Third District Court of Appeal
State of Florida
Opinion filed November 3, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1447
Lower Tribunal No. 19-32724
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AmeriGas Propane, Inc.,
Appellant,
vs.
Nelson Sanchez, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.
Roberts, Reynolds, Bedard & Tuzzio, PLLC, and Benjamin L. Bedard
and Stephanie W. Kaufer (West Palm Beach), for appellant.
Rodriguez, Tramont, & Núñez, P.A., and Paul M. Núñez and Andrew
V. Tramont, for appellees.
Before HENDON, GORDO and BOKOR, JJ.
BOKOR, J.
AmeriGas Propane, Inc. (“AmeriGas”) appeals the trial court’s denial,
after an evidentiary hearing, of its motion for temporary injunctive relief and
enforcement of a non-compete and non-solicitation agreement against a
former employee, Nelson Sanchez (“Sanchez”), and his new employer,
Blossman Gas of Louisiana, Inc. (“Blossman Gas”). We have jurisdiction. 1
After a review of the record considered by the trial court, and the pertinent
legal standard, we find that AmeriGas met its burden and demonstrated
entitlement to a temporary injunction.
I. BACKGROUND
AmeriGas provides propane products and related services to its
residential and commercial customers, including restaurants and grocery
stores. In February 2012, AmeriGas hired Sanchez as an account manager
and sales representative for its Medley, Florida office. Sanchez was tasked
with maintaining accounts and acquiring new customers. In that capacity,
Sanchez had access to AmeriGas’s proprietary information including pricing
data, customer lists, policies, and procedures.
On March 26, 2012, less than two months after getting the job, and as a
condition of continued employment, Sanchez executed a confidentiality and
1
We have jurisdiction over a non-final order denying injunctive relief
pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).
2
post-employment agreement which, in pertinent part, included non-
disclosure, non-competition, and non-solicitation restrictive covenants:
I will protect the Confidential Information of AmeriGas and its
predecessors and affiliates from disclosure and will not, during
or after my term of employment, divulge such Confidential
Information or use it for the benefit of any person or entity not
associated with AmeriGas.
***
For a period of two years after the termination of my employment
with AmeriGas for any reason:
a. I will not directly or indirectly solicit the business of any
AmeriGas Customer. The term “AmeriGas Customer” is
defined as any customer which is located within a fifty aerial
mile radius of any AmeriGas District Office where I worked
during the two-year period prior to the termination or my
employment, and which has purchased products or services
from AmeriGas during that two-year period;
b. I will not directly or indirectly sell or provide propane or any
other goods or services sold or provided by AmeriGas as of
the date of the termination of my employment to any
AmeriGas Customer who is located within a fifty aerial mile
radius of any AmeriGas District Office where I worked during
the two-year period prior to the termination of my employment.
On August 14, 2019, Sanchez resigned from AmeriGas after
approximately seven years. Thereafter, Sanchez accepted similar
employment as a sales representative from Blossman Gas, a competitor of
AmeriGas. Blossman Gas is also in the propane industry and services
3
customers in Miami. Upon Sanchez’s departure, AmeriGas lost eighteen
customers to Blossman Gas which Sanchez previously managed.
On December 31, 2019, AmeriGas filed suit asserting breach of contract
claims against Sanchez and tortious interference claims against Sanchez
and Blossman Gas. On January 8, 2020, AmeriGas filed a motion for
temporary injunctive relief seeking to enjoin Sanchez from: (i) directly or
indirectly soliciting its customers within fifty miles, (ii) directly or indirectly
selling or providing propane products and services to its customers within
fifty miles, (iii) disclosing confidential information, and (iv) otherwise violating
the agreement. AmeriGas also sought to enjoin Blossman Gas from
tortiously interfering with its agreement and assisting Sanchez in violating
the restrictive covenants.
During his deposition, Sanchez admitted to enrolling his prior customers,
Kazumi and Costa Med, on behalf of Blossman Gas. Sanchez also
approached the 8th Street Sarussi’s owner with an offer from Blossman Gas.
