IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA. CASE NO.: 3D14-87 ENRIQUE J. VARONA Appellant, v. LTA LOGISTICS, INC., Appellee. APPEAL FROM THE CIRCUIT COURT OF FLORIDA. ELEVENTH JUDICIAL CIRCUIT APPELLEE’S ANSWER BRIEF WARREN GAMMILL & ASSOCIATES, P.L. Attorneys for Appellee Suite 400, Courthouse Plaza 28 West Flagler Street Miami, Florida 33130 Telephone: (305) 579-0000 Telecopier: (305) 371-6927 Primary E-Mail: Gammill@Miamilawoffice.com Secondary E-Mail: Mdarce@Miamilawoffice.com WARREN GANMILL & ASSOCIATES PL, ATTORNEYS AT LAW, SUITE 4, COURTHOUSE PLAZA, 28 W. FLAGLER SIREST, MAM FLORIDA 3130-EL (05 38:40TABLE OF CONTENTS TABLE OF CITATIONS........ PREFACE... STATEMENT OF THE CASE AND OF THE FACTS... SUMMARY OF ARGUMENT... ARGUMENT I. Standard of Review....... Il. The final judgment is proper on its face and cannot be reversed in the absence of a transcript from the trial HII. The Agreement Is Legal and Enforceable As Per §542.335(1), Fila. Stat... IV. The Liquidated Damages Award Was Proper. CONCLUSION \WARIEN GAMMILL & ASSOCIATE, Pi, ATTORNEYS AT LAW, SUITE 40, COURTHOUSE PLAZA. 26 W. FLAGLER STREET, MIAMI FLORIDA 310. 205) 57.000CASE NO.: 3D14-87 TABLE OF CITATIONS CASES Page(s .4,5 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980). Carter y. Carter, 504 So. 2d 418 (Fla. Sth DCA 1987)... Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980) Eagleman v. Korzeniowski, 924 So. 2d 855 (Fla. 4th DCA 2006)..... Glace & Radcliffe, Inc. v. City of Live Oak, 471 So. 2d 144 (Fla, Ist DCA 1985) Parlier v. Eagle-Picher Industries, Inc., 622 So. 2d 479 (Fla. 5th DCA 1993).....4, 5 Southeast Bank, N.A. v. David A, Steves, P.A., 552 So. 2d 292 (Fla, 2d DCA 1989) Soterakis v. Soterakis, 913 So. 2d 688 (Fla. Sth DCA 2005)... STATUTES §542.335(1), Fla. Stat... §542.335(1)(d)I, Fla. Stat... ii WARREN GAMBILL& ASSOCIATES PL, ATTORNEY'S AT LAW, SUITE 4, COURTHOUSE PLAZA, 28 W. FLAGLER STREET, MAM FLORIDA 3130, TEL, (05) S700)CASE NO.: 3D14-87 PREFACE In Appellee’s Answer Brief, the following symbols will be used: R=the record on appeal iii WARREN GAMBUIL & ASSOCIATES PL, ATTORNEYS AT LAW, SUITE 40, COURTHOUSE PLAZA, 26 W. FLAGLER STREET, MAMI, FLORIDA 313TH. (3) 579.0500STATEMENT OF THE CASE AND OF THE FACTS This matter was tried before a jury in December 2013 on Plaintiff/Appellee LTA Logistics, Inc.’s (hereinafter “LTA”) claims for breach of contract, tortious interference and defamation, and on and its owner Lester Trimino’s claim for defamation against LTA’s former employee Defendant/Appellee Enrique Varona. The jury rendered a verdict for LTA on the counts for breach of contract and defamation, awarding LTA $56,300. (R 366-369) The jury found in favor of Varona on LTA’s claim for tortious interference and on Lester Trimino’s claim for defamation. (R 370-373) Varona appeals the final judgment entered on this verdict. LTA is a company that specializes in the arranging of transportation for heavy equipment and large loads throughout the United States and Canada. LTA hired Appellant Varona as a sales agent to be responsible for arranging the shipment of LTA’s customer’s loads. The jury found that LTA and Varona entered into a Nondisclosure and Nonsolicitation Agreement (hereinafter “Agreement”) in November 2009. (R 366) Among other things, the Agreement prohibited Varona from soliciting any of LTA’s customers for two years after the termination of Varona’s employment with LTA, and prohibits him from making any disparaging or defamatory comments or acts against LTA. (R 413-415) Pursuant to Paragraph 6 of the Agreement, Varona is liable to LTA for $15,000 [WARREN GAMMIL8 ASSOCIATES, ly ATTORNEYS AT LAW, SUIT 0, COURTHOUSE PLAZA, 2 W, FLAGLER STREET, MAM FLORIDA 313, TEL. (8 S740CASE NO.: 3D14-87 liquidated damages for each instance in which he violated the terms of the Agreement. (emphasis added) (R 414) Varona’s employment with LTA terminated in March 2010. ‘The jury found that Varona breached the Agreement in June 2010, when he posted a load on an Internet-load board for Universe Freight Brokers, Inc., a customer of LTA. (R 481-487) LTA presented evidence thet, promptly after LTA notified Varona and his new employer that Varona was violating his Agreement with LITA (R 488-493), Varona launched an Internet campaign to attack LT'A’s reputation, credibility and business relationships (R 494-532). 