Cellco Partnership v. Kimbler
68 So. 3d 914
| Fla. Dist. Ct. App. | 2011Background
- Célico (Cellco) challenges a temporary injunction against former Alltel employee Kimbler after Alltel merged with Verizon; injunction sought for alleged misuse of customer list and breach of loyalty.
- Kimbler signed the Ailtel-Kimbler agreement in 2002 with Alltel or its affiliates; at signing, Célico and Alltel were competitors, not affiliates.
- The Ailtel-Kimbler agreement lacks an assignment clause and does not name Célico as a third-party beneficiary.
- After the 2009 reverse merger, Alltel assigned Florida customer contracts to Célico, and Alltel ceased its Florida retail cell-phone business and customer accounts.
- Kimbler left Alltel for Sprint/Nextel in 2009, and Célico sued for injunctive relief; trial court initially granted ex parte relief, then dissolved it, and the court conducted a merits hearing.
- The trial court held Célico could not enforce the agreement because Célico was not a party, third-party beneficiary, assignee, or successor, and Alltel was no longer in the relevant business; the appellate court agreed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Célico may enforce the Alltel-Kimbler agreement | Célico seeks enforcement as successor/affiliate to protect legitimate interests | Kimbler/Alltel contest enforceability due to lack of party status and no assignment | No; Célico cannot enforce as not a party, beneficiary, assignee, or successor |
| Whether Alltel’s post-merger status negates a legitimate business interest | Célico argues post-merger interests are protected | Alltel no longer engages in Florida retail cell-phone business and has no accounts | No legitimate business interest to protect; injunction denied |
| Whether a postmerger affiliate concept extends the agreement to Célico | Célico argues the contract defines affiliates broadly | Agreement does not expressly name Célico as affiliate or future unknown affiliate | Affiliates not extended to Célico; not bound |
| Whether the statutory exceptions for third-party enforcement apply | Exceptions allow enforcement by certain nonparties | Exceptions require explicit naming/authorization which is absent | Exceptions do not apply; nonparty cannot enforce |
| Whether the court properly denied injunctive relief based on irreparable harm/merits | Célico claims irreparable harm from misuse of customer info | No irreparable harm shown given lack of enforceable covenant | Temporary injunction affirmed as denied; focus on enforceability outcomes |
Key Cases Cited
- LaRose v. A.K., 37 So.3d 265 (Fla. 2d DCA 2009) (reiterates factors for temporary injunction; irreparable harm central)
- Walsh v. PAW Trucking, Inc., 942 So.2d 446 (Fla. 2d DCA 2006) (restrictive covenants require protection of legitimate business interests)
- Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666 (Fla. 2d DCA 2005) (sets standards for injunctive relief factors)
- Wolf v. James G. Barrie, P.A., 858 So.2d 1083 (Fla. 2d DCA 2003) (employer not in same business lacks legitimate interest to enforce covenant)
- James v. Gulf Life Ins. Co., 66 So.2d 62 (Fla.1953) (contract interpretation of affiliates at time of contract execution)
- Sheldon v. Tiernan, 147 So.2d 167 (Fla. 2d DCA 1962) (intent of parties governs affiliate status)
- Am. Int’l Group Inc. v. Cornerstone Buss., Inc., 872 So.2d 333 (Fla. 2d DCA 2004) (parent/ subsidiary rights; assignment not shown)
- Unijax, Inc. v. Factory Ins. Ass’n., 328 So.2d 448 (Fla. 1st DCA 1976) (rights of insurer/insured; third-party beneficiary considerations)
- Tusa v. Roffe, 791 So.2d 512 (Fla. 4th DCA 2001) (limitations on third-party enforcement when not expressly named)