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Filing # 163037168 E-Filed 12/14/2022 01:30:05 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 2022-CA-6522
DIVISION: CV-C
MADELINE JOHNSTON,
Plaintiff/Counter-Defendant,
Vv.
CORTELLO SALON, INC.,
Defendant/Counter-Plaintiff.
/
REPLY TO AFFIRMATIVE DEFENSES
Defendant/Counter-Plaintiff Cortello Salon, Inc. (“Cortello”) replies to the affirmative
defenses asserted by Plaintiff/Counter-Defendant Madeline Johnston (“Ms. Johnston”) as follows:
1 Cortello denies each and every affirmative defense set forth by Ms. Johnston and
demands strict proof thereof. Cortello specifically replies with avoidance to the following
affirmative defenses:
Second Affirmative Defense
2. Ms. Johnston alleges in her second affirmative defense that Cortello has waived its
claims by “refusing to provide adequate and acceptable services at its previously established
pricing model to its customers.”
3 Waiver is the voluntary giving up of a known right.” See Fla. Stand. Jury Instr.
Contr. & Bus. 416.30. The elements necessary to establish waiver are: the existence of a right,
privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish
that right, privilege, or advantage. Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009);
Winans v. Weber, 979 So. 2d 269, 274 (Fla. 2d DCA 2007).
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 12/15/2022 07:17:33 PM
4 None of the allegations in Ms. Johnston’s second affirmative defense show in any
way that Cortello intended to relinquish its rights to protect its legitimate business interests or that
it in fact did so. Moreover, the allegations in Ms. Johnston’s second affirmative defense are
factually incorrect as Ms. Johnston was permitted to and did set her own prices prior to the
termination of her employment with Cortello.
Third Affirmative Defense
5 Ms. Johnston alleges that enforcement of the non-compete restrictions in her
Employee Agreement would violate Florida’s statutory prohibitions against limiting of
competition contained in chapter 542, Florida Statutes.
6 Section 542.335, Florida Statutes, specifically provides that: “enforcement of
contracts that restrict or prohibit competition during or after the term of restrictive covenants, so
long as such contracts are reasonable in time, area, and line of business, is not prohibited.”
7
Ms. Johnston has failed to allege that the restrictive covenants contained in the
Employee Agreement are unreasonable in time, area, or line of business, and indeed they are not.
The non-compete provision at issue is reasonable as it is limited to one year,! 12 miles of Cortello’s
single location,” and Cortello’s line of business? specifically.
| Florida courts have routinely upheld covenants that are one year or more in duration. See, e.g., Envtl.
Servs. v. Carter, 9 So. 3d 1258, 1263 (Fla. Sth DCA 2009) (“the language limits non-competition to one
year, which is presumptively not unreasonable”) (citing § 542.335(1)(d), Fla. Stat. (2005) (instructing
that 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’”)); Unique Casting v. V., 2012 Fla. Cir.
LEXIS 13573, *2 (Fla. 1st Jud. Cir. June 18, 2012) (“the time restraint of one year is reasonable and
enforceable”); Spine v. Moulton, 346 So. 3d 154, 159 n.3 (Fla. 2d DCA 2022) (“the two-year time period .
. . appear(s) to be reasonable based upon Florida caselaw”).
2 See Panache v. V.,2021 Fla. Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (finding a non-compete
agreement of a hair stylist with a 15-mile radius restriction to be reasonable); Lae Beauty v. Giansanti, 2017
Fla. Cir. LEXIS 8980, *9 (Fla. Ist Jud. Civ. Sept. 22, 2017) (finding a 30-mile radius to be reasonable for
a non-compete agreement concerning a former employee who worked as an eyelash technician); Spine v.
Moulton, 346 So. 3d 154, 159 n.3 (Fla. 2d DCA 2022) (finding a 15-mile radius to be reasonable for a
physician non-compete).
3 See Panache v. V., 2021 Fla. Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (finding a non-compete
2
Seventh Affirmative Defense
8 Ms. Johnston alleges that Cortello waived its right to enforce the restrictive
covenants in its Employee Agreement with Cortello by refraining from pursuing enforcement
against other persons who have signed similar restrictive covenants.
9 This allegation is both untrue, as Cortello has a policy and practice of aggressively
enforcing its restrictive covenants, and legally without merit. Courts have “rejected the concept
that selective enforcement of non-competition agreements constitutes waiver.” Larweth v.
