Xerographics, Inc. v. Thomas, 88-825

• Decision Date: 30 December 1988
• Docket Number: No. 88-825,88-825
• Citation: 537 So.2d 140,14 Fla. L. Weekly 135
• Parties: 1988-2 Trade Cases P 68,378, 4 IER Cases 60, 14 Fla. L. Weekly 135 XEROGRAPHICS, INC., Appellant, v. Richard THOMAS, Appellee.
• Court: Florida District Court of Appeals

Page 140

537 So.2d 140

1988-2 Trade Cases P 68,378, 4 IER Cases 60,

14 Fla. L. Weekly 135

XEROGRAPHICS, INC., Appellant, v. Richard THOMAS, Appellee.

No. 88-825.

District Court of Appeal of Florida,

Second District.

Dec. 30, 1988.

Rehearing Denied Jan. 27, 1989.

Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for appellant.

Jean R. Simons of Simons & Seeley, P.A., Madeira Beach, for appellee.

RYDER, Acting Chief Judge.

In September 1984, appellant hired appellee as a field service technician. At appellant's request, appellee signed a noncompetition agreement. The agreement provided:

In addition, during my employment with Xerographics, and for a period of twelve months after termination of my employment, no matter how occasioned ... I will not, either for my own purposes or as an employee or for the benefit of any other entity or person, directly or indirectly, engage or have any interest in any activity or venture involving the promotion, sale, distribution or service of office copying (including supplies and accessories) within the territory or territories assigned to me during my employment with Xerographics.

From September through November 1984, appellee served a probationary period working as a field service technician in Pinellas and Hillsborough Counties. From November 1984 through October 1985, appellee worked as a service manager in Seminole, Osceola and Orange Counties. In October 1985, appellee resigned from appellant. In February 1986, appellee began employment with Basetec, appellant's competitor, as a field service technician. Basetec conducts business in Pinellas and Hillsborough Counties.

Appellant filed a verified complaint seeking a temporary and a permanent injunction to enforce the noncompetition agreement. Appellant also filed a motion for a temporary injunction. The trial court denied appellant's motion for a temporary injunction. The court held that appellant failed to show any irreparable damage and that the covenant was unclear on the issue of territory assignment.

A nonjury trial was held on the issue of whether a permanent injunction should be issued to enjoin appellee from working in Pinellas and Hillsborough Counties. The trial court denied the injunction. The court held:

1. Plaintiff, XEROGRAPHICS, INC. conducts a business of sales and service of copy machines and supplies, and facsimile equipment, as a dealer of equipment manufactured by various nationally known companies. Plaintiff maintains regional offices in the State of Florida each of which has its own roster of customers for sales and service within a designated territory.

2. During the times pertinent to this action, the Plaintiff required each new employee, as a condition of employment, to sign a "Restrictive Covenant" although verbal assurances were given to new employees that it was a "standard non-compete" agreement prohibiting any departing employee from active solicitation of the company's accounts or of its remaining employees for one year.

3. Defendant ... was employed by Plaintiff as a field service technician for copying equipment on or about September 17, 1984. During a so-called "probationary period", of about 60 days, Defendant worked in equipment in Plaintiff's shop in Pinellas County, did some servicing of equipment for a small number of customers in Pinellas and Hillsborough counties, and attended two out-of-state manufacturer's schools ... for two separate one-week periods. Defendant was required to and did reimburse Plaintiff for that educational expense. In November 1984 Defendant was "assigned" as Service Manager at Plaintiff's office in Orlando, Florida for the territory constituting Orange, Osceola and Seminole Counties, where he stayed until his resignation on about October 11, 1985. During that period Defendant had no access to records or marketing information concerning Plaintiff's customers in Pinellas and Hillsborough Counties.

4. After October 1985, Defendant reestablished his residence in Pinellas County. Beginning in February 1986 Defendant was employed in Pinellas County at Basetec, a competitor of Plaintiff, for several months, as a field service technician.

* * *

* * *

6. There was no evidence that the Defendant obtained, had access to or used any information concerning Plaintiff's records of service customers or lists of sales customers in Hillsborough or Pinellas Counties during his employment by Plaintiff in his "assigned" territory which constituted the Florida counties of Orange, Seminole and Osceola.

7. Defendant's work in Pinellas and Hillsborough Counties for a few weeks during his probationary employment period did not constitute a territory to which he was "assigned" and is therefore not considered to be any significance with respect to the provisions of the "Restrictive Covenant". * * *

8. Plaintiff's "Restrictive Covenant" signed by Defendant on September 17, 1984 and sought to be enforced by injunction against Defendant is not unreasonable on its face, although it is extremely broad.

9. Any ambiguities must be resolved against the employer who drew the covenant.

10. It would be unreasonable and oppressive to apply the "Restrictive Covenant" and to enjoin Defendant's employment in the Pinellas/Hillsborough area.

11. Under the facts, circumstances and findings in this case Plaintiff's petition to enjoin Defendant's employment pursuant to the "Restrictive Covenant" in any area other than Orange, Seminole, and Osceola Counties should be denied.

On appeal, appellant contends that the trial court erred in denying appellant a temporary injunction enforcing appellant's noncompetition agreement and also erred in denying appellant a permanent injunction enforcing appellant's noncompetition agreement in Pinellas and Hillsborough Counties. We agree.

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...