ROBERT J. KOHLMEIER, APPELLANT/CROSS-APPELLEE,
v.
DIVERSIFIED DRILLING CORPORATION, APPELLEE/CROSS-APPELLANT
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This case involves two consolidated appeals concerning an employment and non-competition agreement. The appellate court affirmed the denial of declaratory relief for the employee but reversed the denial of attorney's fees for the employer, remanding for an award of fees.
The court affirmed the denial of declaratory relief for Kohlmeier. However, the court reversed the denial of attorney's fees for Diversified, holding that the agreement and state statute provide a basis for such an award.
[1] A party seeking declaratory relief to challenge the enforceability of a non-competition agreement may be liable for the opposing party's attorney's fees if the agreement…
[2] A contractual provision allowing for attorney's fees in the event of legal proceedings to enforce restrictive covenants applies to a declaratory judgment action challengi…
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Join FLexlaw to unlock all legal intelligence“The Agreement provides, in pertinent part, as follows: 9. RESTRICTIVE COVENANTS— REMEDIES: ... The Employee [Kohlmeier] further agrees that, if legal proceedings should have to be brought by the Company [Diversified] against the Employee to enforce the Restrictive Covenants, the Company shall be entitled to all available civil remedies, including without limitation: (b) Attorneys’ [sic] fees in the trial and appellate courts....”
This quote establishes the basis for Diversified's claim for attorney's fees under the employment agreement.
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Join FLexlaw to unlock all legal intelligenceRobert J. Kohlmeier sought declaratory relief to determine if drilling residential wells would violate his non-competition agreement with Diversified …
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PER CURIAM.
In case number 2D04-1901 of these consolidated appeals, Robert J. Kohlmeier (Kohlmeier) challenges a final judgment declining to grant him declaratory relief that his proposed drilling of four-inch residential wells in Lee County, Florida, would not violate the terms of his Employment and Non-Competition Agreement (the Agreement) with Diversified Drilling Corporation (Diversified) or, alternatively, that Diversified did not have a legitimate business interest in precluding Kohlmeier from engaging in the drilling of four-inch wells in Lee County, Florida. We affirm the final judgment without discussion.
In case number 2D04-3557, Diversified argues that the trial court erred in denying its motion for attorney’s fees based on an attorney’s fee provision in the Agreement. The Agreement provides, in pertinent part, as follows:
9. RESTRICTIVE COVENANTS— REMEDIES:
... The Employee [Kohlmeier] further agrees that, if legal proceedings should have to be brought by the Company [Diversified] against the Employee to enforce the Restrictive Covenants, the Company shall be entitled to all available civil remedies, including without limitation:
(b) Attorneys’ [sic] fees in the trial and appellate courts....
We agree with Diversified that this provision authorizes an award of attorney’s fees in the declaratory judgment action brought by Kohlmeier to challenge the enforceability of the noncompetition provisions in the Agreement. See Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So. 2d 1362 (Fla.1998). Even if the Agreement did not entitle Diversified to an attorney’s fee award, section 542.335(l)(k), Florida Statutes (2003), would provide an alternative basis for an award of attorney’s fees to Diversified in this case. Accordingly, we reverse the order denying Diversified’s motion for attorney’s fees, and we remand this case to the trial court for the entry of an order awarding attorney’s fees to Diversified.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, SILBERMAN, and WALLACE, JJ., Concur.