ROBERT LEE FLICKENGER AND JOHN KARRAS, APPELLANTS,
v.
R.J. FITZGERALD & COMPANY, INC., APPELLEE
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Appellants challenge a temporary injunction enforcing restrictive covenants in their employment agreement with a commodities brokerage firm. The court affirms the injunction but reduces the three-year non-compete period to two years as presumptively unreasonable under Florida law, and remands for an evidentiary hearing on the injunction bond amount.
The court affirmed enforcement of the employment agreement but reduced the restraint period from three years to two years because longer periods are presumptively unreasonable under Florida Statutes § 542.335(1)(d), and reversed and remanded for an evidentiary hearing on the appropriate injunction bond amount.
[1] A restrictive covenant in an employment agreement is presumptively unreasonable in duration if it exceeds two years, absent evidence rebutting the presumption.
[2] A court errs by entering an injunction with a duration exceeding two years when no evidence in the record supports the longer restriction.
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Join FLexlaw to unlock all legal intelligence“a court ... shall presume unreasonable in time any restraint more than 2 years in duration”
Florida statutory presumption governing the reasonableness of non-compete covenant duration
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Join FLexlaw to unlock all legal intelligenceFlickenger and Karras were employees of Fitzgerald & Co., a commodities brokerage firm. As a condition of employment, they executed agreements contain…
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PARKER, Chief Judge.
Robert Lee Flickenger and John Karras (appellants) seek review of the trial court’s interlocutory order granting R.J. Fitzgerald & Co., Inc.’s (Fitzgerald) motion for temporary injunction. Of the three issues raised by the appellants, we conclude that only two have merit. Accordingly, we direct the trial court to amend the temporary injunction to reduce the period of restraint to two years and to conduct a hearing to establish the appropriate amount of the injunction bond.
This dispute arises from an employment agreement the appellants executed as employees of Fitzgerald, a commodities brokerage firm. As a condition precedent to employment, each appellant executed an agreement containing restrictive covenants precluding disclosure of confidential information, solicitation of Fitzgerald’s clients and employees, and competition with Fitzgerald for three years following a period of active employment. Sometime after the appellants left Fitzgerald’s employ, Fitzgerald filed an action against them seeking injunctive relief and damages for breach of the employment agreement. Without hearing arguments regarding the amount of the bond, the court subsequently granted a temporary injunction enforcing the restrictive covenants in the employment agreement and ordered Fitzgerald to post a $10,000 bond. The appellants filed an interlocutory appeal arguing that the trial court erred in awarding the temporary injunction and setting the injunction bond without a hearing.
We conclude that the evidence is sufficient to affirm the enforcement of the employment agreement, except for the three-year restrictive covenant. Under section 542.335(l)(d)l, Florida Statutes (1997), “a court ... shall presume unreasonable in time any restraint more than 2 years in duration.” Where there is no evidence in the record to rebut this presumption, an injunction entered in excess of two years is error. See Balasco v. Gulf Auto Holding, Inc., 707 So. 2d 858, 860 (Fla. 2d DCA 1998). Because Fitzgerald has not pointed to any evidence in the record to support a three-year time restriction, the three-year time restraint is presumptively unreasonable. See id. Therefore, we direct the trial court on remand to amend the temporary injunction to reduce the period of restraint to two years.
As to the injunction bond, the appellants argue correctly that the trial court erred in setting the amount of the injunction bond without an evidentiary hearing. Because damages recoverable for a wrongfully obtained injunction are limited to the amount of the injunction bond, both parties are entitled to present evidence as to the appropriate amount of the bond. See Longshore Lakes Joint Venture v. Mundy, 616 So. 2d 1047, 1047-48 (Fla. 2d DCA 1993). We reverse and remand for an evidentiary hearing because the trial court entered the bond amount without affording the appellants the opportunity to present evidence.
The order granting the temporary injunction is affirmed. We partially reverse this case and direct the trial court to reduce the period of restraint to two years. Further, the trial court is directed to conduct an evidentiary hearing and thereafter to set an appropriate bond.
PATTERSON and NORTHCUTT, JJ„ Concur.
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NET First Nat'l Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003)…vided with the opportunity to present evidence regarding the appropriate amount of the injunction bond.” Offshore Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So. 2d 510, 511 (Fla. 4th DCA 2001) (citing Flickenger v. R.J. Fitzgerald & Co., 732 So. 2d 33, 35 (Fla. 2d DCA 1999); Bellach v. Huggs of Naples, Inc., 704 So. 2d 679, 680 (Fla. 2d DCA 1997)). Offshore Marine is factually similar to the instant case, in that the trial court concluded a hearing on injunctive relief without ruling, then later…
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Advantage Digit. Sys., Inc. v. Digit. Imaging Servs., Inc., 870 So. 2d 111 (Fla. 2d DCA 2003)…od, section 542.335(l)(d)l contains a presumption that a restraint in excess of two years is unreasonable. Where no evidence rebuts this presumption, it is error to enter an injunction in excess of two years. See Flickenger v. R.J. Fitzgerald & Co., 732 So. 2d 33, 34 (Fla. 2d DCA 1999). We reverse the injunction against Geenen and Foust and remand with directions to the circuit court that it may enjoin them only from soliciting Digital’s existing customers. If the court enters a new injunction, it must also…
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Morgan v. Herff Jones, Inc., 883 So. 2d 309 (Fla. 2d DCA 2004)…unt of the foreseeable damages for a wrongful injunction. Lotenfoe v. [*314] Pahk, 747 So. 2d 422, 425 (Fla. 2d DCA 1999). See also Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So. 2d 1018, 1021 (Fla.1989); Flickenger v. R.J. Fitzgerald & Co., 732 So. 2d 33, 35 (Fla. 2d DCA 1999). Upon remand, Morgan’s damages for the wrongful injunction are not limited by the erroneously set bond. See Lotenfoe, 747 So. 2d at 426. Affirmed in part, reversed in part, and remanded for further proceedings. CASANUEVA and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Longshore Lakes Joint Venture v. Mundy, 616 So. 2d 1047 (Fla. 2d DCA 1993)
- Balasco v. Gulf Auto Holding, Inc., 707 So. 2d 858 (Fla. 2d DCA 1998)