IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
RUSSEL VESSELS, JR AND COAST TO COAST TERRAZZO, LLC,
Appellants,
v. Case No. 5D22-879 LT Case No. 2021-CA-048410
DR. TERRAZZO OF FLORIDA, LLC D/B/A DR. TERRAZZO,
Appellee.
________________________________/
Opinion filed December 22, 2022
Nonfinal Appeal from the Circuit Court for Brevard County, David Dugan, Judge.
Adrienne E. Trent, of Adrienne E. Trent, P.A., Rockledge, for Appellant.
Joe M. Mitchell, III, of Mitchell Law Firm, P.A., Indialantic, for Appellee.
WALLIS, J.
Russell Vessels, Jr., individually, and Coast to Coast Terrazzo, LLC
(collectively Appellants) appeal the preliminary injunction entered by the trial court in favor of Dr. Terrazzo of Florida, LLC (Appellee), enforcing a non-
compete agreement (the Agreement). 1 Although Appellants argue that the
trial court erred in several respects in enforcing the Agreement, the central
issue in this appeal is whether Appellee proved that the injunction enforcing
the restrictive covenants contained in the agreement was necessary to
protect a legitimate business interest. Appellants argue that the knowledge
that Vessels gained while employed by Appellee is neither extraordinary nor
specialized, not worthy of protection by the covenant, and merely an attempt
to prevent ordinary competition. We agree that Appellee did not prove the
existence of a legitimate business interest; and, therefore, we reverse the
injunction.
Vessels began working for Appellee on August 28, 2019, performing
terrazzo restoration in Central Florida. Prior to his employment with Appellee,
Vessels had no experience in the process of terrazzo restoration. Vessels
began his employment as a laborer/trainee receiving general instructions
from one of Appellee's employees, who initially was Vessels’s supervisor
(Supervisor), on the basics of terrazzo restoration. Vessels was promoted to
the position of general foreman within one year of working there. During the
course of this employment, the parties entered into the Agreement, which
1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B).
2 prohibited Vessels from working for a competing company for a period of
three years after Vessels’s employment with Appellee terminated. In late
December 2020, Vessels left his employment with Appellee; and, in April
2021, he opened Coast to Coast, LLC, which also provides terrazzo
restoration in Central Florida.
Ultimately, Appellee filed a two-count complaint against Appellants for
temporary injunctive relief and breach of contract. Included in the request
for injunctive relief were allegations that terrazzo servicing is a “specialized
business which requires specialized tools, knowledge, and marketing” and
that employees “learn specialized knowledge” when trained by Appellee that
is not otherwise known to the general public.
During the injunction hearing, there was testimony establishing that
Vessels chose to sharpen his terrazzo restoration skills and processes by
conducting his own research on YouTube, which helped him enhance the
restoration process and properly grind the floors prior to polishing them. In
addition, the parties agreed that, during Vessels’s employment, Appellee
neither paid for additional training nor provided written materials instructing
Vessels on how to perform terrazzo restoration. Instead, Vessels learned
the basics of terrazzo restoration from Supervisor; and, when he had
questions about a job, he was able to talk to Appellee’s owner, who had been
3 in the terrazzo restoration business for many years. Additionally, the parties
agreed that all of the equipment and materials needed to perform the
restoration work are available for purchase commercially. Finally, the parties
admitted that Appellee never developed any proprietary processes to
perform restorations.
The trial court entered the preliminary injunction in favor of Appellee
and against Appellants. The court found that terrazzo restoration requires
specialized skill and training and that Vessels acquired a great deal of
knowledge regarding the repair and restoration of terrazzo floors during his
employment with Appellee. It further found that Appellee proved a legitimate
business interest worthy of being protected by the injunction, without an
adequate remedy being available at law for Appellee.
In an action to enforce an agreement that restricts or prohibits
competition during or after the term of restrictive covenants, such as the one
before us:
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
4 2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
§ 542.335(1)(b), Fla. Stat. (2021).
Although the trial court here did not specifically identify the legitimate
business interest under this statute on which it based or issued its preliminary
injunction, the allegations in the complaint, the language used by the court
when making its factual findings, and counsels’ arguments in this appeal
suggest that Appellee’s legitimate business interest being protected was that
Vessels received extraordinary or specialized training.
