RENDERED: MAY 17, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0931-MR

LAMKIN WEALTH MANAGEMENT, 

LLC AND LOUISVILLE WEALTH 

MANAGEMENT, LLC APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 19-CI-000458

BRUCE LINDSAY; GREGORY W. 

SMITH; AND JONATHAN UPTON APPELLEES 

OPINION

REVERSING AND

REMANDING

**   **  **

BEFORE: COMBS, EASTON, AND TAYLOR, JUDGES.

COMBS, JUDGE: In this appeal, Lamkin Wealth Management, LLC, and 

Louisville Wealth Management, LLC, both financial services firms, appeal orders 

of the Jefferson Circuit Court granting summary judgment to Bruce Lindsay, 

Jonathan Upton, and Gregory Smith -- brokers and investment advisers formerly 
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associated with Lamkin Wealth Management, LLC. After our review, we reverse 

and remand for further proceedings. 

Lamkin Wealth Management, LLC (Lamkin Wealth), was organized 

by Mark Lamkin (not a party to these proceedings), who is its sole member. Its 

associates provide a variety of financial services and investment advice to clients 

from its Louisville office. The associates leverage the company brand to promote 

their services and the business organization to hire support staff, pay overhead, and 

enter into contracts. Lamkin Wealth is not a brokerage firm and is not registered 

with Kentucky’s Department of Financial Institutions nor with the Securities and 

Exchange Commission. Louisville Wealth Management, LLC, is a wholly owned 

subsidiary of Lamkin Wealth. It is a registered Kentucky insurance agency. 

In order to buy and sell securities as a broker, an individual is required 

to be registered with a brokerage firm. Separately, he can provide financial 

advising services as an investment adviser representative (IAR) of a registered 

investment adviser (RIA). To conduct his business, Lamkin signed a registered 

representative agreement with LPL Financial, LLC (LPL Financial), in 2001. He 

could buy and sell securities and provide investment advice to clients. 

LPL Financial is one of the largest independent broker-dealers and 

RIAs in the wealth management business. Among other services, it provides a 

trading platform and accounting support to independent financial advisers and 
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brokers across the country. LPL Financial assigns IARs a “branch” identification 

number to indicate the firm or entity with which the adviser works. It also assigns 

a “rep code” to individual advisers working with the branch. LPL Financial is the 

custodian of individual client accounts. It collects fees and commissions 

associated with stock trades, keeps a percentage, and pays out the remaining 

compensation to registered representatives. It can provide its stock trading 

platform and other services to numerous financial advisors and firms in the same 

geographical area, all of whom can compete directly for business. 

For many years before February 2015, Bruce Lindsay worked as the 

sole proprietor of his own financial services company. Lindsay registered with 

LPL Financial in 1988. 

In February 2015, Lindsay entered into an asset purchase agreement 

with Lamkin Wealth. In exchange for the sum of $513,000.00, Lamkin Wealth 

acquired the assets of Lindsay’s business, which included client lists, client files, 

and good-will (Lindsay’s “book of business”). The parties agreed to work together 

to “effect the smooth transition of the control and operation of Seller’s Business 

from Seller to Buyer.” To that end, Lindsay agreed to work as an independent 

contractor providing full-time wealth management and financial advisory services 

to clients of Lamkin Wealth, including those clients that Lindsay brought with him 

to Lamkin Wealth. This is not an unusual arrangement. 
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Lindsay retained his own, separate LPL Financial branch number. 

Commissions earned on client accounts were divided by LPL Financial between 

Lindsay and Mark Lamkin based upon their individual “rep codes.” As a matter of 

course, LPL Financial continued to be the custodian of all client accounts. 

The asset purchase agreement provided that Lindsay would not 

“directly or indirectly solicit or divert any business, activity or service related to 

[Lamkin Wealth’s] business” from anyone who is or was an actual, potential, or 

prospective customer or client of Lamkin Wealth. This restriction on Lindsay’s 

solicitation of clients took effect at closing and continued for the longer of either a 

five-year period or, if Lindsay were to become disengaged from Lamkin Wealth, a 

three-year period. The agreement did not require that transactions and accounting 

be conducted through LPL Financial or that any associate of Lamkin Wealth would 

remain registered with LPL Financial. The agreement provided a specific method 

of calculating liquidated damages upon the breach of its provisions. 

