MARC P. OSSINSKY ATTORNEY AT LAW WRITING SAMPLE 6

APPELLEE’S ANSWER BRIEF

Date: February 13, 1998                          Marc P. Ossinsky, Esquire FBN: 438588
                                                            Marc P. Ossinsky, P.A.
                                                            210 N. Wymore Road
                                                            Winter Park, Florida 32789
                                                            Phone: 407/629-2484 Fax: 629-4429

Attorney for Appellee, Kirk Bradach

TABLE OF CONTENTS

Page:

TABLE OF CONTENTS                                            i
TABLE OF AUTHORITY                                          ii-iv
STATEMENT OF THE CASE 1
STATEMENT OF THE FACTS 6
SUMMARY OF ARGUMENT 11
                I. STANDARD OF REVIEW. 12
                II THE LOWER COURT WAS CORRECT IN DENYING AN INJUNCTION BASED UPON AN ALLEGED VIOLATION OF                      FLORIDA TRADE SECRETS ACT. 14
                III. THE LOWER COURT CORRECTLY HELD THAT THE APPELLANTS FAILED TO MEET THEIR REQUIREMENTS                        FOR INJUNCTIVE RELIEF PURSUANT TO FLA. STAT. §542.335. 19

CONCLUSION                                                     25

STATEMENT OF THE CASE

Appellants’ Statement of the Case as set forth in its Initial Brief is accurate. In order to better understand the issues found by the lower court on the Appellants’ causes of action for violation of Florida Trade Secrets Act and enforcement of the Appellants’ non-compete agreement, the Appellee, Kirk Bradach [herinafter "Bradach"] sets forth herein pertinent provisions from the Appellants’ Amended Complaint and Motion for Temporary Injunction [A.1.4-10; A.3.3-8].

Appellants’ Amended Complaint alleges:

[A.1.4; Amended Complaint ¶18; emphasis added].

[A.1.4; Amended Complaint ¶19; emphasis added].

[A.1.4; Amended Complaint ¶20; emphasis added].

[A.1.6; Amended Complaint ¶28; emphasis added].

[A.1.7; Amended Complaint ¶30; emphasis added].

[A.1.9; Amended Complaint ¶39; emphasis added].

[A.1.10; Amended Complaint ¶42; emphasis added].

Further, the Appellants alleged in their Motion for Temporary Injunction:

[A.3.3; Motion for Injunction ¶10; emphasis added]

[A.3.4; emphasis added]

[A.3.5; emphasis added]

[A.3.6; Motion ¶20; emphasis added].

[A.3.8; Motion ¶26; emphasis added].

Corporate Relations Group, Inc.’s [hereinafter "CRG"] non-compete covenant attached to the Amended Complaint states

[A.1.ExhA p.4].

Stratcomm’s Employee Agreement states as to "confidential information" that the employee is prohibited:

[A.1.ExhB p.2].

Stratcomm’s covenant not to compete states:

[A.1.ExhB p.3; emphasis added].

Specifically, Bradach’s affirmative defenses pled to the claim for injunctive relief as follows:

[A.2.5-7].

STATEMENT OF THE FACTS

At the beginning of the hearings on Appellant’s Motion for Injunction, Appellant’s counsel stated Mr. Bradach "stole" the broker book at issue [A.5.7].

Appellant’s tendered Joseph Landis, President of CRG, as its key witness [A.5.10]. His testimony on irreparable injury was rife with conclusions and speculation [A.5.33-34]. Mr. Landis admitted that he had no personal knowledge of Mr. Bradach possession or use of the materials complained of in the Appellants’ lawsuit [A.5.38-39]. Mr. Landis identified Standard and Poors Securities Dealer North American Guide as listing all of the licensed securities brokerage offices within the United States and Canada [A.5.39], which is available to the public. Id. Mr. Landis further conceded that he has no personal knowledge of Bradach having in his possession any broker lead information or his use of any broker lead information after termination [A.5.42].

The list of allegedly trade secret information was actually owned by a separate party to this case by the name of Applied List Management [A.5.42-43]. Mr. Landis stated that Mr. Bradach was "a very good salesman and very effective" [A.5.44]. However, when asked to identify the names of any broker who is not doing business with CRG because Mr. Bradach was working elsewhere. Mr. Landis stated,

Not off of the top of my head. I can’t. No. I would have to go through the entire list. I did not bring that with me.

