Flickenger v. R.J. Fitzgerald & Co.

The full case caption appears at the end of this opinion. PARKER, Chief Judge. Robert Lee Flickenger and John Karras (appellants) seekreview of the trial court’s interlocutory order granting R.J. Fitzgerald & Co., Inc.’s(Fitzgerald) motion for temporary injunction. Of the three issues raised by theappellants, we conclude that only two have merit. Accordingly, we direct the trial courtto amend the temporary injunction to reduce the period of restraint to two years and toconduct a hearing to establish the appropriate amount of the injunction bond. This dispute arises from an employment agreement theappellants executed as employees of Fitzgerald, a commodities brokerage firm. As acondition precedent to employment, each appellant executed an agreement containingrestrictive covenants precluding disclosure of confidential information, solicitation ofFitzgerald’s clients and employees, and competition with Fitzgerald for three yearsfollowing a period of active employment. Sometime after the appellants left Fitzgerald’semploy, Fitzgerald filed an action against them seeking injunctive relief and damages forbreach of the employment agreement. Without hearing arguments regarding the amount of thebond, the court subsequently granted a temporary injunction enforcing the restrictivecovenants in the employment agreement and ordered Fitzgerald to post a $10,000 bond. Theappellants filed an interlocutory appeal arguing that the trial court erred in awardingthe temporary injunction and setting the injunction bond without a hearing. We conclude that the evidence is sufficient to affirmthe enforcement of the employment agreement, except for the three-year restrictivecovenant. Under section 542.335(1)(d)1, Florida Statutes (1997), “a court . ..�shall presume unreasonable in time any restraint more than 2 years induration.” Where there is no evidence in the record to rebut this presumption, aninjunction entered in excess of two years is error. See Balasco v. Gulf AutoHolding, Inc., 707 So. 2d 858, 860 (Fla. 2d DCA 1998). Because Fitzgerald has notpointed to any evidence in the record to support a three-year time restriction, thethree-year time restraint is presumptively unreasonable. See id. Therefore,we direct the trial court on remand to amend the temporary injunction to reduce the periodof restraint to two years. As to the injunction bond, the appellants arguecorrectly that the trial court erred in setting the amount of the injunction bond withoutan evidentiary hearing. Because damages recoverable for a wrongfully obtained injunctionare limited to the amount of the injunction bond, both parties are entitled to presentevidence as to the appropriate amount of the bond. See Longshore Lakes JointVenture v. Mundy, 616 So. 2d 1047, 1047-48 (Fla. 2d DCA 1993). We reverse andremand for an evidentiary hearing because the trial court entered the bond amount withoutaffording the appellants the opportunity to present evidence. The order granting the temporary injunction isaffirmed. We partially reverse this case and direct the trial court to reduce the periodof restraint to two years. Further, the trial court is directed to conduct an evidentiaryhearing and thereafter to set an appropriate bond. PATTERSON and NORTHCUTT, JJ., Concur.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED ROBERT LEE FLICKENGER and JOHN KARRAS, Appellants v. R.J. FITZGERALD & COMPANY, INC., Appellee. Case No. 98-02365 In the District Court of Appeal of Florida Second District Appeal from nonfinal order of the Circuit Court for Hillsborough County; Dick Greco, Jr., Judge. Opinion filed April 30, 1999. R. Lawrence Bonner and Marc A. Wites of Homer & Bonner, P.A., Miami, for Appellants. Ronald H. Trybus of Kass Hodges, P.A., Tampa, for Appellees.