A recent non-compete case out of Florida’s Third District Court of Appeals deals with the issue of restrictive covenants and independent clauses. Let’s take a look:
Dale Denton and David West were employees of Richland Towers, Inc. They signed employment agreements with Richland that contained, among other restrictive covenants, non-compete clauses. In 2008, Richland Towers, Inc. ceased its operations and its affiliate, Richland Towers, LLC took over its business. Denton and West transferred their employment to Richland Towers, LLC and remained employed there until their departure in 2011. Immediately after their departure, Denton and West formed a company in direct competition with Richland Towers, LLC, allegedly in violation of their restrictive covenants. Richland Towers, Inc. and Richland Towers, LLC brought suit. In the lower court, Richland sought to preliminarily enjoin the activities of Denton and West, but the injunction was denied. It is from that injunction that Richland appealed.
In analyzing Richland’s likelihood of success on the merits (one of the three requirements for a temporary injunction to be ordered), the lower court looked at two contentions offered by Denton and West that success was unlikely. First, Denton and West offered that, because Richland Towers, Inc. was no longer conducting business, the restrictive covenants were unenforceable. The court did away with this contention because the contract allowed affiliates of Richland Towers, Inc. to enforce the covenants. Richland Towers, LLC was one such affiliate. Second, Denton and West alleged prior breach of the contract by claiming that they had not received compensation in the form of bonuses per the terms of the contract. Argued Denton and West argued that the prior breach rendered the contracts unenforceable and void in their entirety. It was with this argument that the lower court agreed.
The third district, however, did not agree.
The third district stated that in order to reach its decision, the lower court must have concluded as a preliminary matter that each of the obligations at issue were dependent covenants. Let me explain: Typically, contracts are construed in their entirety. Courts look to the intent of the parties, based upon the language of the contract, to determine which clauses in the contract, if breached, will serve to destroy the contract and which will not. If a dependent covenant is breached, the contract fails whereas the opposite is true for an independent covenant.
In Richland, the section of the contract in which the restrictive covenants at issue were contained also contained a subsection entitled, “Covenants Independent.” That clause read as follows:
Each restrictive covenant on the part of the Employee set forth in this Agreement shall be construed as a covenant independent of any other covenant or provisions of this Agreement or any other agreement which the Corporation and the Employee may have, fully performed and not executory, and the existence of any claim or cause of action by the Employee against the Corporation, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of any other covenant.
The third district reasoned that this clause trumped the general rule that contractual covenants are considered dependent, as it showed that, “the parties unambiguously intended that the covenants were independent.”¹ Though the lower court cited the above referenced clause, it concluded that the very nature of the employment agreement was that Richland agreed to pay Denton and West; that because they did pay their employees as agreed, the contract failed. The third district did away with this reasoning by stating that because the same can be said of any employment relationship, the reasoning must fail. The third district concluded that the law supports the position that an employment contract can provide that its covenants are independent.
Relying on their reasoning, which was supported by the court’s own precedent, the third district reversed the denial of the injunction and remanded for further proceedings.
For employers, this is a great ruling. No longer do employers have to worry about their own prior breach of the employment contact rendering the restrictive covenants unenforceable, at least if your case will be heard by the third district. Employers need only insert a provision in their restrictive covenant clause providing that the covenants are independent. That said, if you are reading to gain an understanding of the state of the law as it is, stop here. If, however, you are reading for an understanding of the state of the law as it should be, the rest is for you.
As I stated previously, the third district rested its conclusion on its own prior precedent. Specifically, it relied on its decision in Reliance Wholesale Inc. v. Godfrey.² There, like here, Godfrey claimed that an action for his breach of the restrictive covenants could not stand due to Reliance’s prior breach in the form of unpaid compensation to Godfrey. There, as here, the trial court agreed. There, as here, the third district reversed, stating that because the restrictive covenant provision contained an independent covenant clause, the prior breach did not bar the action. The precedent, it seems, lines up. Until you look at the case law the third district in Reliance relied on.
To come to their conclusion in Reliance, the third district looked to Capraro v. Lanier Bus. Products, Inc., a fourth district case.³ There, Capraro claimed that the action against could not stand due to a prior breach by Lanier. He claimed that, in addition to his other compensation, the contract required Lanier to tell him trade secrets. He claimed that the fact that he was not told trade secrets was a prior breach by Lanier that rendered the contract void. The fourth district agreed with the trial court that the trade secret language did not create an enforceable dependent covenant, the breach of which would have rendered the contract void. Note that the court did not look to whether or not the restrictive covenant at issue was a dependent covenant; instead it looked to the provision of the contract on which the defendant relied to show prior breach. The fourth district correctly stated that because the trade secret portion was independent, the contract was enforceable even though that provision may have been breached. Though this case was cited by the third district in Reliance, the precedent set down in the case was not followed.
If applied in Richland, the precedent laid down in Capraro would have possibly resulted in a different decision and definitely resulted in different case law. The court would have restricted its reasoning to the compensation clause. Denton and West argued that they did not receive bonus compensation per the terms of the agreement. If the court found that the payment of the salary was a dependent clause while the payment of the bonus was an independent clause, the decision to reverse and remand was the correct one. If the court found that the bonus clause was dependent, however, the entire contract would have failed. There would be no restrictive covenant at issue, as the independent clause in which the restrictive covenants were found cannot exist independent of the contract.
The court in Richland said as much itself. It stated that, “When a dependent covenant has been breached, the entire contract is virtually destroyed.” The problem with their decision is that, after that statement, the court went on not to look to the clause that Denton and West urged had been breached to determine if that clause was dependent; the court instead went on to look to the restrictive covenant clause to determine it that clause was independent. Regardless of whether or not the court got the ultimate ruling correct, bad precedent has been set; precedent good for employers, but not good for the law.
¹Richland Towers, Inc. v. Denton, 2D12-5493, 2014 WL 941952 (Fla. 3rd DCA Mar. 12, 2014)
²Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561 (Fla. 3rd DCA 2010)
³Capraro v. Lanier Bus. Products, Inc., 445 So. 2d 719 (Fla. 4th DCA 1984) approved, 466 So. 2d 212 (Fla. 1985)
Nathan Saunders is a trial lawyer and litigator at Jonathan Pollard, LLC. His office is based in Fort Lauderdale, Florida. He focuses his practice on competition, particularly cases involving non-compete, trade secret and antitrust disputes and represents clients in Florida and throughout the country. His office can be reached at 954-332-2380.