Zimmermann v. Brennan
| Decision Date | 14 June 1977 |
| Docket Number | No. 75-326,75-326 |
| Citation | 78 Wis.2d 510,254 N.W.2d 719 |
| Parties | H. Russell ZIMMERMANN, Respondent, v. Joseph K. BRENNAN, Raymond Redell, and Ralph Jahnke, Appellants. |
| Court | Wisconsin Supreme Court |
Joseph K. Brennan and Brennan & Brennan, Milwaukee, for appellants.
David L. Walther, John Sundquist and Walther & Halling, Milwaukee, for respondent.
The plaintiff, H. Russell Zimmermann, is a commercial artist, who had been employed by the Advertising Art Studios until September of 1970. He subsequently commenced work with Barkin-Herman and Associates. As an employee of the Advertising Art Studios, he was a participant in the Advertising Art's profit sharing plan, and upon his termination of employment with Advertising Art, he claimed his undisputed vested share of the profit sharing trust in the amount of $8,776.67. The defendants in this action, Brennan, Redell, and Jahnke, trustees of the profit sharing trust, refused payment on the ground that Zimmermann's employment with Barkin-Herman resulted in a forfeiture of Zimmermann's rights under the profit sharing plan. Section 7 of the Advertising Art's profit sharing plan provided:
(Emphasis supplied.)
Zimmermann commenced an action to enforce the payment of the sum claimed due under the profit sharing plan. He alleged that the forfeiture clause invoked by the trustees of the trust was inapplicable because his employment with Barkin-Herman within one year did not constitute employment in a competitive business, and he further alleged that the forfeiture provision contained in the plan constituted an unreasonable restraint of trade under sec. 103.465, Stats.
The case was tried to the court, and the trial judge, after hearing evidence, found that Barkin-Herman was not a "competitive business" and, hence, the plaintiff's conduct did not trigger the forfeiture clause; and, in addition, he concluded as a matter of law that the forfeiture provision constituted an unreasonable restraint of trade. Judgment was entered for the plaintiff adjudging his entitlement to his vested share of the Advertising Art's profit sharing trust. Because we conclude that the trial judge's finding that Barkin-Herman was not a competitive business is not contrary to the great weight and clear preponderance of the evidence, we need not, in this case, consider the trial judge's arguably correct conclusion of law that the forfeiture provision was void as an unreasonable restraint of trade. We affirm.
Zimmermann asserts, correctly we conclude, that the trial court's finding that Barkin-Herman was not a competitive business with respect to Advertising Art must be sustained, because that finding is not contrary to the great weight and clear preponderance of the evidence. That test of the sufficiency of the evidence is correctly applied to the factual aspects of an action concerned with contracts in restraint of trade. Journal Co. v. Bundy, 254 Wis. 390, 396, 37 N.W.2d 89 (1949).
Cases from other jurisdictions also support the proposition that, where the issue raised is whether two employers are in competition, a question of fact is presented for the trial court.
Van Pelt v. Berefco, Inc., 60 Ill.App.2d 415, 208 N.E.2d 858 (1965), in a case involving the forfeiture of pension benefits where the employee engaged in the manufacture of "products similar" to those manufactured by the former employer, held that it was a question of fact whether the products were "similar" or "competitive."
In Hunter v. North American Biologicals, Inc., 287 So.2d 726 (1974), the Court of Appeals of Florida also concluded that the similarity of employment of the party's work in two companies was a question of fact to be resolved by the trial court.
It thus is clear that a fact question is presented, and if the crucial finding that Barkin-Herman was not a ...
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Manitowoc Co. v. Lanning
...of trade was a broader concept than a restraint of an employee; the question was never presented.¶ 105 In Zimmermann v. Brennan, 78 Wis. 2d 510, 254 N.W.2d 719 (1977), we examined whether a profit sharing plan provision was unenforceable under Wis. Stat. § 103.465 when it provided that Zimm......
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...requires; and (4) they are to be construed in favor of the employee. Streiff, 118 Wis. 2d at 610-11 (citing Zimmerman v. Brennan, 78 Wis. 2d 510, 514-15, 254 N.W.2d 719 (1977); Gary Van Zeeland Talent, 84 Wis. 2d at [9] ¶ 17. Greenbriar argues that the no-hire provision satisfies the first ......
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...at all has occurred, a provision fixing a substantial sum as damages is unenforceable." Id. at 160.5 See also Zimmermann v. Brennan, 78 Wis.2d 510, 514, 254 N.W.2d 719, 721 (1977) (forfeiture provision in profit sharing plan if employee engages in competitive business is an agreement in res......
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Nalco Chemical Co. v. Hydro Technologies, Inc., 92-C-0412.
...of the employee. Streiff v. American Family Insurance Co., 118 Wis.2d 602, 610-11, 348 N.W.2d 505 (1984); Zimmermann v. Brennan, 78 Wis.2d 510, 514-15, 254 N.W.2d 719 (1977); Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 218-19, 267 N.W.2d 242 What has emerged is a five-part test ......