Premier Industrial Corp. v. Texas Industrial Fastener Co., No. 71-1093.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, COLEMAN and SIMPSON, Circuit
Citation450 F.2d 444
PartiesPREMIER INDUSTRIAL CORPORATION, Plaintiff-Appellee, v. TEXAS INDUSTRIAL FASTENER COMPANY, Defendant-Appellant, Ed Roos, Intervenor-Appellant.
Decision Date04 November 1971
Docket NumberNo. 71-1093.

450 F.2d 444 (1971)

PREMIER INDUSTRIAL CORPORATION, Plaintiff-Appellee,
v.
TEXAS INDUSTRIAL FASTENER COMPANY, Defendant-Appellant, Ed Roos, Intervenor-Appellant.

No. 71-1093.

United States Court of Appeals, Fifth Circuit.

November 4, 1971.


450 F.2d 445

Jack R. Bailey, Houston, Tex., for defendant-appellant and intervenor-appellant.

William E. Wright, Robert W. B. Dickerson, Houston, Tex., for appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Premier Industrial Corporation, an Ohio corporation, (Premier), brought this action against Texas Industrial Fastener Company (TIFCO), a Texas corporation, and Ed Roos, seeking specific performance and other relief under an employment contract between Premier and Roos and a Settlement Agreement executed by the corporate parties in January and February of 1969. The lower court granted the requested relief. Error in its judgment is not demonstrated. Hence we affirm, with a slight modification.

Premier and TIFCO are business competitors engaged in commerce in Nebraska and other states. They engage in sales distribution of the same and similar products, i. e., industrial fasteners and automotive parts. During the several years prior to this action, TIFCO had hired several sales agents of Premier whose contracts of employment with Premier contained covenants not to compete. These covenants each provided that ex-employees would not associate in any way with any business in competition with Premier for a period of two years after termination of their employment contracts with Premier within the geographical sales area defined in the contracts.

TIFCO's proselyting of Premier's sales agents became the subject of several lawsuits brought by Premier to enjoin the employment by TIFCO of Premier's sales agents under anti-competition covenants. Finally, in January of 1969, the corporate parties to this suit entered into the aforementioned Settlement Agreement. In consideration of Premier's agreement to dismiss with prejudice a damage suit pending against TIFCO in the Harris County, Texas District Court for tortious interference with the contractual relationships of Premier with its sales agents, TIFCO agreed, inter alia, to no longer hire, employ or utilize in any manner any employee or exemployee of Premier in a manner so as to violate valid1 anti-competition covenants in his employment contract or to cause, induce, or procure any employee of Premier to violate said covenants.

The present action was precipitated by the hiring of one Ed Roos, a Premier employee, by TIFCO in January 1969.2 Roos had been a sales agent of Premier in Douglas County, Nebraska. The covenants not to compete in Roos' employment contract with Premier were limited to two years and to Douglas County. Roos continued to work in Douglas County after being employed by TIFCO, selling TIFCO's line of products. Premier formally terminated Roos' employment in March 1969, and instituted this

450 F.2d 446
action against TIFCO in October 1969.3 At trial, TIFCO relied on two arguments to avoid liability under the Settlement Agreement: (1) that it had hired Roos prior to the execution of the Settlement Agreement, and that thus the hiring of Roos was not covered by the agreement; and (2) that at the time it hired Roos TIFCO was unaware of any restrictive covenants in Roos' contract with Premier. Roos had signed a statement declaring that he was not subject to any covenants against competition in his contract with Premier. TIFCO essentially argued that this misrepresentation by Roos excused it from any liability for violation of the Settlement Agreement. Roos defended on the basis of the invalidity and unenforceability of the covenants, and intervened in the action, asking for injunctive relief

The trial court held that it had jurisdiction of the case, and as to TIFCO:

1. that the Settlement Agreement was valid and enforceable;

2. that TIFCO willfully breached the agreement; and as to Roos:

1. that Premier's contract with Roos was executed without fraud, accident or mistake, was supported by consideration and mutuality, and that the terms of the contract were not vague or ambiguous;

2. that Premier had a valid economic interest to protect;

3. that the provisions of the covenants were reasonable, did not violate public policy or constitute an illegal restraint of trade; and

4. that Roos directly violated his contract with Premier.

