Frankiewicz v. National Comp Associates

STOREY, Justice. Richard Frankiewicz sued National Comp Associates to recover renewal commissions which accrued after termination of his agency relationship. Defendant claims the commissions are not recoverable because plaintiff, after termination of the agency relationship, commenced to sell insurance for other companies in violation of his employment agreement. Plaintiff concedes that he violated the agreement in this respect, but contends that this provision is invalid as an unreasonable restraint of trade. We cannot agree, and affirm. This case is controlled by Bobbitt v. National Comp Associates, 597 S.W.2d 28 (Tex.Civ.App.—Dallas 1980, no writ). In that case, we held that an employment agreement exactly as in this case, with one exception, was not in restraint of trade, because “neither the agreement, nor any court proceeding for the agreement’s enforcement, sought to prevent Bobbitt’s competition with his former employer.” 597 S.W.2d at 30. Plaintiff attempts to distinguish Bobbitt on two grounds: (1) the Bobbitt agreement limited its restriction against selling insurance for other companies to “the same sales area,” while the instant agreement contains no such limitation, and (2) in Bobbitt the employee violated two other provisions of the agreement as well. These distinguishing facts are not material because neither appears from the Bobbitt opinion to have been the ground of the decision. The holding is based rather on the express ground that the agreement did not restrain competition, but established a lawful contractual condition to the employee’s right to receive commissions on renewals made after termination of his employment. We make the same holding here without determining whether the restriction would be reasonable or unreasonable if an injunction restraining competition were sought. Affirmed.