BAW Mfg. Co. v. Slaks Fifth Ave., Ltd., 76-2638
| Decision Date | 28 February 1977 |
| Docket Number | No. 76-2638,76-2638 |
| Citation | 547 F.2d 928 |
| Parties | BAW MANUFACTURING COMPANY, Plaintiff-Appellee, v. SLAKS FIFTH AVENUE, LTD., Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
David R. Rosado, El Paso, Tex., Marvin S. Robinson, Michael J. Klosk, New York City, for defendant-appellant.
Larry H. Schwartz, David R. McClure, El Paso, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, GEE and TJOFLAT, Circuit Judges.
Pursuant to an agreement between the parties, BAW Manufacturing Company, plaintiff-appellee, assembled garments for Slaks Fifth Avenue, defendant-appellant, from piecegoods supplied by Slaks. After about a year of this arrangement, Slaks stopped paying the BAW invoices as they came due. BAW sued Slaks on a sworn account in a Texas state court to recover $40,458.18 for assembly work performed but not paid for. Slaks removed the action to federal district court on the basis of diversity of citizenship. Slaks asserted as affirmative defenses against BAW and as counterclaims against BAW and additional third-party defendants Ratner Corporation and Sheldon Weisberg the following: (1) breach by counterclaim defendants of an agreement not to compete with Slaks or solicit its customers, which agreement was a condition precedent to Slaks' assembly agreement with BAW; (2) tortious interference by counterclaim defendants with Slaks' business relationships with its customers; (3) conversion by BAW of approximately $10,500 worth of Slaks' goods admittedly in BAW's possession and not returned; and (4) defective manufacture of garments by BAW.
The district court granted plaintiff BAW's motion for summary judgment, awarding BAW $40,458.18 plus interest, together with attorneys' fees in the amount of thirty-three and one-third percent of the principal and interest owed on the date of judgment. All of defendant Slaks' counterclaims against BAW were denied.
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, the district court must view the evidence in the light most favorable to the party resisting the motion. E. g., United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); United States Steel Corp. v. Darby, 516 F.2d 961 (5 Cir. 1975). The appellate court reviewing the district court's action on a motion for summary judgment employs the same standards. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); United States Steel Corp. v. Darby, supra. Applying these standards we find that on all issues except one there was no genuine issue of material fact and that BAW was entitled to summary judgment as a matter of law.
As the primary basis for its affirmative defenses and counterclaims Slaks Fifth Avenue alleged that the garment-assembly arrangement with BAW was an integral part of a tripartite agreement among Slaks, BAW, and Shelly Slacks. This multiparty agreement was negotiated by Myles Weiss, president and co-owner of Slaks Fifth Avenue, and Sheldon Weisberg, president and principal owner of BAW and also president of Shelly Slacks, a division of Ratner Clothes Corporation. Slaks contends that as a pre-condition to entering the assembly contract with BAW it sought and obtained an agreement that Shelly Slacks, a competitor of Slaks Fifth Avenue, would not interfere with Slaks' business relationships nor solicit Slaks' customers. In defense of BAW's suit to recover payment for assembly work admittedly done and as counterclaim, Slaks argues that this noncompetition agreement has been breached by Shelly Slacks' solicitation of Slaks Fifth Avenue's customers.
Although Sheldon Weisberg the principal who purportedly negotiated the agreement on behalf of both BAW and Shelly and who has allegedly solicited Slaks' customers was named in the counterclaim as a defendant, he was never served and made a party to the action. Neither was Shelly Slacks nor its parent, Ratner Clothes Corporation, ever brought into the suit. 1
During the course of pretrial discovery, plaintiff BAW filed with the court and served on defendant Slaks Requests for Admissions pursuant to Fed.R.Civ.P. 36(a). Defendant Slaks made no response whatever to the request. Three months after the Requests for Admissions were served, the court granted BAW's motion to have the requested facts deemed admitted. Among the facts deemed admitted were (1) that a letter sent by BAW to Slaks had contained all the terms of the assembly agreement between them and (2) that BAW Manufacturing Co. is an entity separate and independent from Shelly Slacks. The letter mentioned in the admissions had set forth the mechanics of the garment-assembly agreement between BAW and Slaks including prices, schedules, and quality standards, but it made no reference to Shelly Slacks or to any noncompetition agreement.
BAW subsequently filed its Motion for Summary Judgment, relying on the facts established by the deemed admissions. After Slaks had answered and briefed its opposition to BAW's motion, the court granted summary judgment for BAW and against Slaks. After entry of this judgment, Slaks for the first time requested that the deemed admissions be withdrawn; the court properly refused the untimely request.
On appeal Slaks argues that the court erred in giving controlling effect to the admissions and in holding that the parol evidence rule barred Slaks from proving or relying on any terms extrinsic to the assembly agreement letter. Slaks urges various contract and tort rules to support its contention that it should be permitted to establish the formation and breach of the noncompetition agreement as a defense and counterclaim against BAW.
We need not grapple with the complexities of the parol evidence rule to affirm the summary judgment below. The...
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