MINDY FRUMKES, APPELLANT,
v.
BEASLEY-REED BROADCASTING OF MIAMI, INC., A FLORIDA CORPORATION, APPELLEE
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Mindy Frumkes, a radio personality, resigned from her employment with Beasley-Reed Broadcasting and took a job at a competing radio station. Beasley-Reed obtained a temporary injunction enforcing a non-compete covenant in their employment agreement. The court reversed, holding that the non-compete clause was only enforceable if Beasley-Reed terminated Frumkes for cause, and since Frumkes resigned first, the employer could not retroactively terminate her for cause to trigger the covenant.
The non-compete covenant cannot be enforced because its plain language makes it effective only upon termination by the company for cause. Since Frumkes resigned first, it was futile and improper for the employer to retroactively terminate her for cause to invoke the covenant.
[1] Non-compete agreements are in derogation of common law and must be construed strictly against the restraint.
[2] A non-compete covenant in an employment agreement that is specifically triggered by termination for cause by the employer is not enforceable when the employee resigns.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Non-compete agreements and section 542.33(2)(a), Florida Statutes (1987), which permits them, are in derogation of the common law rule which precludes agreements in restraint of trade. Consequently, any such agreement must be construed strictly against the alleged restraint.”
Establishes the legal framework for interpreting non-compete agreements, requiring strict construction against restraints on trade.
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Join FLexlaw to unlock all legal intelligenceFrumkes and Beasley-Reed entered into a two-year employment agreement containing a non-compete covenant that applied only if the company terminated Fr…
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PER CURIAM.
This is an appeal from an order granting a temporary injunction to enforce the non-compete covenant of an employment agreement. We reverse.
Appellant Mindy Frumkes, a radio personality, and appellee Beasley-Reed (Reed), owner of Miami radio station WPOW, entered into a two-year employment agreement. The agreement contained a section entitled “Covenant not to Compete” which stated that if the employment agreement were terminated by Reed for cause, Frumkes could not engage in any activity which would compete with Reed/WPOW for a period of six months from the date of the contract’s termination. The geographical area encompassed by the non-compete covenant covered a seventy-five mile radius from the Reed/WPOW location.
On August 25, 1988, some three months after signing the contract, Frumkes tendered a letter of resignation to appellee.
On September 22, she commenced employment with another Miami radio station, WHQT. That day, Reed filed a lawsuit seeking injunctive relief to enforce the non-compete covenant as well as damages for breach of contract. At a September 27 hearing, Reed conceded that the non-compete covenant was not applicable because Frumkes had not been terminated for cause. The court declined to enter the temporary injunction. Reed then sent Frumkes a letter on September 27 informing her that her employment had been terminated for cause as a result of her employment with WHQT. Subsequently, Reed renewed its request for a temporary injunction to enforce the non-compete clause.
The trial court granted the motion based upon findings that the duration of the employment agreement was definite and not terminable at will and that Frumkes had properly been terminated for cause after she breached that agreement. Frumkes now appeals the non-final order granting the injunction.
Non-compete agreements and section 542.33(2)(a), Florida Statutes (1987), which permits them, are in derogation of the common law rule which precludes agreements in restraint of trade.
Consequently, any such agreement must be construed strictly against the alleged restraint. See Dunkin, D.O. v. Barkus & Kronstadt, D.O.’s, P.A., 533 So. 2d 877 (Fla. 3d DCA 1988); Bolen Int’l, Inc. v. Medow, 191 So. 2d 51 (Fla.3d DCA 1966), cert, denied, 200 So. 2d 808 (Fla.1967); Storz Broadcasting Co. v. Courtney, 178 So. 2d 40 (Fla.3d DCA 1965), cert, denied, 188 So. 2d 315 (Fla.1966).
The non-compete agreement between the parties to this suit specifically states that it becomes effective “[i]n the event that this [employment] Agreement is terminated by the Company” for cause. From the clear language of the agreement, appellee’s ability to enforce the covenant is narrow and contemplates only a for cause termination; it is not applicable if the termination is due to Frumkes’s resignation. Because Frumkes acted first to terminate the contract, it was futile for the appellee to then terminate her for cause so that the covenant might become applicable.
Thus, it was error to enforce the non-compete covenant.
Because of our resolution of this issue and because the posture of the case as it stands before us requires us only to rule on the enforceability of the non-compete agreement, we find it unnecessary at this juncture to address whether the employment agreement was for a definite term or whether it was terminable at will.
Accordingly, we reverse the order granting a temporary injunction to enforce the non-compete agreement, and we remand for further proceedings.
REVERSED AND REMANDED.
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Gold Coast Media, Inc. v. Meltzer, 751 So. 2d 645 (Fla. 3d DCA 1999)…fers to “employment,” not to “termination”.... Wright & Seaton, 420 So. 2d at 628-29. As was the case in Wright & Seaton, the contract here was enforceable against Meltzer. Meltzer’s reliance on Frumkes v. Beasley-Reed Broadcasting of Miami, Inc., 533 So. 2d 942 (Fla. 3d DCA 1988) does not alter this conclusion. In Frumkes, we observed that non-compete agreements must be construed strictly against the alleged restraint. While our citation in Frumkes to the general law to be applied when construing non-compe…
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Wolf v. James G. Barrie, P.A., 858 So. 2d 1083 (Fla. 2d DCA 2003)…. Wolfs relationship with Barrie, P.A., terminated when Barrie, P.A., sold its assets to FVS and went out of the veterinary ophthalmology business. That termination could not be unilaterally undone. Cf. Frumkes v. Beasley-Reed Broad. of Miami, Inc., 533 So. 2d 942, 943 (Fla. 3d DCA 1988) (explaining that once an employee resigns, an employer cannot later fire that employee in order to gain the benefit of a restrictive covenant that applied only when the employee was terminated). Barrie, P.A., cannot enforce…
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Ogelean Riddick & Suncoast Beauty Sch. of Fla., Inc. v. Suncoast Beauty Coll., Inc., 579 So. 2d 855 (Fla. 2d DCA 1991)…s terms. Non-compete agreements are in the nature of agreements in restraint of trade. As such, they are in derogation of common law, and must be strictly construed against the alleged restraint. Frumkes v. Beasley-Reed Broadcasting of Miami, Inc., 533 So. 2d 942 (Fla. 3d DCA 1988). The operative phrase of the covenant to be examined at the evidentiary hearing was: “nor have any interest, directly or indirectly, in such a business.” The term “such a business” necessarily refers to the antecedent term “beauty…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Storz Broad. Co. v. Courtney, 178 So. 2d 40 (Fla. 3d DCA 1965)
- Bolen Int'l, Inc. v. Medow, 191 So. 2d 51 (Fla. 3d DCA 1966)
- Hutchinson v. Hutchinson, 188 So. 2d 315 (Fla. 1966)
- Millers Mut. Fire Ins. Co. v. Am. Fid. Fire Ins. Co., 188 So. 2d 315 (Fla. 1966)
- Ayres v. Ayres, 200 So. 2d 808 (Fla. 1967)
- Bolen Indus., Inc. v. Medow (two cases), 200 So. 2d 808 (Fla. 1967)
- Scott Dunkin, D.O. v. Barkus & Kronstadt, 533 So. 2d 877 (Fla. 3d DCA 1988)