol Evidence
Rule
Consistent with the Restatement (Second) of Contracts,
section 213(2), a division of the court of appeals holds that, absent
unambiguous contractual language to the contrary, a completely
integrated contract discharges prior agreements only to the extent
they are within its scope. In determining whether a prior contract
is within the scope of an integrated contract, a court must consider
all relevant evidence and the interpretation of both contracts.
COLORADO COURT OF APPEALS 2024COA123
Court of Appeals No. 24CA0321
Jefferson County District Court No. 24CV30140
Honorable Meegan Alaine Miloud, Judge
LTCPRO, LLC, d/b/a Federal Benefits Made Simple, and Buck Enterprises,
Inc.,
Plaintiffs-Appellants,
v.
Jason Johnson and Matthew Forrest,
Defendants-Appellees.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur
Announced November 21, 2024
Faegre Drinker Biddle & Reath LLP, Kyle R. Hosmer, Jesse L. Marks, Denver,
Colorado; Faegre Drinker Biddle Reath LLP, David W. Porteous, Chicago,
Illinois, for Plaintiffs-Appellants
Fisher & Phillips LLP, Timothy M. Kratz, Denver, Colorado, for Defendants-Appellees
¶1 It has become common practice for contracting parties to
include a merger or integration clause in a contract, providing that
the written contract sets forth the complete terms of the parties’
agreement. Such completely integrated agreements generally
supersede all prior agreements or negotiations between the parties
that are covered by the terms of the written contract.
¶2 This case implicates the extent to which such agreements
supersede other prior agreements between the parties. Consistent
with the Restatement (Second) of Contracts, section 213(2), we
conclude that, absent unambiguous contractual language to the
contrary, a completely integrated contract supersedes prior
agreements only to the extent they are within its scope.
¶3 In this case, LTCPRO, LLC, d/b/a Federal Benefits Made
Simple (FBMS), and Buck Enterprises Inc. sought a preliminary
injunction against two former employees, Jason Johnson and
Matthew Forrest, based on alleged breaches of their noncompete
agreements. Relying on a merger clause in a later employment
agreement between FBMS and Johnson, the district court
concluded that the noncompete agreements had been superseded
and denied the plaintiffs’ motion for a preliminary injunction.
1
¶4 We conclude that, under the circumstances of this case, the
district court erred by failing to consider whether Johnson’s
noncompete agreement was within the scope of his later agreement.
It also erred by concluding that Forrest’s noncompete agreement
was superseded when Forrest did not enter into any subsequent
agreement. We therefore reverse the denial of the motion for
preliminary injunction and remand for further proceedings.
I. Background
¶5 FBMS provides investment advisory services1 and financial
education to federal employees out of its office at the Denver
Federal Center in Lakewood. Johnson and Forrest are former
employees of FBMS. Johnson worked as an investment advisor,
while Forrest assisted Johnson in servicing his clients.
¶6 In 2021, Buck Enterprises acquired FBMS. In connection
with the acquisition, continuing FBMS employees — including
Johnson and Forrest — each agreed to a “Non-Competition, Non-
Solicitation and Confidentiality Agreement” (Noncompetition
Agreement). In addition, Johnson entered into a separate
1 Technically, FBMS advisors provide their investment advisory and
brokerage services through other licensed entities.
2
“Investment Advisor Agreement” (2021 IAA), which set forth several
terms of his employment as an investment advisor.
¶7 The Noncompetition Agreements provided that, as a condition
of continued employment, Johnson and Forrest agreed, among
other things, not to (1) disclose confidential information obtained
during the course of their employment; (2) solicit clients for one
year after the termination of employment; (3) solicit employees of
FBMS for specified periods of time depending on the employee’s
position; or (4) compete with FBMS within 100 miles of FBMS’s
Lakewood office for one year after termination of employment. The
Noncompetition Agreements included a merger clause, which
provided: “This Agreement contains the entire agreement between
the parties hereto and supersedes all prior oral or written
agreements[,] representations, negotiations, and correspondence.”
