Diazteca v. Palenque

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE DIAZTECA COMPANY, Plaintiff/Appellee, v. PALENQUE FOODS INTERNATIONAL LLC, Defendant/Appellant. No. 1 CA-CV 17-0156 FILED 5-3-2018 Appeal from the Superior Court in Pima County No. C20163070 The Honorable Leslie Miller, Judge AFFIRMED COUNSEL Rusing, Lopez & Lizardi, PLLC, Tucson By Mark D. Lammers, Patricia V. Waterkotte Counsel for Plaintiff/Appellee Burris & MacOmber, PLLC, Tucson By D. Rob Burris, Karl E. MacOmber, Jennifer Maldonado Counsel for Defendant/Appellant DIAZTECA v. PALENQUE Decision of the Court MEMORANDUM DECISION Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined. J O H N S E N, Judge: ¶1 Palenque Foods International, LLC appeals the superior court's grant of a preliminary injunction against it in favor of Diazteca Company. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Palenque and Diazteca are businesses that import and distribute fresh food. On July 1, 2016, Diazteca filed a complaint and petition seeking a preliminary injunction and other relief against Palenque and three former Diazteca employees, Manuel Higuera Aguirre ("Higuera"), Jose Echeagaray Armenta ("Echeagaray"), and Ada Suheid Peraza Rubio ("Rubio") (collectively "the Employees"). Diazteca alleged in its verified complaint that the Employees had violated non-compete agreements in working for Palenque. According to Diazteca, Higuera, while still working at Diazteca, co-founded Palenque to take advantage of his access to Diazteca's confidential business information and successfully recruited Echeagaray, then employed by Diazteca, to work at Palenque. According to the complaint, around the time Higuera left Diazteca in June 2016, he and Echeagaray successfully recruited Rubio, also a Diazteca employee, to join Palenque. The Employees then allegedly used Diazteca's confidential information and contacts to solicit Diazteca's customers and suppliers for Palenque. ¶3 On August 18, 2016, before any of the defendants appeared in the case, the superior court issued an ex parte temporary restraining order against Palenque and the Employees and set a preliminary injunction hearing for August 30. ¶4 Palenque appeared through counsel at the preliminary injunction hearing. At the outset, Palenque's counsel stated that he'd "only been in this case a couple of days," but when the court suggested a continuance, he declined, saying his client was ready to go forward. The hearing proceeded, and Diazteca called its vice president and marketing 2 DIAZTECA v. PALENQUE Decision of the Court director to testify and offered several exhibits, including employment agreements signed by each of the Employees. Palenque presented no witnesses or evidence. After the close of evidence, Palenque argued that (1) Diazteca was not the proper plaintiff because the Employees had worked not for Diazteca but for a related Mexican company; (2) the court was an improper forum under the doctrine of forum non conveniens because the Employees lived and worked in Mexico; (3) the employment agreements were unenforceable because ...

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