Notably, Sanchez often told his former customers to contact him for service
at Blossman Gas. Furthermore, Blossman Gas assigned the following
former AmeriGas customers to Sanchez: Kazumi, Costa Med, the 8th Street
Sarussi, Lunch Break Café, El Gallego, El Palmar, and Sweet Dogs.
4
On July 27, 2020, the trial court held an evidentiary hearing. AmeriGas
had two of its employees testify as to its business model as a relationship
company. In pertinent part, the employees opined that Sanchez induced
AmeriGas’s customers to transfer their service based on his prior
relationship with them.
On August 18, 2020, the trial court held a final evidentiary hearing. During
the hearing, Blossman Gas had its employee testify as to his enrollment of
former AmeriGas customers. He maintained that the customers decided to
transfer due to superior service and/or cost savings. He also claimed that
Sanchez’s role was limited. For instance, he asserted that Sanchez merely
provided translation during the transaction that led to the enrollment of Mi
Habana Café. However, conflicting evidence was presented such as the
testimony of the 8th Street Sarussi’s owner who stated that she was happy
with her propane service until Sanchez approached her with a better offer.
On September 8, 2020, the trial court entered its order denying
AmeriGas’s motion for temporary injunctive relief, finding that AmeriGas
failed to establish its likelihood of success on the merits. Specifically, the
trial court noted that AmeriGas failed to prove that Sanchez directly solicited
its customers in contravention of the agreement. This appeal followed.
II. STANDARD OF REVIEW
5
“This Court applies a hybrid standard of review to the appeal of an order
granting or denying a temporary injunction: To the extent the trial court’s
order is based on factual findings, we will not reverse unless the trial court
abused its discretion; however, any legal conclusions are subject to de novo
review.” St. Brendan High Sch., Inc. v. Neff,
275 So. 3d 220, 222 (Fla. 3d
DCA 2019) (quoting City of Miami v. City of Miami Firefighters’ & Police
Officers’ Ret. Trust & Plan,
249 So. 3d 709, 713 (Fla. 3d DCA 2018)) (internal
quotations omitted).
III. DISCUSSION
While there was sufficient evidence and testimony from which the trial
court could conclude that Sanchez did not actively solicit every customer he
was accused of soliciting, the undisputed record evidence establishes that
Sanchez solicited at least some of AmeriGas’s customers and, in doing so,
violated the restrictive covenants. Additionally, the undisputed record
evidence establishes that Blossman Gas took advantage of Sanchez’s
business relations formed at AmeriGas to solicit former customers.
To obtain a temporary injunction, the movant must plead and prove a
legitimate business interest in accordance with section 542.335(1)(b),
Florida Statutes (2019). Here, AmeriGas established its legitimate business
interest based on valuable confidential business information and
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“[s]ubstantial relationships with specific prospective or existing customers,
patients, or clients.”
Id. AmeriGas maintained substantial relationships with
Mi Habana Café, Kazumi, Costa Med, and the 8th Street Sarussi prior to
their transfer.
Further, the movant must establish: “(1) a substantial likelihood of
success on the merits, (2) a lack of an adequate remedy at law, (3) the
likelihood of irreparable harm absent the entry of an injunction, and (4) that
injunctive relief will serve the public interest.” Quirch Foods LLC v. Broce,
314 So. 3d 327, 343 (Fla. 3d DCA 2020) (citations and internal quotations
omitted). The movant carries the burden of proof and must provide
competent substantial evidence satisfying each element. Sammie Invs.,
LLC v. Strategica Cap. Assocs., Inc.,
247 So. 3d 596, 600 (Fla. 3d DCA
2018).
In considering the first factor, the trial court found that AmeriGas failed to
establish a substantial likelihood of success on the merits. Here, the
restrictive covenants prohibited Sanchez from directly or indirectly soliciting
the business of any of its customers and from directly or indirectly selling or
providing propane and related services sold by AmeriGas. Sanchez
supplied propane and related services to customers which he previously
managed while employed with AmeriGas. Such evidence of solicitation of
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his former customers established a substantial likelihood that Sanchez
violated the non-compete and non-solicitation clauses.
Moreover, Sanchez admitted that he visited his former customers and told
them to call him if they were having any issues with their current supplier.