Magellan Health, Inc., No. 618CV8230RL41DCI, 2019 WL 11866499, at *9 (M.D. Fla. Dec. 17,
2019) (citing Med. Educ. Assistance Corp. v. Mehta, 19 S.W.3d 803, 818 (Tenn. Ct. App. 1999);
Laidlaw, Inc. v. Student Transp. of Am., 20 F. Supp. 2d 727, 751 (D.N.J. 1998)); see also Larweth
v. Magellan Health, Inc., 398 F. Supp. 3d 1281, 1292 (M.D. Fla. 2019), aff'd, 841 F. App’x 146
(11th Cir. 2021) (“Larweth has failed to provide authority under any law that not enforcing
restrictive covenants against other employees in any way impacts the enforceability of Larweth’s
restrictive covenants.”); Vital Pharm., Inc. v. Alfieri, No. 20-61307-CIV-SINGHAL/VALLE,
2022 U.S. Dist. LEXIS 133654, at *8-9 (S.D. Fla. July 27, 2022) (“there is no Eleventh Circuit
authority for the proposition that failing to enforce restrictive covenants against other employees
constitutes waiver of that right”).
10. With respect to the restrictive covenants that bind Ms. Johnston, Cortello moved
swiftly to enforce same upon learning of Ms. Johnston’s breach. Accordingly, Ms. Johnston’s
affirmative defense of waiver has no applicability to this case.
Eighth Affirmative Defense
ll. Ms. Johnston alleges: “that the allegations in the Counterclaim are barred by the
agreement of a hair stylist that prohibited the stylist from “performing any services similar to the services
[the stylist] performed for [the salon]” to be reasonable).
3
doctrine of unclean hands in that Cortello created a working environment in which Johnston could
no longer service her existing clients and perform work through the substantial increase in its
pricing model, as well as the failure to maintain its premises and facilities and failure to continue
to provide the quality of services necessary to maintain its customer base.”
12. As the Florida courts have explained, the doctrine of unclean hands is an equitable
defense that is akin to fraud, and its purpose is to discourage unlawful activity. See Cong. Park
Office II, LLC y. First-Citizens Bank & Trust Co., 2013 Fla. App. LEXIS 577, 14-15 (Fla. 4th
DCA Jan. 16, 2013) (citing Original Great Am. Chocolate Chip Cookie Co. v. River Valley
Cookies, Ltd., 970 F.2d 273, 281 (7th Cir. 1992)). As the Fourth District Court of Appeal has
noted: “This court has equated ‘sneaky and deceitful’ with ‘unclean hands’ . . . . [and] equity will
stay its hand where a party is guilty of conduct condemned by honest and reasonable men. /d.
Thus, there must be “unscrupulous practices, overreaching, concealment, trickery or other
unconscientious conduct for the doctrine of unclean hands to bar relief.” /d. (citing 22 Fla.
Jur. 2d, Equity, § 50; Hensel v. Aurilio, 417 So. 2d 1035, 1038 (Fla. 4th DCA 1982)).
13. Ms. Johnston has failed to allege anything akin to fraud or unlawful activity by
Cortello. Instead, Ms. Johnston appears to merely be complaining that Cortello increased its prices.
While this allegation is factually without merit as Ms. Johnston was permitted to set her own prices,
it would, even if true, fall woefully below the standard necessary for an unclean hands defense to
apply.
Ninth Affirmative Defense
14. As her ninth affirmative defense, Ms. Johnston claims that non-compete
agreements are not enforceable in the relevant industry, i.e. the hair styling industry. This is
demonstrably false. See, e.g., JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081 (Fla. 4th DCA 2006)
(finding a non-compete agreement against hair stylist to be enforceable); Panache v. V., 2021 Fla.
Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (enforcing non-compete agreement against
hair stylist).
MURPHY & ANDERSON, P.A.
/s/ Geddes D. Anderson, Jr.
GEDDES D. ANDERSON, JR.
Florida Bar No. 0138894
ganderson@murphyandersonlaw.com
pmarchman@murphyandersonlaw.com
SARAH JECK HULSBERG
Florida Bar No. 0106027
shulsberg@murphyandersonlaw.com
1501 San Marco Blvd.
Jacksonville, FL 32207
904-598-9282 (phone)
Attorneys for Defendant/Counter-
Plaintiff Cortello Salon, Inc.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that on December 14, 2022 a copy of the foregoing was served via
the Florida Courts E-filing Portal to all counsel of record.
