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Under Florida law, a restrictive covenant is not enforceable “unless it is set forth in a writing signed by the person against whom enforcement is sought.” Fla. Stat. § 542.335(1)(a).  So, what happens if the written agreement is lost, destroyed or stolen? Generally, the loss or unintentional destruction of a written document does not affect the validity of the transaction of which it is the evidence, or the rights and liabilities of the parties to the instrument. Environmental Services, Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009). Peter Mavrick is a Fort Lauderdale non-compete lawyer who has successfully defended many lawsuits involving non-competition, non-solicitation, and non-disclosure contracts.

In Environmental Services, Inc. v. Carter, Environmental Services, Inc. (“ESI”) sued to enforce a non-solicitation agreement against its former employee, Daniel Lejeune (“Lejeune”). ESI was unable to produce the actual signed agreement or a copy of it. ESI’s witnesses testified that 1) Lejeune was given the non-solicitation agreement to sign as a condition of his employment, and 2) ESI only used one form of the non-solicitation agreement since 2005 (two years prior to Lejeune’s hiring). Lejeune admitted signing a non-solicitation agreement, but he did not recall its terms. The trial court held that it could not determine the precise terms and validity of those terms without an executed copy of the non-solicitation agreement. The trial court declined to enforce the restrictive covenant against Lejeune.  ESI immediately appealed.

The appellate court reversed the trial court’s decision. Environmental Services, Inc. v. Carter held that Florida law does not require the original of a writing in order to admit evidence of its contents.  Parol evidence may be introduced to prove the contents of a contract provided that the proponent provides a satisfactory explanation that the original contract was lost or destroyed. Section 90.954(3), Florida Statutes. The appellate court remanded the case for the trial court to determine if the essential terms of the written agreement could be established through parol evidence, to the satisfaction of the trial court.

Parol evidence in the form of an identical copy of the lost non-compete agreement may be properly admitted in an enforcement action. Action Fire Safety Equip., Inc. v. Biscayne Fire Equip. Co., 383 So.2d 969 (Fla. 3d DCA 1980). Action Fire Safety Equip., Inc. v. Biscayne Fire Equip. Co.    involved a lost non-compete agreement that was last possessed by the former employee against whom enforcement was sought. Biscayne Fire Equipment Company, Inc. (“Biscayne”), provided testimony that every employee, including Frank Falsetti (“Falsetti”) was required to sign the identical non-compete agreement. Biscayne’s owner testified that he witnessed Falsetti sign the agreement.  Falsetti kept the signed agreements in his office, but the agreements disappeared when he left Biscayne to form his own company. Biscayne located a copy of one of the agreements signed by an ex-employee named O’Neil (“O’Neil Agreement”). The trial court allowed the introduction of the O’Neil Agreement and the jury found in favor of Biscayne. The trial court further denied Falsetti’s motion for new trial.

Falsetti appealed. Falsetti contended that the O’Neil Agreement introduced by Biscayne was inadmissible to prove the contents of his lost agreement. Falsetti’s further contended that the best available secondary evidence was oral testimony of the contents of Falsetti’s agreement. The appellate court disagreed. Action Fire Safety Equip., Inc. v. Biscayne Fire Equip. Co. held that a witness’s recollection of the words of a contract is not better secondary evidence than an exact replica of the contract itself.  The admission of identical but other agreements as secondary evidence was upheld by the Florida Supreme Court in Fields v. Fields, 140 Fla. 269 (Fla. 1939). In Fields, the plaintiff proved the contents of a destroyed promissory note through the testimony of her attorney who prepared the note, the form the attorney routinely prepares, as well as two witnesses of the seal on the note.

Action Fire Safety Equip., Inc. v. Biscayne Fire Equip. Co. held that Biscayne adequately established that 1) only one form of the agreement was utilized, 2) Falsetti’s signature on agreement was witnessed and 3) the original agreement was within control of Falsetti, the party against whom the secondary evidence was being offered. The appellate court concluded that it was well within the trial court’s discretion to admit secondary evidence to prove the contents of the Falsetti agreement. The appellate court reversed and remanded the case on other grounds but held that the ruling on the admission of the O’Neil Agreement was affirmed.

The Mavrick Law Firm represents clients in non-competition and non-solicitation covenant lawsuits in Broward, Miami-Dade, and Palm Beach Counties, Florida. This article does not serve as a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.


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