[A.5.44-45]. Landis further conceded that the population of brokers of which the Appellants are concerned have no requirement or obligation to deal with CRG at any time [A.5.45].

As regards the list which comprise "trade secrets", Mr. Landis conceded that CRG rents names from other sources which can be bought from other third parties [A.5.47]. Mr. Landis further admitted that non-CRG employees have possession of CRG’s list [A.5.48].

Mr. Landis admitted that upon termination, a broker salesman such as Mr. Bradach’s broker book is usually divided up among the remaining CRG sales staff in order to market to those brokers [A.5.49]. When Mr. Landis was asked as to the location of the broker book which CRG is seeking in this lawsuit, he responded, "That’s why I’m here today. I don’t know." [A.5.54]. Mr. Landis testified that the 89 page list of names which Bradach found in his possession was not Bradach’s broker book at issue in this case [A.5.25-26]. Bradach testified that he discovered this partial list in his filing cabinet at home where it had been since April 1997 during his employment with CRG. The materials were discovered after his termination [A.5.88-89]. The trial court inquired of Mr. Landis as to whether there were policies in place for an exit interview as to locate or retrieve such allegedly "secret" information, but no such interview was conducted [A.5.56-57].

Mr. Landis was unaware of any written employee manual governing CRG’s policies on possession of the broker book given to Bradach [A.5.36-37]. Mr. Landis further conceded that CRG publishes in a magazine called Money World the names of its "star brokers", which are brokers which do a lot of trading in CRG client company stock [A.5.58-59].

Mr. Landis was unable to identify any services or duties performed by Bradach for Stratcomm Media USA, Inc. separate and apart from what Bradach did for CRG [A.5.64].

Landis further testified that he was unable to document any "loss of business or goodwill" as a result of the mere fact of Mr. Bradach working elsewhere in the investor relations industry [A.5.134]. He could not identify one person who did not do business with CRG because Mr. Bradach was working elsewhere in the business [A.5.135-136]. Mr. Landis confirmed that part of the reason CRG brought this lawsuit is his personal assumption that Mr. Bradach has the information which are allegedly trade secrets and is "using it" [A.5.136; emphasis added]. Landis testified that upon Bradach’s termination in June 1997 it was known within five minutes of his termination that Mr. Bradach’s "book" was missing [A.5.138]. Landis shared this information with Mr. Skalko, one of Mr. Bradach’s superiors [A.5.138-140]. Landis stated he did not call Bradach to ask if he had possession of the book [A.5.139]. Landis testified that he was not aware in late July of 1997 that anyone at CRG was considering rehiring Mr. Bradach [A.5.140].

Mr. Bradach testified that he had worked in the financial industry and investor relations for a period of time prior to working for Appellant, CRG [A.5.70-71]. Mr. Bradach clearly testified that he did not have the broker book, any copies of the broker book, or tried to recreate any of this information [A.5.71-72]. In fact, Mr. Bradach saw the "broker book" apparently is at issue in this case in the possession of his employer the day after he was fired, on the desk of his supervisor, Jim Skalko [A.5.73-74]. Mr. Bradach further testified that no one ever asked him for these materials [A.5.77], and that he never performed any services for Stratcomm exclusive of what services he performed for CRG. Id. Mr. Bradach testified as to the blanket waiver of the non-compete provisions by Mr. Roberto Vetia who was at that point either president or chairman of the board of the Appellants [A.5.75-76].

Bradach’s conversations with CRG employees, O’Day and (name removed), occurred after receiving permission from CRG’s sale manager, Ira Kuznick [A.5.99]. These discussions were part of Bradach’s attempt to determine whether he would return to CRG’s as an employee [A.5.100]. The only witness to testify regarding the alleged "threat" of misappropriation was Thomas O’Day, a current CRG employee [A.5.101]. Mr. O’Day testified that Bradach allegedly told him to bring his "broker book" [A.5.102]. However, upon cross examination Mr. O’Day was asked whether this was so that Mr. Bradach could have possession of the broker book or whether it was for the benefit of Mr. O’Day. Mr. O’Day responded, "He didn’t say either way, just to bring my book." [A.5.104]. Mr. Bradach denied telling Mr. O’Day to bring his "broker book" on leaving CRG [A.5.88].

Brian Rosenbloom a former employer of CRG [A.5.108] testified that he saw, "One sheet" which he recognized as being a CRG form. Id. This former CRG employee testified that there is no extraordinary training received while at CRG for a position similar to that former held by Bradach [A.5.109]. Rosenbloom testified that Bradach never represented that he had any confidential information, trade secrets or broker book to help him work for Shannon-Rosenbloom in his new job [A.5.109-110].

