Fleming

John Fleming (Fleming) brought a contract and tort action against Ray-Suzuki, Inc., et al. (collectively Ray-Suzuki) based on Ray-Suzuki’s violation of a covenant not to compete “in the United States.” Judgment was entered on a jury verdict in favor of Fleming for restitution based on rescission, compensatory damages of $158,680, and punitive damages of $5,000. Fleming appealed from the trial court’s denial of his request for $32,000 in attorney’s fees, and Ray-Suzuki cross-appealed from the judgment, contending the jury instruction on covenants not to compete was erroneous, the parties’ covenant not to compete was invalid, Fleming failed to state a cause of action for rescission, and there was no substantial evidence of fraud. We affirm the judgment.

Background to the Litigation

Ray-Suzuki, Inc. was a corporation which consisted of two divisions, Ray’s Tennis Shop, a retail tennis shop on University Avenue in Hillcrest, and RAYCO, a world-wide mail order tennis business. Ray-Suzuki kept the shop and sold RAYCO to Fleming for $75,000 in cash and a $25,000 installment note. The bill of sale describes the assigned property as: “All rights and name of a certain mail order…