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16-2022-CA-006522-XXXX-MA Div: CV-C
Filing # 160973480 E-Filed 11/09/2022 03:36:22 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA
MADELINE JOHNSTON,
Plaintiff,
Case No:
vs.
Division:
CORTELLO SALON, INC.
Defendant.
/
PETITION FOR DECLARATORY JUDGMENT
COMES NOW that Plaintiff, MADELINE JOHNSTON, by and through the undersigned
counsel and files this Petition for Declaratory Judgment against Defendant CORTELLO SALON,
INC., (hereinafter jointly referred to as the “Parties”) and in support thereof states the following:
NATURE OF THE ACTION
1 This is a petition seeking declaratory relief pursuant to section 86.011, Florida
Statutes, declaring the restrictive covenants contained in the Parties’ Employment Agreement
unenforceable.
PARTIES, JURISDICTION, AND VENUE
2. Defendant is a Florida corporation with its principal place of business in Duval
County, Florida.
3. Pursuant to the Employment Agreement at issue, Duval County is the appropriate
venue for Plaintiff's claims.
4 This Court has jurisdiction over Plaintiff's Petition for Declaratory Judgment
pursuant to section 86.011, Florida Statutes.
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 11/14/2022 11:58:03 AM
GENERAL ALLEGATIONS
5 Defendant hired Plaintiff in 2017, and Plaintiff began work on as a stylist in 2018.
6 In connection with her employment, Defendant required Plaintiff to sign an
employment agreement (the “Agreement”). Exhibit “A.”
7
The Agreement includes, amongst other things, certain post-employment restrictive
covenants. Specifically, the Agreement prohibits Plaintiff from engaging in competitive business
activities and soliciting Defendant’s employees and customers for a period of one year following
her separation from employment.
8 Section 542.18, Florida Statutes prohibits the enforcement of post-employment
restrictive covenants such as the one found in the Parties’ Agreement.
9 While section 542.335, Florida Statutes provides a limited and narrow exception to
the general rule against the enforcement of anti-competitive contract provisions, the party seeking
enforcement of the restriction has the burden of proving that it has one or more legitimate business
interest justifying the restrictive covenant and that the enforcement of the covenant is necessary to
protect that legitimate business interest. § 542.335(b-c), Fla. Stat.
10. Defendant cannot show that its restrictive covenants are supported by the existence
of one or more legitimate business interests.
11. During the course of her employment, Plaintiff provided services to customers or
clients who elected to pay moderate amounts for stylist work.
12. Defendant has elected to change its pricing model to an hourly rate system, under
which customers will have to pay considerably more for stylist services. For instance, while the
average man’s haircut would previously cost approximately $45.00, under Defendant’s new
pricing scheme, the average man’s haircut will now cost more than $100.00.
13. Defendant’s new pricing scheme removes it from the market for services of the type
that Plaintiff's clients are willing or able to purchase.
14. Plaintiff reasonably concluded that Defendant’s changed pricing scheme will result
in her losing business from her currently developed clients who are not in the market for services
priced at Defendant’s newly announced pricing structure.
15. By removing itself from the market for moderately priced stylist services,
Defendant effectively exited the market for the type of services that Plaintiff provides to her
developed customers.
16. While it is true that Plaintiff and Defendant both provide stylist services, they
provide those services to two separate and distinct client markets, and Plaintiff's actions have had
no role in removing Defendant from the market which Plaintiff seeks to continue to serve.
Accordingly, under Florida Statutes section 542.335(1)(g)(2), the restrictions should not be
enforced.
17. A bona fide, actual, present practical need for declaration exists as Defendant has
threatened to enforce the Restrictive Covenants contained in the Agreement between the Parties
by letter dated October 25, 2022.
1 The declaration sought by Plaintiff concerns a present, ascertained or ascertainable
state of facts or present controversy as to a state of facts regarding the enforceability of the
restrictive covenants contained in the Agreement.
2. Plaintiff’s ability to continue employment in her chosen field is dependent upon the
facts or the law applicable to the facts.
3 Plaintiff has an actual, present, adverse and antagonistic interest in the
enforceability and validity of the Agreement.
4 The relief sought by Plaintiff is not merely giving of legal advice or the answer to
questions propounded for curiosity.