Michael Panebianco testified he was an employee of CRG and performed some managerial or administrative functions at the time that Mr. Bradach was employed at CRG [A.5.120]. Mr. Panebianco testified that Mr. Bradach was an excellent employee [A.5.123], and that it was never brought to his attention in June, 1997 that there was a missing broker book allegedly in the possession of Bradach. Id. Mr. Panebianco confirmed that there were discussions of Mr. Bradach returning to the employment of CRG in July of 1997 [A.5.124], and that Mr. Landis was aware of these discussions of Mr. Bradach’s potential return [A.5.125]. None of these superiors ever informed Mr. Panebianco that Bradach had allegedly taken a broker book in violation of company policy or the non-competition agreements. Mr. Panebianco confirmed he has not seen Mr. Bradach’s broker book in the possession of Mr. Bradach after Bradach’s termination, or that Mr. Bradach had indicated that he had possession of same [A.5.127]. Mr. Panebianco stated that CRG had no employee manual governing the "confirm" issues for which Mr. Bradach was fired [A.5.126].

Bradach called David Brokaw to testify, the former CRG computer database administrator [A.5.145]. Mr. Brokaw testified that his job function was to produce broker lists and phone book compilations for salesmen such as Bradach at CRG. Id. Mr. Brokaw testified of his personal observation of the printing and dispersal of Mr. Bradach’s "book or phone records" among the salesmen at CRG after Bradach’s termination [A.5.146]. Mr. Brokaw further testified that after he left the employment of CRG he was able to gain access on a Saturday to the offices of CRG through an unlocked open door [A.5.147].

Brian Rosenbloom’s partner Timothy Shannon testified on behalf of Mr. Bradach. Mr. Shannon also confirmed that Mr. Bradach never represented that he had any CRG information or documentation which he was planning to bring to his new employment for the benefit of himself or his new employer, Shannon-Rosenbloom [A.5.153]. Mr. Shannon also testified that he was a former CRG employer [A.5.154], and that he never saw the broker book from CRG anywhere in his offices. Id.

The last witness to testify for Bradach was Harry Stone, also a former CRG employee [A.5.156]. Mr. Stone confirmed that Mr. Bradach had worked for him at Corporate Investor Relations prior to Mr. Bradach working for CRG [A.5.157]. Mr. Stone further confirmed that the position at CRG was similar to the positions that Mr. Bradach held at Corporate Investor Relations, and later after his employment with CRG when he worked for Mr. Stone’s company doing investor relations. Id. Mr. Stone testified that there is nothing unique or extraordinary regarding the work experience or training at CRG as far as a broker/sales representative position held by Mr. Bradach, and that everybody in the industry "does the same thing" [A.5.157-158]. Mr. Stone was never told by Mr. Bradach that he had any of CRG’s broker books, information or any trade secrets to bring with him either for Mr. Bradach’s use or his employer’s use [A.5.158-159]. Mr. Stone further testified that he never saw any materials in his office as belonging to CRG [A.5.159]. Mr. Stone testified that there are between 200 and 500 companies that do investor relations like CRG marketing to the same "group" of brokers [A.5.163].

Appellants’ Brief incorrectly cites a "concession" by counsel for Bradach in the transcript at page 8, line 25 regarding the non-compete mileage limitation. The court reporter incorrectly typed that statement "I would ask", when what was stated was "they have asked" referring to the Appellants. It is obvious from the affirmative defenses set forth above that at no time has the Appellee conceded any kind of mileage limitation for non-competition enforcement in this case. Any representation to the contrary must be reviewed in that light.

SUMMARY OF ARGUMENT

As was correctly held in the lower Court’s Order on Motion for Temporary Injunction, the Appellants have wholly failed to produce sufficient evidence to demonstrate their entitlement to a temporary injunction prior to final hearing on the merits. The Appellants wish this Court to re-weigh the evidence and factual disputes heard by the trial court, and substitute its judgment for that of the trial judge who had the benefit of hearing the witnesses live. The Appellants have simply failed to produce sufficient admissible evidence at the hearing to meet the heavy requirements for obtaining a temporary injunction based upon the allegations in the Amended Complaint and their Motion for Temporary Injunction. The recent change to Florida’s Non-Compete Statute (Fla. Stat. 542.335) still requires an employer to "plead and prove" legitimate business interests for entitlement to injunctive relief. The Appellants failed to do so.

