Sarasota Beverage Co. v. Johnson

• Decision Date: 02 August 1989
• Docket Number: No. 88-01265,88-01265
• Citation: 14 Fla. L. Weekly 416,551 So.2d 503
• Parties: 1989-2 Trade Cases P 68,700, 14 Fla. L. Weekly 416 SARASOTA BEVERAGE COMPANY, Appellant, v. Donald JOHNSON and Robert Blaikie & Sons, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 503

551 So.2d 503

1989-2 Trade Cases P 68,700, 14 Fla. L. Weekly 416

SARASOTA BEVERAGE COMPANY, Appellant, v. Donald JOHNSON and Robert Blaikie & Sons, Inc., Appellees.

No. 88-01265.

District Court of Appeal of Florida Second District.

Aug. 2, 1989.

Rehearing Denied Oct. 25, 1989.

Keith J. Hesse of Foley & Lardner, Van Den Berg, Gay, Burke, Wilson & Arkin, Orlando, for appellant.

Carl J. Robie, III, Sarasota, for appellee Donald Johnson.

ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

PARKER, Judge.

A majority of the judges of this court grants appellant's motion for rehearing en banc filed pursuant to Florida Rule of Appellate Procedure 9.331(c), withdraws the prior opinion in this case which was filed on February 10, 1989, and concurs in the following opinion.

Sarasota Beverage Company, a wholesale beer distributor in Sarasota and Manatee Counties, employed Donald Johnson as a route deliveryman for a period of five and one-half months from August 1987 until January 15, 1988. When Johnson began his employment with appellant, he executed a noncompetition agreement that contained the following pertinent provisions:

2. During the term of your employment by us and during the one and one-half year period following termination of your employment with us, you shall not, in any county specified in paragraph 3 below, directly or indirectly own, manage, operate, join, control, or participate in or be connected with as an officer, employee, partner, stockholder, consultant, or otherwise, any business, individual, partnership, firm, or corporation which is at the time engaged in a business which acts as a wholesale distributor or dealer of beer, ale, near beer, wine, or other alcoholic beverages, or which is otherwise directly or indirectly, at the time, in competition with the business of the SARASOTA BEVERAGE COMPANY or any subsidiary or affiliate of the SARASOTA BEVERAGE COMPANY.

3. The restrictions set forth in paragraph 2 above shall apply in the following Florida counties: Sarasota and Manatee.

When Johnson voluntarily resigned his employment with appellant, he accepted similar employment with appellee Robert Blaikie & Sons, Inc. (Blaikie), another wholesale beer distributor operating in Sarasota, Charlotte, and Lee Counties. Initially Johnson's principal route with Blaikie was in Sarasota County. Appellant personally contacted Blaikie and sent a certified letter to Blaikie advising it that Johnson, while working for Blaikie, was in violation of the noncompetition agreement. ¹ Blaikie ignored these contacts.

Appellant then filed a complaint seeking to enforce the noncompetition agreement and simultaneously moved for a preliminary injunction. The trial judge held a full adversarial hearing on the motion for preliminary injunction whereat appellant, Blaikie, and Johnson presented witnesses in support of their respective positions. The undisputed evidence showed that Blaikie assigned Johnson a delivery route that was primarily in Charlotte County only after appellant filed the lawsuit. Johnson, however, still serviced an account in the Englewood area of Sarasota County in direct violation of the noncompetition agreement.

After the hearing on appellant's motion for preliminary injunction, the trial judge entered the order that is the subject of this appeal. The order contained the following relevant findings and disposition:

3. As a result of this suit, Defendant Blaikie assigned Defendant Johnson to a route that was mainly in Charlotte County, although it has a "couple" of stops in the southern part of Sarasota County.

4. Defendant Johnson's job with Defendant Blaikie is his sole source of livelihood.

5. The Plaintiff, under the above circumstances, has not shown that the threatened injury to it outweighs any possible harm to the Defendant Johnson. See Cordis Corporation v. Prooslin, 482 So.2d 486 (Fla. 3d DCA 1986).

Therefore, it is

ORDERED that Plaintiff's Motion for Preliminary Injunction is denied without prejudice to Plaintiff renewing the Motion should Defendant Johnson's activity in Sarasota County expand.

