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Is a Bond Required in Order to Enforce a Non-Compete Agreement?

By Psyche Tai (HK) on February 28, 2013
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Introduction

Pursuant to Fla. Stat. § 542.335(1)(j), no preliminary injunction should issue without the enforcing party posting a bond sufficient to pay for costs and damages suffered by any party that may be wrongfully enjoined. North American Products Corp. v. Moore, 196 F.Supp.2d 1217, 1233 (M.D. Fla. 2002). Section 542.335(1)(j) provides in relevant part:

No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.

Hearing Required

When setting an injunction bond, the trial court should conduct an evidentiary hearing as to the amount of the bond. See, e.g., Flickinger v. R.J. Fitzgerald & Company, Inc., 732 So.2d 33 (Fla. 2d DCA 1999)(finding that “the appellants argue correctly that the trial court erred in setting the amount of the injunction bond [for enforcement of a non-compete agreement] without an evidentiary hearing.”). The evidentiary hearing requirement before setting bond allows both parties to present evidence as to the amount of damages recoverable for a wrongfully obtained injunction. Id. at 35, citing Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047, 1047-48 (Fla. 2d DCA 1993). Failure to hear evidence before setting bond is grounds for reversal and remand. Id. at 35.

Foreseeable Damages

When the court sets an injunction bond, in the context of a non-compete agreement or otherwise, the amount of the bond should reflect the court’s determination of foreseeable damages for a wrongful injunction. Advantage Digital Systems, Inc., v. Digital Imaging Services, Inc., 870 So.2d 111, 116 (Fla. 2d DCA 2003), citing Parker Tampa Two, Inc., v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla. 1989). Failure by the court to determine foreseeable damages generally results in a remand for a new bond hearing. Advantage Digital, 870 So.2d at 117, citing Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999).

 

Photo of Psyche Tai (HK) Psyche Tai (HK)
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  • Posted in:
    Business and Commercial
  • Blog:
    South Florida Trial Practice
  • Organization:
    Fox Rothschild LLP
  • Article: View Original Source

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