313 So.3d 625
Fla. Dist. Ct. App.2021Background
- Rauch, Weaver, Norfleet, Kurtz & Co. (Broker) had a six‑month exclusive listing agreement (Oct 2014–Apr 2015) to procure a buyer for Seller’s commercial warehouse; commission due from Seller if Broker procured the buyer during the listing term.
- Broker’s agent required prospective buyer Nancy Legault to return a confidentiality agreement before receiving financial information; Legault handwrote her name and contact info and testified she intended to be bound.
- During the listing term Legault offered $1.2M; Seller rejected and negotiations ceased. The listing expired in April 2015.
- Seller later retained a new broker (Goldman). Negotiations resumed and Legault’s company (Garnan) bought the property in May 2016 for $1.4M.
- Broker sued Seller, Legault, and Garnan for breach of the listing and confidentiality agreements and unjust enrichment; Broker’s complaint did not plead that the confidentiality restriction protected any legitimate business interest or that the restraint was reasonably necessary under § 542.335.
- Trial court denied Broker’s motion for summary judgment (finding § 542.335 applied, the confidentiality agreement was not signed by Legault and any temporal restraint could only be read to last the listing term), later entered final judgment for Legault; Broker appealed and the Fourth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could rely on § 542.335 though Legault did not plead it as an affirmative defense | Broker: Court may not rely on an unpled affirmative defense to deny Broker summary judgment | Legault: § 542.335 sets elements the plaintiff must plead/prove; not an affirmative defense | Court: § 542.335 imposes essential elements for enforcing restrictive covenants (plaintiff’s burden); trial court properly relied on it |
| Whether the confidentiality agreement was a signed, enforceable restrictive covenant under § 542.335(1)(a) | Broker: Agreement is binding—Legault signed/accepted it | Legault: Agreement was not properly signed/written as required by statute | Court: Trial court found agreement not signed as required; unenforceable under § 542.335 |
| Whether Broker pleaded/proved a legitimate business interest and reasonable necessity under § 542.335(1)(b)-(c) | Broker: These were not required as affirmative defenses and summary judgment should have been granted | Legault: Broker failed to plead or prove any legitimate business interest or reasonable necessity | Court: Broker failed to meet its pleading burden; restrictive covenant unenforceable |
| Whether entry of final judgment for Legault was improper because she had not moved for summary judgment | Broker: Entry of final judgment was error | Legault: Broker invited any error by requesting entry of final judgment to vest appellate rights | Court: Invited‑error doctrine applies; Broker cannot complain and appellate court will not reach other hypothetical errors |
Key Cases Cited
- White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017) (restrictive covenants enforceable only if they protect a statutory “legitimate business interest”)
- Henao v. Prof'l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006) (§ 542.335 provides comprehensive framework for restrictive‑covenant analysis)
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2011) (definition and burden rules for affirmative defenses)
- Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So. 2d 46 (Fla. 1988) (failure to raise an affirmative defense before summary judgment constitutes waiver)
- Miami Elecs. Ctr., Inc. v. Saporta, 597 So. 2d 903 (Fla. 3d DCA 1992) (under predecessors to § 542.335, illegality of noncompete treated as affirmative defense when not pled)
- Tomasello, Inc. v. de Los Santos, 394 So. 2d 1069 (Fla. 4th DCA 1981) (reasonableness of restrictive covenant not to be considered when not raised by pleadings or tried by consent)
- Baker v. R.J. Reynolds Tobacco, Co., 158 So. 3d 732 (Fla. 4th DCA 2015) (invited‑error doctrine bars a party from complaining about errors it caused)