Gulf Coast Refractory Services, Inc. v. Green, 240 So. 2d 501

Gulf Coast Refractory Services, Inc. v. Green

240 So. 2d 501 | Fla. Dist. Ct. App. | 1970

Lead Opinion

MANN, Judge.

Green was employed by appellant corporation, in which he was one of the in-corporators, and agreed that he would not for a period of three years after termination of employment engage directly or indirectly in the graphite repair business and would not use knowledge gained in appellant’s business nor solicit its customers. Upon Green’s joining a competing firm this action for injunction was brought and dismissed for want of a territorial limitation.

The question is answered both ways in the cases. Annotation 43 A.L.R.2d 94. *502But in Florida this court has held that the trial court has authority to reduce a restriction to a reasonable time. McQuown v. Lakeland Window Cleaning Co., Fla.App.1962, 136 So.2d 370. And the Third District has held that the absence of a territorial limitation does not of itself invalidate the agreement. Fountain v. Hudson Cush-N-Foam Corp., Fla.App.1960, 122 So.2d 232. There is evidence in this record that the corporation operates in Louisiana, and for all we know might perform some service all over the world. In any event, the agreement not to solicit appellant’s customers nor to use its trade secrets discloses enough to survive a motion to dismiss even if the pleadings need further amendment or if the final decree must give less than the relief requested. Fla.Stat. § 542.12 (1969) F.S.A. authorizes certain agreements which were invalid at common law. In our judgment this complaint was improperly dismissed.

Reversed and remanded for further proceedings consistent with this opinion.

HOBSON, C. J., concurs. LILES, J., dissents with opinion.

Dissenting Opinion

LILES, Judge

(dissenting).

I must respectfully dissent from the majority opinion. The case of McQuown v. Lakeland Window Cleaning Co., Fla.App.1962, 136 So.2d 370, was a case wherein McQuown entered into a contract not to compete with Lakeland Window Cleaning Co. The covenant was specifically limited to Polk County, Florida, for a period of five years. There the Chancellor simply reduced the time from five years to one year.

The conclusion of Fountain v. Hudson Cush-N-Foam Corp., Fla.App.1960, 122 So.2d 232, cited in the majority opinion, is also distinguishable. There the court said that the absence of a territorial limitation does not in and of itself invalidate the agreement. It should be noted, however, that the complaint in Fountain alleged a territory, namely, the manufacture and sale of certain products throughout the United States. The complaint in the instant case makes no allegation as to territory.

Appellants’ main argument in its brief is that there is a reasonable territorial limitation, that territory being the “customer area.” This argument may have merit as it pertains to the part of the contract which says that appellee cannot solicit old customers of Gulf Coast Refractory. However, I would point out that there is another separate paragraph in the contract which does not mention old customers. This paragraph provides that Green will not go into any competing business and in my opinion this portion of the contract does not comply with the Florida Statute.

For these reasons I would affirm the trial court’s dismissal of the complaint.