5 “In order for training to be a protectible business interest, it must be
extraordinary.” Dyer v. Pioneer Concepts, Inc., 667 So. 2d 961, 964 (Fla. 2d
DCA 1996). Extraordinary training has been described as
that which goes beyond what is usual, regular, common, or customary in the industry in which the employee is employed. The rationale is that if an employer dedicates time and money to the extraordinary training and education of an employee, whereby the employee attains a unique skill or an enhanced degree of sophistication in an existing skill, then it is unfair to permit that employee to use those skills to the benefit of a competitor when the employee has contracted not to do so. The precise degree of training or education which rises to the level of a protectible interest will vary from industry to industry and is a factual determination to be made by the trial court. Needless to say, skills which may be acquired by following the directions in the box or learned by a person of ordinary education by reading a manual do not meet the test.
Hapney v. Cent. Garage, Inc., 579 So. 2d 127, 132 (Fla. 2d DCA 1991),
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
RUSSEL VESSELS, JR AND COAST TO COAST TERRAZZO, LLC,
Appellants,
v. Case No. 5D22-879 LT Case No. 2021-CA-048410
DR. TERRAZZO OF FLORIDA, LLC D/B/A DR. TERRAZZO,
Appellee.
________________________________/
Opinion filed December 22, 2022
Nonfinal Appeal from the Circuit Court for Brevard County, David Dugan, Judge.
Adrienne E. Trent, of Adrienne E. Trent, P.A., Rockledge, for Appellant.
Joe M. Mitchell, III, of Mitchell Law Firm, P.A., Indialantic, for Appellee.
WALLIS, J.
Russell Vessels, Jr., individually, and Coast to Coast Terrazzo, LLC
(collectively Appellants) appeal the preliminary injunction entered by the trial court in favor of Dr. Terrazzo of Florida, LLC (Appellee), enforcing a non-
compete agreement (the Agreement). 1 Although Appellants argue that the
trial court erred in several respects in enforcing the Agreement, the central
issue in this appeal is whether Appellee proved that the injunction enforcing
the restrictive covenants contained in the agreement was necessary to
protect a legitimate business interest. Appellants argue that the knowledge
that Vessels gained while employed by Appellee is neither extraordinary nor
specialized, not worthy of protection by the covenant, and merely an attempt
to prevent ordinary competition. We agree that Appellee did not prove the
existence of a legitimate business interest; and, therefore, we reverse the
injunction.
Vessels began working for Appellee on August 28, 2019, performing
terrazzo restoration in Central Florida. Prior to his employment with Appellee,
Vessels had no experience in the process of terrazzo restoration. Vessels
began his employment as a laborer/trainee receiving general instructions
from one of Appellee's employees, who initially was Vessels’s supervisor
(Supervisor), on the basics of terrazzo restoration. Vessels was promoted to
the position of general foreman within one year of working there. During the
course of this employment, the parties entered into the Agreement, which
1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B).
2 prohibited Vessels from working for a competing company for a period of
three years after Vessels’s employment with Appellee terminated. In late
December 2020, Vessels left his employment with Appellee; and, in April
2021, he opened Coast to Coast, LLC, which also provides terrazzo
restoration in Central Florida.
Ultimately, Appellee filed a two-count complaint against Appellants for
temporary injunctive relief and breach of contract. Included in the request
for injunctive relief were allegations that terrazzo servicing is a “specialized
business which requires specialized tools, knowledge, and marketing” and
that employees “learn specialized knowledge” when trained by Appellee that
is not otherwise known to the general public.
During the injunction hearing, there was testimony establishing that
Vessels chose to sharpen his terrazzo restoration skills and processes by
conducting his own research on YouTube, which helped him enhance the
restoration process and properly grind the floors prior to polishing them. In
addition, the parties agreed that, during Vessels’s employment, Appellee
neither paid for additional training nor provided written materials instructing
Vessels on how to perform terrazzo restoration. Instead, Vessels learned
the basics of terrazzo restoration from Supervisor; and, when he had
questions about a job, he was able to talk to Appellee’s owner, who had been
3 in the terrazzo restoration business for many years. Additionally, the parties
agreed that all of the equipment and materials needed to perform the
restoration work are available for purchase commercially. Finally, the parties
admitted that Appellee never developed any proprietary processes to
perform restorations.
