Picture it Sold Photography (“PSP”) hired Scott Bunkelman,
by oral agreement, to provide photography services as an independent contractor.
Later, the terms of Bunkelman’s employment were memorialized in
a written independent contractor agreement. The agreement contained a
non-solicitation and non-compete agreement.
The initial term of the agreement was one year, with an automatic renewal
provision for additional one-year periods, unless terminated by either
party by written notice.
Thereafter, Bunkelman violated the non-solicitation and non-compete agreement
and PSP sued. PSP also filed an emergency motion for temporary injunction.
At the hearing, Bunkelman admitted that he was unsatisfied with his earnings
and had been providing services to some of PSP’s customers on the
side without PSP’s knowledge or consent. Bunkelman argued that the
agreement was invalid because PSP fraudulently induced him to enter the
agreement by assuring him a $60,000 salary which Bunkelman said he never
earned because PSP did not send him enough business. Bunkelman also argued
that PSP had assured him that most of his work would be in northern Palm
Beach county, but it turned out that most of his work was in southern
Palm Beach county and Broward county.
The trial court denied PSP’s motion for temporary injunction stating
that while the agreement was reasonably necessary to protect PSP’s
legitimate business interests and that it wasn’t overbroad, overlong
or otherwise unreasonable, Bunkelman had provided credible and unequivocal
evidence that PSP made fraudulent misrepresentations to Bunkelman as to
the salary Bunkelman would earn and the location of his work.
PSP appealed and the Fourth District Court of Appeal found that the trial
court erred in denying PSP’s motion for temporary injunction. Specifically,
the Fourth DCA held that even if salary and geographic region were promised
to Bunkelman orally, Florida law is clear, a party cannot recover in fraud
for oral misrepresentations that are latter contradicted in a written
contract. Additionally, the Fourth DCA held that based on the one-year
term and renewal provisions of the agreement, Bunkelman did not present
sufficient evidence of reliance on the misrepresentations as to salary
or location of the work. Because Bunkelman clearly renewed the agreement
by continuing to work after the first year, despite being aware of the
alleged misrepresentations and accordingly, waived his right to assert
a claim of fraudulent inducement.
Whether you are an employer, employee or independent contractor involved
in a non-competition/non-solicitation dispute, Rosenthal Law Group is
available to offer guidance and representation to assist you in your matter.