Opinion
No. 75-116
Decided September 30, 1975. Rehearing denied October 30, 1975.
In injunction action relative to non-competition clause in employment agreement, temporary injunction was entered and then modified ex parte at defendants' request. Defendants appealed and plaintiffs cross-appealed.
Affirmed
1. APPEAL AND ERROR — Motion for New Trial — Filing — Ten Days — Mandatory — Failure to Comply — Appeal Dismissed. The procedural rule requiring that a motion for new trial shall be filed not later than ten days after entry of judgment or such further time as might be allowed by court is mandatory, and failure to comply therewith requires dismissal of the appeal.
2. INJUNION — Preliminary — Granting or Denial — Discretion of Court — Modification — Duty — Contribute to Justice. The granting or denial of a preliminary injunction, and likewise, the modification of such, is a matter of judicial discretion to be determined by the facts of each case; and modification of a preliminary injunction is the duty of the court where it will contribute to a more exact justice between the parties.
3. Preliminary — Modification Thereof — Relevant Facts — Not Abuse of Discretion. Although notice and hearing should have preceded the modification of preliminary injunction, the record shows that both sides had adequate opportunity to present their arguments at a hearing, and further, if plaintiffs are successful in their action, they have a remedy in damages for any injuries suffered because of the modification; hence, there was no abuse of discretion shown relative to the modification.
Appeal from the District Court of the County of Jefferson, Honorable Ronald J. Hardesty, Judge.
Holland Hart, Edwin S. Kahn, Wiley E. Mayne, Jr., Jane Michaels Talesnick, for plaintiffs-appellees and cross-appellants.
Ireland, Stapleton, Pryor Holmes, P.C., Hans von Mende, Richard C. Linquanti, for defendants-appellants and cross-appellees. Division I.
This is an appeal and cross-appeal from the denial of motions to dissolve and amend a modified temporary injunction which prohibited one of the defendants from further competing with plaintiffs during the pendency of a suit arising from the breach of a noncompetition clause in that defendant's employment agreement. We dismiss the appeal for failure to comply with C.R.C.P. 59(b). On the cross-appeal, we affirm.
This dispute arose in 1973 after plaintiffs-cross-appellants SCA Corporation acquired Alex Gerlach Son Disposal Company. They retained Alex Gerlach, defendant-appellant, president of the company, as a vice president of the reorganized SCA of Colorado. Simultaneously with the sale, Gerlach signed a three year employment agreement which contained a provision restricting competitive activities during the term of his employment and for two years following his termination. After failure of the parties to agree on a suitable job description, Gerlach was summarily discharged in July 1974. Within two months he commenced employment as a salesman with a competitor company. He visited SCA accounts and both parties stipulated that up to 32 accounts departed SCA for the firm Gerlach now represented.
On October 14, plaintiffs filed a complaint and a motion for a temporary restraining order which entered on October 17, 1974. Following notice and hearing, a preliminary injunction was entered October 22, 1974. Defendants subsequently filed a motion to modify the original preliminary injunction. The court revised the injunction on October 25, 1974, without notice to plaintiffs or a hearing on the proposed modification. On November 4, plaintiffs filed a motion to amend the revised preliminary injunction or in the alternative to grant a new trial. On November 5, eleven days after the modification, defendants moved to dissolve the injunction as amended. At a hearing on November 20, both sides presented arguments and the respective motions were denied.
[1] Under C.R.C.P. 59(f) when a motion to alter or amend a judgment is filed it shall, for appellate purposes, be considered as a motion for a new trial. The timely filing of a motion for a new trial is jurisdictional. C.R.C.P. 59(b) provides that a motion for a new trial shall be filed not later than 10 days after the entry of judgment, or such further time as may be allowed by the court. This provision is mandatory, and failure to comply with it requires a dismissal of the appeal. Austin v. College/University Insurance Co. of America, 30 Colo. App. 502, 495 P.2d 1162.
According to the requirements of C.R.C.P. 6(a) defendants' motion should have been filed by November 4, 1974, ten days after entry of the revised preliminary injunction. The motion for a new trial not having been filed by that date, the appeal must be dismissed.
[2] Cross-appellants assign as error the trial court's ex parte revision of the initial preliminary injunction. This court has ruled that the granting or denial of a preliminary injunction is a matter within the sound discretion of the trial court and the determination of the court will not be disturbed in the absence of an abuse of discretion. Wheeler v. School District, 500 P.2d 376 (Colo.App.) We have upheld the issuance of a preliminary injunction in cases of violation of noncompetition covenants. See Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87, Similarly, the modification of an injunction is a matter of judicial discretion to be determined by the facts of each particular case. See In re Certain Carriers Represented by Eastern, Western and Southeastern Carriers' Conference Committees, 241 F. Supp. 1004 (D.D.C.). Modification of a preliminary injunction is the duty of the court where it will contribute to a more exact justice between the parties. See Newton v. Laclede Steel Co., 80 F.2d 636 (7th Cir.).
[3] Here, the initial form of the preliminary injunction was prepared by plaintiffs' counsel. The court accepted defendants' modification finding that it would better preserve the status quo. The function of a preliminary injunction is to prevent immediate and irreparable injury by preserving the status quo until the case can be considered in its entirety. Graham v. Hoyl, 157 Colo. 338, 402 P.2d 604. While notice and hearing should have preceded the modification, the record indicates that both sides had adequate opportunity to present their arguments at the hearing on November 20. Thus we find no abuse of discretion in allowing the modification to stand. Furthermore, as the court noted, plaintiffs-cross-appellants, in the event they are successful in this action, have a remedy in damages for any injuries they suffered due to the modification.
Judgment affirmed.
JUDGE ENOCH and JUDGE BERMAN concur.