¶8 Johnson executed the 2021 IAA on the same day as his
Noncompetition Agreement. The 2021 IAA contained provisions
concerning, among other things, background checks, employment
responsibilities, legal compliance, compensation, and termination.
It did not include a noncompetition or nonsolicitation provision.
The 2021 IAA also included a merger clause, which provided:
3
This Agreement supersedes all prior
agreements between [Johnson] and [FBMS]
related to [Johnson’s] engagement as an
Investment Advisor by [FBMS] or its affiliates.
No representation, promise, inducement, or
statement of intention has been made by the
parties concerning the subject matter of this
Agreement which is not set forth in this
Agreement.
¶9 In 2023, Johnson entered into a new “Investment Advisor
Agreement” (2023 IAA) with FBMS. The 2023 IAA was substantively
identical to the 2021 IAA, except that it changed the governing law
from Hawaii to Colorado, made a small change to the timing of
payments after termination, and added three provisions: (1) no right
to a commission payment would vest after termination; (2) no party
would be liable to the other for losses caused by communication,
internet, or computer failures; and (3) Johnson could terminate the
agreement with thirty days’ written notice. The 2023 IAA included a
merger clause that was identical to the one in the 2021 IAA:
This Agreement supersedes all prior
agreements between [Johnson] and FBMS
related to [Johnson’s] engagement as an
Investment Advisor by FBMS or its affiliates.
No representation, promise, inducement, or
statement of intention has been made by the
parties concerning the subject matter of this
Agreement which is not set forth in this
Agreement.
4
¶ 10 In November 2023, Johnson and Forrest resigned from FBMS
on the same day, effective immediately. Both explained that they
were joining Ameriprise Financial Services in North Carolina. In his
resignation letter, Johnson notified FBMS that he was retaining all
records and files pertaining to his clients under section VII.6 of the
2023 IAA. That section provided that in the event of written notice
of termination, Johnson could “retain existing records and files
pertaining to [Johnson’s] customer accounts” if he certified in
writing that all such records complied with applicable law.
¶ 11 According to FBMS, Johnson began to solicit FBMS clients
almost immediately after his resignation. In addition, Johnson
indicated that he intended to open a branch office for his new
company less than eight miles from FBMS’s Lakewood office.
Forrest intended to work out of that office to service Johnson’s
clients, and Johnson expected to travel to the office a few times a
year to conduct financial planning meetings with those clients.
¶ 12 Days after learning of Johnson’s intent to open a Lakewood
office, FBMS and Buck Enterprises filed a complaint and motion for
a temporary restraining order and preliminary injunction against
Johnson and Forrest. They alleged that defendants had breached
5
their Noncompetition Agreements by soliciting FBMS clients,
opening a competing office within 100 miles of FBMS’s Lakewood
office, and accessing and using FBMS’s confidential information.
Defendants argued in response, among other things, that the
Noncompetition Agreements had been superseded by the 2023 IAA.
¶ 13 The district court held a hearing on the motion for preliminary
injunction, at which the Chief Executive Officer of Buck
Enterprises, Katie Buck, testified. Plaintiffs argued that defendants’
opening of a new office within eight miles of FBMS’s office and their
solicitation of FBMS clients violated the Noncompetition Agreements
and would cause irreparable harm to FBMS. Defendants reiterated
their arguments that the 2023 IAA “expressly supersede[d] all prior
agreements” between FBMS and defendants, including the
Noncompetition Agreement, and that Johnson’s retention of the
customer data was consistent with the 2023 IAA.
¶ 14 The district court denied the motion. It first explained that the
“threshold issue that [it] must decide is a reasonable probability of
success on the merits.” And it concluded that “the controlling
contract is the [2023 IAA], which clearly states it supersedes the
2021 contract, which includes . . . the noncompete clauses.” Based
6
on that determination, the court found plaintiffs had not shown a
reasonable probability of success on the merits. The court then
cited the criteria for granting a preliminary injunction, as set forth
in Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982), and
“taking into consideration all of those factors,” it denied the request
for an injunction. The court noted that “there could be harm, but
not enough to meet the factors and the controlling contract.”2
II. Standard of Review
¶ 15 We review the district court’s denial of a motion for a
preliminary injunction for an abuse of discretion. Anderson v.