I. STANDARD OF REVIEW.

Bradach agrees with the Appellants’ citation to Wise v. Schmidek, 649 So. 2d 336 (Fla 3^rd DCA 1995). A trial court has "broad discretion" in denying injunctions. An appellate court will not disturb a trial court’s decision absent a "clear abuse of discretion". The trial court’s ruling on a temporary injunction comes to the Appellate Court with the presumption of correctness, reversible only upon "a showing of clear abuse of discretion". Gold Coast Chemical Corp. v. Goldberg, 668 So. 2d 326 (Fla. 4^th DCA 1996). In Gold Coast the employer sought enforcement of a covenant not to compete against his former employee. The Court in addressing the appeal denying the employer’s Motion for Temporary Injunction held:

A temporary injunction does not decide the merits of a case; no full hearing has been conducted... the trial court must, early in the case, estimate the likelihood of the Plaintiff prevailing on the merits and securing a permanent injunction.

Id. at 378.

In general the purpose of a temporary injunction is to maintain the status quo. Ladner v. Plaza Del Prado Condominium Association, Inc., 423 So. 2d 927, 929 (Fla. 3^rd DCA 1982). The lower court’s denial of temporary injunction does not decide the merits of the case and does not preclude the granting of a permanent injunction at the conclusion of a full hearing on the merits. Id. at 929. Findings of fact and conclusions of law at a Motion for Temporary Injunction are not binding at trial on the merits. Id.

The discretion of the trial court in granting or denying an injunction is guided by the established rules of the principles of equity. Jennings v. Perrine Fish Market, Inc., 360 So. 2d 434 (Fla. 3^rd DCA 1978). See also Duvallon v. Duvallon, 409 So. 2d 1162 (Fla. 3^rd DCA 1982), and Reinhold Construction, Inc. v. City Council for the City of Vero Beach, 429 So. 2d 699 (Fla. 4^th DCA 1983).

In order for the Appellants to be entitled to a preliminary injunction it has been interpreted to mean that the Appellants must establish:

"...a clear legal right to the relief requested...prior to the issuance of the temporary injunction"

Langford v. Rotech Oxygen and Medical Equipment, 541 So. 2d 1267 (Fla. 5^th DCA 1989).

The Fifth District interpreted that language means the appellant must show "a substantial likelihood of success". [emphasis added.] Note 2 Id., at 1268. The evidence to sustain a temporary injunction cannot be based upon speculation or surmise. Crane Institute of America, Inc. vs. America Crane Training Services, Inc., 621 So. 2d 740 (Fla. 5^th DCA 1993). The enforceability of the covenants to be enjoined must not be questionable. Felicella v. Pamper Me Nail & Fashion Boutique, Inc., 623 So. 2d 861 (Fla. 4^th DCA 1993).

A case cited by Appellants supports affirmance here. Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664 (Fla. 1993), was an interlocutory appeal granting an injunction. The court restated the familiar rule that the trial court’s order is clothed with a "presumption of correctness". Id. at 670. If the decision on an injunction rests on "factual matters" or relies on "live testimony or other evidence", the trial court is best suited to make a decision, absent a clear "abuse of discretion". Id. The Appellants’ cite to Operation Rescue for the proposition that this court should conduct "de Novo" review based on "purely legal matters" [Initial Brief, p. 25, 29]. A clear reading of Operation Rescue and the Appellants’ Brief reveals that the trial court heard witnesses’ conflicting testimony and had to assess credibility in making its decision. The trial court’s order is not based on "purely legal matters" and it must be reviewed solely on the clear abuse of discretion standard. Operation Rescue, Id. Accord Storer Communications, Inc. v. State of Florida, Department of Legal Affairs, 591 So. 2d 238 (Fla. 4^th DCA 1991),

Ordinarily, a temporary injunction should not issue where the legal rights of the parties are in substantial dispute.

Id. at 240.

II THE LOWER COURT WAS CORRECT IN DENYING AN INJUNCTION BASED UPON AN ALLEGED VIOLATION OF FLORIDA TRADE SECRETS ACT.