Gregory Smith had worked in the financial services industry for many 

years when he began working for Lamkin Wealth as an independent contractor in 

2010. He, too, registered with LPL Financial as a broker and an IAR and was 

assigned a “rep code” by LPL Financial. His “rep code” was assigned to client 

accounts for which he was paid a portion of the commissions he shared with Mark 

Lamkin under a common branch code. 
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In June 2015, Smith executed an agreement providing, in part, that 

while he rendered services to Lamkin Wealth and for a period of twenty-four (24) 

months thereafter, he would not “directly, or indirectly, on [his] own behalf or by 

aiding any other individual or entity, call for, solicit, nor if requested by a 

Client(s), accept the business of any of [Lamkin Wealth’s clients] with whom 

[Smith] had personal contact and did business within the twelve (12) month period 

immediately prior to the end of [Smith’s] services . . . .” Smith specifically 

acknowledged in the agreement that “all clients managed by [Smith] through 

[Lamkin Wealth] within twelve (12) months preceding a termination of [Smith’s] 

services are clients of [Lamkin Wealth].” 

Jonathan Upton began working for Lamkin Wealth as an employee in 

2007 and registered as a broker with LPL Financial at that time. He did not have 

client accounts directly associated with his own “rep code.” Instead, he worked on 

accounts that were associated with Lamkin’s “rep code.” He was paid a base 

salary and a percentage of revenue generated under Mark Lamkin’s “rep code.” 

In August 2014, Upton signed an agreement providing, in part, that 

while he rendered services to Lamkin Wealth and for a period of twenty-four (24) 

months thereafter, he would not “directly, or indirectly, on [his] own behalf or by 

aiding any other individual or entity, call for, solicit, nor if requested by a 

Client(s), accept the business of any of [Lamkin Wealth’s] with whom [he] had 
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personal contact and did business within the twelve (12) month period immediately 

prior to the end of [Upton’s] services . . . .” Upton specifically acknowledged in 

the agreement that “all clients managed by [Upton] through [Lamkin Wealth] 

within twelve (12) months preceding a termination of [Upton’s] services are clients 

of [Lamkin Wealth].” 

Two other individuals were also associated with Lamkin Wealth: Neil 

Watkins and Douglas Obradovich. Neil Watkins was registered with LPL 

Financial as a broker and IAR. Obradovich was registered as a broker with LPL 

Financial. 

 In the autumn of 2018, LPL Financial discharged Mark Lamkin. 

According to documentation maintained by the Financial Industry Regulatory 

Authority (FINRA), a non-governmental securities firm regulator, LPL Financial 

discharged Lamkin because it believed that Lamkin received or benefitted from 

loans made by LPL Financial’s account holders, failed to disclose business 

activities with LPL Financial’s account holders, and solicited investors to 

participate in private investments without obtaining LPL Financial’s approval. 

Once Mark Lamkin was discharged by LPL Financial, he could no longer provide 

investment advice or initiate trades on behalf of clients. He was forbidden to have 

contact with clients regarding their brokerage accounts either directly or indirectly 

through Lamkin Wealth. LPL Financial removed Mark Lamkin from all client 
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accounts in its custody. Mark Lamkin’s client accounts were transferred to the 

“rep code” of Neil Watkins. 

LPL Financial discharged Neil Watkins at the end of November 2018. 

It did so based on its belief that Watkins facilitated the distribution of advisory fees 

to an unregistered person -- Mark Lamkin. LPL Financial alleged that Douglas 

Obradovich facilitated the distribution of commissions to an unregistered person 

(Mark Lamkin). In response to that allegation, Obradovich resigned his 

registration with LPL Financial at the end of November 2018. 

On December 5, 2018, Lindsay, Smith, and Upton simultaneously 

ended their individual associations with Lamkin Wealth. Lindsay and Smith 

continued their registration with LPL Financial uninterrupted, and Smith applied 

for his own branch code. Upton continued his registration with LPL Financial as a 

broker and also applied for his own branch code. Upton registered as an IAR with 

LPL Financial within a week. Each of the men continued to provide services to 

clients as before. 

On December 7, 2018, Mark Lamkin registered with Calton & 

Associates, Inc., a dealer-broker and RIA competing directly with LPL Financial. 