The trial court entered the preliminary injunction in favor of Appellee
and against Appellants. The court found that terrazzo restoration requires
specialized skill and training and that Vessels acquired a great deal of
knowledge regarding the repair and restoration of terrazzo floors during his
employment with Appellee. It further found that Appellee proved a legitimate
business interest worthy of being protected by the injunction, without an
adequate remedy being available at law for Appellee.
In an action to enforce an agreement that restricts or prohibits
competition during or after the term of restrictive covenants, such as the one
before us:
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
4 2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
§ 542.335(1)(b), Fla. Stat. (2021).
Although the trial court here did not specifically identify the legitimate
business interest under this statute on which it based or issued its preliminary
injunction, the allegations in the complaint, the language used by the court
when making its factual findings, and counsels’ arguments in this appeal
suggest that Appellee’s legitimate business interest being protected was that
Vessels received extraordinary or specialized training.
5 “In order for training to be a protectible business interest, it must be
extraordinary.” Dyer v. Pioneer Concepts, Inc., 667 So. 2d 961, 964 (Fla. 2d
DCA 1996). Extraordinary training has been described as
that which goes beyond what is usual, regular, common, or customary in the industry in which the employee is employed. The rationale is that if an employer dedicates time and money to the extraordinary training and education of an employee, whereby the employee attains a unique skill or an enhanced degree of sophistication in an existing skill, then it is unfair to permit that employee to use those skills to the benefit of a competitor when the employee has contracted not to do so. The precise degree of training or education which rises to the level of a protectible interest will vary from industry to industry and is a factual determination to be made by the trial court. Needless to say, skills which may be acquired by following the directions in the box or learned by a person of ordinary education by reading a manual do not meet the test.
Hapney v. Cent. Garage, Inc., 579 So. 2d 127, 132 (Fla. 2d DCA 1991),
disapproved of on other grounds by Gupton v. Vill. Key & Saw Shop, Inc.,
656 So. 2d 475 (Fla. 1995). Based on the above definition, the Hapney court
concluded that Hapney did not receive extraordinary training because the
training provided for him merely “extended his air-conditioning installation
and repair skills to include cruise control units and cellular telephones.” Id.
Similarly, in Dyer, the Second District Court concluded that an
employer did not have a protectible business interest due to specialized
6 training where the evidence showed that Dyer received training in stripping
floors and the use of equipment leased to grocery stores. 667 So. 2d at 964.
Dyer was also trained by attending seminars on development of
interpersonal skills, hiring and firing techniques, and repairing equipment. Id.
The Dyer court concluded that this type of training was not extraordinary for
purposes of section 542.335 and, therefore, the employer did not have a
legitimate business interest to protect. Id.
In this case, Vessels learned the basics of terrazzo restoration through
Supervisor. And while the evidence below shows that Appellee’s owner has
a great deal of knowledge about terrazzo restoration, the evidence, even
when construed in a light most favorable to Appellee, established that
Vessels received on-the-job training that was “usual, regular, common or
customary in the industry,” which does not qualify as extraordinary or
specialized training under section 542.335(1)(b)5. See Dyer, 667 So. 2d at
964; Hapney, 579 So. 2d at 132. Therefore, because the evidence did not
support that Appellee provided Vessels with specialized or extraordinary
training, it was error for the trial court to conclude that Appellee had a
legitimate business interest and that the Agreement was enforceable. See
7 § 542.335(1)(b), Fla. Stat.; Dyer, 667 So. 2d at 964–65; Hapney, 579 So. 2d
at 134. Accordingly, we reverse the preliminary injunction.2
REVERSED.
LAMBERT, C.J., and EVANDER, J., concur.
2 Because Appellee failed to prove the existence of a legitimate business interest, we do not reach the merits of Appellants’ other arguments on appeal.