J.K.R., INC., AND JAMES K. REESE, INDIVIDUALLY,
v.
TRIPLE CHECK TAX SERVICE, INC., A FLORIDA CORPORATION, APPELLEE
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J.K.R., Inc. and James K. Reese appealed a temporary injunction that prohibited them from doing business with any clients of their former employer, Triple Check Tax Service. The court reversed in part, holding that while appellants could be enjoined from actively soliciting former clients, they could accept clients who voluntarily sought their services, as this exceeded the scope of the non-solicitation agreement.
The non-solicitation agreement prohibits appellants from actively soliciting or contacting Triple Check clients to obtain their business, but does not prohibit them from accepting former clients who voluntarily seek their assistance. The injunction was properly narrowed to prohibit appellants only from serving clients whom Reese had personally invoiced before termination or who had scheduled appointments with either appellant before termination.
[1] A non-solicitation agreement that prohibits "call upon, solicit, divert or take away" does not forbid former employees from accepting clients who voluntarily approach the…
[2] A temporary injunction may be modified to enjoin former employees from serving specific clients of a former employer if those clients were obtained as a result of actions…
Previewing 2 of 3 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“The words "call upon, solicit, divert or take away" in the parties' agreement forbid appellants from taking proactive steps to obtain Triple Check clients, but do not disallow them from accepting former clients who actively seek their assistance.”
Establishes the court's interpretation of the non-solicitation clause and the key distinction between active solicitation and passive acceptance of client business.
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Join FLexlaw to unlock all legal intelligenceReese and his company J.K.R., Inc. entered into an exclusive employment agreement with Triple Check Tax Service that included a non-solicitation claus…
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ERVIN, J.
Appellants, J.K.R., Inc., and James K. Reese, appeal a temporary injunction prohibiting them from soliciting or servicing any clients of appellee, Triple Check Tax Service, Inc. We reverse in part, because the trial court exceeded the terms of the parties’ non-solicitation agreement when it barred appellants from accepting work from former clients who approached them. We affirm appellants’ other points without discussion.
Triple Check provides tax-return preparation, financial, accounting, bookkeeping, insurance and incorporation services. J.KR. and Reese entered into an agreement to work exclusively for Triple Check and therein agreed that for two years after termination of their relationship, appellants would not “call upon, solicit, divert or take away,” or attempt to solicit any Triple Check clients. The trial court found that Reese provided services to certain Triple Check clients and personally invoiced them while he was still an associate of Triple Check and, after terminating the employment relationship, Reese began soliciting Triple Check clients. Finding that such actions violated the parties’ agreement, the court entered an injunction for two years, stating first that appellants could compete with Triple Check, “but' are prohibited from doing business with” Triple Check clients, and then ordered that appellants “be enjoined from contacting Triple Check’s clients,” The former statement exceeded the scope of the agreement.
The words “call upon, solicit, divert or take away” in the parties’ agreement forbid appellants from taking proactive steps to obtain Triple Check clients, but do not disallow them from accepting former clients who actively seek their assistance. See, e.g., Kephart v. Hair Returns, Inc., 685 So. 2d 959 (Fla. 4th DCA 1996) (under section 542.33, Florida Statutes (1995), which permitted contracts in restraint of trade only to the extent that they prohibited solicitation of old customers of the employer, hair-replacement technician could be enjoined from soliciting former customers, but not from servicing customers who voluntarily followed her to her new place of employment); King v. Jessup, 698 So. 2d 339 (Fla. 5th DCA 1997) (physician could be barred from soliciting former patients, but not from treating those who voluntarily contacted him at his new practice).
We affirm that part of the temporary injunction prohibiting appellants from contacting former clients, but reverse that portion forbidding them from “doing business with” former clients. On remand, the lower court shall modify the injunction to enjoin appellants from serving any Triple Check clients whom Reese had personally invoiced before his termination, and any Triple Check clients who scheduled an appointment with either appellant before termination, because such clients are deemed to have been obtained as a result of action designed to divert or take away Triple Check clients.
AFFIRMED IN PART, REVERSED IN PART and REMANDED with directions.
VAN NORTWICK and BROWNING, JJ., CONCUR.
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Scarbrough v. Liberty Nat'l Life Ins. Co., 872 So. 2d 283 (Fla. 1st DCA 2004)…ida Statutes (1995).1 He cites cases construing such statute as not forbidding an employee from soliciting an employer’s old clients who voluntarily follow the employee to his or her new place of business. See J.K.R., Inc. v. Triple Check Tax Serv., 736 So. 2d 43, 44 (Fla. 1st DCA 1999) (issuance of temporary injunction was too broad, because the words in the parties’ agreement, “call upon, solicit, [*285] divert or take away,” only prohibited the former employee and his agency “from taking proactive steps t…
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Convergent Techs., Inc. v. Jasper Stone, 257 So. 3d 161 (Fla. 1st DCA 2018)…stances, solicit another’s business regardless of who initiates the meeting” because “the term ‘solicit’ in an agreement prohibit[s] the employee from being ‘proactive’ in such efforts.” Id. at 285 (citing J.K.R., Inc. v. Triple Check Tax Serv., 736 So. 2d 43, 44 (Fla. 1st DCA 1999)). As a result, Scarbrough expanded the concept of direct solicitation to encompass conduct that, while less direct, is nonetheless more active than passive in nature. We conclude that whether a defendant’s behavior is pr…
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Prof'l Paramedic Serv., Inc. v. Vega, 752 So. 2d 719 (Fla. 3d DCA 2000)…PER CURIAM. Affirmed. J.K.R., Inc. v. Triple Check Tax Serv., Inc., 736 So. 2d 43, 44 (Fla. 1st DCA 1999); King v. Jessup, 698 So. 2d 339, 341 (Fla. 5th DCA 1997); Kephart v. Hair Returns, Inc., 685 So. 2d 959, 960 (Fla. 4th DCA 1996).…
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
- Dennis K. King, M.D., P.A. v. John G. Jessup, M.D., 698 So. 2d 339 (Fla. 5th DCA 1997)
- Kephart v. Hair Returns, Inc., 685 So. 2d 959 (Fla. 4th DCA 1996)