Rehearing Denied Feb. 10, 2012.
Beverly A. Pohl, Peter R. Goldman and Vanessa M. Serrano of Broad and Cassel, Fort Lauderdale and Major Best Harding of Ausley & McMullen, P.A., Tallahassee, for appellant.
Glenn J. Waldman and Douglas T. Marx of Waldman, Trigoboff, Hildebrandt, Marx & Calnan, P.A., Weston, for appellees.
After a long and tortured litigation history, the plaintiff appeals a final summary judgment in an action seeking to enforce a noncompete provision. It argues, among other issues, that the trial court erred in entering summary judgment as genuine issues of material fact remain. We agree and reverse.
The plaintiff filed an action against one of its former employees and a competing company, seeking to enforce a noncompete provision and damages. The facts giving rise to the claims are these.
The plaintiff provided emergency department staffing at Wellington Regional Medical Center. The plaintiff's former employee (" doctor" ) is an emergency room physician and served as the plaintiff's Regional Medical Officer in 2003 and 2004, and as the Medical Director at Wellington. The doctor enjoyed a good relationship
with Wellington's Chief Executive Officer (" CEO" ) and managing director, who were one and the same.
On June 16, 2004, without explanation, the CEO gave the plaintiff ninety-days notice that its long-standing staffing contract with the hospital was being terminated. Two days later, the Palm Beach Post published an article that reported Clovix, a Wellington-based group of doctors, had recently made a bid to take over medical services at the Palm Beach County Jail. The doctor was the spokesperson for Clovix. The plaintiff had previously been unaware of Clovix, the jail contract, or the doctor's involvement.
That day, the plaintiff wrote to the doctor, reminding him of the restrictive covenants in his contract and his fiduciary obligations to the company. Believing the doctor was actively engaged in negotiating a contract with Wellington, the plaintiff promptly demanded that he " immediately cease" such activities. The hospital was also given written notice of the restrictive covenants, and was asked to " cease and desist aiding or encouraging [the doctor] to violate the foregoing restrictive covenants."
Over the next month, the plaintiff received information that the doctor was acting inconsistently with his role as medical director. The doctor gave notice of his resignation, but on July 29, 2004, the plaintiff terminated the doctor's contract for cause. The plaintiff also notified the hospital that the restrictive covenant in the doctor's 2003 employment agreement prohibited him from working at Wellington after termination of the plaintiff's contract. Within days of those letters, the plaintiff's Vice-President was told that the doctor had offered positions with a new competitor to all of the plaintiff's Wellington-based physicians.
Before the transition occurred, and prior to the end of the ninety-day notice period, the CEO rescinded the termination of the plaintiff's contract. That action resulted from a call made by the plaintiff's parent company to the CEO's boss, a senior Vice-President at Wellington. The CEO was instructed to correct the situation. However, the CEO wanted the doctor to remain as the emergency department medical director so he conditioned the plaintiff's reinstatement on rehiring the doctor.
The plaintiff proposed a new employment agreement with the doctor, which he signed on August 18, 2004. That contract contained extensive new provisions, which included the doctor's duty to protect and preserve the relationship between the plaintiff and the hospital and other physicians who worked for the plaintiff. It also required the doctor to provide written reports of meetings, problems, and discussions bearing on those relationships. The 2004 employment agreement contained a restrictive covenant emphasizing the doctor's duty of loyalty and a ...