Bolen Intern., Inc. v. Medow

• Decision Date: 11 October 1966
• Docket Number: No. 66--89,66--89
• Citation: 191 So.2d 51
• Parties: BOLEN INTERNATIONAL, INC., an Illinois corporation, (formerly known as Terox Corporation of America), Appellant, v. Robert S. MEDOW, Appellee.
• Court: Florida District Court of Appeals

Page 51

191 So.2d 51

BOLEN INTERNATIONAL, INC., an Illinois corporation, (formerly known as Terox Corporation of America), Appellant, v. Robert S. MEDOW, Appellee.

No. 66--89.

District Court of Appeal of Florida, Third District.

Oct. 11, 1966.

Rehearing Denied Nov. 8, 1966.

Hoffman, Kemper & Johnson, Miami, Ely R. Katz and Michael H. Salmon, Miami Beach, for appellant.

Irwin S. Gars, Miami, for appellee.

Before PEARSON, CARROLL and BARKDULL, JJ.

PEARSON, Judge.

The final decree appealed states that it is entered upon motion for judgment on the pleadings. See Rule 1.11(c), Fla.R.Civ.P., 30 F.S.A. One of the determinative points is the propriety of such a decree upon the posture of the case at the time of its entry. The decree is as follows:

'THIS CAUSE having come on to be heard before me, upon the Defendant, ROBERT S. MEDOW'S Motion for Judgment upon the Pleadings; and this Court having examined the Complaint, the Non-Competition Agreement referred to therein, and the Answer and Affirmative Defense of the Defendant, and being otherwise fully advised in the premises, it is, thereupon:

'ORDERED, ADJUDGED AND DECREED, as follows:

'1. That the Defendant's Motion for Judgment on the pleadings be, and the same is hereby, granted. For that this Court does hereby rule that Puerto Rico is not 'within the area of the United States of America and the Dominion of Canada', as is set forth in the Non-Competition Agreement, and that, therefore, there are no restrictions whatsoever upon any activity of the Defendant in Puerto Rico.

'2. That the Court, by the signing of this Decree has not ruled on the validity or enforceability of the contract in question.

'3. That this Decree is rendered with costs and prejudice against the Plaintiff.'

The appellant sought a permanent injunction prohibiting the defendant from violating a non-competition agreement. The complaint alleged: The appellant was formerly known as Terox Corporation of America and has changed its name to Bolen International, Inc. The defendant had been a shareholder, director and an officer of Terox; but he sold said interest, terminated his relationship with Terox, and entered into a non-competition agreement. The defendant agreed that he would not compete with the plaintiff 'within the area of the United States of America and the Dominion of Canada.' The defendant has formed a new corporation known as Cororoc, with headquarters in the Commonwealth of Puerto Rico, for the manufacture of building material products similar to, or the same as, those described in the non-competition agreement.

In paragraph 7, the complaint states:

'Plaintiff alleges that the forming of such a company by the Defendant, and engaging in the manufacture, sale or distribution of products such as those described in the Non-Competition Agreement, even though it be confined to the Commonwealth of Puerto Rico is a violation of the terms and agreements set forth in said Non-Competition Agreement. Plaintiff also alleges that Defendant has, in addition, initiated plans and taken steps to sell the products of his said company within the continental limits of the United States of America, and that, in fact, the Defendant has already contacted and solicited the business of customers of Plaintiff within the continental limits of the United States, offering to them, or seeking orders from them, of the same types of products and materials manufactured by the Plaintiff and prohibited by the Non-Competition Agreement. Any such sales of such products by the Defendant would be a direct violation of the terms of the Non-Competition Agreement and would result in serious damage to the Plaintiff.'

The defendant's answer denied this allegation.

The plaintiff, appellant, urges three reasons for holding that the entry of the decree on the pleadings was improper. They are: (1) Puerto Rico, within the purview of the non-competition agreement, is 'within the area of the United States of America.'; (2) it is error to enter a decree upon the pleadings when only a portion of the case is disposed of by said...