WHEREFORE Plaintiff asks this Court to enter a judgment declaring the Agreement
invalid and unenforceable, awarding Plaintiff her attorneys’ fees and costs pursuant to the
Agreement, and §542.335(1)(k), Fla. Stat., supplemental relief pursuant to §86.061, Fla. Stat., and
any other relief this Court deems just and proper.
Respectfully submitted this 9" day of November 2022.
DELEGAL & POINDEXTER P.A.
/s/ T.A. “Tad” Delegal, Til, B.C.S.
T.A. “Tad” Delegal, III, B.C.S.
FL Bar No. 0892701
Email: tad@delegal.net
James C. Poindexter
FL Bar No. 116039
Email: james@delegal.net
Alexandra E. Underkofler
Fla. Bar No.: 1018209
Email: alex@delegal.net
424 East Monroe Street
Jacksonville, FL 32202
Phone (904) 633-5000
Facsimile (904) 358-2850
Alternate: office@delegal.net
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9" day of November 2022, I electronically filed the
foregoing with the Clerk of the Court using the Florida Courts E-Filing portal, which will serve
the document electronically by email on the following:
Murphy & Anderson, P.A.
Geddes Anderson, Esq.
Email: ganderson@murphyandersonlaw.com
Sarah Jeck Hulsberg
Email: shulsberg@murphyandersonlaw.com
T.A. Delegal, III
EXHIBIT
A
cortellosalon — = OFFIGIAL DOCUMENT —
Employee Agreement
This Employee Non-compete Agreement ("Agreement") is entered into by and between Cortello
Salon, (the "Employer"), and Madeline Johnston (employee name) (the Employer and the
Employee are collectively referred to herein as the "Parties") as of September 11th, 2018 (the
“Effective Date").
In consideration of the Employee's employment or continued employment by the Employer as a
Stylist, which the Employee acknowledges to be good and valuable consideration for the
Employee's obligations hereunder, the Parties hereby agree as follows:
Confidential Information. The Employee understands and acknowledges that during the course
of employment by. the ‘Employer, the Employee will have access to and learn about Confidential
Information, as defined below.
(a) Confidential Information Defined
For purposes of this Agreement, "Confidential Information” includes, but is not limited to, all
information not generally known to the public, in spoken, printed, electronic or any other form or
medium, relating directly or indirectly to: business processes, practices, policies, strategies,
documents, operations, services, techniques, drawings, supplier information, vendor
information, financial information, accounting information, accounting records, legal information,
marketing information, marketing strategies, advertising information, social media information,
pricing, information, credit information, design information, payroll information, staffing
information, personnel information, employee lists, supplier lists, vendor lists, reports, internal
controls, security procedures, market studies, sales information, revenue, costs, customer/client
information, and customer/client lists, of the Employer or its businesses, or of any other person
or entity that has entrusted information to the Employer in confidence.
The Employee understands that the above list is not exhaustive, and that Confidential
Information also includes other information that is marked or otherwise identified as confidential
or proprietary, or that would otherwise appear to a reasonable person to be confidential or
proprietary in the context and circumstances in which the information is known or used.
(b) The Employee understands and agrees that Confidential Information includes
information developed by the Employee during the course of employment as if the Employer
furnished the same Confidential Information to the Employee in the first instance.
The Employee understands and acknowledges that the Employer has invested, and continues
to invest, substantial time, money and specialized knowledge into developing its resources,
creating a customer/client base, generating customer/client lists and potential customer/client
lists, training its employees, and improving its offerings as a hair salon. The Employee
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
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cortellosalon __ -
OFFICIAL: DOCUMENT meme
understands and acknowledges that as a result of these efforts, Employer has created, and
continues to use and create Confidential Information. This Confidential Information provides
Employer with a competitive advantage over others in the marketplace.
(c) Disclosure and Use Restrictions
The Employee agrees and covenants: (i) to treat all Confidential Information as strictly
confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available
Confidential Information, or allow it to be disclosed, published, communicated or made
available, in whole or part, to any entity or person whatsoever (including other employees of the
Employer) not having a need to know and authority to know and use the Confidential
Information in connection with the business of the Employer and, in any event, not to anyone
outside of the direct employ of the Employer except as required in the performance of the
Employee's authorized employment duties to the Employer or with the prior consent of the
Owner acting on behalf of the Employer in each instance (and then, such disclosure shall be
made only within the limits and to the extent of such duties or consent); and (iii) not to access or
use any Confidential Information, and not to copy any documents, records, files, media or other
resources containing any Confidential Information, or remove any such documents, records,
files, media or other resources from the premises or control of the Employer, except as required
in the performance of the Employee's authorized employment duties to the Employer or with the
prior consent of the Owner acting on behalf of the Employer in each instance (and then, such
disclosure shall be made only within the limits and to the extent of such duties or consent).