This is the definition of solicitation of former customers. It is also undisputed
that Sanchez provided translation during the transaction that led to Mi
Habana Café’s enrollment with Blossman Gas. This violates the restrictive
covenants which prohibit both direct and indirect solicitation. Additionally,
Sanchez approached and enrolled AmeriGas customers, Kazumi and Costa
Med, and approached the owner of the 8th Street Sarussi with an offer. It
doesn’t matter for purposes of the temporary injunction, that the customers
attributed either substantial cost savings or unsatisfactory customer service
as reasons for switching to Blossman Gas; the unrebutted evidence shows
that Sanchez either directly or indirectly solicited them in violation of the
restrictive covenants. Finally, Blossman Gas not only took advantage of the
customers solicited (and enrolled) by Sanchez, but Blossman Gas also
brought Sanchez along on solicitation calls with other AmeriGas customers.2
2
The trial court concluded that Blossman Gas sending Sanchez to assist on
a solicitation call to a Spanish-speaking customer at Mi Habana Café (an
AmeriGas customer serviced by Sanchez at AmeriGas) didn’t constitute
solicitation because Sanchez was only engaged in translation of the sales
pitch presented by the other Blossman Gas employee. This misses the
8
Turning to the second factor, money damages would not cure AmeriGas’s
injuries. Rather, only an injunction would prevent losses incurred with the
dissemination of confidential information and lost customer relationships.
See Quirch Foods LLC, 314 So. 3d at 343 (finding an injunction necessary
to prevent damages to the plaintiff’s goodwill and client relations).
Next, the third factor requires that the movant establish the likelihood of
irreparable harm absent an injunction. Section 542.335(1)(j) mandates a
presumption of irreparable harm once a restrictive covenant is violated. The
burden of proof then shifts to the defendants to rebut the presumption. Allied
Universal Corp. v. Given,
223 So. 3d 1040, 1044 (Fla. 3d DCA 2017). In this
case, AmeriGas established a violation of the restrictive covenant. Further,
Blossman Gas is a competitor of AmeriGas, and it supplies propane and
related services within the same geographical area. Sanchez works for
Blossman Gas as a sales representative enrolling customers and
maintaining relationships as he did for AmeriGas. In rebuttal, Sanchez and
mark. The Blossman Gas employee, Becker, admitted that the solicitation
was the result of “teamwork.” Becker and Sanchez also admitted that many
other Blossman Gas employees speak Spanish. Sanchez’s signature was
on the contract between Blossman Gas and the café. Accordingly, even if
we were to discount the admission that Blossman Gas signed this account
based on Sanchez’s “teamwork,” we cannot agree with the conclusion that
translation and being the face of the new company to the old company’s
customer didn’t constitute improper solicitation.
9
Blossman Gas take no issue with the factual predicate but argue that
Sanchez’s contact with the former customers did not violate the restrictive
covenants. Such conclusory statements or arguments fail to create an issue
of fact sufficient to rebut the presumption of irreparable harm arising from the
violation.
Finally, the fourth factor requires that movant establish that the entry of
an injunction serves the public interest. As we have explained, “there are
contractual rights at issue and the public has a cognizable interest in the
protection and enforcement of contractual rights.” Telemundo Media, LLC
v. Mintz,
194 So. 3d 434, 436 (Fla. 3d DCA 2016). Furthermore, “[e]nforcing
these restrictive covenants serves the public interest because it
demonstrates that courts will uphold agreements, and employers can rely on
non-compete agreements to protect their legitimate business interests.”
Quirch Foods LLC, 314 So. 3d at 343.
IV. CONCLUSION
We conclude that AmeriGas established the factors necessary to obtain
a temporary injunction against both Sanchez and Blossman Gas. Therefore,
we reverse the trial court’s order and remand for entry of an order granting
AmeriGas’s motion for a temporary injunction. We note that AmeriGas is
entitled to the two-year duration of its restrictive covenants. See Quirch
10
Foods LLC, 314 So. 3d at 334 (“Upon entry of the injunction, the trial court
shall provide [AmeriGas] with the benefit of its full non-compete period.”);
Kverne v. Rollins Protective Servs. Co.,
515 So. 2d 1320, 1322 (Fla. 3d DCA
1987).
Reversed and remanded with instructions.
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