/s/ Geddes D. Anderson, Jr.
Attorney
Preview
Filing # 163037168 E-Filed 12/14/2022 01:30:05 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 2022-CA-6522 DIVISION: CV-C MADELINE JOHNSTON, Plaintiff/Counter-Defendant, Vv. CORTELLO SALON, INC., Defendant/Counter-Plaintiff. / REPLY TO AFFIRMATIVE DEFENSES Defendant/Counter-Plaintiff Cortello Salon, Inc. (“Cortello”) replies to the affirmative defenses asserted by Plaintiff/Counter-Defendant Madeline Johnston (“Ms. Johnston”) as follows: 1 Cortello denies each and every affirmative defense set forth by Ms. Johnston and demands strict proof thereof. Cortello specifically replies with avoidance to the following affirmative defenses: Second Affirmative Defense 2. Ms. Johnston alleges in her second affirmative defense that Cortello has waived its claims by “refusing to provide adequate and acceptable services at its previously established pricing model to its customers.” 3 Waiver is the voluntary giving up of a known right.” See Fla. Stand. Jury Instr. Contr. & Bus. 416.30. The elements necessary to establish waiver are: the existence of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage. Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009); Winans v. Weber, 979 So. 2d 269, 274 (Fla. 2d DCA 2007). ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 12/15/2022 07:17:33 PM 4 None of the allegations in Ms. Johnston’s second affirmative defense show in any way that Cortello intended to relinquish its rights to protect its legitimate business interests or that it in fact did so. Moreover, the allegations in Ms. Johnston’s second affirmative defense are factually incorrect as Ms. Johnston was permitted to and did set her own prices prior to the termination of her employment with Cortello. Third Affirmative Defense 5 Ms. Johnston alleges that enforcement of the non-compete restrictions in her Employee Agreement would violate Florida’s statutory prohibitions against limiting of competition contained in chapter 542, Florida Statutes. 6 Section 542.335, Florida Statutes, specifically provides that: “enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited.” 7 Ms. Johnston has failed to allege that the restrictive covenants contained in the Employee Agreement are unreasonable in time, area, or line of business, and indeed they are not. The non-compete provision at issue is reasonable as it is limited to one year,! 12 miles of Cortello’s single location,” and Cortello’s line of business? specifically. | Florida courts have routinely upheld covenants that are one year or more in duration. See, e.g., Envtl. Servs. v. Carter, 9 So. 3d 1258, 1263 (Fla. Sth DCA 2009) (“the language limits non-competition to one year, which is presumptively not unreasonable”) (citing § 542.335(1)(d), Fla. Stat. (2005) (instructing that 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’”)); Unique Casting v. V., 2012 Fla. Cir. LEXIS 13573, *2 (Fla. 1st Jud. Cir. June 18, 2012) (“the time restraint of one year is reasonable and enforceable”); Spine v. Moulton, 346 So. 3d 154, 159 n.3 (Fla. 2d DCA 2022) (“the two-year time period . . . appear(s) to be reasonable based upon Florida caselaw”). 2 See Panache v. V.,2021 Fla. Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (finding a non-compete agreement of a hair stylist with a 15-mile radius restriction to be reasonable); Lae Beauty v. Giansanti, 2017 Fla. Cir. LEXIS 8980, *9 (Fla. Ist Jud. Civ. Sept. 22, 2017) (finding a 30-mile radius to be reasonable for a non-compete agreement concerning a former employee who worked as an eyelash technician); Spine v. Moulton, 346 So. 3d 154, 159 n.3 (Fla. 2d DCA 2022) (finding a 15-mile radius to be reasonable for a physician non-compete). 3 See Panache v. V., 2021 Fla. Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (finding a non-compete 2 Seventh Affirmative Defense 8 Ms. Johnston alleges that Cortello waived its right to enforce the restrictive covenants in its Employee Agreement with Cortello by refraining from pursuing enforcement against other persons who have signed similar restrictive covenants. 