In February 2019, Lindsay, Smith, and Upton opened Centris Wealth 

Management in Middletown, Kentucky. They provided wealth management 
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services to many of the same clients with whom they had worked with at Lamkin 

Wealth. 

On January 23, 2019, Lamkin Wealth filed its complaint against 

Lindsay. It alleged, in part, that Lindsay breached the terms of the asset purchase 

agreement “by leaving [Lamkin Wealth’s] office . . . and taking clients and client 

business belonging to [Lamkin Wealth] with him . . . .” Before filing his answer, 

Lindsay filed a motion to dismiss. The motion was denied by an Order entered on

June 18, 2019. 

On July 31, 2019, Lamkin Wealth tendered its first amended 

complaint. Louisville Wealth Management, LLC, was included as a party plaintiff,

and Jonathan Upton and Gregory Smith were named as additional defendants. The 

amended complaint alleged that both Upton and Smith violated provisions of the 

parties’ non-solicitation agreements by failing to pay the agreed sums necessary to 

be released from the terms of their individual agreements. The amended complaint 

alleged that each of the defendants had breached their duty of good faith and fair 

dealing by unlawfully orchestrating and coordinating their simultaneous departure 

from Lamkin Wealth “so as to cause [Lamkin Wealth] to be unable to react or plan 

accordingly and so as to argue that [Lamkin Wealth] was legally unable to provide 

services to its clients.” It also alleged that the defendants interfered with Lamkin 

Wealth’s actual or perspective economic advantage, misappropriated trade secrets,
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and engaged in a civil conspiracy. Finally, it alleged that Smith converted 

unearned commissions. 

Each of the defendants answered the complaint and asserted 

counterclaims. Lamkin Wealth replied, and discovery ensued.

In April 2020, Lindsay, Smith, and Upton filed a motion for partial 

summary judgment. They contended that they were entitled to judgment as a 

matter of law, in part, because there was no reasonable basis upon which to enforce 

the restrictive covenants. They argued that undisputed facts showed that Lamkin 

Wealth had no legitimate business interest in the clients that it claims they had 

“stolen” when they left Lamkin Wealth in early-December 2018. They explained 

that at the time they resigned their positions, there were no other registered brokers 

or IARs working with Lamkin Wealth who could have provided wealth 

management services to its clients. 

Lamkin Wealth filed a memorandum and argued that a partial 

summary judgment in favor of Lindsay, Smith, and Upton was improper; it also 

filed its own motion for summary judgment. Following a hearing, the court denied 

the motion of Lamkin Wealth but granted the motion for partial summary 

judgment filed by Lindsay, Smith, and Upton. 

In its Order of August 18, 2021, the circuit court concluded as 

follows: 
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At the time the Defendants left [Lamkin Wealth], 

the company was unable to provide any investment 

advice. No one at [Lamkin Wealth] could have worked 

for the clients by conducting securities trades for those 

clients. Since [Lamkin Wealth] was not affiliated with a 

broker dealer, there was no way to create and house 

accounts on behalf of [Lamkin Wealth]. Given that 

[Lamkin Wealth] had no legitimate business interest to 

protect at the time the Defendants left, the covenant not 

to compete would be unreasonable. [Lamkin Wealth] 

could have asked the clients to return after a new broker

dealer had been obtained. 

While [Lamkin Wealth] was an independent 

business solely owned by Mark Lamkin, it never had any 

clients and was not offering securities through [LPL 

Financial]. Given that Mark Lamkin was fired for 

securities violations from [LPL Financial], there were no 

legitimate business interests remaining and, therefore, the 

noncompete agreement was not reasonable and shall not 

be enforced. 

(Footnote omitted.) 

Lamkin Wealth filed a motion to alter, amend, or vacate the partial 

summary judgment. With respect to the summary judgment in favor of Lindsay, 

Smith, and Upton premised on the ground that Lamkin Wealth had no legitimate 

business interest to protect, Lamkin Wealth argued that it was at best premature in 

light of the evidence. It observed that a factfinder could not evaluate the interests 

of the business as it existed only after Lindsay, Smith, and Upton left Lamkin 

Wealth and had taken with them the book of business because until that critical 

moment, its business was being correctly transacted by its associates -- Lindsay, 
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Smith, and Upton. It argued that Mark Lamkin’s migration to another brokerdealer meant that Lamkin Wealth’s business interests would have continued 

uninterrupted if its clients had not been harvested by the former associates. 