7LTA also presented evidence that it suffered special or consequential damages of $11,300 paid to National Positions, Inc. to attempt to reduce the visibility on the Internet of the defamatory materials as a result of Varona’s defamatory publications (R 533-550). In its verdict” the jury found that Varona breached the Agreement in three separate instances: (1) by soliciting business from LTA’s customer Universe Freight Brokers, Inc., and (2) by disparaging the reputation of LITA in two separate instances, (R 366-367) The jury awarded LITA $15,000 liquidated damages for each instance of breach, for the sum of $45,000. “The jury also found that Varona was liable for publishing one or more defamatory statements concerning LTA, awarding special or consequential damages of $11,3000 on LTA’s claim for defamation. (R 369) :CASE NO.: 3D14-87 A court reporter attended the trial proceedings, but Appellant has not had the trial proceedings transcribed. SUMMARY OF ARGUMENT The appeal should be denied because Appellant failed to provide a transcript of the trial. There is nothing in the record to substantiate that, at the trial, Appellant made any of the arguments or objections that he now raises on appeal. By his failing to file the transcript from the trial, Appellant cannot confirm that he raised — and the trial court rejected — the points asserted on appeal. With no basis for reversal in the record, the final judgment under review must be affirmed. Notwithstanding Appellant's waiver of these arguments, Appellants’ points concerning the enforceability of the Agreement and the liquidated damages clause are without merit. The Agreement between the parties is valid and enforceable, in accordance with §542.335(1), Fla. Stat. The jury determined that the provision prohibiting Appellant from soliciting LTA’s customers for two years was reasonable. The jury’s verdict, that Appellant violated the nonsolicitation provision in the Agreement, is supported by the evidence in the record and should be upheld. Lastly, the liquidated damages clause in the Agreement properly awarded damages for breaches of the nonsolicitation and nondisparagement clauses in the E) [WARREN OAMMILL & ASSOCIATES,PL, ATTORNEYS ATLAN, SUIT 0, COURTHOUSE PLAZA, 2 W. FLAGLER STREET, MIAMI FLORIDA 3150 TEL. (57409CASE NO.: 3D14-87 Agreement. The actual damages suffered as a result of these injuries could not readily be ascertained. Therefore, the liquidated damages clause did not operate as a penalty. ARGUMENT I. Standard of Review ‘The standard of review in this case is whether the final judgment under review is fundamentally erroneous on its face. This is the standard of appellate review where the record does not contain a transcript of the proceedings in the trial court. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980); Soterakis v. Soterakis, 913 So. 2d 688, 690 (Fla. 5th DCA 2005) (“in the absence of an adequate transcript on appeal, an order that is not fundamentally erroneous must be affirmed”); Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989). IL. The final judgment is proper on its face and cannot be reversed in the absence of a transcript from the trial There is no evidence in the record that Appellant Varona made any specific argument at trial concerning the unlawfulness of the Agreement or the liquidated damages. A trial court cannot be faulted and reversed where the Appellant's record on appeal does not affirmatively demonstrate that Appellant brought specific arguments to the trial judge to consider. Parlier v. Eagle-Picher Industries, Inc., 622 So. 2d 