Truly Nolen, Inc. v. Orkin Exterminating Co. of South Florida, Inc.

14 Fla. Supp. 44
CourtCircuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County
DecidedDecember 11, 1958
DocketNo. 58C 7723
StatusPublished

This text of 14 Fla. Supp. 44 (Truly Nolen, Inc. v. Orkin Exterminating Co. of South Florida, Inc.) is published on Counsel Stack Legal Research, covering Circuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Truly Nolen, Inc. v. Orkin Exterminating Co. of South Florida, Inc., 14 Fla. Supp. 44 (Fla. Super. Ct. 1958).

Opinion

PAT CANNON, Circuit Judge.

This cause is before the court on the complaint of Truly Nolen, Inc. (hereinafter referred to as “Nolen”) and the answers of the corporate defendants Orkin Exterminating Company of South Florida, Inc. and Orkin Exterminating Company of Florida, Inc. (hereinafter referred to collectively as “Orkin”) and the individual defendants Taft Pierce and Albert Snyder.

[46]*46The complaint, among other things, charges the defendants with malicious interference with Nolen employment contracts, the enticing away of Nolen trade secrets and confidential matter, and unfair competition. The defendants deny the allegations of the complaint.

The court has reviewed the pleadings and the voluminous testimony taken in this cause. It appears from the testimony that Nolen has been engaged in the pest control and exterminating business in Dade County for over 10 years and is still engaged therein. Prior to incorporation the president, Truly Nolen, had been engaged in the business for over 11 years.

Nolen provides its services to residences, apartment buildings, hotels, restaurants, etc., through the use and medium of trained pest control service operators. The names, addresses and prices of the customers are not readily or easily ascertainable by competitors.

The Orkin organization, consisting of a parent and numerous corporate subsidiaries (such as the two defendants here in Florida) is in the pest control and exterminating business, operates on a nationwide basis and has several hundred branch offices. It is a rapidly expanding organization, opening new branch offices constantly in Florida. Florida requires pest control operators certified by the state for each branch. The officers of the defendant subsidiary corporations are the same officers as for the parent corporation, with main offices in Atlanta, Ga. Orkin maintains a large branch office in Miami, branches elsewhere in Dade County and in Monroe and Broward counties.

It appears from the testimony that the defendant Pierce had previously worked for Nolen as general manager, and was hired by Orkin to be general manager of Orkin’s Tampa branch office. Pierce remained in Tampa for two years and was subsequently transferred to the Miami area, at which time the difficulties which arose in this case commenced. It is to be noted that Pierce was to be paid 3% % of the total amount paid into the bank from customer collections.

Upon assuming his role as Orkin’s Miami area manager, Pierce, acting in concert with Orkin, solicited for employment by Orkin in the Miami area and elsewhere, pest control service operators and key personnel of the Nolen firm.

Defendant Snyder had worked for Nolen on two previous occasions and on October 19, 1956 he entered into a written employment contract for a five year term commencing October 31, 1956. Snyder was employed as a supervising entomologist and he was to [47]*47perform among other duties, public speaking engagements, research, sales, prepare demonstrations and exhibits, etc. Snyder, during the five year term, agreed to devote his entire time and efforts to advance the Nolen interests and he was not to be engaged in any other commercial duties or pursuits in the exterminating or pest control field. The parties further agreed that Snyder was not to do any consulting or teaching in the field of entomology without Nolen’s consent and that any research he did would be Nolen’s property.

Snyder commenced working for Nolen under the contract and then sometime in September of 1957, without instigation on his part, Snyder was intentionally, deliberately and wilfully solicited and contacted by Pierce and one Russell, an Atlanta representative and “talent scout” for Orkin.

Pierce and Orkin, working in concert for their joint and several interests, sought to entice and take away from Nolen other Nolen employees, such as Ethel Darrow, assistant office manager and confidential secretary; Harry N. lies, Jr., a Florida licensed pest control operator in charge of the Nolen termite division; Gene Churchill, credit manager and assistant to the Nolen president; A1 Bonkenburg, route service supervisor in charge of the Miami Beach areaior Nolen; and Henry Boerner, route serviceman. None of these persons requested Orkin employment and all were under either a written or oral contract of employment with Nolen.

Nolen had employed one Myron Milligan, a graduate entomologist, for approximately one year. Milligan had a Florida pest control certificate, which was being used by Nolen for a branch office in Homestead, Florida. Milligan was working for Nolen up to September, 1957, but in October, 1957, Milligan was employed (and using his pest control certificate) by Orkin, at Panama City, Florida, a new Orkin branch office. When Milligan was taken away by Orkin, Nolen was compelled to close down the Homestead office because a branch office cannot be maintained without a Florida pest control certificate in effect at the branch office. Milligan’s leaving left Nolen without any entomologist.

Pierce made arrangements for Nolen employees to work for Orkin in areas other than in Dade County, Florida.

This court finds from the testimony that the defendant Snyder is a unique and irreplaceable individual. He is a gradúate entomologist, master of science in entomology, major in three fields, biology, education and entomology, is a holder of on education degree from Pennsylvania State University. He was employed by Nolen to do research work and to train the pest control operators and service[48]*48men. It appears that the morale of the Nolen employees was high during such time as Snyder was employed by the company and teaching and assisting the men. Nolen considered Snyder to be the most valuable man the company had ever employed, and after Orkin took Snyder away the morale of the Nolen employees was adversely affected. He prepared the Nolen employees for the Florida pest control examinations. He identified unknown insects. He prepared demonstrations and exhibits for the general public. He could solve the men’s work problems. He held a Florida pest control certificate and his certificate was being utilized for a Nolen branch office. After Snyder was taken away from Nolen by Pierce and Orkin, his Florida pest control certificate was used and is being used by Orkin at its Hollywood, Florida branch office. Snyder conducts training programs for Orkin employees to enable them to pass the Florida pest control certificate examinations and to assist them in better servicing Orkin customers. The Orkin service improved tremendously. Orkin’s technical education was in “bad shape” until Snyder began his teaching courses for the men. The Orkin employees testified that because of Snyder’s unique teaching ability, Orkin now has a “new look.” If Snyder were to leave Orkin, “it would be a terrific blow to them because the training which has been initiated by Bud [Snyder], is unique and may be the only one of its kind in the whole Orkin industry.” (See Douglas Downes’ testimony, tr. 863).

Snyder, by virtue of his employment contract and his position with the Nolen firm, became familiar with the methods, systems, techniques and formulas of Nolen and the names, addresses, prices of the Nolen customers and other secret and confidential information.

The court finds that Snyder, after he had entered into the five year agreement with Nolen, did not voluntarily seek employment with Orkin and would not have breached and abandoned his contract with Nolen had it not been for the defendants’ conduct.

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Cite This Page — Counsel Stack

Bluebook (online)
14 Fla. Supp. 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truly-nolen-inc-v-orkin-exterminating-co-of-south-florida-inc-flacirct11mia-1958.