       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 15, 2017.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D16-1128
                          Lower Tribunal No. 16-8292
                             ________________

                      Allied Universal Corporation,
                                    Appellant,

                                        vs.

                              Jeffrey B. Given,
                                    Appellee.


     An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jorge E. Cueto, Judge.

     Daniel K. Bandklayder, P.A. and Daniel K. Bandklayder and Amy M.
Bowers; Bowman & Brooke LLP and Douglas H. Stein, for appellant.

      Ford & Harrison LLP and Elizabeth M. Rodriguez; Ford & Harrison LLP
and Edward B. Carlstedt (Tampa), for appellee.


Before SUAREZ, C.J., and LAGOA and SCALES, JJ.

      SUAREZ, C.J.

      Allied Universal Corporation [Allied] appeals a non-final order denying its

motion for a preliminary injunction by which it sought to enforce the terms of a

non-compete agreement it had with former employee Jeffrey B. Given [Given]. A
review of the record shows that Given failed to rebut the presumption of

irreparable injury raised by Allied. We accordingly reverse.

      Allied is a Florida corporation engaged in the manufacture and distribution

of water treatment chemicals, and sells its products throughout the southeastern

U.S. Allied is headquartered in Miami-Dade County and has offices throughout

Florida, and the southeastern U.S. Given is a resident of Georgia and was hired by

Allied in 2010. He worked as regional sales manager for Allied in the Georgia

facility, with responsibility for all sales territory north of Florida. During Given’s

employment with Allied, he received training regarding Allied’s business

practices, confidential and proprietary manufacturing processes, packaging and

handling techniques, as well as proprietary business information such as raw

material providers, production costs, customer lists, prospective customers,

marketing and pricing.

      In 2015, as a condition of continued employment, Given signed a non-

disclosure and non-compete agreement that provided he not directly compete with

Allied for 18 months after termination of employment and within a 150-mile radius

of any Allied operational facility. In March 2016, Given resigned from Allied and

took a job with Univar, in Georgia, as a strategic account manager. Univar is a

company that directly competes with Allied, and is engaged in the manufacture,

sale, packaging and distribution of many of the same chemicals Allied produces

and distributes. In his position at Univar, Given targeted a larger market than

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Allied, i.e., customers that buy in high volumes for barges and railcars, rather than

by the truckload. Univar sells in the same geographic area as Allied, and within

150 miles of Allied facilities, but also purchases products from Allied as a

customer. Allied sought temporary injunctive relief based on Given’s violation of

the non-compete agreement. Following an evidentiary hearing on Allied’s motion,

the trial court denied the motion, finding only that Allied failed to show irreparable

harm or absence of an adequate remedy at law.

        The trial court is afforded broad discretion when granting, modifying or

denying an injunction. The trial court’s decision can only be overturned on appeal

upon a finding of a clear abuse of discretion. Wise v. Schmidek, 649 So. 2d 336,

337 (Fla. 3d DCA 1995). We find there was such an abuse as the record shows

that Allied presented unrebutted evidence of a statutorily listed legitimate business

interest to be protected and also presented unrebutted evidence of irreparable harm.

      “A temporary injunction is an extraordinary and drastic remedy which

should be sparingly granted.” Cordis Corp. v. Prooslin, 482 So. 2d 486, 489 (Fla.

3d DCA 1986). To grant a temporary injunction, the moving party must plead and

establish: (1) a likelihood of irreparable harm and the unavailability of an adequate

remedy at law; (2) a substantial likelihood of success on the merits; (3) that the

threatened injury to the petitioner outweighs any possible harm to the respondent[;]

and (4) that the granting of a temporary injunction will not disserve the public




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interest. Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561, 564 (Fla. 3d DCA

2010).

      The issue in this appeal is controlled by Section 542.335 Florida Statutes

(2016) (Valid restraints of trade or commerce).1 With that in mind, a court “shall

1 Section 542.335 Florida Statutes (2016) provides:
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that
restrict or prohibit competition during or after the term of restrictive covenants, so
long as such contracts are reasonable in time, area, and line of business, is not
prohibited. In any action concerning enforcement of a restrictive covenant:
    ...

(b) The person seeking enforcement of a restrictive covenant shall plead and prove
the existence of one or more legitimate business interests justifying the restrictive
covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does
not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers,
patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark,
service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful
and is void and unenforceable.

Section 542.335 (1)(g)(4) provides:
(g) In determining the enforceability of a restrictive covenant, a court: . . .
4. Shall consider the effect of enforcement upon the public health, safety, and
welfare.
(h) A court shall construe a restrictive covenant in favor of providing reasonable
protection to all legitimate business interests established by the person seeking
enforcement. A court shall not employ any rule of contract construction that
requires the court to construe a restrictive covenant narrowly, against the restraint,
or against the drafter of the contract.
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construe a restrictive covenant in favor of providing reasonable protection to all

legitimate business interests established by the person seeking enforcement.”