Nothing herein shall be construed to prevent disclosure of Confidential Information as may be
required by applicable law or regulation, or pursuant to the valid order of a court of competent
jurisdiction or an authorized government agency, provided that the disclosure does not exceed
the extent of disclosure required by such law, regulation or order. The Employee shall promptly
provide written notice of any such order to the Owner.
The Employee understands and acknowledges that the Employee's obligations under this
Agreement with regard to any particular Confidential Information shall commence immediately
upon the Employee first having access to such Confidential Information (whether before or after
employment begins) and shall continue during and after employment by the Employer until such
time as such Confidential Information has become public knowledge other than as a result of the
Employee's breach of this Agreement or breach by those acting in concert with the Employee or
on the Employee's behalf.
Restrictive Covenants.
() Acknowledgment
The Employee understands that the nature of Employee's position gives the Employee access
to and knowledge of Confidential Information and places the Employee in a position of trust and
confidence with the Employer. The Employee further understands and acknowledges that the
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
we
cortellosalon OFFICIAL DOCUMENT mae
Employer's ability to reserve these for the exclusive knowledge and use of the Employer is of
great competitive importance and commercial value to the Employer, and that improper use or
disclosure by the Employee is likely to result in unfair or unlawful competitive activity.
(e) Non-Competition
Because of Employer's legitimate business interest as described herein and the good and
valuable consideration offered to the Employee, beginning on either (i) the first day of
employment, or, (ii) after the first 90-days of the Cortello Academy if the Employee will be
enrolled in the Academy, and during the term of Employee's employment and for the one (1)
year following the last day of the Employee's employment with the Employer (whether
employment is terminated at the option of the Employee or the Employer), the Employee agrees
and covenants not to engage in a Prohibited Activity within a twelve (12) mile radius of the
Employer's location (1086 3rd Street North, Jacksonville Beach, Florida).
For purposes of this non-compete clause, "Prohibited Activity" is activity in which the Employee
contributes the Employee's knowledge, directly or indirectly, in whole or in part, as an employee.
employer, owner, operator, manager, consultant, or intern to an entity engaged in the same
business as the Employer. Prohibited Activity also includes activity that may require disclosure
of proprietary or Confidential Information
Prohibited Activity shall not, however, include the Employee’s subsequent employment as an
aesthetician, massage therapist, or nail ‘technician, provided that Employee does not disclose
the Employer's proprietary or Confidential Information as part of such employment.
(f) Non-solicitation of Employees
The Employee agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to
hire or recruit, or induce the termination of employment of any employee of the Employer during
the one (1) year following the last day of the Employee's employment with the Employer.
(g) Non-solicitation of Customers/Clients
(i) Customers/Clients of Employer: The Employee understands and
acknowledges that because of the Employee's experience with and relationship to the
Employer, the Employee will have access to and learn about much or all of the Employer's
customer/client information: "Customer/Client Information" includes, but is not limited to
names, phone numbers, addresses, email addresses, history, preferences, pricing information
and other information identifying facts and circumstances specific to the customer/client
The Employee further agrees that customers/clients generated by Employee pursuant to
employment with the Employer are the customers/clients of the Employer and subject to the
Non-solicitation restriction. The Employee understands and acknowledges that loss of these
customer/client relationships and/or goodwill will cause significant and irreparable harm
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
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cortellosalon OFFICIAL DOCUMENT smeecmme
The Employee agrees and covenants, during the one (1) year following the last day of the
Employee's employment with the Employer, not to directly or indirectly solicit (including but not
limited to, contact with existing or former customers/clients whether initiated by the Employee or
customer/client), contact (including but not limited to e-mail, regular mail, express mail,
telephone, SMS, fax, social media channels and instant message), attempt to contact or meet
with the Employer's customers/clients for purposes of offering or accepting goods or services
similar to or competitive with those offered by the Employer.
.