 Lamkin Wealth cited our unpublished opinion in Mountain 

Comprehensive Health Corp. v. Gibson, No. 2013-CA-000373-MR, 2015 WL

1194508 (Ky. App. Mar. 13, 2015), in which we held that a genuine issue of 

material fact existed as to whether a clinic had a legitimate business interest to 

protect and whether it could enforce a covenant restricting a physician assistant’s 

subsequent employment where it was unclear whether the physician’s assistant 

could have continued to provide support to a different physician at the clinic. 

Through its order entered on January 13, 2022, the Jefferson Circuit Court denied 

Lamkin Wealth’s motion. 

Subsequently, Lindsay, Smith, and Upton filed a second motion for 

partial summary judgment. They argued that they were entitled to summary 

judgment with respect to Lamkin Wealth’s claims that they breached their duty of 

good faith and fair dealing, engaged in a civil conspiracy, and interfered with 

Lamkin Wealth’s actual or prospective economic advantage. The circuit court 

granted the motion and denied the subsequent motion to alter, amend, or vacate its

Order. 
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On July 31, 2023, the court’s Order of final resolution was entered. 

The Order recited that separate Orders of partial dismissal had resolved most of the 

claims asserted in Lamkin Wealth’s amended complaint as well as the related 

counterclaims. The remaining claims and any remaining counterclaims were 

dismissed as settled by the parties, and the court declared its Order final and 

appealable with no just cause for delay. This appeal followed.

On appeal, Lamkin Wealth argues that the trial court erred by granting 

the motions for partial summary judgment and dismissing its claims for breach of 

contract, civil conspiracy, and interference with an actual or prospective economic 

advantage. To recapitulate, the trial court determined that Lamkin Wealth had 

neither clients nor legitimate business interests to protect and that, therefore, the 

agreements binding Lindsay, Smith, and Upton were unenforceable. Lamkin 

Wealth’s challenge to that determination is at the center of the appeal. 

Summary judgment is properly granted where “the pleadings, 

depositions, answers to interrogatories, stipulations, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of 

law.” CR

1 56.03. Because summary judgment involves only questions of law and 

not the resolution of disputed material facts, we may not defer to the trial court’s 

1 Kentucky Rules of Civil Procedure.
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decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 

1992). Instead, we review the decision de novo. Cumberland Valley Contractors,

Inc. v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007).

Lamkin Wealth argues that the plain language of the parties’ 

agreements, the sworn affidavit of Mark Lamkin, and the deposition testimony of 

Lindsay, Smith, and Upton all indicate that Lamkin Wealth had a legitimate, 

ongoing, and viable multi-million-dollar business up until the moment the 

associates absconded with its clients. It contends that this evidence established its 

legitimate business interest in enforcing the restrictive covenants and necessarily 

precluded summary judgment in favor of Lindsay, Smith, and Upton. It contends 

that it is not prevented by public policy from enforcing the restrictive covenants 

contained in the parties’ separate agreements.

At the outset of our analysis, we note that Kentucky favors the 

enforcement of restrictive covenants. In Lareau v. O’Nan, 355 S.W.2d 679, 681 

(Ky. 1962), the Court in Laueau held that “[t]here is no basic public policy against 

such covenants, particularly when they involve professional services. In fact, the 

policy of this state is to enforce them unless very serious inequities would result.” 

(citation omitted).

In Mountain Comprehensive Health Corp. v. Gibson, supra, we 

reviewed a restrictive covenant that prevented an OB/GYN’s physician’s assistant 
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from supporting the clinic’s former employee-physician at another location for one 

year following her last date of employment. The trial court concluded that the 

restrictive covenant was void for public policy reasons. The trial court’s holding

was based upon its determination that the covenant served no legitimate business 

purpose. 

