Opinion
No. 4D99-4063.
Opinion filed May 31, 2000.
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 99-8671CACE12.
Keith T. Grumer, and Maidenly Sotuyo-Macaluso of Grumer Levin, P.A., Fort Lauderdale, for appellant.
Venol C. Adams of V. Cyprian Adams, P.A., withdrawn as counsel after filing brief, Lauderhill, for appellees.
We reverse the November 5, 1999 order denying appellant's request for injunctive relief. The face of the order indicates that the trial court applied the incorrect law. This case concerns the enforcement of a covenant not to compete entered into in 1997. The trial court found that the covenant was "void as a matter of law pursuant to § 542.33[,] Contracts in restraint of trade valid, Florida Statutes." Effective July 1, 1996, section 542.33 was repealed. Section 542.335, Florida Statutes (1999), became effective on July 1, 1996; section 542.335(3) provides that the act applies prospectively, but not "in actions determining the enforceability of restrictive covenants entered into before July 1, 1996." The cases cited in the order suggest that the basis of the court's ruling was that appellee, Noel Lawson was not an employee or agent, but an independent contractor. See Servpro Indus., Inc. v. Spohn, 638 So.2d 1001 (Fla. 4th DCA 1994); Lenox v. Sound Entertainment, Inc., 470 So.2d 77 (Fla. 2d DCA 1985). These cases predate section 542.335(1)(d)1. which addresses the reasonableness of a time restraint in a restrictive covenant sought to be enforced against a "former employee, agent, or independent contractor."
Reversed and remanded for further proceedings consistent with this opinion.
GROSS and HAZOURI, JJ., concur.
FARMER, J., dissents with opinion.
The noncompetition agreement in suit was made sometime in February 1997 in connection with the sale of a piece of equipment to a company with which the Lawsons were associated, so it could do subcontracting work for Tri-County. The agreement does not specify that it is necessary to protect trade secrets, or the like. Instead it expressly states that it is necessary to "protect and assure Tricounty's principals of his [Neal Lawson's] commitment and the security of their investment."
Tri-County expressly sought the injunction under the repealed statute. Its motion states that it is entitled to relief "pursuant to Section 542.33, Fla.Stat. (1997). . . ." It did not seek the injunction under the new statute now in effect. To reverse for consideration of an injunction under the new statute is an act of lawyering on behalf of Tri-County by this court to cure the failure of its trial lawyer to argue the correct law to the court.
§ 542.33 Fla. Stat. (1999).
§ 542.335, Fla. Stat. (1999).
In any case, no matter which statute was relied on by Tri-County, the trial judge would have properly denied the motion. Under the old statute, Tri-County is clearly not entitled to an injunction on any theory because the contract of sale of equipment is not one of the qualifying factors for this exemption from the antitrust laws. The relationship giving rise to the noncompetition provision was a sale of equipment, not a sale of the shares of corporation or the goodwill of a business.
Under the new statute, one seeking its protection must plead and prove the justification for the exemption. See § 542.335(1)(c), Fla. Stat. (1999). In its renewed motion for the injunction, Tri-County merely says that the noncompetition agreement and its enforcement "are reasonably necessary to protect [its] legitimate business interests." There is a presumption that any period of noncompetition under an agreement not justified by protecting trade secrets and for a duration longer than 2 years is unreasonable. See § 542.335(1)(d)1, Fla. Stat. (1999). We are now well past two years, so an injunction is presumptively improper.
I therefore dissent from the decision to reverse.