561 F2d 631 Florida Harvestore Inc v. A O Smith Harvestore Products Inc

561 F.2d 631

1977-2 Trade Cases 61,679

FLORIDA HARVESTORE, INC. (a corporation), on its own behalf
and on behalf of others similarly situated,
Plaintiffs-Appellees Cross-Appellants,
v.
A. O. SMITH HARVESTORE PRODUCTS INC. (a corporation),
Defendant-Appellant Cross-Appellee.

No. 76-1869.

United States Court of Appeals,
Fifth Circuit.

Oct. 17, 1977.

Dwight Sullivan, Miami, Fla., for defendant-appellant.

Rogers, Morris & Ziegler, J. Patrick, Dyal, Fort Lauderdale, Fla., Hogan & Hartson, E. Barrett Prettyman, Jr., Stuart Philip Ross, Washington, D.C., for plaintiffs-appellees.

Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD*, District Judge:

PER CURIAM:

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1

The district court awarded $105,000 damages to plaintiff on the territorial restrictions claim. That part of the judgment is vacated and the case remanded in light of Continental T. V., Inc. v. GTE Sylvania Inc., --- U.S. ----, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977).

2

On the misrepresentation claim the district court rendered judgment for defendant notwithstanding the jury's $20,000 plaintiff's verdict. We uphold the district court's decision. The most significant alleged misrepresentations cannot support a cause of action because the time at which they should reasonably have been discovered through the exercise of due diligence fell outside the limitations period. Any other misrepresentations could not have induced justifiable reliance.

3

AFFIRMED IN PART, VACATED and REMANDED IN PART.

*

Senior District Judge of the Western District of Pennsylvania, sitting by designation