In addressing the reasoning of the trial court, we began our analysis 

by noting that an agreement in restraint of trade is reasonable if the restriction is 

aimed at providing fair protection to the interests of the covenantee and is not so 

burdensome as to interfere with the public interests or impose undue hardship on 

the party restricted. The restricted party, Gibson, was a physician’s assistant 

working under the supervision of Dr. Baker, an OB/GYN practicing at Mountain 

Comprehensive’s Whitesburg clinic. Dr. Baker announced that he was leaving, 

and Gibson left Mountain Comprehensive’s clinic to work under his supervision at 

a nearby facility. We determined that a genuine issue of material fact existed as to 

whether the restrictive covenant was unenforceable because it allegedly served no 

legitimate business purpose. The issue of material fact was whether Gibson could 

have worked as a primary care physician’s assistant to a general practice physician 

at Mountain Compehensive’s clinic or whether a different OB/GYN might have 

been available to supervise her at the clinic. These issues of material fact were 

deemed relevant to any determination concerning Mountain Comprehensive’s 
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continued legitimate business interest in enforcing the restrictive covenant against 

Gibson. We reversed the summary judgment because we recognized the existence 

of that material fact as precluding its entry. 

Turning to the evidence presented in the case now before us, we note 

the following sequence of events. During the pre-trial litigation, Lindsay admitted 

that at the time he left Lamkin Wealth for Centris Wealth Management, he retained 

possession of the client lists, client files, and goodwill that he developed 

throughout his career and that these accounts were in much the same state as they

were when he sold them to Lamkin Wealth. He admitted that after he left Lamkin 

Wealth, he began to keep the entirety of his “rep code” commissions that had 

previously been subject to division with Mark Lamkin. With respect to the 

company, Lindsay explained that “until the three of us left and there were no 

longer any licensed people there, it was my assumption at that time that it [Lamkin 

Wealth] existed in whatever damaged form.” 

In his deposition, Upton explained that he left Lamkin Wealth 

“because I was fearful, that potentially, regulators could come in and shut the 

office down . . . that [LPL Financial] could come in and -- and either shut the 

branch down or -- or have other reason to let more individuals go if they continued 

to work in [Lamkin Wealth’s] office.” However, he did not indicate that the 

company was incapable of conducting its business at any time before he left. In 
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fact, his statements indicate that the company continued its business much as 

before. 

Finally, Smith admitted that after Mark Lamkin was discharged from 

LPL Financial, he (Smith) continued to receive commissions directly from LPL 

Financial with respect to the client accounts that Smith continued to service just as 

before. With reference to this time-frame, Smith explained that “all of us were 

trying very hard to keep everything together.” Smith met with Mark Lamkin “with 

intentions of [Lamkin’s] proceeding or getting licensed with a broker-dealer that 

was affiliated with Advisors Excel.” When asked about sharing commissions after 

the switch to a new broker-dealer, Smith testified, “Once we get into a new brokerdealer. At that time, we were all hoping and thinking that we were going to stay 

together as a team and land a reputable broker-dealer and continue to operate 

together.” Smith was asked the follow-up question: “[a]nd then you all would 

transition all the customer accounts to that platform, whoever the new brokerdealer would be?” Smith replied, “That’s correct.” 

With respect to whether Lamkin Wealth had a legitimate business 

interest in enforcing its restrictive covenants, it appears that indeed it did -- at least 

until the moment that Lindsay, Smith, and Upton discontinued their association 

with it and took the clients who had worked with them at Lamkin Wealth. 
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Lindsay, Smith, and Upton freely executed the non-solicitation 

agreements. The covenants were not overly broad, and the associates had a clear 

understanding of what conduct was prohibited. As noted above, Kentucky strongly 

favors enforcement of such covenants -- especially where they involve the 

provision of professional services. Enforcement of the agreements does not appear 

to violate public policy. Moreover, the decision to leave the company 

simultaneously, thereby leaving it potentially to founder, cannot legitimately serve 

to immunize them from an exposure to legal action to enforce the restrictions. 

 We are persuaded that the circuit court erred by concluding -- as a 

matter of law -- that Lamkin Wealth could not enforce its restrictive covenants. 

Consequently, it also erred by concluding that the remaining claims of Lamkin 

Wealth (including breach of the duty of good faith and fair dealing, civil 

conspiracy, and interference with Lamkin Wealth’s actual or prospective economic 

advantage) were null as well. 

Consequently, the Orders of the Jefferson Circuit Court granting 

summary judgment of the Appellees are reversed, and this case is remanded for 

further proceedings. 

ALL CONCUR.
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BRIEFS FOR APPELLANTS:

John D. Cox

Petersen S. Thomas

Louisville, Kentucky

BRIEF FOR APPELLEES:

Scott P. Zoppoth 

Louisville, Kentucky