JOEL W. HUNTER, APPELLANT,
v.
NORTH AMERICAN BIOLOGICALS, INC., A DELAWARE CORPORATION, AND ITS SUBSIDIARY COMPANY, INTER-COASTAL BIOLOGICALS, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 4th DCA | 1974-01-08
No. 73-70
OWEN, C. J., and CROSS, J., concur.
287 So. 2d 726 Florida District Court of Appeal, Fourth District (1974) Caution
Cited by 16 cases

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Holding

The court held that a non-competition agreement for an employee in the blood plasma business is enforceable under F.S. Section 542.12, even if the geographical area is not explicitly stated, and the employee takes a different role with a competitor.


Headnotes

[1] A non-competition agreement is enforceable under Florida Statute Section 542.12(2) when it restricts an employee from carrying on a similar business within a reasonably l…

[2] A contract restraining the exercise of a lawful profession, trade, or business is void unless it complies with statutory exceptions, such as those governing employee non-…

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Facts & Procedural History

An employee executed a non-competition agreement with his employer, a blood plasma company. After leaving employment, he joined a competitor in a simi…

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Opinion of the Court
SHOLTS, T. C., Associate Judge.

SHOLTS, T. C., Associate Judge.

This is a timely interlocutory appeal by appellant, (defendant below) from an order of the trial court granting temporary injunctive relief to appellee (plaintiff below).

On November 30, 1972, appellee filed a complaint in the Circuit Court of the Ninth Judicial Circuit for Orange County, Florida, seeking temporary and permanent injunctive relief against appellant for violation of a written non-competition agreement. On January 8, 1973, the trial court entered a temporary injunction against appellant prohibiting him, within the boundaries of Orange County, Florida, from engaging in any activity on his own behalf or on behalf of any competitor of appellee, which was the same as or similar to work engaged in by him while employed by appellee and further prohibited appellant from disclosing any confidential information he gained while employed by appellee.

Appellee is a Florida corporation dealing in blood plasma with offices in Orange County, Florida. On February 11, 1970, appellant, while employed by appellee, executed a non-competition agreement which provides in part:

“During the time I am an employee of NABI, and for a period of one (1) year thereafter, I will not engage in any activity, on my own behalf or on behalf of any competitor of NABI, which is the same as or similar to work engaged in by me as an employee of NABI, unless I have the written consent of NABI.”

Appellant left the employ of appellee in November, 1972, and obtained employment with another Orlando firm engaged in business similar to that of appellee, although appellant’s position with his new employer (as manager) differed from his former position with appellee.

Appellant asserts the trial court erred by granting the temporary injunction and in failing to dismiss the complaint.

This interlocutory appeal involves the application of F.S. Section 542.12, F.S.A. 1971, which pertinent provisions provide:

“(1) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.

“(2) . . . one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business . . . within a reasonably limited time and area ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction.”

As to appellant’s first point, his argument is threefold. He argues that the blood plasma business is, in fact, a “profession” and therefore the provisions of paragraph (2) of the subject statute are inapplicable. We disagree. White v. Allen, Fla.1970, 240 So. 2d 635, affirming White v. Allen, Fla.App.1970, 232 So. 2d 766, and Akey v. Murphy, Fla.1970, 238 So. 2d 94.

Second, appellant argues that since the agreement fails to specify any geographical area to which it is applicable, the agreement is so vague and broad as to be void and unenforceable. We disagree. Flammer v. Patton, Fla.1971, 245 So. 2d 854; Kofoed Public Relations Associates, Inc. v. Mullins, Fla.App.1972, 257 So. 2d 603, cert. denied Fla., 263 So. 2d 230; and Lee v. Watsco, Inc., Fla.App.1972, 263 So. 2d 241.

Third, appellant argues that the agreement was not enforceable because appellant accepted a different position with the competitive company than he held with appellee. We disagree. The trial court has jurisdiction to determine the issue of the similarity of positions and, in its discretion, to enforce the covenant in respect thereto. Further, accepting employment in a similar business is inclusive of the term “engaging in a similar business” within the provisions of the subject statute. Storz Broadcasting Co. v. Courtney, Fla.App. 1965, 178 So. 2d 40.

Finally, appellant’s argument that the trial court committed error in not dismissing the complaint is without merit. The statute is in derogation of the common law and provides for injunctive relief. Atlas Travel Service, Inc. v. Morelly, Fla.App.1957, 98 So. 2d 816. The complaint alleges :

(a) The contract

(b) The appellant’s intentional direct and material breach thereof.

(c) No adequate remedy except by in-junctive relief.

The court, when considering a motion to dismiss must accept these allegations as true. The allegations are sufficient to state a cause of action under the statute. Beery v. Plastridge Agency, Inc., Fla.App.1962, 142 So. 2d 332.

The trial court properly entered the appealed order, and the same is hereby affirmed. This cause is remanded to the trial court for all further proceedings not inconsistent therewith.

Affirmed and remanded.

OWEN, C. J., and CROSS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Silvers v. Dis-Com Sec., Inc., 403 So. 2d 1133 (Fla. 4th DCA 1981)
    …nt out this general rule as a starting point only, with the admonition that proceedings involving Section 542.12, Florida Statutes (1979) appear to operate under modified guidelines. The rule is set out in Hunter v. North American Biologicals, Inc., 287 So. 2d 726 (Fla. 4th DCA 1974). In that case we said that in order to state a cause of action to enforce a covenant falling within the purview of the statute it was necessary only to allege: (a) The contract (b) The appellant’s intentional direct and materia…
  • Suave Shoe Corp. v. Fernandez, 390 So. 2d 799 (Fla. 3d DCA 1980)
    …cement of the non-competition agreement pursuant to Section 542.12(2), Florida Statutes (1977), Maimone v. Wackenhut Corporation, 329 So. 2d 332 (Fla.3d DCA 1976), cert. denied, 342 So. 2d 1102 (Fla.1977); Hunter v. North American Biologicals, Inc., 287 So. 2d 726 (Fla. 4th DCA 1974); (2) the agreement that the plaintiff would provide the defendant with knowledge and training was not a dependent covenant which permeated the contract so that the failure to perform it would have constituted a breach of a princ…
  • T.K. Commc'ns, Inc. v. Herman, 505 So. 2d 484 (Fla. 4th DCA 1987)
    …ly effectual relief. It truly can be said in this type of litigation that relief delayed is relief denied. For these reasons we agree with the district court that irreparable injury should be presumed. In Hunter v. North American Biologicals, Inc., 287 So. 2d 726 (Fla. 4th DCA 1974), we stated that in order to state a cause of action to enforce a covenant not to compete, it is necessary only to allege: 1) a contract, 2) the intentional direct and material breach of the contract, 3) no adequate remedy except…

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Authorities Cited (11 total)

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