Specialized Machinery Transport, Inc. v. Westphal, 5D03-1707.
| Decision Date | 07 May 2004 |
| Docket Number | No. 5D03-1707.,5D03-1707. |
| Citation | 872 So.2d 424 |
| Parties | SPECIALIZED MACHINERY TRANSPORT, INC., Appellant/Cross-Appellee, v. Henry H. WESTPHAL, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Rexford H. Stephens and Stacey L. Cole of Akerman Senterfitt, Orlando, for Appellant/Cross-Appellee.
Mark O. Cooper of O'Neill, Liebman & Cooper, P.A., Orlando, for Appellee/Cross-Appellant.
Specialized Machinery Transport, Inc., ("Specialized"), appeals a final summary judgment entered in favor of Henry H. Westphal who sought the final payment under a contract for the sale of his business to Specialized. We reverse.
Westphal sold certain assets of his trucking and specialized transport business to Specialized including all licenses, permits and authorities to operate the assets and business. The sale also included the goodwill of the business and Westphal's agreement not to compete directly or indirectly with Specialized for a period of three years. Payment was to be made in installments within a two-year period and when the last installment went unpaid, Westphal sued.
Among the assets that Specialized purchased was a license issued by the Interstate Commerce Commission, number MC-186433, known as an "authority." After the purchase, Specialized placed authority MC-186433 in an inactive status because it had another authority under which it could operate the trucking business purchased from Westphal. It is undisputed that Westphal had operated his trucking business only under this one authority.1 Specialized believed that it had purchased Westphal's trucking business in its entirety, including all names by which Westphal had previously conducted business, when it purchased authority MC-186433.
Westphal continued to work for Specialized after the sale for over a year, but then retired. Shortly after Westphal's departure, Specialized's business revenue decreased by sixty percent within four months. The reason became apparent when Specialized discovered a truck operated by Westphal's son bearing the name "H & D Westphal" was transporting freight for at least one of Specialized's former customers. The renewed competition resulted in the closing of Specialized's business.
Westphal testified at his deposition that the business he sold to Specialized was the trucking business he personally had been operating and that the sale included the unregistered fictitious name "H & D Industrial Equipment." He confirmed that authority MC-186433 had been issued to "H. D. Westphal, dba H & D Industrial Equipment Engineering & Rigging Co." Nevertheless, he denied that he breached his promise not to compete by "selling" the name "H & D Westphal" to his son. More revealing is the fact that Westphal admitted applying for a new authority which was denied and then reactivating MC-186433 instead. When asked why he reactivated it and what he was going to do with the authority, he responded "no special reason" and "nothing."
The trial court granted summary judgment to Westphal based upon Specialized's admission that it did not make the final installment payment and Westphal's self-serving affidavit that he did not engage in any conduct which constituted prohibited competition.
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