Applewood Water Ass’n, 2016 COA 162, ¶ 14. The district court
abuses its discretion if it makes a legal error or if its decision is
manifestly arbitrary, unreasonable, or unfair.
Id.
¶ 16 If only legal questions are at issue, we review a district court’s
preliminary injunction ruling de novo.
Id. Contract interpretation
is a question of law that we review de novo, as is whether the
district court applied the correct legal standard. French v. Centura
2 The district court later stayed the proceeding pending appeal.
7
Health Corp., 2022 CO 20, ¶ 24; Freedom Colo. Info., Inc. v. El Paso
Cnty. Sheriff’s Dep’t,
196 P.3d 892, 897-98 (Colo. 2008).
¶ 17 Preliminary injunctive relief is appropriate only if the moving
party demonstrates (1) a reasonable probability of success on the
merits; (2) a danger of real, immediate, and irreparable injury that
may be prevented by injunctive relief; (3) the lack of a plain, speedy,
and adequate remedy at law; (4) that the preliminary injunction will
not disserve the public interest; (5) a balance of the equities in favor
of the injunction; and (6) that the injunction will preserve the status
quo pending a trial on the merits. Rathke,
648 P.2d at 653-54.
III. Analysis
¶ 18 Plaintiffs argue that the district court erred by concluding that
the 2023 IAA superseded the Noncompetition Agreements. They
contend that (1) the district court erroneously failed to consider
whether the Noncompetition Agreements were within the scope of
the 2023 IAA, and (2) a proper analysis would have indicated that
they were not. We agree that the district court erred by not
considering the respective scope of the agreements in light of the
language of the merger clause in the 2023 IAA and other relevant
evidence. We remand to the district court to consider that issue.
8
A. Forrest
¶ 19 The district court’s conclusion that the 2023 IAA superseded
Forrest’s Noncompetition Agreement is incorrect for the basic
reason that Forrest is not a party to the 2023 IAA. Cf. Bewley v.
Semler, 2018 CO 79, ¶ 16 (“Generally, only parties to a contract
may seek to enforce its terms.”). Thus, the district court erred by
concluding that the 2023 IAA was the controlling contract as to
Forrest. Because the district court’s ruling was premised primarily
on that erroneous conclusion, we reverse the ruling with respect to
Forrest and remand for further consideration of whether plaintiffs
are entitled to a preliminary injunction against Forrest.
B. Johnson
¶ 20 The question of whether the 2023 IAA superseded Johnson’s
Noncompetition Agreement turns on the effect of the merger clause
in the 2023 IAA. More specifically, was the Noncompetition
Agreement a superseded prior agreement under that provision?
1. Applicable Law
¶ 21 When interpreting a contract, our primary goal is to give effect
to the parties’ intent. French, ¶ 25. That task begins with the
language of the contract itself. Id. If the contract is unambiguous,
9
“we will deem it to express the parties’ intent and enforce it
according to its terms.” Id. If the contract is ambiguous — that is,
“susceptible of more than one reasonable interpretation” — we may
consider extrinsic evidence to determine the parties’ intent.
Id.
¶ 22 A merger clause is a provision in a contract indicating that “a
written contract is integrated, that all conditions, promises, or
representations are contained in the writing, and that the parties
are not to be bound except by the writing.” In re Estate of Gadash,
2017 COA 54, ¶ 43 (citation omitted); see also Restatement (Second)
of Contracts § 209(1) (Am. L. Inst. 1981) (“An integrated agreement
is a writing or writings constituting a final expression of one or
more terms of an agreement.”). Its basic function is “to limit future
contractual disputes to issues relating to the express provisions of
the contract.” Nelson v. Elway,
908 P.2d 102, 107 (Colo. 1995).
When an agreement is completely integrated, evidence of prior
agreements may not be used to contradict, vary, or supplement its
terms. Id.; Glover v. Innis,
252 P.3d 1204, 1209 (Colo. App. 2011).
¶ 23 But a completely integrated agreement discharges prior
agreements only to the extent they are within its scope.
Restatement (Second) of Contracts § 213(2); see also Core & Main,
10
LP v. McCabe, 62 F.4th 414, 419 (8th Cir. 2023). In other words,
the parties may “adopt[] a writing as a complete and exclusive
statement of the terms of the agreement” while leaving a separate,
unrelated agreement between the parties unaffected. Restatement
(Second) of Contracts § 213 cmt. c; see also Core & Main,
62 F.4th
at 420 (noting that a prior agreement is not superseded by a
subsequent integration if it is “not inconsistent” and “would
naturally be made as a separate agreement”) (citation omitted).
¶ 24 Thus, if a court finds that there is a completely integrated
agreement between the parties, it must then determine whether an
asserted prior agreement is within the scope of the integrated
agreement, based on “all relevant evidence” and interpretation of
both agreements. Restatement (Second) of Contracts § 213 cmt. c.
¶ 25 Defendants take issue with this legal principle, pointing out
that no Colorado case has applied this particular provision of the
Restatement. But while not binding, Colorado courts frequently
look to restatements as persuasive authority. See, e.g., Allstate Ins.
Co. v. Med. Lien Mgmt., Inc.,
2015 CO 32, ¶ 10; AE, Inc. v. Goodyear
Tire & Rubber Co.,
168 P.3d 507, 509 n.1 (Colo. 2007).
11
¶ 26 And though not directly on point, Colorado case law is
consistent with the Restatement rule. For example, in Gadash, the
court looked to the differing scope of the two agreements to
conclude that a provision in the later agreement was not a merger
clause and thus did not void the prior agreement. Gadash, ¶¶ 41-
47. In Nelson, the court concluded that a merger clause “plainly
and unambiguously manifest[ed] the intent of the parties” to
supersede prior agreements “pertaining to the subject matter
contained [in the later agreement].” Nelson, 908 P.2d at 107
(emphasis added); see also DeFranco v. Storage Tech. Corp.,
622
F.3d 1296, 1303 (10th Cir. 2010) (applying Colorado law and
concluding that a merger clause superseded prior guarantees
related to matters “expressly set forth” in the subsequent
agreement). These cases support the proposition that the scope of
the agreements is relevant to whether one supersedes the other.
¶ 27 Defendants also contend that section 213 does not apply
because it does not address merger clauses. But it does address a
“binding completely integrated agreement.” Restatement (Second)
of Contracts § 213(2). And a merger clause is simply one way of
indicating that a contract is completely integrated. See Gadash,
12
¶ 43. Whether through an express merger clause or the nature of
the contract itself, an integrated contract represents the final and
complete expression of the terms of that agreement. See Nelson,
908 P.2d at 107. That does not mean it necessarily extinguishes
unrelated agreements covering separate and distinct subject matter.
2. Scope of Agreements
¶ 28 In concluding that Johnson’s Noncompetition Agreement was
no longer in effect, the district court did not consider whether that
agreement was within the scope of the 2023 IAA. See Restatement
(Second) of Contracts § 213 cmt. c. Instead, it simply determined
that the 2023 IAA “clearly states it supersedes the 2021 contract,
which includes, in relevant portion, the noncompete clauses.” To
the extent the district court meant that the relevant noncompete
clause was included in the 2021 IAA, it was incorrect. To the extent
it meant that the merger clause in the 2023 IAA was unambiguous
in superseding the Noncompetition Agreement, we disagree.
¶ 29 As noted above, the merger clause provides that the 2023 IAA
“supersedes all prior agreements between [Johnson] and FBMS
related to [Johnson’s] engagement as an Investment Advisor by
FBMS or its affiliates.” At first blush, this language appears to
13
support the district court’s conclusion that the 2023 IAA supplants
the Noncompetition Agreement. After all, it says all prior
agreements. But for three reasons, we conclude that the language
of the merger clause does not alone resolve the question.
¶ 30 First, a review of the Noncompetition Agreement and the 2023
IAA as a whole leaves ambiguity as to whether the former is an
agreement “related to [Johnson’s] engagement as an Investment
Advisor” for purposes of the merger clause. See Restatement
(Second) of Contracts § 213 cmt. c (requiring interpretation of both
integrated agreement and prior agreement); Univ. of Denver. v. Doe,
2024 CO 27, ¶ 50 (“In determining whether a term is ambiguous,
we must look at the contract ‘as a whole.’”) (citation omitted); Core
& Main,
62 F.4th at 420 (concluding that a merger clause providing
that the agreement “superseded all prior or contemporaneous
agreements” was ambiguous as to the agreement at issue).
¶ 31 On one hand, Johnson was employed by FBMS as an
investment advisor, so giving that phrase its broadest
interpretation, any agreement Johnson signed as an employee could
be one “related to [his] engagement as an Investment Advisor.”
14
¶ 32 But on the other hand, read together, the agreements could
reasonably support a more limited interpretation of that phrase.
The 2023 IAA (like the 2021 IAA) is titled “Investment Advisor
Agreement,” refers to Johnson as “Advisor” or “Investment Advisor,”
and addresses aspects of Johnson’s employment specifically related
to that role. It would be reasonable to conclude that this is what
the 2023 IAA means by an agreement “related to [Johnson’s]
engagement as an Investment Advisor.” The Noncompetition
Agreement, in contrast, refers to Johnson only as “employee,” does
not refer to his role or title as an investment advisor, and does not
address any of the rights and responsibilities unique to that role.
¶ 33 Second, the two agreements address largely different subject
matter. See Core & Main, 62 F.4th at 420 (concluding that, by
limiting merger clause to agreements “pertaining to the subject
matter hereof,” the parties intended “to adopt the established legal
principle that a completely integrated agreement only discharges
prior agreements ‘to the extent that they are within its scope’”
(quoting Restatement (Second) of Contracts § 213(2))). The 2023
IAA addresses the substantive terms of Johnson’s employment —
including background checks, legal compliance, compensation,
15
indemnification, and termination — but not restrictions on
competition, solicitation of clients and employees, or disclosure.
See Perricone v. Perricone, 972 A.2d 666, 674 (Conn. 2009) (holding
that completely integrated agreement did not nullify restrictions in
prior agreement that it did not “mention[], cover[], or deal[] with”)
(citation omitted). The Noncompetition Agreement addresses only
those latter restrictions and not any other terms of employment.
¶ 34 Indeed, as noted above, Forrest was required to sign only a
Noncompetition Agreement. That is consistent with the view that
the Noncompetition Agreement was intended to cover general
obligations applicable to all FBMS employees, while the 2021 IAA,
and then the 2023 IAA, were limited to the rights and obligations
specifically related to Johnson’s role as an investment advisor.
¶ 35 The only overlap between the two agreements concerns
Johnson’s retention of customer data after termination of
employment. The 2023 IAA provides that Johnson may retain
certain customer files upon written notice of termination, provided
he certifies in writing that such retention complies with applicable
law, while the Noncompetition Agreement prohibits Johnson from
retaining any such files. It might be possible to read these two
16
provisions as consistent — with the 2023 IAA providing a limited
carve-out from the Noncompetition Agreement’s broad prohibition.
But to the extent they are inconsistent, the 2023 IAA provision
could supersede the inconsistent term without superseding the
entire Noncompetition Agreement. See Restatement (Second) of
Contracts § 213(1) (“A binding integrated agreement discharges
prior agreements to the extent that it is inconsistent with them.”).