The Appellants’ proof on trade secrets violation falls far short of showing anything protectable by injunctive relief. The evidence tendered shows the Appellants share their information with other companies and in fact publishes magazines to the public giving information about certain high volume brokers to the world. To now say in this court, that this information is confidential and privileged makes a mockery of the Trade Secrets Act. Further, the trial court has seen that the lists of names referred to by the Appellants are names of brokers listed with state registries and in other publicly available sources. It is the law of Florida that where information is readily available from other sources, such information cannot be deemed a trade secret. See Barberio-Powell v. Berstein Liebstone Associates, Inc., 624 So. 2d 383 (Fla. 4^th DCA 1993) and Sethscot Collection, Inc. v. Drbul, 669 So. 2d 1076 (Fla. 3^rd DCA 1996). In Sethscot the court held regarding a prospective customer list:

The prospective customer list contains the names of 9,600 social fraternities and sororities. This information was obtained from commercially available materials. Because the prospective customer list is compiled from information that is readily ascertainable to the public and are not the "product of any great expense or effort," it "does not qualify as [a] trade secret[] entitled to injunctive protection."

Id. at 1078.

As regards to trade secret, the Appellants failed to produce to the Court the actual trade secret information, so that the Court could ascertain whether in fact the information constituted a trade secret. Such a lack of proof supports the Court’s conclusion. See Lovell Farms, Inc. v. Levy, 641 So. 2d 103 (Fla. 3^rd DCA 1994).

The Appellants put forth no documentary evidence to bolster their bald assertions in court of the amount of money spent to gather any of these "lists" which are compiled from various sources outside of the Appellants’ efforts. The Appellants also admitted the "lists" themselves belong to a third corporation, Applied List Management, Inc. who is not a party to the action.

Appellants testified some of the names on the "list" are compiled by response cards to a magazine and from other sources. As stated in Thomas v. Alloy Fasteners, Inc., 664 So. 2d 59 (Fla. 5^th DCA 1995), names compiled while making cold calls were not trade secrets. Further, under the case law interpreting the trade secret statute, the burden is upon the Appellants to "plead and prove" the use of trade secrets or actual or threatened misappropriation as defined by the statute. See Thomas at 59.

The Appellants have also failed to tender sufficient evidence to demonstrate that any of the alleged trade secrets are subject to security efforts reasonable under the circumstances to maintain their secrecy as required by Fla. Stat. §688.02(4)(b) [e.g. no employee manual]. Mr. Landis testified that there was no exit interview and that he never contacted Bradach to ascertain the location of the "broker book".

Although the Appellants cite in paragraph 10 of their motion that they have "learned" that Mr. Bradach allegedly misappropriated trade secrets and was "using" them for his own benefit or that of his current employer, there was no evidence tendered to date which proves this allegation essential to obtaining injunctive relief.

As set forth above, it was Appellants burden to meet the requirements for issuance of temporary injunction and the Court specifically found that it had not done so.

The Appellants argue that there was not "competent evidence" to substantiate the lower court’s finding [Initial Brief p. 15]. Appellants now ask this Court to retry the evidence on such issues. The Court heard the testimony of CRG’s former employee Mr. Brokaw which indicated he was able to gain access to CRG’s offices on the weekend through an unlocked, open door. Such are the facts adduced at the hearing which support the trial court’s ruling. The Appellants cite as error

The lower court has failed to provide any guidance as to why the Appellants numerous measures to insure the secrecy of the information are unreasonable.

[Initial Brief p.19]. This kind of argument demonstrates the fallacy of the Appellants’ position. The only proof offered on their efforts was the fact of the existence of the Employment Agreements which contain confidentiality provisions. It was Appellants burden to produce sufficient credible information to persuade the lower court that they had a substantial likelihood of prevailing on the merits, in order to meet their heavy burden to succeed on a Motion for Temporary Injunction prior to final hearing. It is not incumbent upon the trial court to instruct the Appellants as to what constitutes reasonable measures. The trial court heard the witnesses, reviewed the documents, and was certainly entitled from the lack of proof, and from the lack of production of the actual trade secrets themselves in finding at this juncture that the Appellants had not met their burden on this issue. The Appellee certainly does not contend that such a finding on Motion for Temporary Injunction will be determinative at the final hearing on the merits. Ladner at 929.

The Appellants evidence as to the composition of the list of "14,000" names provides no comfort in this court. The principle set forth in Sethscot Collection, Inc. v. Drbul, 669 So. 2d 1076 (Fla. 3^rd DCA 1996), certainly creates doubt on the Appellants’ "clear legal right", when the testimony before the trial court was that there are such listings available in the public library of all the brokerage offices in North America. Without production of the actual information which are alleged to be trade secrets, the Court could do no more based upon the record as it exists. Lovell, supra. CRG’s President, Mr. Landis, admitted that he trades lists from other proprietors, and rents lists from others from brokers. He stated anyone could do so. All of these factors mitigate against the finding that CRG’s list is "a trade secret" based on the current record.

