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IN THE COURT OF APPEALSSTATE OF ARIZONADIVISION ONETHREE PHOENIX COMPANY, ))Plaintiff-Appellant, ))vs. ))PACE INDUSTRIES, INC., ))Defendant-Appellee. )No. 1 CA-CIV 4773MARICOPA CountySuperior CourtNo. C-374993APPELLEE'S ANSWERING BRIEF
BRIAN K. STANLEY201 East CamelbackSuite APhoenix, Arizona 85012
 Attorney for Appellee
Decision: 135 Ariz. 113, 659 P.2d 1258 (1983)
 
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIESSTATEMENT 
OF 
FACTS.............................
ISSUES PRESENTED................ARGUMENT..........................
I. THE RESTRICTIVE COVENANTS UPON WHICHPLAINTIFF RELIES ARE PART OF A PATENTLY ILLEGALSCHEME TO EFFECT A HORIZONTAL MARKET DIVISION 6A.
 
Plaintiff's Own Affidavits Show That TheAgreements And Covenants Here Sued UponAre Part Of A Single Plan To Divide TheBusiness Of Wabash Computer CorporationInto Discrete Product Lines Upon Wabash'sWithdrawal From The Computer PeripheralsBusiness And To Allocate These Lines
Between
Plaintiff And Defendant On AMutually Exclusive Basis 6B.
 
The Plan Revealed By Plaintiff'sAffidavits Clearly Amounts To A Scheme ToEffect A Horizontal Division Of TheComputer Disc Testing Equipment Market AndThus Constitutes A Per Se Violation OfApplicable Antitrust Laws 10C.
 
The Rule That The Enforceability Of AnAnti-Competitive
Covenant
Ancillary To TheSale Of A Business Is Dependent Upon ItsReasonableness Is Not Apposite To TheFacts Of This Case 19Pageiv
13
6
 
iiPageII. EVEN DISREGARDING THE PER SE RULEBANNING HORIZONTAL MARKET DIVISIONS,THE TRIAL COURT
WAS
CORRECT INHOLDING THE PROMISE OF DEFENDANTNOT TO COMPETE WITH PLAINTIFFCONTAINED IN PARAGRAPH 10 OF THEWABASH-PACE AGREEMENT UNENFORCEABLEON THE GROUND OF ILLEGALITY 26A. Even Regarding The Restrictive CovenantContained in Paragraph 10 Of TheWabash-Pace Agreement In Isolation FromThe Over-All Horizontal Market-DivisionScheme, Paragraph 10 Is Not ReasonablyAnd Necessarily Related To The MainPurpose Of The Wabash-Pace TransactionAnd Is Therefore An IllegalRestraintOf Trade 26B. Paragraph 10 Is Invalid As ARestrictive Covenant Since ItIs Silent As To Any LimitationOf Time And Space 32III. THE TRIAL COURT DID NOT ERR INHOLDING THAT PLAINTIFF CANNOT ENFORCETHE PROMISE OF DEFENDANT TO WABASHCONTAINED
IN 
PARAGRAPH 9 OF THEWABASH-PACE AGREEMENT AS THE ASSIGNEEOF THE BENEFIT OF THAT PROMISE 38A. The Verified Complaint UponWhich Plaintiff Elected ToStand Clearly Stakes Plaintiff'sClaim For Relief Upon The WrittenWabash-Pace Agreement Of October11, 1973, And Would Not SupportProof Of An Earlier Oral AgreementContaining Similar RestrictiveCovenants 38
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