(ii) Customers/Clients of Employee: Within the first week of the
Employee’s employment, the Employee shall furnish the Employer with a list of the Employee's
current customers/clients; these customers/clients will not be subject to the Non-solicitation
restriction.
Non-disparagement. The Employee agrees and covenants that the Employee will not at any
time make, publish or communicate to any person or entity or in any public forum any
defamatory or disparaging remarks, comments or statements concerning the Employer or its
businesses, or any of its employees, officers, customers/clients, suppliers, investors and other
associated third parties.
This Section does not in any way restrict or impede the Employee from exercising protected
rights to the extent that such rights cannot be waived by agreement or from complying with any
applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized
government agency, provided that such compliance does not exceed that required by the law,
regulation or order. The Employee shall promptly provide written notice of any such order to the
Owner.
Acknowledgément. The Employee acknowledges and agrees that the services to be rendered
by the Employee to the Employer are of a special and unique character; that the Employee will
obtain knowledge and skill relevant to the Employer's industry, methods of doing business and
marketing strategies by virtue of the Employee's employment; and that the restrictive covenants
and other terms and conditions of this Agreement are reasonable and reasonably necessary to
protect the legitimate business interest of the Employer.
The Employee further acknowledges that the amount of compensation reflects, in part, the
Employee's obligations and the Employer's rights under this Agreement; that the Employee has
no expectation of any additional compensation, royalties or other payment of any kind not
otherwise referenced herein in connection herewith; that the Employee will not be subject to
undue hardship by reason of full compliance with the terms and conditions of this Agreement or
the Employer's enforcement thereof; and that this Agreement is not a contract of employment
and shall not be construed as a commitment by either of the Parties to continue an employment
relationship for any certain period of time.
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
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cortéllosalon OFFICIAL DOCUMENT ——
Nothing in this Agreement shall be construed to in any way terminate, supersede,
undermine or otherwise modify the “at-will" status of the employment relationship
between the Employer and the Employee, pursuant to which either the Employer or the
Employee may terminate the employment relationship at any time, with or without cause,
with or without notice.
Remedies. In the event of a breach or threatened breach by the Employee of any of the
provisions of this Agreement, the Employee hereby consents and agrees that the Employer
shall be entitled to seek, in addition to other available remedies, a temporary or permanent
injunction or other equitable relief against such breach or threatened breach from any court of
competent jurisdiction, without the necessity of showing any actual damages or that money
damages would not afford an adequate remedy, and without the necessity of posting any bond
or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal
remedies, monetary damages or other available forms of relief.
Successors:and Assigns:
(h) Assignment by the Employer
To the extent permitted by Florida law, the Employer may assign this Agreement to any
subsidiary or corporate affiliate, or to any successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Employer. This Agreement shall inure to the benefit of the Employer and permitted
successors and assigns.
(i) No Assignment by the Employee
The Employee may not assign this Agreement or any part hereof. Any purported assignment by
the Employee shall be null and void from the initial date of purported assignment.
Warranty. Employee represents and warrants that the Employee is not a party to any
non-compete restrictive covenant or related contractual limitation that would interfere with or
hinder the ability to undertake the obligations and expectations of employment with the
Employer.
‘Governing Law:-Jurisdiction and: Venué. This Agreement, for all purposes, shall be construed in
accordance with the laws of Florida without regard to conflicts-of-law principles. Any action or
proceeding by either of the Parties to enforce this Agreement shall be brought only in any state
or federal court located in the state of Florida, county of Duval. The Parties hereby irrevocably
submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum
to the maintenance of any such action or proceeding in such venue.
Entire:-Agresment. Unless specifically provided herein, this Agreement contains all the
understandings and representations between the Employee and the Employer pertaining to the
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
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cortellosalon OFFICIAL DOCUMENT ———
subject matter hereof and supersedes all prior and contemporaneous understandings,
agreements, representations and warranties, both written and oral, with respect to such subject
matter.
Modification.and: Waiver. No provision of this Agreement may be amended or modified unless
such amendment or modification is agreed to in writing and signed by the Employee and by the
Owner of the Employer. No waiver by either of the Parties of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by the other party hereto
shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any
prior or subsequent time, nor shall the failure of or delay by either of the Parties in exercising
any right, power or privilege hereunder operate as a waiver thereof to preclude any other or
further exercise thereof or the exercise of any other such right, power or privilege.