9 This allegation is both untrue, as Cortello has a policy and practice of aggressively enforcing its restrictive covenants, and legally without merit. Courts have “rejected the concept that selective enforcement of non-competition agreements constitutes waiver.” Larweth v. Magellan Health, Inc., No. 618CV8230RL41DCI, 2019 WL 11866499, at *9 (M.D. Fla. Dec. 17, 2019) (citing Med. Educ. Assistance Corp. v. Mehta, 19 S.W.3d 803, 818 (Tenn. Ct. App. 1999); Laidlaw, Inc. v. Student Transp. of Am., 20 F. Supp. 2d 727, 751 (D.N.J. 1998)); see also Larweth v. Magellan Health, Inc., 398 F. Supp. 3d 1281, 1292 (M.D. Fla. 2019), aff'd, 841 F. App’x 146 (11th Cir. 2021) (“Larweth has failed to provide authority under any law that not enforcing restrictive covenants against other employees in any way impacts the enforceability of Larweth’s restrictive covenants.”); Vital Pharm., Inc. v. Alfieri, No. 20-61307-CIV-SINGHAL/VALLE, 2022 U.S. Dist. LEXIS 133654, at *8-9 (S.D. Fla. July 27, 2022) (“there is no Eleventh Circuit authority for the proposition that failing to enforce restrictive covenants against other employees constitutes waiver of that right”). 10. With respect to the restrictive covenants that bind Ms. Johnston, Cortello moved swiftly to enforce same upon learning of Ms. Johnston’s breach. Accordingly, Ms. Johnston’s affirmative defense of waiver has no applicability to this case. Eighth Affirmative Defense ll. Ms. Johnston alleges: “that the allegations in the Counterclaim are barred by the agreement of a hair stylist that prohibited the stylist from “performing any services similar to the services [the stylist] performed for [the salon]” to be reasonable). 3 doctrine of unclean hands in that Cortello created a working environment in which Johnston could no longer service her existing clients and perform work through the substantial increase in its pricing model, as well as the failure to maintain its premises and facilities and failure to continue to provide the quality of services necessary to maintain its customer base.” 12. As the Florida courts have explained, the doctrine of unclean hands is an equitable defense that is akin to fraud, and its purpose is to discourage unlawful activity. See Cong. Park Office II, LLC y. First-Citizens Bank & Trust Co., 2013 Fla. App. LEXIS 577, 14-15 (Fla. 4th DCA Jan. 16, 2013) (citing Original Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 281 (7th Cir. 1992)). As the Fourth District Court of Appeal has noted: “This court has equated ‘sneaky and deceitful’ with ‘unclean hands’ . . . . [and] equity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. /d. Thus, there must be “unscrupulous practices, overreaching, concealment, trickery or other unconscientious conduct for the doctrine of unclean hands to bar relief.” /d. (citing 22 Fla. Jur. 2d, Equity, § 50; Hensel v. Aurilio, 417 So. 2d 1035, 1038 (Fla. 4th DCA 1982)). 13. Ms. Johnston has failed to allege anything akin to fraud or unlawful activity by Cortello. Instead, Ms. Johnston appears to merely be complaining that Cortello increased its prices. While this allegation is factually without merit as Ms. Johnston was permitted to set her own prices, it would, even if true, fall woefully below the standard necessary for an unclean hands defense to apply. Ninth Affirmative Defense 14. As her ninth affirmative defense, Ms. Johnston claims that non-compete agreements are not enforceable in the relevant industry, i.e. the hair styling industry. This is demonstrably false. See, e.g., JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081 (Fla. 4th DCA 2006) (finding a non-compete agreement against hair stylist to be enforceable); Panache v. V., 2021 Fla. Cir. LEXIS 8688, *2 (Fla. 7th Jud. Cir. Jan. 29, 2021) (enforcing non-compete agreement against hair stylist). MURPHY & ANDERSON, P.A. /s/ Geddes D. Anderson, Jr. GEDDES D. ANDERSON, JR. Florida Bar No. 0138894 ganderson@murphyandersonlaw.com pmarchman@murphyandersonlaw.com SARAH JECK HULSBERG Florida Bar No. 0106027 shulsberg@murphyandersonlaw.com 1501 San Marco Blvd. Jacksonville, FL 32207 904-598-9282 (phone) Attorneys for Defendant/Counter- Plaintiff Cortello Salon, Inc. CERTIFICATE OF SERVICE THEREBY CERTIFY that on December 14, 2022 a copy of the foregoing was served via the Florida Courts E-filing Portal to all counsel of record. /s/ Geddes D. Anderson, Jr. Attorney