Opinion
No. 18,651.
Decided August 22, 1960.
From an order granting a temporary injunction in an action against former employees for violation of contract of employment, the defendants bring error.
Affirmed.
1. MASTER AND SERVANT — Contract — Covenant not to Compete — Violation — Injunction. In an action to restrain former employees of a school of music from violating provision of contract of employment not to compete with employer upon termination of employment; proof that defendants were not only competing in violation of their contract, but had confiscated the employer's school in toto, including instruments and music, justified the granting of a temporary injunction.
2. INJUNCTION — Temporary Injunction — Merits of Controversy. A hearing on a motion for a temporary injunction merely determines that there is need to prevent further damage, and is not determinative of the merits of the controversy.
Error to the District Court of the City and County of Denver, Hon. H. Joe Rawlinson, Jr., Judge.
Mr. ROBERT D. INMAN, for plaintiffs in error.
Mr. ANTHONY F. ZARLENGO, Mr. H. D. REED, for defendants in error.
An order granting plaintiffs' motion for a preliminary injunction is the subject of this writ of error.
The plaintiffs in error, defendants below, were employed by Joe Stancato as instructors, enrollers and managers of the Denver-Boulder branch of the Stancato School of Accordion. The contracts of employment contained a covenant by the employees that they would not compete with their employer for a period of five years after terminating their employment. Defendants urge there was insufficient evidence to support the trial court's action is issuing the injunction.
On February 14, 1958, the defendants submitted their resignations to Stancato, in which they claimed that he had failed to pay them their proper commissions on sales or had given them incorrect federal income tax wage reports for the year 1957. The defendants continued instructing the same students in the same manner and in the same location, using more than 200 instruments owned by Stancato. The name of the studio was changed to Carleno Studio, but there appears to be some question as to how well this fact was made known to the public. The defendants used the same telephone number, and the building directory reflected the Stancato suite to be where these defendants were operating.
Thus on the showing for temporary injunction it appeared defendants were not only competing in violation of their contracts, but had, in fact, confiscated their employer's school in toto, complete with instruments and music.
The testimony, taken over a period of several days, brought out many facts pertinent to trial on the merits. However, the issues presented by the pleadings were not before the court.
The testimony is sharply disputed on several points, but there is clear and convincing evidence to support the order for temporary injunction. Because the hearing for temporary injunction merely determined that there was a need to prevent further damage to the plaintiff's business, the findings made by the court are not determinative of the merits of the case. Spickerman, et al. v. Sproul, et al., 138 Colo. 13, 328 P.2d 87.
The judgment granting a temporary injunction is affirmed and the cause remanded for trial upon the issues presented by the pleadings.
MR. JUSTICE HALL and MR. JUSTICE DOYLE concur.