Severability. Should any provision of this Agreement be held by a court of competent jurisdiction
to be enforceable only if modified, or if any portion of this Agreement shall be held as
unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the Parties with any such
modification to become a part hereof and treated as though originally set forth in this
Agreement
The Parties further agree that any such court is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable provision from
this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of
the offending provision, adding additional language to this Agreement or by making such other
modifications as it deems warranted to carry out the intent and agreement of the Parties as
embodied herein to the maximum extent permitted by law.
The Parties expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of the provisions
of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been set forth herein.
Captions. Captions and headings of the sections and paragraphs of this Agreement are
intended solely for convenience and no provision of this Agreement is to be construed by
reference to the caption or heading of any section or paragraph:
olling. Should the Employee violate any of the terms of the restrictive covenant obligations
articulated herein, the obligation at issue will run from the first date on which the Employee
ceases to be in violation of such obligation.
© Cortello Salon Inc. | Non-Compete Agreement & Confidentiality
cortellosalon. OFFICIAL DOCUMENT seme
Attorneys Fees: Should the Employee breach any of the terms of the restrictive covenant
obligations articulated herein, to the extent authorized by Florida law, the Employee will be
responsible for payment of all reasonable attorneys’ fees and costs that Employer incurred in
the course of enforcing the terms of the Agreement, including demonstrating the existence of a
breach and any other contract enforcement efforts.
No: Preparation’ for Competition: During the term of the Employee's employment, Employee
agrees not to undertake preparations for competitive activity prohibited by this Agreement.
Notice. If and when Employee's employment with Employer terminates, whether voluntarily or
involuntarily, Employee agrees to provide to any subsequent employer a copy of this
Agreement. In addition, Employee authorizes Employer to provide a copy of this Agreement to
third parties, including but not limited to, Employee's subsequent, anticipated or possible future
employer.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date
above.
OLY | n eg,
ry\
Print Name: Jo hnston bat Sep. 11,2016
Signature:.
CORTELLO SALON
Natalie McHenry| Director
© Cartello Salon Inc. | Non-Compete Agreement & Confidentiality
Preview
16-2022-CA-006522-XXXX-MA Div: CV-C Filing # 160973480 E-Filed 11/09/2022 03:36:22 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA MADELINE JOHNSTON, Plaintiff, Case No: vs. Division: CORTELLO SALON, INC. Defendant. / PETITION FOR DECLARATORY JUDGMENT COMES NOW that Plaintiff, MADELINE JOHNSTON, by and through the undersigned counsel and files this Petition for Declaratory Judgment against Defendant CORTELLO SALON, INC., (hereinafter jointly referred to as the “Parties”) and in support thereof states the following: NATURE OF THE ACTION 1 This is a petition seeking declaratory relief pursuant to section 86.011, Florida Statutes, declaring the restrictive covenants contained in the Parties’ Employment Agreement unenforceable. PARTIES, JURISDICTION, AND VENUE 2. Defendant is a Florida corporation with its principal place of business in Duval County, Florida. 3. Pursuant to the Employment Agreement at issue, Duval County is the appropriate venue for Plaintiff's claims. 4 This Court has jurisdiction over Plaintiff's Petition for Declaratory Judgment pursuant to section 86.011, Florida Statutes. ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 11/14/2022 11:58:03 AM GENERAL ALLEGATIONS 5 Defendant hired Plaintiff in 2017, and Plaintiff began work on as a stylist in 2018. 6 In connection with her employment, Defendant required Plaintiff to sign an employment agreement (the “Agreement”). Exhibit “A.” 7 The Agreement includes, amongst other things, certain post-employment restrictive covenants. Specifically, the Agreement prohibits Plaintiff from engaging in competitive business activities and soliciting Defendant’s employees and customers for a period of one year following her separation from employment. 8 Section 542.18, Florida Statutes prohibits the enforcement of post-employment restrictive covenants such as the one found in the Parties’ Agreement. 9 While section 542.335, Florida Statutes provides a limited and narrow exception to the general rule against the enforcement of anti-competitive contract provisions, the party seeking enforcement of the restriction has the burden of proving that it has one or more legitimate business interest justifying the restrictive covenant and that the enforcement of the covenant is necessary to protect that legitimate business interest. § 542.335(b-c), Fla. Stat. 10. Defendant cannot show that its restrictive covenants are supported by the existence of one or more legitimate business interests. 11. During the course of her employment, Plaintiff provided services to customers or clients who elected to pay moderate amounts for stylist work. 12. Defendant has elected to change its pricing model to an hourly rate system, under which customers will have to pay considerably more for stylist services. For instance, while the average man’s haircut would previously cost approximately $45.00, under Defendant’s new pricing scheme, the average man’s haircut will now cost more than $100.00. 