ORKIN EXTERMINATING CO., APPELLANT,
v.
TONY A. MARTIN, APPELLEE
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Orkin appeals a trial court's temporary injunction that limited a non-compete covenant to only the territory Martin had personally worked, rather than the entire Dade County area agreed upon in the employment contract. The appellate court reverses, holding that the trial court improperly narrowed the geographic scope without Martin having raised unreasonableness as a defense.
The court reversed, holding that it was improper for the trial court to reduce the geographical area stipulated in the covenant without the employee having first pleaded unreasonableness as a defense or raised the issue at the hearing on the motion for temporary injunction. The covenant as written was facially reasonable and should be enforced as agreed.
[1] Non-competition provisions in employment contracts are enforceable if the duration and geographic area of the restriction are reasonable.
[2] A covenant not to compete that is facially reasonable shifts the burden to the employee to demonstrate its unreasonableness as applied to them.
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Join FLexlaw to unlock all legal intelligence“Non-competition provisions in employment contracts have been enforced where the duration of the restriction and the area within which the employee cannot compete is reasonable.”
Establishes the legal standard for enforcing non-compete covenants based on reasonableness of duration and geographic scope
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Join FLexlaw to unlock all legal intelligenceOrkin and Martin entered into an employment contract containing a covenant not to compete that restricted Martin from engaging in the pest control bus…
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PER CURIAM.
Orkin appeals a temporary injunction entered against a former employes pursuant to a covenant not to compete. We reverse.
When Orkin employed Martin they entered into a written contract which contained a covenant not to compete. The covenant restricted Martin from engaging in the pest control business anywhere in Dade County for two years following his termination of employment. Martin voluntarily terminated his employment and began working in Dade County with one of Orkin’s competitors. Orkin sued, and the trial court entered an injunction restricting Martin from engaging in the pest control business within the territory which he had worked when employed by Orkin. This territorial restriction materially reduced the geographic restriction agreed to in the employment contract. Orkin appeals the limitation imposed by the trial court on the geographic area covered by the injunction.
Non-competition provisions in employment contracts have been enforced where the duration of the restriction and the area within which the employee cannot compete is reasonable. Flammer v. Patton, 245 So. 2d 854 (Fla.1971); Capelouto v. Orkin Exterminating Co., 183 So. 2d 532 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966).
Reasonableness is determined by considering the individual facts of each case. Auto Club Affiliates, Inc. v. Donahey, 281 So. 2d 239 (Fla. 2d DCA), cert. denied, 285 So. 2d 28 (Fla.1973).
Restrictions such as those contained in the subject covenant are reasonable on their face and have generally been enforced. Cf. Graphic Business Systems, Inc. v. Rogge, 418 So. 2d 1084 (Fla. 2d DCA 1982) (agreement not to compete for two years after termination of employment within 75-mile radius of city was facially reasonable); Sentry Ins. v. Dunn, 411 So. 2d 336 (Fla. 5th DCA), review denied, 419 So. 2d 1196 (Fla.1982) (agreement not to solicit previous customers for two years after employment termination was reasonable); Tomasello, Inc. v. de Los Santos, 394 So. 2d 1069 (Fla. 4th DCA 1981) (contract not to compete in county for two years after termination of employment was facially reasonable).
If a covenant not to compete is facially reasonable, the burden shifts to the employee to show why the covenant is unreasonable as applied to him. Silvers v. Dis-Com Securities, Inc., 403 So. 2d 1133 (Fla. 4th DCA 1981).
Where the territorial restriction is unreasonable, the trial court may determine what constitutes a reasonable area and enforce the covenant in the limited area. Cf. Orkin Exterminating Co. v. Girardeau, 301 So. 2d 38 (Fla. 1st DCA 1974), cert. denied, 317 So. 2d 75 (Fla.1975) (geographical area covered by non-competition provision reduced from five counties to specific area within one city); Kofoed Pub. Relations Assocs., Inc. v. Mullins, 257 So. 2d 603 (Fla. 4th DCA), cert. denied, 263 So. 2d 230 (Fla.1972) (covenant containing unrestricted geographical area remanded for court to determine reasonable territorial limitation).