More importantly, the simple issue of whether or not the lists are "trade secrets" is not the end of the inquiry, and any error as to whether or not the "lists" themselves are "trade secrets" or "confidential information" in this regard is harmless error. The plain meaning of the Uniform Trade Secrets Act provides that only "actual or threatened misappropriation may be enjoined". Fla. Stat. §688.003(1). The Appellants ignore the statutory definition of "misappropriation" when they sought injunctive relief from the trial court. Pursuant to Fla. Stat. 688.002(2), "misappropriation" is defined as:

1. 1. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
   2. Disclosure or use of a trade secret of another...

At Fla. Stat. 688.002(1):

"Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

Appellants evidence failed to clearly prove "misappropriation" of a trade secret by Bradach. As such this Trial Court was imminently correct in denying the injunction for trade secrets because of the total lack of evidence that Bradach had acquired any trade secrets by improper means, or disclosed or used the trade secret of the Appellants.

The Appellants’ proof did not support the allegations made in its pleadings in support of its request for injunctive relief under the Florida Uniform Trade Secrets Act. Therefore, the Court was correct in denying the injunction for these reasons, and the rule as set forth in Langford v. Rotech Oxygen and Medical Equipment, 541 So.2d 1267 (Fla. 5^th DCA 1989) was properly applied. The Court in Rotech noted:

...the trial judge expressly found here was no evidence that Langford took any customer information lists from Rotech. Clearly then, there should have been no injunction issued.

Id. at 1268.

The court found in the case at bar at paragraph 9 of the Order under appeal:

There has been no admissible evidence tendered to the Court which demonstrates actual use or possession of any such information alleged by the Plaintiffs in the possession of the Defendant as of the time of the hearing requiring injunctive relief.

[A.6.2.; Order ¶9].

Further, the Appellants wholly failed to demonstrate any unique or special relationship between CRG and the brokers on the named list which further supports the Court’s denial of the injunction. See Barberio-Powell v. Berstein Liebstone Associates, Inc., 624 So. 2d 383 (Fla. 4^th DCA 1993).

III. THE LOWER COURT CORRECTLY HELD THAT THE APPELLANTS FAILED TO MEET THEIR REQUIREMENTS FOR INJUNCTIVE RELIEF PURSUANT TO FLA. STAT. §542.335.

The Appellants argue that this Court should revisit the issue of the injunction on the non-competition agreement de Novo pursuant to Operation Rescue, supra. The lower court’s ruling is based both upon the plain language of the statute, as well as weighing the evidence and witnesses’ testimony which was rendered at the hearing. The principle cited by Appellant as set forth in Operation Rescue does not apply here, and instead the proper standard for review continues to be the clear abuse of discretion standard as set forth above. See Gold Coast Chemical at 327.

The Appellants wish this Court to totally ignore the evolution in Florida’s Non-Competition Statute which began with the 1989 amendment to Fla. Stat. 542.33, and was fully discussed in the seminal case of Hapney v. Central Garage, Inc., 579 So. 2d 127 (Fla. 2^nd DCA 1991). This statute was replaced by Fla. Stat. 542.335 effective for contracts entered into after July 1, 1996. The Appellants believe that this statutory amendment takes Florida jurisprudence on this subject back to pre-Hapney status. A tremendous amount of statutory interpretation is not needed to uphold the Court’s ruling in this matter.

The Appellants’ claim for injunctive relief for breach of the employee agreements attached to the Amended Complaint fail for many reasons. First, there has been no evidence tendered to show any consideration for execution of the Stratcomm Media USA, Inc. employment agreement for any work separate and apart from the Corporate Relations Group, Inc. employment relationship. Therefore, enforcement of the Stratcomm contract is mere surplusage and should be denied. No evidence was put forth which demonstrates a contractual violation of the Employment Agreement provisions at issue [e.g. actual "disclosure or use"].

Again, there has been no proof of actual violations of the non-compete agreements other than rumor, surmise and innuendo. As required by Fla. Stat. §542.335(1)(b):

The plaintiff seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests...

