SENTRY INSURANCE, ETC., APPELLANT,
v.
GEORGE D. DUNN AND DIANE M. DUNN, APPELLEES
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The court held that the trial court abused its discretion by refusing to enter a preliminary injunction to enforce a non-compete agreement, as irreparable injury may be presumed in such cases.
[1] A non-compete agreement is enforceable if it is reasonable as to time and place.
[2] Injunctions are the normal remedy for breaches of non-compete agreements due to the difficulty in calculating damages.
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Join FLexlaw to unlock all legal intelligenceSentry Insurance sued its former employee, Dunn, for breaching a non-compete clause in his employment contract. Sentry sought a preliminary injunction…
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FRANK D. UPCHURCH, Jr., Judge.
Appellant Sentry Insurance appeals pursuant to Florida Rule of Appellate Proce dure 9.130(a)(3)(B) from a non-final order denying its motion for a preliminary injunction by which it sought to enforce the terms of a non-compete agreement.
Sentry had filed suit against Dunn alleging that Dunn, a former employee, had breached a non-compete clause contained in his employment contract.1 Sentry sought damages and a preliminary and permanent injunction.2
Section 542.33, Florida Statutes (1981), recognizes the validity of a conven-ant not to compete though a prerequisite to the enforceability of such a convenant is that it must be reasonable as to time and place. Capelouto v. Orkin Exterminating Co. of Florida, 183 So. 2d 532 (Fla.1966); Silvers v. Dis Com Securities, Inc., 403 So. 2d 1133 (Fla. 4th DCA 1981). Here the period of time (two years) appears to be reasonable. See, e.g., Twenty Four Collection, Inc. v. Keller, 389 So. 2d 1062 (Fla. 3d DCA 1980) (wherein the Third District Court of Appeal ordered that a non-compete agreement of two years duration be enforced). No area limitation problem exists since the agreement merely prohibits Dunn from soliciting, quoting rates, etc. for customers he served while at Sentry. Dunn remains free to write insurance and serve any other customers.
The normal remedy in eases involving convenants not to compete is in-junctive relief since it is extremely difficult for a court to determine what damages are caused by the employee’s breach of the agreement. Miller Mechanical, Inc. v. Ruth, 300 So. 2d 11 (Fla.1974). While a temporary or preliminary injunction is an extraordinary remedy which should be sparingly granted, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Silvers v. Dis Com Securities, 403 So. 2d at 1137.
In Silvers, the court held that in order for a party to be entitled to a temporary or preliminary injunction for violation of such a convenant, it is necessary to allege: (a) the contract, (b) the former employee’s intentional direct and material breach thereof, and (c) that no adequate remedy exists except by injunctive relief. The court went on to hold that irreparable injury, while normally required to support an award of a temporary or preliminary injunction, may be presumed in cases involving violation of a covenant not to compete and need not be alleged or proved. Id. at 1136. Contra Uni-Chem Corp. of Florida, Inc. v. Maret, 338 So. 2d 885 (Fla. 3d DCA 1976).
Here there is proof in the form of testimony from former customers of Sentry to support its allegations that Dunn has directly contacted and solicited insurance business from them. There is no reason proved or even suggested that would make it unfair or oppressive to enforce the agreement not to compete pending final disposition. Absent such proof it was an abuse of discretion for the trial court to refuse entry of the preliminary order. REVERSED.
DAUKSCH, C. J., and SHARP, J., concur. . Sentry alleged that on May 1, 1977, it employed Dunn as a sales representative and that Dunn executed an employment contract which contained in paragraph seven the following non-compete clause:
The Sales Representative agrees that for two (2) years after the termination of this contract, he will not, for himself, another insurance company and/or agency, directly or indirectly, seek to induce, promote, facilitate, bring about, solicit, quote rates for, receive, write, bind broker, transfer or accept replacement or renewal insurance coverage or services for any insurance policies or service sold or serviced by the Sales Representative for the Companies, or for which the Sales Representative has been or was being compensated by the Companies, during the two (2) years immediately preceding termination of this contract, nor will he induce or seek to induce the discontinuance or lapse of such insurance coverage or service. The Sales Representative agrees that, during the period of his employment hereunder, he will do none of the above acts for any insurer or agency other than the companies.
. No transcript of the hearing on the motion for a preliminary injunction was made but at the hearing the judge merely reviewed the testimony which had been taken and transcribed on a previous occasion and heard argument of the parties. We feel that the record before us is sufficient upon which to predicate appellate review.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Unistar Corp. v. Child, 415 So. 2d 733 (Fla. 3d DCA 1982)…e injury. Even if positive proof of an injury did not appear from the record, such irreparable harm could be presumed and need not be alleged or proved in a case involving wrongful interference with a business relationship. Sentry Insurance v. Dunn, 411 So. 2d 336 (Fla. 5th DCA 1982). The order appealed from makes no findings of facts. On review of the record before us, with the significant facts undisputed, we hold that denial of a preliminary injunction was an abuse of discretion. Reversed and remanded wi…
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Heavener v. R. W. Fla. Region, Inc., 418 So. 2d 1074 (Fla. 5th DCA 1982)…s AFFIRMED. DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur. . See, e.g., Unistar Corp. v. Child, 415 So. 2d 733 (Fla. 3d DCA 1982), adopted en banc on rehearing, 415 So. 2d 733 at 735 (Fla. 3d DCA 1982) [1982 FLW 1439]; cf. Sentry Ins. v. Dunn, 411 So. 2d 336 (Fla. 5th DCA 1982) (irreparable injury presumed in case involving violation of a covenant not to compete and therefore need not be alleged or proved). . This opinion was written by a panel of Fourth District Court of Appeal judges sitting as assoc…
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Env't Servs., Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009)…d 467, 470 (Fla. 5th DCA 2002). The usual remedy in cases involving a valid covenant not to compete is injunctive relief since it is extremely difficult for a court to determine what damages are caused by breach of the covenant. Sentry Ins. v. Dunn, 411 So. 2d 336, 336 (Fla. 5th DCA 1982) (citing Miller Meek, Inc. v. Ruth, 300 So. 2d 11 (Fla.1974)). Post-employment restrictive covenant agreements are valid restraints of trade or commerce under certain condi [*1262] tions. Specifically, section 542.335, Flori…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reuben Capelouto v. Orkin Exterminating Co. OF Fla., Inc., 183 So. 2d 532 (Fla. 1966)
- Miller Mech., Inc. v. Ruth, 300 So. 2d 11 (Fla. 1974)
- The Twenty Four Collection, Inc. v. Keller, 389 So. 2d 1062 (Fla. 3d DCA 1980)
- Uni-Chem Corp. OF Fla., Inc. v. Maret, 338 So. 2d 885 (Fla. 3d DCA 1976)
- Silvers v. Dis-Com Sec., Inc., 403 So. 2d 1133 (Fla. 4th DCA 1981)
- State v. Chiriboga, 403 So. 2d 1133 (Fla. 4th DCA 1981)