In its final judgment, the trial court (1) enjoined TIFCO until January 1, 1972 from utilizing Roos' services in such a manner as to violate his anti-competition covenants with Premier; (2) ordered TIFCO to specifically perform the Settlement Agreement; (3) enjoined Roos until January 1, 1972 from violating his covenants with Premier; and (4) awarded Premier attorney's fees as provided in the agreement. TIFCO and Ed Roos both appealed.

On appeal, the appellants initially contend that the $10,000 jurisdictional amount required in diversity cases (Title 28, U.S.C., Section 1332) was not proven below.

The court below found that:

"Though sums in controversy in both the main action and the intervention were not clearly delineated as being in excess of $10,000 the Court finds that notwithstanding, the Court has jurisdiction."

Appellants claim that this finding does not meet the requirements of Title 28, U.S.C., Section 1332. We...

To continue reading

Request your trial
59 practice notes
  • Graham v. Henegar, No. 79-2177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Marzo 1981
    ...U.S. 56, 93 S.Ct. 451, 34 L.Ed.2d 266, modified, 472 F.2d 1039 (2d Cir. 1972); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444, 447 (5th Cir. 1971); Batts Restaurant, Inc. v. Commercial Ins. Co. of Newark, 406 F.2d 118, 120 (7th Cir. 1969); Cupples Co. Mfrs. v. Farme......
  • Braniff Intern., Inc. v. Florida Public Service Commission, No. 76-3791
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 Julio 1978
    ...Cir. 1976); Jackson v. American Bar Association, 538 F.2d 829, 831 (9th Cir. 1976); cf. Premier Indus. Corp. v. Texas Indus. Fastener Co., 450 F.2d 444, 446 (5th Cir. 1971) (same standard applied in context of diversity action to enforce settlement In the final analysis it may be that this ......
  • Luna v. Kemira Specialty, Inc., Case No. CV 08-04908 MMM (JCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 11 Septiembre 2008
    ...Id. (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 510 (6th Cir.1992); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444, 446-47 (5th Cir. 1971); Robert Half Int'l, Inc. v. Van Steenis, 784 F.Supp. 1263, Page 1173 (E.D.Mich.1991); Basicomputer, 791 F.Supp. at 1286;......
  • Dunning v. Tallman, No. S-90-1144
    • United States
    • Supreme Court of Nebraska
    • 13 Agosto 1993
    ...Weld. Alloys Sales Co., Inc. v. Rodriguez, 480 F.2d 223 (1st Cir.1973); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444 (5th Cir.1971); Cherne Indus., Inc. v. Grounds & Associates, 278 N.W.2d 81 (Minn.1979); MedX, Inc. v. Ranger, 788 F.Supp. 288 In Kasparek v. May, 1......
  • Request a trial to view additional results
59 cases
  • Graham v. Henegar, No. 79-2177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Marzo 1981
    ...U.S. 56, 93 S.Ct. 451, 34 L.Ed.2d 266, modified, 472 F.2d 1039 (2d Cir. 1972); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444, 447 (5th Cir. 1971); Batts Restaurant, Inc. v. Commercial Ins. Co. of Newark, 406 F.2d 118, 120 (7th Cir. 1969); Cupples Co. Mfrs. v. Farme......
  • Braniff Intern., Inc. v. Florida Public Service Commission, No. 76-3791
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 Julio 1978
    ...Cir. 1976); Jackson v. American Bar Association, 538 F.2d 829, 831 (9th Cir. 1976); cf. Premier Indus. Corp. v. Texas Indus. Fastener Co., 450 F.2d 444, 446 (5th Cir. 1971) (same standard applied in context of diversity action to enforce settlement In the final analysis it may be that this ......
  • Luna v. Kemira Specialty, Inc., Case No. CV 08-04908 MMM (JCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 11 Septiembre 2008
    ...Id. (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 510 (6th Cir.1992); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444, 446-47 (5th Cir. 1971); Robert Half Int'l, Inc. v. Van Steenis, 784 F.Supp. 1263, Page 1173 (E.D.Mich.1991); Basicomputer, 791 F.Supp. at 1286;......
  • Dunning v. Tallman, No. S-90-1144
    • United States
    • Supreme Court of Nebraska
    • 13 Agosto 1993
    ...Weld. Alloys Sales Co., Inc. v. Rodriguez, 480 F.2d 223 (1st Cir.1973); Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444 (5th Cir.1971); Cherne Indus., Inc. v. Grounds & Associates, 278 N.W.2d 81 (Minn.1979); MedX, Inc. v. Ranger, 788 F.Supp. 288 In Kasparek v. May, 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT