ORKIN EXTERMINATING CO., INC., APPELLANT,
v.
MICHAEL BAILEY, ROBERT TARBES AND JOSEPH M. HAUCK, APPELLEES
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The court held that the trial court erred in unreasonably restricting the geographic scope and duration of temporary injunctions enforcing non-competition agreements.
[1] A trial court may modify the geographic scope of a non-competition agreement if the original territorial restriction is found to be unreasonable.
[2] When a non-competition agreement is facially reasonable, the burden shifts to the employee to demonstrate its unreasonableness as applied to them.
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Join FLexlaw to unlock all legal intelligenceOrkin Exterminating Company sought to enjoin three former employees from violating non-competition agreements by engaging in pest control business or …
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DELL, Judge.
Orkin Exterminating Company, Inc. appeals from a non-final order granting in part and denying in part its request for temporary injunctive relief against appel-lees. Appellant sought to enjoin appellees, three former employees, from engaging in the pest or termite control business or soliciting former clients in violation of the non-competition agreements contained in their employment contracts. The term of the noncompetition agreements was for a period of two years following appellees’ termination of their employment with appellant and the agreements covered St. Lucie, Martin, Okeechobee, Indian River and Osceola Counties. The trial court entered separate orders as to each appellee. The court temporarily enjoined appellees Hauck and Tarbes from engaging in the pest or termite control business in Indian River County but denied the motion to enjoin such conduct in the other counties as being unreasonable. The court did temporarily enjoin Hauck and Tarbes from soliciting customers or selling services in the five counties listed in the agreement. Similarly, the trial court temporarily enjoined appellee Bailey from soliciting for the sale of services in the five counties listed in the agreement but restricted him from engaging in the pest or termite control business only in Martin County. The trial court provided that the injunctions would run for a period of two years from the date each appellee signed his most recent employment agreement with appellant.
Appellant contends the trial court erred and abused its discretion in restricting each former employee from engaging in the pest or termite control business in only one county and in determining that the injunctions would run for a period of two years from the date each appellee' signed his most recent employment agreement. We agree.
We find no support in the record for the trial court’s decision to grant the temporary injunctions prohibiting appellees from contacting or calling upon customers of appellant for the purposes of soliciting, etc. pest control business in the five-county area and at the same time limiting the extent of the geographic prohibition to one 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 (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) (geographic area covered by noncompetition provision reduced from five counties to specific area within one city).
Id. at 971-72.
In the case at bar, each appellee voluntarily terminated his employment with appellant and went to work for a competitor directly engaged in the termite and pest control business in the area encompassed by the noncompetition agreements. We find the facts of this case similar to those considered by the court in Xerographics, Inc. v. Thomas, 537 So. 2d 140 (Fla. 2d DCA 1988). In Xerographies, the court concluded:
In the instant case, the trial court erred when it denied appellant an injunction enjoining appellee from working in Pinellas and Hillsborough Counties. Appellant’s noncompetition agreement prohibited appellee from entering into similar employment for a period of twelve months after termination of his employ ment with appellant within the “territory or territories assigned to [appellee] during [his] employment with Xerograph-ies.” The noncompetition agreement was clear and unambiguous....
The noncompetition agreement was reasonable on its face. The one-year restriction was not overly burdensome. The territory restriction certainly was reasonable. Out of sixty-seven counties in Florida, appellee was prohibited from working in five counties only....
Id. at 143.
See also Capraro v. Lanier Business Products, Inc., 445 So. 2d 719 (Fla. 4th DCA 1984), affirmed, 466 So. 2d 212 (Fla.1985).
We also hold that the trial court erred when it provided that the term of the injunctions would be for a period of two years from the date each appellee signed his most recent employment agreement with appellant. Appellant is entitled to the full duration of the two-year restriction. See Capelouto v. Orkin Exterminating Co. of Florida, Inc., 183 So. 2d 532 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966); Kverne v. Rollins Protective Services Co., 515 So. 2d 1320 (Fla. 3d DCA 1987). Therefore, the orders entered on remand must provide that the injunctions shall be for a period of two years from the date of the entry of the amended orders.
Accordingly, we reverse and remand the orders granting temporary injunctions as to each appellee and direct the trial court to amend the orders to extend the scope of the injunctions regarding engaging in the pest control, exterminating, fumigating or terminating control business to the five counties enumerated in the noncompetition agreements. We also direct the trial court to provide that the injunctions shall be for a period of two years beginning on the date the amended orders are entered. We affirm that part of the orders which enjoined appellees from contacting or calling upon customers of appellant for the purpose of soliciting, etc. pest control business in the five counties enumerated in the agreements.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
LETTS and GUNTHER, JJ., concur.
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Anakarli Boutique, Inc. v. Nahomi Ortiz, 152 So. 3d 107 (Fla. 4th DCA 2014)…)2, the party seeking to enforce the non-compete clause is entitled to receive the benefit 6f its bargain, which is the enforcement of the full non-compete period specified in the agreement between the parties. See Orkin Exterminating Co. v. Bailey, 550 So. 2d 563, 565 (Fla. 4th DCA 1989); Kverne v. Rollins Protective Servs. Co., 515 So. 2d 1320, 1321-22 (Fla. 3d DCA 1987); Mut. Benefits Corp. v. Goldenberg, 709 So. 2d 204 (Fla. 4th DCA 1998); Capelouto v. Orkin Exterminating Co. of Fla., 183 So. 2d 532, 534…
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Fla. Digestive Health Specialists, LLP v. Ramon E. Colina, M.D., 202 So. 3d 94 (Fla. 2d DCA 2016)…s order”); Xerographies, Inc. v, Thomas, 537 So. 2d 140, 143 (Fla. 2d DCA 1988) (reversing and remanding for entry of a permanent injunction “for a period of one year from the issuance of the trial court’s order”); Orkin Exterminating Co. v. Bailey, 550 So. 2d 563, 565 (Fla. 4th DCA 1989) (remanding for entry of amended orders granting temporary injunctions and directing that “the injunctions shall be for a period of two years beginning on the date the amended orders are entered”). Dr. Colina has been in viol…
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Mut. Benefits Corp. v. Mel Goldenberg, 709 So. 2d 204 (Fla. 4th DCA 1998)…n should have run for one year from its entry on October 18, 1996. Capelouto v. Orkin Exterminating Co. of Fla., Inc., 183 [*205] So. 2d 582 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966); Orkin Exterminating Co. v. Bailey, 550 So. 2d 563 (Fla. 4th DCA 1989). Appellant’s additional argument, that the injunction should have been further extended based on appellee’s contempt of the injunction, is not properly before us. At the time that the trial court vacated the injunction, it had…
Authorities Cited (12 total)
- Reuben Capelouto v. Orkin Exterminating Co. OF Fla., Inc., 183 So. 2d 532 (Fla. 1966)
- Capraro v. Lanier Bus. Prods., Inc., 466 So. 2d 212 (Fla. 1985)
- Spurlock v. State, 466 So. 2d 212 (Fla. 1985)
- Capelouto v. Orkin Exterminating Co. of Fla., Inc., 385 U.S. 11 (U.S. 1966)
- Xerographics, Inc. v. Thomas, 537 So. 2d 140 (Fla. 2d DCA 1988)
- 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)
- Rindley v. Gory Associated Indus., Inc., 445 So. 2d 719 (Fla. 4th DCA 1984)
- Anders A. Kverne v. Rollins Protective Servs. Co., 515 So. 2d 1320 (Fla. 3d DCA 1987)