Sun Elastic Corp. v. O.B. Industries, No. 91-2199

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; SCHWARTZ; NESBITT; COPE
• Citation: 603 So.2d 516
• Parties: SUN ELASTIC CORPORATION, Appellant, v. O.B. INDUSTRIES, Julio Villatoro and Alvaro Bazurto, Appellees. 603 So.2d 516, 1992-1 Trade Cases P 69,849, 17 Fla. L. Week. D1448
• Docket Number: No. 91-2199
• Decision Date: 09 June 1992

Page 516

603 So.2d 516 SUN ELASTIC CORPORATION, Appellant,
v.
O.B. INDUSTRIES, Julio Villatoro and Alvaro Bazurto,
Appellees. No. 91-2199.
603 So.2d 516, 1992-1 Trade Cases P 69,849,
17 Fla. L. Week. D1448 District Court of Appeal of Florida,
Third District. June 9, 1992.
Rehearing Denied Sept. 16, 1992.

Paul Morris, Coral Gables, for appellant.

David Bolton, Coral Gables, for appellees.

Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.

SCHWARTZ, Chief Judge.

Sun Elastic appeals from the denial of a temporary injunction against the violation of a noncompetitive agreement with a former employee, Julio Villatoro. We reverse.

It is admitted that, after becoming employed by O.B. Industries, Villatoro directly solicited Sun's existing customers. Even under the 1990 amendment to section 542.33(2)(a), Florida Statutes (1989), ¹ which was evidently intended to restrict the availability

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of injunctive relief in these cases, ² the existence of an "irreparable injury" and thus the enjoinability of a violation are "presumed" from that conduct. Sec. 542.33(2)(a), Fla.Stat. (Supp.1990). See Grant v. Robert Half International, Inc., 597 So.2d 801 (Fla. 3d DCA 1992). Since that is true, the cases holding that a trial court is required to enjoin the violation of a noncompetitive agreement which is reasonable as to its duration and geographical limitation remain directly applicable and controlling. ³ Capraro v. Lanier Business Products, Inc., 466 So.2d 212 (Fla.1985); Miller

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Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974); Air Ambulance Network, Inc. v. Floribus, 511 So.2d 702 (Fla. 3d DCA 1987), review denied, 520 So.2d 584 (Fla.1988); Twenty Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980), review denied, 419 So.2d 1048 (Fla.1982); Answer All Telephone Secretarial Serv., Inc. v. Call 24, Inc., 381 So.2d 281 (Fla. 5th DCA 1980); Empiregas, Inc. of Pensacola v. Thomas, 359 So.2d 15 (Fla. 1st DCA 1978), dismissed, 364 So.2d 893 (Fla.1978); Royal Servs., Inc. v. Williams, 334 So.2d 154 (Fla. 3d DCA 1976); Foster & Co. v. Snodgrass, 333 So.2d 521 (Fla. 2d DCA 1976); Barco Chemicals Div., Inc. v. Colton, 296 So.2d 649 (Fla. 3d DCA 1974); Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965), cert. denied, 188 So.2d 315 (Fla.1966); American Bldg. Maintenance Co. v. Fogelman, 167 So.2d 791 (Fla. 3d DCA 1964); Atlas Travel Serv., Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957).

For this reason, the order under review is reversed and the cause remanded with directions to enjoin the violation of the agreement in question. The terms of the injunction shall be in accordance with the trial court's subsequent determinations of (a) the reasonableness of the contract's time and space restrictions, see Twenty Four Collection, 389 So.2d at 1064, and (b) the appropriate commencement date. Twenty Four Collection, 389 So.2d at 1064.

Reversed and remanded with directions.

NESBITT, J., concurs.

COPE, Judge (specially concurring).

I am unable to agree with the majority's suggestion that section 542.33, Florida Statutes (1991), creates what amounts to an irrebuttable presumption. The legislature used the word "presumption" without adornment; under settled Florida law, an ordinary presumption is rebuttable. Sec. 90.301(2), Fla.Stat. (1991); see also Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla.1976). If the legislature meant to create a conclusive presumption, it knew how to say so.

Nor can I agree that there is anything illogical about creating a rebuttable presumption in the statute now before us. In some cases the contacting of existing customers will occasion irreparable injury; in others it will not. If a noncompetition agreement has a valid liquidated damages clause, for example, there is by definition no irreparable injury. If the "existing customer" is a governmental entity which advertises for competitive bids, the ex-employee causes no injury, much less irreparable injury, by submitting a bid--even though submission of a bid could be characterized as "direct solicitation of existing customers." Sec. 542.33(2)(a), Fla.Stat. (1991). If the nature of the industry is one in which damages can, in fact, be calculated, there is no irreparable injury.

It is no accident that section 542.33 is codified in chapter 542, which regulates combinations restricting trade and commerce. One effect of a noncompetition

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agreement is to limit competition and inhibit the free movement of labor. Such agreements are frequently contracts of adhesion, imposed on employees on a take-it-or-leave-it basis. When enforced, they may well cost the employee his or her job. ^*

In view of those considerations, the legislature has--rightly in my view--decided to limit noncompetition...