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Picture it Sold Photography, LLC. v. Bunkelman

Florida Court of Appeals, Fourth District

January 8, 2020

PICTURE IT SOLD PHOTOGRAPHY, LLC., a Florida limited liability company, Appellant,
v.
SCOTT BUNKELMAN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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.

          Gene 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.

          Conner, J.

         Picture 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.

         Background

         Employer 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 non-compete provisions:

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.

         (emphases 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.

         Upon 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.

         At the 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 customers.

         Contractor 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.

         At the 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 ...


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