HOWARD B. WEINTRAUB, HARRIET WEINTRAUB, HIS WIFE, AND HOWARD B. WEINTRAUB, INC., APPELLANTS,
v.
ELLIOT ROTH AND ELLIOT ROTH, INC., A FLORIDA CORPORATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court reversed a temporary injunction that restricted an accountant from conducting business at a new location and using his own name in business operations. The court found that the covenant not to compete had been strictly construed and that the appellee failed to prove the appellant was actually competing in the restricted line of business.
The court held that it was error to enjoin the appellant from conducting all business at his new address, using his name in the business title, and distributing a flyer about his move because there was no evidence that the appellant was competing with the appellee in the monthly and quarterly accounting service business—the only business type restricted by the covenants.
[1] Covenants not to compete are in derogation of common law and must be strictly construed against the alleged restraint.
[2] Ambiguous and doubtful language in a covenant not to compete is to be construed against restraint.
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“Because a covenant not to compete is in the nature of an agreement in restraint of trade, it is in derogation of common law and must be strictly construed against the alleged restraint.”
Establishes the fundamental legal principle that covenants not to compete must be strictly construed against the party seeking to enforce the restraint.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellant sold his accounting business to the appellee but excluded annual business clients and personal income tax clients from the sale. Two cov…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Restraint Of Trade cases and more on FLexlaw
PER CURIAM.
We reverse a temporary injunction enforcing a covenant not to compete.
The trial court entered a temporary injunction preventing appellant from conducting any business at his new location pending final hearing. The order also prohibited him from identifying the business using his own name, using the letters “CPA” on a sign, and distributing a flyer showing that he had moved. The contract for sale of appellant's accounting business excluded from the sale appellant’s “annual business clients and their related tax returns and all personal income tax clients.” A covenant required appellant not to compete against the buyer in the establishment of an accounting business for a period of five years and a distance of ten miles. A separate covenant not to compete signed on the closing date specifically provided that seller would not solicit or perform “accounting services for any corporate or individual, monthly or quarterly clients, unless said clients are first referred to Roth and Roth has refused to represent same.” The logical construction of the two provisions is that appellant would not compete in the type of business sold to appellee, namely monthly and quarterly accounting work, as appellant had specifically excluded from the sale his income tax business.
Because a covenant not to compete is in the nature of an agreement in restraint of trade, it is in derogation of common law and must be strictly construed against the alleged restraint. Riddick v. Suncoast Beauty College, Inc., 579 So. 2d 855, 856 (Fla. 2d DCA 1991); Frumkes v. Beasley-Reed Broadcasting of Miami, Inc., 533 So. 2d 942 (Fla. 3d DCA 1988). “Ambiguous and doubtful language in a covenant not to compete is to be construed against restraint.” Riddick, 579 So. 2d at 857; Bolen International, Inc. v. Meadow, 191 So. 2d 51 (Fla. 3d DCA 1966), cert. denied, 200 So. 2d 808 (Fla.1967). While the construction of the covenant not to compete is a matter of law for the trial court, the appellate court may assess the covenant’s meaning. Riddick, 579 So. 2d at 856.
There was no evidence presented that appellant was competing with appellee in the monthly and quarterly accounting service business. Appellee admitted as much. Therefore, it was error to enjoin appellant from conducting all business at his current business address, from using his name in its title and from distributing a flyer showing that appellant had moved. The remaining provisions of the temporary injunction are moot by reason of lapse of time.
Reversed.
GLICKSTEIN, C.J., and GUNTHER and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hosp. Corp. OF Am. v. Fla. Med. Ctr., Inc., 710 So. 2d 573 (Fla. 4th DCA 1998)…s not negotiated by the parties and not in the contract. The other issues raised by Appellants are moot. As to the several arguments raised on cross-appeal, we affirm. Flatley v. Forbes, 483 So. 2d 483, 484-85 (Fla. 2d DCA 1986); Weintraub v. Roth, 617 So. 2d 1158 (Fla. 4th DCA 1993); Periera v. Florida Power & Light Co., 680 So. 2d 617 (Fla. 4th DCA 1996); Fleming v. Peoples First Fin. Sav. and Loan Ass’n, 667 So. 2d 273 (Fla. 1st DCA 1995). Therefore, we remand for entry of judgment for Appellants, HCA and…
-
Wilson v. S. Repair Servs., Inc., 795 So. 2d 1121 (Fla. 5th DCA 2001)…cted in its ability to reassess the meaning and effect of the parties’ non-competition agreement and to reach a different conclusion from that of the trial court. Id. This view has been shared by other appellate courts. See, e.g., Weintraub v. Roth, 617 So. 2d 1158, 1159-60 (Fla. 4th DCA 1993) (“While the construction of the covenant not to compete is a matter of law for the trial court, the appellate court may assess the covenant’s meaning.”); Riddick, 579 So. 2d at 856 (An appellate court is empowered to ass…
Authorities Cited
- Bolen Int'l, Inc. v. Medow, 191 So. 2d 51 (Fla. 3d DCA 1966)
- Frumkes v. Beasley-Reed Broad. OF Miami, Inc., 533 So. 2d 942 (Fla. 3d DCA 1988)
- Ayres v. Ayres, 200 So. 2d 808 (Fla. 1967)
- Bolen Indus., Inc. v. Medow (two cases), 200 So. 2d 808 (Fla. 1967)
- Ogelean Riddick & Suncoast Beauty Sch. of Fla., Inc. v. Suncoast Beauty Coll., Inc., 579 So. 2d 855 (Fla. 2d DCA 1991)