¶ 36 Third, and perhaps most persuasively, the 2021 IAA — which
the parties executed contemporaneously with the Noncompetition
Agreement — contained a merger clause that was identical to the
one in the 2023 IAA. No one has suggested that the 2021 IAA
superseded the Noncompetition Agreement. And it would make no
sense if it did. Why would the parties agree to supersede an
agreement they entered into at the same time? Johnson offers no
basis for interpreting the same provision differently in the two IAAs,
particularly given the substantial similarity in the two agreements.
¶ 37 Indeed, taking this point one step further, the Noncompetition
Agreement also contained a merger clause that was even broader
than the one in the IAAs, stating that it “supersedes all prior oral or
written agreements[,] representations, negotiations, and
17
correspondence.” Johnson’s language-only argument could suggest
that the Noncompetition Agreement superseded the 2021 IAA — or it
could place the two agreements in a stalemate as to which
superseded the other. See EnCana Oil & Gas (USA), Inc. v. Miller,
2017 COA 112, ¶ 28 (“[A] contract should never be interpreted to
yield an absurd result.”) (citation omitted). It makes more sense
that the parties intended there to be both an IAA — first the 2021
IAA, then the 2023 IAA — and a Noncompetition Agreement.
¶ 38 We do not, however, go so far as to conclude that the
Noncompetition Agreement was not superseded. As noted above,
“one reasonable interpretation” of the merger clause is that the
2023 IAA supersedes all prior employment agreements. French,
¶ 25. And depending on how broadly the 2023 IAA is construed —
whether as addressing certain employment terms or all employment
terms — the Noncompetition Agreement could fall within its scope.
¶ 39 The problem is that the district court did not conduct the
second step of the analysis, looking only to the merger clause
without considering whether the Noncompetition Agreement was
within the scope of the 2023 IAA. See Restatement (Second) of
Contracts § 213 cmt. c. Because that determination could turn on
18
factual questions concerning the parties’ intent, we remand the
case to the district court to conduct that analysis in the first
instance “in accordance with all relevant evidence” and
interpretation of both agreements.3 Id.; see also Gagne v. Gagne,
2014 COA 127, ¶ 52 (“If a contract is ambiguous, the determination
of the parties’ intent is a question of fact.”); Core & Main,
62 F.4th
at 420-22 (remanding to determine whether employment agreement
and noncompetition agreement covered same subject matter where
it was ambiguous whether one was within the scope of the other).
C. Testimony about Purpose of 2021 IAA
¶ 40 Plaintiffs also argue that the district court abused its
discretion by excluding testimony from Buck about the purpose of
the 2021 IAA. In light of our conclusion above, we agree.
¶ 41 Extrinsic evidence is admissible to explain or clarify the
meaning of an ambiguous provision in a contract. E. Ridge of Fort
3 Plaintiffs argue that the district court erred by effectively treating
the 2023 IAA as a novation of the Noncompetition Agreement. They
did not raise this argument in the district court, so we do not
address it. See Gestner v. Gestner, 2024 COA 55, ¶ 18. But we
note that plaintiffs’ argument that there can be no novation because
the parties did not intend to extinguish the Noncompetition
Agreement merely begs the question of what the parties intended.
19
Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969, 974
(Colo. 2005). Moreover, in determining whether an agreement is
completely or only partially integrated, and whether a prior
agreement is within its scope, “wide latitude must be allowed for
inquiry into circumstances bearing on the intention of the
parties” — at least, as in this case, when the contract itself does not
unambiguously answer that question. Restatement (Second) of
Contracts § 210 cmt. b; see also id. § 214 cmt. a (“[W]hether the
agreement is completely or partially integrated [is a] question[]
determined by the court preliminary to determination of a question
of interpretation or to application of the parol evidence rule.”); id.
§ 213 cmt. b (requiring consideration of “all relevant evidence”).