13. Defendant’s new pricing scheme removes it from the market for services of the type that Plaintiff's clients are willing or able to purchase. 14. Plaintiff reasonably concluded that Defendant’s changed pricing scheme will result in her losing business from her currently developed clients who are not in the market for services priced at Defendant’s newly announced pricing structure. 15. By removing itself from the market for moderately priced stylist services, Defendant effectively exited the market for the type of services that Plaintiff provides to her developed customers. 16. While it is true that Plaintiff and Defendant both provide stylist services, they provide those services to two separate and distinct client markets, and Plaintiff's actions have had no role in removing Defendant from the market which Plaintiff seeks to continue to serve. Accordingly, under Florida Statutes section 542.335(1)(g)(2), the restrictions should not be enforced. 17. A bona fide, actual, present practical need for declaration exists as Defendant has threatened to enforce the Restrictive Covenants contained in the Agreement between the Parties by letter dated October 25, 2022. 1 The declaration sought by Plaintiff concerns a present, ascertained or ascertainable state of facts or present controversy as to a state of facts regarding the enforceability of the restrictive covenants contained in the Agreement. 2. Plaintiff’s ability to continue employment in her chosen field is dependent upon the facts or the law applicable to the facts. 3 Plaintiff has an actual, present, adverse and antagonistic interest in the enforceability and validity of the Agreement. 4 The relief sought by Plaintiff is not merely giving of legal advice or the answer to questions propounded for curiosity. WHEREFORE Plaintiff asks this Court to enter a judgment declaring the Agreement invalid and unenforceable, awarding Plaintiff her attorneys’ fees and costs pursuant to the Agreement, and §542.335(1)(k), Fla. Stat., supplemental relief pursuant to §86.061, Fla. Stat., and any other relief this Court deems just and proper. Respectfully submitted this 9" day of November 2022. DELEGAL & POINDEXTER P.A. /s/ T.A. “Tad” Delegal, Til, B.C.S. T.A. “Tad” Delegal, III, B.C.S. FL Bar No. 0892701 Email: tad@delegal.net James C. Poindexter FL Bar No. 116039 Email: james@delegal.net Alexandra E. Underkofler Fla. Bar No.: 1018209 Email: alex@delegal.net 424 East Monroe Street Jacksonville, FL 32202 Phone (904) 633-5000 Facsimile (904) 358-2850 Alternate: office@delegal.net Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9" day of November 2022, I electronically filed the foregoing with the Clerk of the Court using the Florida Courts E-Filing portal, which will serve the document electronically by email on the following: Murphy & Anderson, P.A. Geddes Anderson, Esq. Email: ganderson@murphyandersonlaw.com Sarah Jeck Hulsberg Email: shulsberg@murphyandersonlaw.com T.A. Delegal, III EXHIBIT A cortellosalon — = OFFIGIAL DOCUMENT — Employee Agreement This Employee Non-compete Agreement ("Agreement") is entered into by and between Cortello Salon, (the "Employer"), and Madeline Johnston (employee name) (the Employer and the Employee are collectively referred to herein as the "Parties") as of September 11th, 2018 (the “Effective Date"). In consideration of the Employee's employment or continued employment by the Employer as a Stylist, which the Employee acknowledges to be good and valuable consideration for the Employee's obligations hereunder, the Parties hereby agree as follows: Confidential Information. The Employee understands and acknowledges that during the course of employment by. the ‘Employer, the Employee will have access to and learn about Confidential Information, as defined below. (a) Confidential Information Defined For purposes of this Agreement, "Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, policies, strategies, documents, operations, services, techniques, drawings, supplier information, vendor information, financial information, accounting information, accounting records, legal information, marketing information, marketing strategies, advertising information, social media information, pricing, information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, reports, internal controls, security procedures, market studies, sales information, revenue, costs, customer/client information, and customer/client lists, of the Employer or its businesses, or of any other person or entity that has entrusted information to the Employer in confidence. The Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. (b) The Employee understands and agrees that Confidential Information includes information developed by the Employee during the course of employment as if the Employer furnished the same Confidential Information to the Employee in the first instance. The Employee understands and acknowledges that the Employer has invested, and continues to invest, substantial time, money and specialized knowledge into developing its resources, creating a customer/client base, generating customer/client lists and potential customer/client lists, training its employees, and improving its offerings as a hair salon. The Employee © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality . ‘ cortellosalon __ - OFFICIAL: DOCUMENT meme understands and acknowledges that as a result of these efforts, Employer has created, and continues to use and create Confidential Information. This Confidential