However, it is the obligation of the party contesting the covenant to plead unreasonableness as a defense or to raise the issue at the hearing on the motion for temporary injunction. Tomasello, 394 So. 2d at 1069. Since Martin did not plead unreasonableness as a defense or raise the issue at the hearing on the motion for temporary injunction, it was improper for the judge to issue an injunction which reduced the geographical area stipulated in the covenant.
Accordingly, the temporary injunction is reversed with directions to issue a temporary injunction prohibiting Martin from working in the pest control business anywhere in Dade County.
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The State Chem. Mfg. Co. v. Lopez, 642 So. 2d 1127 (Fla. 3d DCA 1994)…-four months.” There is no basis in the record to support the trial court’s finding that the two-year period in the agreement is unreasonable. This court has upheld a two-year restriction as reasonable on its face. Orkin Exterminating Co. v. Martin, 516 So. 2d 970 (Fla. 3d DCA 1987). Moreover, Lopez did not meet his burden of [*1129] showing that the term was unreasonable as applied to him. Orkin Exterminating Co., 516 So. 2d at 971. Thus, the trial court erred in failing to enjoin Lopez from further solicita…
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Health Care Fin. Enters., Inc. v. Levy, 715 So. 2d 341 (Fla. 4th DCA 1998)…modify unreasonable restrictions as to time and place, and then enforce them, rather than void the contract. Flammer v. Patton, 245 So. 2d 854 (Fla.1971); Miller Mechanical, Inc. v. Ruth, 300 So. 2d 11 (Fla.1974); Orkin Exterminating Co. v. Martin, 516 So. 2d 970 (Fla. 3d DCA 1987). The issue posed by this appeal is whether, in light of the first sentence of the 1990 amendment set forth above, a court can refuse to enforce a noncompete agreement solely because the geographical area is unreasonable. The spec…
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Orkin Exterminating Co., Inc. v. Bailey, 550 So. 2d 563 (Fla. 4th DCA 1989)…county as it pertained to engaging in the pest control business. The trial court failed to state reasons which support its conclusion that “the motion is denied as the court finds that request unreasonable.” In Orkin Exterminating Company v. Martin, 516 So. 2d 970 (Fla. 3d DCA 1987), the district court stated: If a covenant not to compete is facially reasonable, the burden shifts to the employee to show why the covenant is unreasonable as applied to him. Silvers v. Dis-Com Securities, Inc., 403 So. 2d 1133 (…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Reuben Capelouto v. Orkin Exterminating Co. OF Fla., Inc., 183 So. 2d 532 (Fla. 1966)
- Flammer v. Patton, 245 So. 2d 854 (Fla. 1971)
- Capelouto v. Orkin Exterminating Co. of Fla., Inc., 385 U.S. 11 (U.S. 1966)
- Auto Club Affiliates, Inc. v. Donahey, 281 So. 2d 239 (Fla. 2d DCA 1973)
- Tomasello, Inc. v. Santos, 394 So. 2d 1069 (Fla. 4th DCA 1981)
- Silvers v. Dis-Com Sec., Inc., 403 So. 2d 1133 (Fla. 4th DCA 1981)
- Orkin Exterminating Co., Inc. v. Girardeau, 301 So. 2d 38 (Fla. 1st DCA 1974)
- State v. Chiriboga, 403 So. 2d 1133 (Fla. 4th DCA 1981)
- Sentry Ins. v. Dunn, 411 So. 2d 336 (Fla. 5th DCA 1982)
- Kofoed Pub. Relations Assocs., Inc. v. Mullins, 257 So. 2d 603 (Fla. 4th DCA 1972)