§542.335(1)(g)(4), Fla. Stat. (2016).      Section 542.335(1)(b), Florida Statutes

(2016) provides a non-exhaustive list of statutorily protected legitimate business

interests. This list includes “[s]ubstantial relationships with specific prospective or

existing customers” and goodwill associated with an “ongoing business or

professional practice” or “specific geographic location.”

      At the evidentiary hearing on the motion for temporary injunction, Allied

presented unrebutted evidence of the existence of statutorily legitimate business

interests to be protected and evidence that Given had substantial relationships with

specific prospective or existing Allied customers. Allied’s president, Mr. Palmer,

testified that his company had trained Given, over the course of Given’s six-year

employment, in its manufacturing and production techniques, marketing strategies,

and confidential pricing strategies.2 In addition, Given had knowledge of existing

and prospective customers, and had been sent to several trade meetings to cultivate




Section 542.335 (1) (j) provides:
(j) A court shall enforce a restrictive covenant by any appropriate and effective
remedy, including, but not limited to, temporary and permanent injunctions. The
violation of an enforceable restrictive covenant creates a presumption of
irreparable injury to the person seeking enforcement of a restrictive covenant.
2 Neither party has disputed that Given voluntarily signed a valid non-compete
agreement or that Given became employed by Allied’s competitor Univar within a
month of resigning from Allied.
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these contacts. “As with many sales positions, regardless of the industry, forming

relationships with prospective and existing customers is invaluable and often vital

for success.” Reliance Wholesale, 51 So. 3d at 565. Allied, therefore, presented

evidence of the existence of legitimate business interests to be protected as defined

and set forth in Florida Statutes section 542.335(1)(b)2, and evidence that Given

had substantial relationships with specific prospective or existing Allied customers.

See §542.335(1)(b)3, Fla. Stat. (2016). As such, Allied’s evidence was sufficient

to create a rebuttable presumption of irreparable injury for purposes of obtaining a

temporary injunction under section 542.335(j).

      Once Allied presented evidence of irreparable injury, the burden shifted to

Given, the party opposing enforcement, to establish the absence of such injury.

§542.335(1)(j), Fla. Stat. (2016).   Given failed to present any such evidence.

Given argues that as he had not yet begun actively managing Univar territory

because of the pending injunction proceedings, he has not breached the non-

compete and no monetary damages were incurred by Allied as a result of his

employment with Univar. He admitted that, if he were not enjoined, he would

begin managing a sales territory for Univar. However, the only focus at the

preliminary injunction stage is to maintain longstanding relationships and preserve

the company’s goodwill. See U.S. Floral Corp. v. Salazar, 475 So. 2d 1305 (Fla.

3d DCA 1985) (noting that entry of a temporary injunction is the favored remedy

for violation of a non-compete agreement); Variable Annuity Life Ins. Co. v.

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Hausinger, 927 So. 2d 243, 245 (Fla. 2d DCA 2006) (“[T]he harm presumed under

the statute includes the potential damages to [the plaintiff's] longstanding

relationships with its customers and the protection of confidential client

information”). The breach of a non-compete agreement that threatens a former

employer's goodwill and relationships with its customers, indicates that nothing

short of an injunction would prevent this loss. See TransUnion Risk & Alternative

Data Sols., Inc. v. Reilly, 181 So. 3d 548, 551 (Fla. 4th DCA 2015).

      Allied presented unrebutted evidence that should the temporary injunction

not be granted, Allied would suffer irreparable harm. Allied’s president testified

that Allied’s business would be severely hurt if Given were to use Allied’s

customer information, relationships, and marketing strategy in his new

employment with Univar. There is no adequate remedy at law for disclosure of

this information. The employer seeking an injunction need not directly prove that

the former employee’s actions will cause irreparable harm if not enjoined; the

presumption of harm here is unrebutted. See Hausinger, 927 So. 2d 243, 245 (Fla.

2d DCA 2006) (holding that the inability to demonstrate actual monetary damages

does not preclude a finding of irreparable harm to support injunctive relief)); Am.

II Elecs., Inc. v. Smith, 830 So. 2d 906, 908 (Fla. 2d DCA 2002) (recognizing that

“a party seeking to enforce a restrictive covenant by injunction need not directly

prove that the defendant's specific activities will cause irreparable injury if not

enjoined”). “To require that a plaintiff prove irreparable injury as a prerequisite to

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injunctive relief, as petitioner urges, would, in most instances, defeat the purpose

of the plaintiff's action. Immediate injunctive relief is the essence of such suits and

oftentimes the only effectual relief. It truly can be said in this type of litigation that

relief delayed is relief denied.” Capraro v. Lanier Bus. Prod., Inc., 466 So. 2d 212,

213 (Fla. 1985).

      Accordingly, we reverse the order denying the motion for temporary

injunction and remand with directions to grant the motion and enter the requested

temporary injunction reinstating the status quo. Our decision shall take effect

immediately notwithstanding the filing of any motion for rehearing.

      Reversed and remanded.




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