Information provides Employer with a competitive advantage over others in the marketplace. (c) Disclosure and Use Restrictions The Employee agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever (including other employees of the Employer) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Employer and, in any event, not to anyone outside of the direct employ of the Employer except as required in the performance of the Employee's authorized employment duties to the Employer or with the prior consent of the Owner acting on behalf of the Employer in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Employer, except as required in the performance of the Employee's authorized employment duties to the Employer or with the prior consent of the Owner acting on behalf of the Employer in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. The Employee shall promptly provide written notice of any such order to the Owner. The Employee understands and acknowledges that the Employee's obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Employee first having access to such Confidential Information (whether before or after employment begins) and shall continue during and after employment by the Employer until such time as such Confidential Information has become public knowledge other than as a result of the Employee's breach of this Agreement or breach by those acting in concert with the Employee or on the Employee's behalf. Restrictive Covenants. () Acknowledgment The Employee understands that the nature of Employee's position gives the Employee access to and knowledge of Confidential Information and places the Employee in a position of trust and confidence with the Employer. The Employee further understands and acknowledges that the © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality we cortellosalon OFFICIAL DOCUMENT mae Employer's ability to reserve these for the exclusive knowledge and use of the Employer is of great competitive importance and commercial value to the Employer, and that improper use or disclosure by the Employee is likely to result in unfair or unlawful competitive activity. (e) Non-Competition Because of Employer's legitimate business interest as described herein and the good and valuable consideration offered to the Employee, beginning on either (i) the first day of employment, or, (ii) after the first 90-days of the Cortello Academy if the Employee will be enrolled in the Academy, and during the term of Employee's employment and for the one (1) year following the last day of the Employee's employment with the Employer (whether employment is terminated at the option of the Employee or the Employer), the Employee agrees and covenants not to engage in a Prohibited Activity within a twelve (12) mile radius of the Employer's location (1086 3rd Street North, Jacksonville Beach, Florida). For purposes of this non-compete clause, "Prohibited Activity" is activity in which the Employee contributes the Employee's knowledge, directly or indirectly, in whole or in part, as an employee. employer, owner, operator, manager, consultant, or intern to an entity engaged in the same business as the Employer. Prohibited Activity also includes activity that may require disclosure of proprietary or Confidential Information Prohibited Activity shall not, however, include the Employee’s subsequent employment as an aesthetician, massage therapist, or nail ‘technician, provided that Employee does not disclose the Employer's proprietary or Confidential Information as part of such employment. (f) Non-solicitation of Employees The Employee agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Employer during the one (1) year following the last day of the Employee's employment with the Employer. (g) Non-solicitation of Customers/Clients (i) Customers/Clients of Employer: The Employee understands and acknowledges that because of the Employee's experience with and relationship to the Employer, the Employee will have access to and learn about much or all of the Employer's customer/client information: "Customer/Client Information" includes, but is not limited to names, phone numbers, addresses, email addresses, history, preferences, pricing information and other information identifying facts and circumstances specific to the customer/client The Employee further agrees that customers/clients generated by Employee pursuant to employment with the Employer are the customers/clients of the Employer and subject to the Non-solicitation restriction. The Employee understands and acknowledges that loss of these customer/client relationships and/or goodwill will cause significant and irreparable harm © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality . . cortellosalon OFFICIAL DOCUMENT smeecmme The Employee agrees and covenants, during the one (1) year following the last day of the Employee's employment with the Employer, not to directly or indirectly solicit (including but not limited to, contact with existing or former customers/clients whether initiated by the Employee or customer/client), contact (including but not limited to e-mail, regular mail, express mail, telephone, SMS, fax, social media channels and instant message), attempt to contact or meet with the Employer's customers/clients for purposes of offering or accepting goods or services similar to or competitive with those offered by the Employer. . (ii) Customers/Clients of Employee: Within the first week of the Employee’s employment, the Employee shall furnish the Employer with a list of the Employee's current customers/clients; these customers/clients will not be subject