479, 481 (Fla. 5" DCA 1993); Glace & Radcliffe, Inc. v. City of 4 WARREN GAMMILL & ASSOCIATES PL, ATTORNEYS AT LAW, SUITE 4, COURTHOUSE PLAZA, 28. FLAGLER STREGT, MAM FLORIDA 3130 TEL 05) 79.080CASE NO.: 3D14-87 Live Oak, 471 So. 2d 144, 145 (Fla. Ist DCA 1985). The decision of the trial court has the presumption of correctness, and the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980). The trial court must be affirmed where the record brought forward by the appellant is inadequate to demonstrate reversible error. Id., at 1152. As articulated in Parlier v. Eagle-Picher Industries, Inc., 622 So. 2d 479, 481 (Fla. Sth DCA 1993): There is a general rule of appellate review, based on practical necessity and fairness to the opposing party and the trial judge, that issues not timely raised below will not be considered on appeal. Without a transcript, Appellant cannot establish that he raised these specific objections and arguments with the trial judge, as is required in order to preserve these issues for appeal. Eagleman v. Korzeniowski, 924 So. 2d 855, 860 (Fla. 4th DCA 2006) (“in order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court”); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164, 1165 (Fla. 5th DCA 1980) (“. . . [NJo transcript of that hearing has been provided to us. As a consequence, if the existence of any genuine issue of material fact was argued at that hearing we have no cited record of it”). The Appellant is required to provide a transcript of the hearing to prove that he made and preserved the arguments being raised on appeal. 4] WARREN GANA & ASSOCIATES, PL, ATTORNEYS ATLA, SUITE At, COURTHOUSE PLAZA. 22. FLAGLER STREET, MIAMI FLORIDA 3130. TEL. 859400CASE NO.: 3D14-87 In Carter v. Carter, 504 So. 2d 418, 419 (Fla, Sth DCA 1987), in dismissing the appeal for failure to provide an adequate record, the court stated that “(i)t is the appellant’s burden to submit to the appellate court a record adequate to support the appeal”. See also, Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989) (“Because this court was not furnished with a transcript of the hearing which generated the order being challenged in this appeal, appellants have failed to demonstrate a basis for reversal in the record, and we must affirm therefor”; a judgment which is not fundamentally erroneous on its face must be affirmed); Soterakis v. Soterakis, 913 So. 2d 688, 690 (Fla. Sth DCA 2005) (“in the absence of an adequate transcript on appeal, an order that is not fundamentally erroneous must be affirmed”). The final judgment under review is not fundamentally erroneous. Without a transcript in the record, the Appellant is barred from making any claims without a record of what was asserted. Il. The Agreement Is Legal and Enforceable As Per §542.335(1), Fla. Stat. Apart from there being no evidence in the record! that Defendant raised the argument in the court below that he now raises on appeal concerning the purported unlawfulness of the Agreement, Appellant’s argument is without merit. " Schedule A to Defendant's Answer, which is titled “unconscionable business practices of the Plaintiff A Through Z+” contains a laundry list of citations to various statutes, which includes Sections 542.18 and 542.19 of the Florida Statutes. (R 315-319) 6 WARREN GAMIMIL& ASSOCIATES PL, ATTORNEYS AT LAW, SUITE 40, COURTHOUSE PLAZA, 2 W. FLAGLER STREET MAM FLORIDA 3130.TEL O05) S700CASE NO.: 3D14-87 ‘The Agreement does not impose any unreasonable restrictions on trade or commerce and it does not attempt or conspire to monopolize any part of trade or commerce. Pursuant to §542.335(1), Fla. Stat., agreements that restrict or prohibit competition are valid restraints on trade or commerce and are not prohibited so long as the contracts are reasonable in time, area and line of business. Section 542.335(1)(d)1, Fla. Stat., further provides: In the case of a restrictive covenant sought to be enforced against a former employee, agent or independent