This is almost the exact language used by the Hapney court in its exhaustive analysis of the enforceability of non-compete agreements under the 1989 statutory revision. Hapney at 134. Fla. Stat. 542.335 then sets forth examples of legitimate business interests including trade secrets, confidential business information, substantial relationships with specific prospective or existing customers, customer or client goodwill and extraordinary or specialized training. The Appellants do not seriously contend that they provided any substantial evidence to support a "legitimate business interest" under Fla. Stat. 542.335(1)(b)(3, 4 or 5). The statute further states:

Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

[emphasis added].

At (1)(c) of this statute, it states:

A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction...

There has been no evidence of the actual use or substantial and continuing violations of the contractual restrictions such as to warrant injunctive relief. Further, the contract itself attempts to prohibit competition per se without demonstrating the legitimate business interest for such a prohibition. No evidence was put forth that the 200 mile limitation advanced by Appellants is meaningful to protection of their "legitimate business interests".

The Appellants have not presented any evidence to support the allegations in paragraph 20 of their motion or the allegations in the Amended Complaint that the Defendant actually used any such information, or that prohibiting the Defendant from working altogether is a reasonable means of enforcement of any protectable interests of their "trade secrets" which the Appellants may have. Since the evidence fails to show the use, possession, or misappropriation of any trade secrets, or other confidential information as defined by Fla. Stat. §688.002 as alleged by the Appellants, an injunction was properly denied.

As succinctly stated in Sabina v. Dahlia Corp., 650 So. 2d 96 (2d DCA Fla. 1995), in order to obtain an injunction based on piracy of customer lists, the plaintiff has the burden to show actual use. The Appellants must plead and prove the use of the trade secrets. Without a substantial showing of competent evidence to demonstrate a violation of the covenant for the statute, issuance of an injunction under such circumstances amounts to an abuse of discretion. Dahlia at 99.

Florida courts continue to hold that irreparable injury is not demonstrated by competition with the Appellants, even if there is a non-compete agreement. State Chemical Manufacturing Co. v. Lopez, 642 So. 2d 1127 (Fla. 3^rd DCA 1994); Bradley v. Health Coalition, Inc., 687 So. 2d 329 (Fla. 3^rd DCA 1997); and Hapney v. Central Garage, Inc., 579 So. 2d 127 (Fla. 2^nd DCA 1991). The Appellants have failed to demonstrate under Hapney the right to prohibit Mr. Bradach from working for a competitor absent use of trade secrets or other confidential information. The evidence and testimony regarding Bradach’s orientation and an occasional seminar is not sufficient "extraordinary training" to be protectable by injunction to prohibit Bradach from working in the Appellants’ industry altogether. See Dyer v. Pioneer Concepts, Inc., 667 So. 2d 961 (Fla. 2^nd DCA 1996):

A former employer is not entitled to enjoin the former employee for employment with a competitor unless the former employer has proved that the employment itself causes irreparable injury.

Dyer at 965 [emphasis added]. Dyer also cited to Sabina in footnote 2:

It is not enough that the former employee knew confidential information; the former employer must prove that the employee is using the information is his or her new job.

Id. See also, AGS Computer Services, Inc. v. Rodriguez, 592 So. 2d 801 (Fla. 4^th DCA 1992).

Contrary to the Appellants’ arguments in their brief, there was no evidence tendered at the hearing which demonstrates that a reasonable method of protecting its "legitimate business interest" in "trade secrets" or "confidential information" of the Appellants requires Bradach refrain from competition per se. This argument is especially troubling in light of the Appellants failure of proof in support of the allegations contained in its Complaint and Motion cited in the Statement of the Case above. It is incongruous for the Appellants to argue here that they are entitled to an injunction based upon their Amended Complaint and Motion which repeatedly alleges "use" of CRG’s "trade secrets", without proof at the hearing of any such use in support of their pleadings for entitlement to any injunction. The fact that trade secrets constitute a legitimate business interest does not vitiate the requirement contained in the Trade Secrets Act to show the actual "use" or "disclosure" as required by the statute.

Appellants assert that Bradach has admitted that the lists are "valuable confidential business information" pursuant to the contractual agreements. Bradach in his answer merely admits the execution of the agreements. The fact that the agreements set forth legal conclusions that such lists are "valuable confidential business information" does not establish this as a matter of fact for a court of law to exercise its equitable powers in establishing Appellants’ rights to an injunction. The burden still falls upon the Appellants to meet the statutory burdens under Fla. Stat. 688.004 or 542.335.