¶ 42 Given the ambiguity in the language of the merger clause in
the 2023 IAA, Buck’s testimony as to the purpose of the 2021 IAA4
could have been relevant to (1) the interpretation of the phrase
“agreements . . . related to [Johnson’s] engagement as an
4 Plaintiffs’ counsel did not ask Buck about the purpose of the 2023
IAA, likely because the district court excluded testimony about the
2021 IAA. But because the two agreements contain identical
merger clauses and nearly identical terms, the purpose of the 2021
IAA could reasonably bear on the purpose of the 2023 IAA.
20
Investment Advisor” and (2) whether the Noncompetition Agreement
executed at the same time fell within that agreement’s scope. In
other words, Buck could have provided evidence relevant to whether
the parties intended the two agreements to coexist.
¶ 43 Thus, on remand, the district court may consider testimony
(from Buck or anyone else) concerning the purpose of the relevant
agreements to the extent it helps “explain or clarify” whether the
Noncompetition Agreement was within the intended scope of the
2023 IAA. E. Ridge of Fort Collins, LLC, 109 P.3d at 974.
D. Other Issues
¶ 44 Both parties ask us to go beyond the contract interpretation
issue we address above and rule in their favor on the ultimate issue
of plaintiffs’ entitlement to a preliminary injunction. Plaintiffs urge
us to direct entry of a preliminary injunction because, if the
Noncompetition Agreement survives, they have satisfied all six
Rathke criteria. See Rathke, 648 P.2d at 653-54. Defendants argue
that, even if the 2023 IAA did not supersede the Noncompetition
Agreement, the district court correctly denied the preliminary
injunction because (1) a separate document, the Protocol for Broker
Recruiting, permits the retention of information and solicitation of
21
clients; (2) plaintiffs did not satisfy the Rathke criteria; (3) the
Noncompetition Agreements are unenforceable;5 and (4) plaintiffs
are barred from seeking injunctive relief because they did not
comply with a rule of the Financial Industry Regulatory Authority.
¶ 45 We decline to address these issues. Although the district
court made cursory reference to the other Rathke criteria, its order
made clear that the ruling turned on the court’s determination that
plaintiffs did not show a reasonable probability of success on the
merits. And its determination of that issue turned on its conclusion
that the 2023 IAA superseded the Noncompetition Agreement.
¶ 46 In light of this ruling, the district court did not consider any of
the other issues the parties raise. Nor did it make factual findings
on the other Rathke criteria, with the exception of its statement that
it “could make relative findings regarding harm.” See Anderson,
¶ 24 (remanding for district court to make factual findings under
5 Covenants not to compete are generally unenforceable under
Colorado law, with limited exceptions. See § 8-2-113(2), C.R.S.
2021; Saturn Sys., Inc. v. Militare, 252 P.3d 516, 526 (Colo. App.
2011). The parties disagree about which state law should apply —
the Noncompetition Agreements say Hawaii law, while the 2023 IAA
says Colorado law — as well as whether the Noncompetition
Agreements satisfy Colorado’s statutory exceptions.
22
Rathke after reversing denial of preliminary injunction on legal
grounds). And depending on how the district court resolves the
issue concerning the scope of the agreements on remand, it may or
may not ever have to. Although we have discretion to affirm on any
ground supported by the record, “we are a court of review, not of
first view.” Doe v. Wellbridge Club Mgmt. LLC, 2022 COA 137, ¶ 31.
¶ 47 We therefore decline to address these other issues in the first
instance. The district court may address them on remand.
IV. Attorney Fees
¶ 48 Defendants request an award of appellate attorney fees and
costs under C.A.R. 38(b) on the ground that this appeal is frivolous.
Because we have ruled in plaintiffs’ favor, we deny this request.
V. Disposition
¶ 49 We reverse the order denying plaintiffs’ motion for preliminary
injunction. We remand the case for further consideration of
whether Johnson’s Noncompetition Agreement is within the scope
of the 2023 IAA such that it is superseded, and whether plaintiffs
are entitled to a preliminary injunction, in light of this opinion.
JUDGE FOX and JUDGE JOHNSON concur.
23