We first observe that section 542.33, Florida Statutes (1987), has validated noncompetition agreements that are reasonable as to time and area. Recently this court has addressed the law in Florida regarding noncompetition agreements and has stated the following:

Employment contracts containing noncompetition agreements are valid and enforceable in Florida. § 542.33, Fla.Stat. (1985); Graphic Business Systems, Inc. v. Rogge, 418 So.2d 1084 (Fla. 2d DCA 1982). The remedy for breach of a noncompetition agreement is an injunction. Id. For purposes of a temporary injunction, irreparable injury is presumed where there is a violation of a noncompetition agreement. Id.; see also Capraro v. Lanier Business Products, 466 So.2d 212 (Fla.1985). The court may not refuse to give effect to a valid noncompetition agreement on the ground that enforcement would have an overly burdensome effect on employee. Twenty Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980). The only authority the court possesses over the terms of a noncompetition agreement is to determine reasonableness of the time and area limitations. Id. The court is not empowered to rewrite a valid noncompetition agreement. Id. "When a contract is clear and unambiguous, the court cannot give it the meaning other than that expressed in it, and cannot rewrite the contract for the parties." Florida Pest Control & Chemical Co. v. Thomas, 520 So.2d 669 (Fla. 1st DCA 1988). If the trial court finds the provisions of a noncompetition agreement unreasonable, the court should modify the agreement and award an appropriate remedy. Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974).

Xerographics, Inc. v. Thomas, 537 So.2d 140, 143 (Fla. 2d DCA 1988).

This court's opinion in Xerographics is consistent with the recent opinion in Florida Pest Control & Chemical Company v. Thomas, 520 So.2d 669 (Fla. 1st DCA 1988), in which the first district court stated:

It has been repeatedly held that upon finding that the time and space restrictions of a covenant not to compete are appropriate, and the employer has not itself breached the agreement, the trial court has no power to do anything but enforce the terms of the covenant as written by injunction. Air Ambulance Network v. Floribus, 511 So.2d 702, 703 (Fla. 3d DCA 1987); see also Kverne v. Rollins Protective Services Co., 515 So.2d 1320 (Fla. 3d DCA 1987) (the only authority the court possesses over the terms of a noncompetitive agreement is to determine, as the statute provides, the reasonableness of its time and area limitations). This has been held true even in cases where the trial court felt that the enforcement of a specific noncompetitive provision would be unduly harsh and oppressive. See Twenty-four Collection, Inc. v. Keller, 389 So.2d 1062, 1063 (Fla. 3d DCA 1980), pet. for rev. dism., 419 So.2d 1048 (Fla.1982); Rollins Protective Services Co., Inc. v. Lammons, 472 So.2d 812, 813 (Fla. 5th DCA 1985).

The trial court in this case explicitly agreed that the time and area restrictions of the instant contract were reasonable. Therefore, even if it be said that the trial court refused to enforce the provision regarding employment with FPC's competitors as unduly harsh and oppressive to Thomas, that reason would not be sufficient to permit such refusal.

Florida Pest Control & Chemical Co., 520 So.2d at 671.

As shown above, the trial court's findings in this case were very limited. The trial court did find that Johnson maintained a "couple" stops in southern Sarasota County and that Johnson's job with Blaikie was his sole source of livelihood. The trial judge then denied the request for injunction, finding that appellant had not shown that the threatened injury to it outweighed any possible harm to Johnson.

In a covenant-not-to-compete case, such a consideration is relevant only when determining whether the covenant is reasonable as to time and area. Silvers v. Dis-Com Securities, Inc., 403 So.2d 1133, 1136 (Fla. 4th DCA 1981). There is no indication in the record that the trial judge made a determination that the contract was unreasonable as to time or area. Further, Johnson and Blaikie never contested the agreement's limitations specifically as to area (two adjacent counties) and time (eighteen months). The facts of each case determine whether the area and time restrictions are reasonable. Dorminy v. Frank B. Hall & Co., 464 So.2d 154 (Fla. 5th DCA 1985). In this case, Sarasota Beverage does business only in Manatee County and Sarasota County. Witnesses, who were employees of Sarasota Beverage, testified that they observed Johnson, while he was working for Blaikie, servicing the same customers that they were servicing. Further, a corporate officer of Sarasota Beverage testified the company establishes its sales goals and objectives on an annual basis and shares this information with all employees. The eighteen-month time restriction ensures that a former employee cannot impart this confidential information to a competitor while it is still relevant. Also, the time limitation permits a former employee's relationship with a Sarasota Beverage customer to go stale. Accordingly, the record supports a conclusion that the limitations were reasonable as to both the area and time.

Judge Campbell, in his dissent, concludes that the trial judge's decision rested upon his concern that enforcement of the covenant would be unreasonable under the circumstances. The dissent's conclusion in this regard fails to recognize that reasonableness is a consideration only when addressing the covenant's restrictions as to time and area. We find that it is not a fair interpretation of the record that the trial judge concluded that the covenant's restrictions concerning time and area were unreasonable. As noted above, Johnson and Blaikie did not dispute the reasonableness of the time...