The Appellants also challenge the finding of waiver in the court’s Order on appeal and wish this Court to re-weigh the evidence and testimony given at the hearing. The transcript and Court’s Order clearly demonstrate that the Court was entitled to consider the defenses raised and factual disputes in determining whether the Appellants had a substantial likelihood of prevailing on the merits in securing a permanent injunction. Gold Coast at 327. See also City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750 (Fla. 1^st DCA 1994), decision approved by Naegele v. City of Jacksonville, 659 So. 2d 1046 (Fla. 1995); and Felicella v. Pamper Me Nail & Fashion Boutique, Inc., 623 So. 2d 861 (Fla. 4^th DCA 1993). The Court’s finding of waiver is wholly consistent with the testimony given by Mr. Bradach. The cases cited in Appellant’s Brief do nothing to vitiate this factual finding of CRG’s intentional waiver of a known right as supported by the evidence tendered at the hearing.

Appellants argument regarding entitlement to injunctive relief for the 89 page broker book as contained in Issue 6 of its Brief fails. CRG’s own witness Mr. Landis testified that this was not the information at issue. As set forth above, in order for this to provide evidence of violation of the Trade Secrets Act, the burden was on the Appellants to prove "misappropriation by improper means" or "disclosure or use". See Fla. Stat. §688.002. Bradach testified that he discovered these materials in his possession after he was terminated, and which were received during his employment with CRG. No proof was submitted that any of this information had been "used" or "disclosed" to anyone. Therefore, the Appellants did not meet their burden to produce sufficient evidence to demonstrate that there has been "actual or threatened misappropriation" of trade secrets as defined by the statute.

Sarasota Beverage Company v. Johnson, 551 So. 2d 503 (Fla. 2d DCA 1989), as cited by Appellants is inapplicable. Sarasota Beverage was decided under the pre-Hapney version of Florida’s Non-Compete Statute, Fla. Stat. 542.33 (1987). Even if the rule of law as set forth in Sarasota Beverage applied under the current statute, the proposition Appellants suggest and on which CRG relies does not come into play here. The Appellants have failed in the first instance to prove any "wrongful conduct" on the part of Mr. Bradach. Under the definition of the Trade Secrets Act, it merely cannot be said that they are entitled to an injunction when Bradach did not acquire any "secrets" through "improper means" or "use or disclosed" any of this information, since the information came into Mr. Bradach’s possession when he was lawfully entitled to possess same as an employee of the CRG. Further, the Appellants argue on page 37 of their brief that Bradach’s employer "could have benefitted from the use of the information from the broker book". Such speculative argument is just the kind of circular logic in such cases insufficient to support a temporary injunction. See Crane Institute of America, Inc., supra. The fact that Appellants have no evidence of disclosure or use demonstrates that Mr. Bradach is complying with his contractual obligation in this regard. Since there has been no breach of this obligation, there is no necessity for injunctive relief.

CONCLUSION

The trial court’s Order denying temporary injunction was proper and not an abuse of discretion since it was duly based upon the pleadings and evidence before it. The Appellants failed to meet their heavy burden under Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997 (Fla. 4^th DCA 1986). Without the Appellants’ proof of legitimate business interest in support of the restrictions to be enforced, they cannot establish a violation which would constitute irreparable harm. Appellants further failed to demonstrate a clear legal right to the relief requested based on the conflicts in evidence and testimony.

It is the Appellants’ burden to plead and prove the elements necessary to establish their cause of action. In seeking a temporary injunction, the Appellants must prove:

1) irreparable harm;
2) a clear legal right;
3) an inadequate remedy at law; and
4) consideration of the public interest in enforcement.

The Appellants have failed to demonstrate with sufficient evidence to establish a clear legal right, the irreparable harm, inadequate remedy at law, a violation of the covenants, and that such covenants are enforceable. Issuance of an injunction lacking any of the four elements is an abuse of discretion as set forth in the long standing law in the State of Florida and cannot be countenanced. Hiles at 998. Accord Ice Cold Auto Air of Clearwater, Inc. v. Cold Air & Accessories, Inc., 828 F. Supp. 925, 940 (M.D. Fla. 1993).

The Appellants have failed to meet this burden, which demonstrates that the trial court’s ruling was clearly proper and not an abuse of discretion. See Gold Coast Chemical, supra.

The trial court’s Order Denying Temporary Injunction should be affirmed.

Respectfully submitted,