On March 30, 2012, Florida's Fifth District Court of Appeal issued an opinion that considered the geographic scope provision of a non-compete agreement. See Heiderich v. Florida Equine Veterinary Services, Inc., 86 So.3d 527 (Fla. 5th DCA 2012). The employer in Heiderich sought a temporary injunction enforcing a non-compete agreement against a former employee of a veterinary practice. The trial court granted the injunction and the employee appealed. Id. at 528.
While working for the employer, the employee in Heiderich signed a non-compete agreement wherein she agreed that for two years after her employment with the employer, she would not "own, manage, operate or control ... a veterinary practice located within a thirty mile radius" of the employer. Id. The employer eventually terminated the employee and the employee began a veterinary practice located outside of the thirty mile radius from the employer. Id. at 529. Despite having an office outside the thirty mile radius, the employer sought an injunction prohibiting the employee from delivering veterinary services within the thirty mile radius. Id.
The trial court granted the employer an injunction against the employee, finding that the location of the employee's "actual office is of no consequence. The issue is where she practices." Heiderich, 86 So.3d at 529. On appeal, the employee argued that the non-compete agreement was unambiguous and should be enforced as written. Accordingly, the employee argued that the non-compete merely prohibits her from being employed by a veterinary business which is located within thirty miles of the employer. Id.
The Fifth District, in considering the meaning of the non-compete agreement "undertake[s] an independent assessment" of the agreement. Id. citing Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1263 (Fla. 5th DCA 2009)(further citations omitted). Citing to Florida's non-compete statute, section 542.335(1)(h), the court recognized that "[a] court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract." Id. at 529, citing Fla. Stat. § 542.335(1)(h).
The Fifth District in Heiderich concluded that the non-compete agreement did not prohibit the employee from providing veterinary services within the thirty mile radius. Id. at 530. In doing so, the court relied on Tam-Bay Realty, Inc. v. Ross, 534 So.2d 1200 (Fla. 2d DCA 1988) rev. denied, 542 So.2d 1334 (Fla. 1989) for support. In Tam-Bay, a non-compete provision prevented a seller from operating a real estate brokerage business in Pinellas County. Heiderich at 529. After the sale of the real estate brokerage, the seller advertised in Pinellas County and the buyer of the business sued for breach. On appeal, the Second District found that the seller had not breached the non-compete agreement because it had not opened or operated a brokerage business in Pinellas County. Id. at 530. Applying the same rationale as the court in Tam-Bay, the Fifth District in Heiderich found the veterinary non-compete agreement did not prevent the former employee from providing services within the thirty mile radius. Instead, the agreement merely prohibited the employee from establishing a veterinary business within the thirty mile radius. Id.
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