to the Non-solicitation restriction. Non-disparagement. The Employee agrees and covenants that the Employee will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Employer or its businesses, or any of its employees, officers, customers/clients, suppliers, investors and other associated third parties. This Section does not in any way restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. The Employee shall promptly provide written notice of any such order to the Owner. Acknowledgément. The Employee acknowledges and agrees that the services to be rendered by the Employee to the Employer are of a special and unique character; that the Employee will obtain knowledge and skill relevant to the Employer's industry, methods of doing business and marketing strategies by virtue of the Employee's employment; and that the restrictive covenants and other terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Employer. The Employee further acknowledges that the amount of compensation reflects, in part, the Employee's obligations and the Employer's rights under this Agreement; that the Employee has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; that the Employee will not be subject to undue hardship by reason of full compliance with the terms and conditions of this Agreement or the Employer's enforcement thereof; and that this Agreement is not a contract of employment and shall not be construed as a commitment by either of the Parties to continue an employment relationship for any certain period of time. © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality i ae cortéllosalon OFFICIAL DOCUMENT —— Nothing in this Agreement shall be construed to in any way terminate, supersede, undermine or otherwise modify the “at-will" status of the employment relationship between the Employer and the Employee, pursuant to which either the Employer or the Employee may terminate the employment relationship at any time, with or without cause, with or without notice. Remedies. In the event of a breach or threatened breach by the Employee of any of the provisions of this Agreement, the Employee hereby consents and agrees that the Employer shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief. Successors:and Assigns: (h) Assignment by the Employer To the extent permitted by Florida law, the Employer may assign this Agreement to any subsidiary or corporate affiliate, or to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Employer. This Agreement shall inure to the benefit of the Employer and permitted successors and assigns. (i) No Assignment by the Employee The Employee may not assign this Agreement or any part hereof. Any purported assignment by the Employee shall be null and void from the initial date of purported assignment. Warranty. Employee represents and warrants that the Employee is not a party to any non-compete restrictive covenant or related contractual limitation that would interfere with or hinder the ability to undertake the obligations and expectations of employment with the Employer. ‘Governing Law:-Jurisdiction and: Venué. This Agreement, for all purposes, shall be construed in accordance with the laws of Florida without regard to conflicts-of-law principles. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought only in any state or federal court located in the state of Florida, county of Duval. The Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. Entire:-Agresment. Unless specifically provided herein, this Agreement contains all the understandings and representations between the Employee and the Employer pertaining to the © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality . cortellosalon OFFICIAL DOCUMENT ——— subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Modification.and: Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Employee and by the Owner of the Employer. No waiver by either of the Parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the Parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein. Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph: olling. Should the Employee violate any of the terms of the restrictive covenant obligations articulated herein, the obligation at issue will run from the first date on which the Employee ceases to be in violation of such obligation. © Cortello Salon Inc. | Non-Compete Agreement & Confidentiality cortellosalon. OFFICIAL DOCUMENT seme Attorneys Fees: Should the Employee breach any of the terms of the restrictive covenant obligations articulated herein, to the extent authorized by Florida law, the Employee will be responsible for payment of all reasonable attorneys’ fees and costs that Employer incurred in the course of enforcing the terms of the Agreement, including demonstrating the existence of a breach and any other contract enforcement efforts. No: Preparation’ for Competition: During the term of the Employee's employment, Employee agrees not to undertake preparations for competitive activity prohibited by this Agreement. Notice. If and when Employee's employment with Employer terminates, whether voluntarily or involuntarily, Employee agrees to provide to any subsequent employer a copy of this Agreement. In addition, Employee authorizes Employer to provide a copy of this Agreement to third parties, including but not limited to, Employee's subsequent, anticipated or possible future employer. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date above. OLY | n eg, ry\ Print Name: Jo hnston bat Sep. 11,2016 Signature:. CORTELLO SALON Natalie McHenry| Director © Cartello Salon Inc. | Non-Compete Agreement & Confidentiality