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HARRY F. COOPER, JR. v. LAMAR GIDDEN

NOVEMBER 12, 1987

HARRY F. COOPER, JR.
v.
LAMAR GIDDEN, JR.



BEFORE HAWKINS, P.J., PRATHER AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

This case is before the Court on appeal from the Chancery Court of Lauderdale County, where on December 19, 1984, the lower court entered an order finding that Harry F. Cooper, Jr. (appellant) had breached a covenant not to compete which he had voluntarily made when he sold a sand and gravel business. Further, the lower court enjoined Cooper from proceeding with the business found to be in violation of the covenant. From this adverse decision, Cooper appeals alleging four (4) assignments of error. Finding no error, we affirm.

FACTS

 Blackwell Sand Company was a family owned and business, operating as a sole proprietorship/partnership, of long standing in Lauderdale County, which engaged in the mining and selling of gravel, dirt, top soil, unwashed and washed sand. It was the sole company in Lauderdale County that mined and washed its own sand, although several other businesses sold sand which was brought into the county from other places. The bulk of Blackwell Sand Company's business represented sales to repeat customers in the construction business.

 On August 19, 1976, appellant purchased Blackwell Sand Company from Leroy Blackwell along with the name "Blackwell Sand Company." On April 1, 1981, appellant sold

 "Blackwell Sand Company" to Larry Stewart. The agreement between appellant and Stewart was two-fold in nature: one, being a lease of certain real property; and two, being a sale of Blackwell Sand Company, including its property, name, and goodwill. Further, the agreement contained a covenant not to compete which provided that:

 COVENANT NOT TO COMPETE:

 Lessor expressly recognizes that Lessee is entering into this agreement for the express purpose of entering the sand business upon the property described herein and with the equipment being purchased hereby. Lessor acknowledges that Lessee is not trained in and does not have experience in the said business and that a substantial amount of the total considerations being paid is for the express purpose of having Lessor no longer engaged in the sand, fill dirt, top soil or other competing business, and being no competition to Lessee's future efforts. Accordingly, Lessor expressly covenants and agrees with Lessee that he will not enter into the sand business within one hundred (100) miles of Meridian, Mississippi for a period of ten (10) years from and after the date hereof. Lessor covenants that during said period and within said area he will not directly or indirectly be employed by, advise with, consult with or in any manner lend aid, advise or assistance to any other person, firm or corporation engaged in the sand business.

 Lessee agrees not to compete with Lessor and agrees not to enter into any business which relates to the sanitary landfill operation now conducted by Lessor and further agrees not to compete in any chemical waste disposal, hazardous waste disposal or any other type of waste disposal operation, Lessee further agrees that he will not compete with the Lessor in the operation of his drainage and metal culvert installation, maintenance and sale business.

 Lessor and Lessee recognize that this covenant is a vital and a very specific part of this agreement and that it may be enforced in equity

 or otherwise and should the provisions of this paragraph be enforced judicially or otherwise the periods of limitation prescribed herein shall be deemed to begin with the date any such judicial action becomes final.

 Cooper had such an agreement with Leroy Blackwell.

 On February 1, 1982, Larry Stewart assigned all of his interest in Blackwell Sand Company to appellee, Lamar Gidden, who had been his partner. Ensuingly, Cooper began making preparations to re-enter the sand and gravel business. Toward this end, Cooper purchased land near Blackwell Sand Company; sand washing equipment; and a listing in the telephone directory under the name "Cooper Sand and Gravel." Upon the discovery of such steps, Gidden, the assignee of Blackwell Sand Company from Stewart, filed a complaint for an injunction and attorney's fees in the Chancery Court of Lauderdale County.

 On December 12, 1984, a trial was conducted. The lower court found that appellant had entered into an agreement with Larry Stewart on April 1, 1981, whereby he sold Blackwell Sand Company and covenanted not to compete as shown above. Further, the lower court found that all rights, including the covenant not to compete, which appellant sold to Stewart could be validly and effectively assigned to Gidden. Upon this basis, the lower court determined that Cooper had breached the covenant and enjoined him from engaging in the sand, fill dirt, top soil and gravel business through April 1, 1991, within a one hundred (100) mile radius of Meridian, Mississippi. Cooper was ordered to pay Gidden's attorney's fees in the amount of $1,250.00 and all court costs. It is the above determination that Cooper appeals.

 I. DID THE LOWER COURT ERR IN FINDING THAT APPELLANT'S PERSONAL COVENANT NOT TO COMPETE WITH LARRY STEWART EXTENDED TO THE BENEFIT OF APPELLEE?

 II. DID THE LOWER COURT ERR WHEN IT REFUSED TO RECOGNIZE THAT APPELLANT'S PERSONAL COVENANT WITH LARRY STEWART TERMINATED IPSO FACTO WHEN ...


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