PICTURE IT SOLD PHOTOGRAPHY, LLC., a Florida limited liability company, Appellant,
SCOTT BUNKELMAN, Appellee.
final until disposition of timely filed motion for rehearing.
of a nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lisa S. Small, Judge;
L.T. Case No. 50-2018-CA-015988-XXXX-MB.
D. Lipscher and George P. Ord of Gene D. Lipscher, P.A.,
Jupiter, for appellant.
Bennett S. Cohn of Law Offices of Bennett S. Cohn, West Palm
Beach, for appellee.
It Sold Photography, LLC ("Employer") appeals the
denial of its motion for a temporary injunction to enforce a
non-solicitation and non-compete agreement against Scott
Bunkelman ("Contractor"), an independent contractor
formerly employed by Employer. Because the trial court failed
to properly apply the presumption of irreparable harm flowing
from violations of the agreement and improperly determined
that evidence in support of a fraudulent inducement
affirmative defense precluded a temporary injunction, we
reverse and remand for the entry of a temporary injunction.
is a business that provides photography and videography
services for real estate professionals. In October 2016,
Contractor was hired by oral agreement to provide photography
services as an independent contractor for Employer. The
following December, the terms of Contractor's employment
were memorialized in a written independent contractor
agreement, which included the following non-solicitation and
Independent Contractor agrees that he/she will not
directly or indirectly do or attempt to do any of the
following during Independent Contractor's engagement
(except in the faithful performance of his/her duties for the
Company) or during the period of two years after the date
of termination of Company's engagement of Independent
Contractor, within the Florida counties of Palm Beach,
Broward, Martin and St. Lucie: solicit, employ,
engage, hire, call on, compete for, sell
to, divert, or take away any customer, supplier,
endorser, advertiser or employee, agent, subagent, or
independent contractor of Company or aid, assist or plan for
anyone else to do so; divert or aid, assist or plan for
others to divert from the Company any past or pending sale or
exchange of any goods, product or service; entice, aid or
cooperate with others in soliciting or enticing any employee,
agent, subagent or independent contractor of the Company to
leave, modify or terminate its relationship with the Company;
participate in planning for any new or existing business
that is or would be similar to the business of the Company or
that does or would compete with the Company or solicit
customers of the Company; accept any other employment or
engagement that would call upon Independent Contractor to
use, disclose or base judgments on the Company's trade
secrets or confidential information or to utilize the
Company's customer goodwill in making sales or other
advantageous business relations for a business similar to or
in competition with the Company's business; compete
against the Company for customers, suppliers, employees,
agents or independent contractors; or own, manage, be
employed by, be engaged by, work for, consult for, be an
officer, director, partner, manager, employee, independent
contractor or agent of, advise, represent, engage in, or
carry on any business which is similar to the type of
business engaged in by the Company at this time or on the
date of termination of Independent Contractor's
engagement and which competes with the Company.
added). The initial term of the agreement was one year, with
an automatic renewal provision for additional one-year
periods, unless terminated by either party by written notice.
An addendum to the written agreement provided that Contractor
would be compensated pursuant to a fee schedule.
discovering that Contractor was violating the agreement,
Employer sued him for violating the restrictive covenants in
the agreement, seeking injunctive relief and damages.
Employer also filed an emergency motion for temporary
injunction. Contractor filed an answer, asserting several
affirmative defenses and a counterclaim against Employer.
temporary injunction hearing, Contractor admitted that he was
unsatisfied with his earnings and began providing his
services for some of Employer's customers on the side
without Employer's knowledge or consent. Contractor's
testimony established that when confronted by Employer prior
to suit, he admitted to working on the side. He further
admitted that he never gave a written notice of termination
of the agreement, but claimed he stopped providing
independent contractor services to Employer as of December
2018. Additionally, he admitted that he had in the past and,
as of the date of the hearing, continued to provide
photography and video services to a few of Employer's
presented testimony from some of Employer's former
customers. Several customers, but not all, testified that
they would not use Employer again, for reasons that had
nothing to do with Contractor.
hearing, Contractor argued that the agreement was invalid
because Employer fraudulently induced him to enter it by
assuring him a $60, 000 salary, which he never earned while
working for Employer. He did not dispute that he was paid
according to the fee schedule in the agreement. However, he
testified that he could not earn a $60, 000 salary because
Employer did not do its part and never sent him enough
business. He argued that he was fraudulently induced to enter
the agreement as to the location of his work. He also argued
that while negotiating the agreement, he explained to
Employer that he needed to work in northern Palm Beach County
due to personal family issues. He further testified that he
was assured ...