Under Florida's non-compete statute, courts must consider all relevant legal and equitable defenses available to a party who is defending against enforcement of a non-compete agreement. See Fla. Stat. § 542.335(1)(g)(3). In certain circumstances, however, an employer's efforts to enforce a non-compete agreement against an employee or third party may be barred by the employer's own breach of other provisions in the employment agreement. This issue, whether the employer's breach is a defense to the employee, often hinges on whether the non-compete provision is a "dependent covenant" in the underlying contract.

Florida's Second District Court of Appeal recently addressed the issue of dependent versus independent covenants in non-compete agreements in Richland Towers, Inc. v. Denton, No. 2D12-5493 (Fla. 2d DCA Mar. 12, 2014). In Richland, a former executive of the employer left and started a competing company. The employee in Richland signed a non-compete agreement which his former employer sought to enforce through injunction. The non-compete provision was included in the employee's employment contract with the employer. During trial, the former employee argued that the employer's failure to pay the employee his bonuses constituted a breach of the employment agreement, rendering the non-compete provision unenforceable. The trial court agreed and the employer appealed.

The Second District in Richland reversed the trial court, instead finding that based on the language of the non-compete agreement, the non-compete provision was independent of the other provisions in the contract and therefore enforceable even though the employer may have been in default of the agreement. Id. at *3. In reading the contract, the appellate court in Richland found that "the agreements here expressly provided that their covenants were independent and that claims by the employees were not a defense to the employers' enforcement of the contractual provisions." Id.

Richland is helpful in that it highlights the importance of dependent versus independent covenants in non-compete agreements. The court noted that the "general rule that [restrictive] covenants are considered dependent will be trumped by a contrary intention expressed in an agreement." Id. at *2. If a non-compete provision is dependent upon the other provisions in an agreement, the employer's breach of the agreement serves as a valid defense to enforcement. However, if the non-compete provision is independent of the other provisions, a court can still enforce the non-compete provision despite an employer's failure to perform an independent obligation. See Reliance Wholesale, Inc., v. Godfrey, 51 So. 3d 561, 565 (Fla. 3d DCA 2010)(reversing an order that denied the former employer's motion for a temporary injunction to enforce a non-compete agreement because the employer had not paid all of the commissions due to the former employee).

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