Joseph U. Moore, Inc. v. Howard, 88-1440

• Decision Date: 16 December 1988
• Docket Number: No. 88-1440,88-1440
• Citation: 534 So.2d 935,13 Fla. L. Weekly 2743
• Parties: 1988-2 Trade Cases P 68,367, 4 IER Cases 46, 13 Fla. L. Weekly 2743 JOSEPH U. MOORE, INC., Appellant, v. John A. HOWARD, Appellee.
• Court: Florida District Court of Appeals

Page 935

534 So.2d 935

1988-2 Trade Cases P 68,367, 4 IER Cases 46,

13 Fla. L. Weekly 2743

JOSEPH U. MOORE, INC., Appellant, v.John A. HOWARD, Appellee.

No. 88-1440.

District Court of Appeal of Florida Second District.

Dec. 16, 1988.

Stanley H. Eleff and John E. Johnson of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, for appellant.

Michael R. Carey of Carey, Aylward & O'Malley, Tampa, for appellee.

FRANK, Acting Chief Judge.

AppellantJoseph U. Moore, Inc. is engaged in the insurance and surety bond business.John A. Howard was employed as a general insurance agent by Moore from April 1, 1981 through February 23, 1987.At the commencement of his employment Howard entered into an agreement containing a covenant forbidding him from soliciting or accepting any of Moore's customers, trade or insurance business, from interfering with Moore's contracts, or from referring Moore's business to another agency, for a period of five years following the termination of his employment with Moore.

After Howard dissolved his relationship with Moore, Moore filed a complaint seeking injunctive relief and damages allegedly arising from a breach of the covenant.The court held evidentiary hearings at which it became apparent that two separate classes of business customers were implicated by the covenant: those with whom Howard initially came into contact during his tenure with Moore and those with whom Howard had dealt prior to executing the employment contract.The court denied Moore's motion seeking a temporary injunction, and Moore appealed.

The trial court's basis for the denial of injunctive relief, as explained by the judge, was "equity and estoppel"--"it was promised when he came with the agency that these accounts he brought with him, this agreement wouldn't apply to them."We find that reason appropriate to deny the temporary injunction as to preexisting customers.The covenant, however, prohibits Howard from doing business with the "customers ... of Employer."These words are not defined in the agreement; if anything, at the time Howard entered into the agreement, his preexisting clients were not "customers ... of Employer" and should be excluded on that basis.Given the ambiguity, the trial court correctly admitted parol evidence to explain the words, and the overwhelming weight of the evidence showed that the parties intended to exclude the preexisting clients.

Prior to hiring Howard, however, Moore numbered among its customers Palm Harbor Excavation, a client that Howard could not classify as one of his within the meaning of "preexis...