contractor . . . a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration. LTA sought enforcement of the nonsolicitation clause which prohibited Varona from soliciting any of LTA’s customers for two years after the termination of his employment with LTA. The jury necessarily concluded that the two-year restriction was reasonable. (R 366-367) Moreover, in Paragraph 1 of the Agreement, Varona acknowledges that: LTA's business and services are highly customer-specific and customer-dependent, involving a high degree of cultivated and well developed customer relationships, further dependent upon the identity and particular needs of LTA's customers, not generally known in the industry. These relationship also are reflected in LTA's documents and information regarding its customers, suppliers, services, logistics, methods of operation, sales, pricing, and cost, all of which are highly confidential and constitute critical trade secrets. 7 WARREN GAMIILL & ASSOCLATES,P, ATTORNEYS AT LAW, SUITE 40, COURTHOUSE PLAZA, 5. FLAOLER STREET, MIAMI. FLORIDA 3130, TEL (3 s.000CASE NO.: 3D14-87 The jury concluded that LTA’s business interests should be protected by finding that Varona violated the nonsolicitation clause of the Agreement. This verdict should be upheld. (R 366-367) IV. The Liquidated Damages Award Was Proper Appellant failed to assert any issues with liquidated damages in his Answer to the First Amended Complaint (R 305-321). Apart from not having raised the issue in the trial court, Appellant misstates the facts in connection with his argument that the liquidated damages clause in the Agreement is in fact a penalty. Appellant argues that the liquidated damages provision is intended to compensate LTA for its lost profit on the booking of a load by Appellant in violation of the ‘Agreement. Paragraphs 3, 4, 5 and 6 of the Agreement are clear that the damages are compensation for inducing LTA’s employees to leave LTA, for inducing its customers to transfer their business to Appellant, and for disparaging or defaming LTA. These are appropriate circumstances for the use of liquidated damages, where the actual damages for losing customers and for suffering injury to LTA’s reputation are difficult or impossible to ascertain in advance. For the parties to agree to a figure of $15,000 for the future lost business from each lost client (which is repeat business) and for the injury suffered over time from each defamation or disparagement was very reasonable. The jury verdict form makes clear that the jury was compensating LTA $15,000 for its repeat customer lost due 8 WARREN GALNILL & ASSOCIATES, PL, ATTORNEYS AT LAM, SUITE 0, COURTHOUSE PLAZA, 2 W. FLAGLER STREET, MAI FLORIDA 3130, EL 0057.00,CASE NO.: 3D14-87 to Appellant’s solicitation of LTA’s customer Universe Freight Brokers, Inc. and $30,000 for two instances of disparagement of LTA (via Appellant’s highly defamatory videos published on the Internet). (R 366-373) The appeal on this issue of liquidated damages is not well taken. CONCLUSION This appeal should be dismissed or denied, and the final judgment appealed from should be affirmed. WARREN GAMMILL & ASSOCIATES, P.L. Attorney for Appellees Suite 400, Courthouse Plaza 28 West Flagler Street Miami, Florida 33130 Telephone: (305) 579-0000 Telecopier: (305) 371-6927 Primary E-Mail: Gammill@Miamilawoffice.com Secondary E-Mail: Mdarce@Miamilawoffice.com By: /s/ Madelin D’Arce Warren P. Gammill Fla. Bar No. 151221 Madelin D’Arce Fla. Bar No. 055675 CERTIFICATE OF SERVICE AND OF COMPLIANCE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via E-Mail and U.S. Mail to Appellant Enrique Varona 14823 S.W. 125th Court, Miami, Florida 33186, on this 25" day of April, 2014. I HEREBY CERTIFY that the foregoing brief complies with the font requirements of Fla. R. App. P. 9.210(a)(2). 5/Madelin D'Arce 9 WARREN GAMMILL & ASSOCIATES P, ATTORNEYS AF LAW SUI 4, COURTHOUSE PLAZA. 28 W. FLAGLER STREET, MAMI FLORIDA 3130, TEL 20) 51.080