IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 8, 2013 Session

JAMES F. DILL, JR. ET AL. v. CONTINENTAL CAR CLUB, INC. ET AL.

Appeal from the Chancery Court for Rhea County

No. 11-CV-10652 Jeffrey F. Stewart, Chancellor

No. E2013-00170-COA-R3-CV-FILED-OCTOBER 31, 2013

Two executive employees of Continental Car Club, Inc., resigned in order to start a business

in competition with their former employer. The issues on appeal are (1) whether the

employees resigned for “Good Reason” as that term is defined in their employment

agreements; (2) whether the employees violated their employment agreements by copying

all the data on their work computers to personal computers shortly before resigning; (3)

whether the non-competition and non-solicitation provisions of their agreements are

enforceable; (4) whether the trial court correctly found the employees liable for conversion;

and (5) whether the employees violated the Tennessee or Florida Uniform Trade Secrets Act.

We hold that the employees did not establish that they resigned for “Good Reason.” We

further hold that they violated their employment agreements, and, accordingly, we reverse

the trial court’s judgment awarding them severance pay and benefits. We affirm the trial

court’s judgment on the conversion claim but modify the judgment to award the former

employer the value of tickets to a football game that one of the employees converted by

sending the tickets to business clients, then renting a bus and taking the clients to the game

several months after the employee’s resignation. We hold that the trial court correctly

determined that the covenants not to compete were valid and enforceable and that the

agreements are reasonable in time and geographic limits but overbroad in scope. Therefore,

we reverse the trial court’s judgment in part and modify it in part. With respect to the portion

of the trial court’s judgment not reversed, we affirm, as modified.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed in Part and Modified in Part; With Respect to the Portion

of the Trial Court’s Judgment Not Reversed, the Judgment, as Modified,

is Affirmed; Case Remanded

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.
Edward H. Trent and Catherine E. Shuck, Knoxville, Tennessee, for the appellants,

Continental Car Club, Inc. and Fortegra Financial Corporation.

R. Wayne Peters and Gary L. Henry, Chattanooga, Tennessee, for the appellees, James F.

Dill, Jr. and James C. Thurman, Jr.

OPINION

I.

In 2009, the plaintiffs, James F. Dill, Jr. (“Dill”), and James C. Thurman, Jr., were

employed by Continental Car Club, Inc., a corporation based in Dayton, Tennessee, and

owned by James F. Dill, Sr. Continental is a motor club similar to AAA that provides

roadside assistance to individuals who sign up for membership. In October 2009, Dale

Bullard, the chief marketing officer of defendant Fortegra Financial Corporation, approached

James F. Dill, Sr. about the possibility of Fortegra purchasing Continental. They negotiated

the terms of the sale over the next several months, and the deal closed on May 15, 2010. At

that time, Dill had been essentially in charge of running the company with limited assistance

from his parents. Thurman had been employed by Continental since 1997 and was also

working in an executive capacity. The price of the Continental purchase was $11.9 million.

All of the parties agreed that an integral part of the sale was the agreement of Dill and

Thurman to stay with Continental and continue to run the company as employees of Fortegra.

The men negotiated employment agreements with Fortegra that were essentially identical,

with the exceptions that Dill was named as Continental’s Senior Vice President and Thurman

was named its Vice President, and Dill’s base annual salary was $192,000 and Thurman’s

was $150,000. The employment agreements provide as follows in pertinent part:

1

Section 1. Employment and Position. Subject to Section 2, the

Company hereby employs the Executive as Senior Vice

President of Continental Car Club, Inc., and the Executive

hereby accepts such employment under and subject to the terms

and conditions hereinafter set forth.

* * *

Section 3. Duties. The Executive shall perform services in a

managerial capacity in a manner consistent with the Executive’s

As noted, Thurman’s contract designated him as “Vice President.” 1

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position as Vice President of Continental Car Club, Inc., subject

to the general supervision of Joe McCaw, President of the

Payment Protection Division of the Company.

* * *

Section 6.06. By the Executive for Good Reason. The

Executive may terminate this Agreement effective upon written

notice to the Company for Good Reason. Such notice must

provide a detailed description of the Good Reason. . . . For this

purpose, the term “Good Reason” shall mean: (i) the assignment

to the Executive of any duties inconsistent in any substantial

respect with the Executive’s position, authority or

responsibilities as contemplated by Section 1 of this Agreement

or any duties which are illegal or unethical; or (ii) any material

failure to pay the compensation or benefits described in Sections

4 or 5 of this Agreement. Notwithstanding the foregoing, in the

event the Executive provides notice of Good Reason contained

in subclause (i) of the immediately preceding sentence, the

Company shall have the opportunity to cure such Good Reason

within 30 days of receiving such notice.

* * *

In the event that this Agreement is terminated . . . by the

Executive for Good Reason, the Executive shall be entitled to

receive, as his exclusive right and remedy in respect of such

termination, (i) his Accrued Benefits, (ii) as long as the

Executive does not violate the provisions of Section 8 and

Section 9 hereof, severance pay equal to the Executive’s then

current monthly Base Salary . . . for twenty-four (24) months

from the date of termination of employment[.]

(Italics and underlining in original.)

The agreements also contain a covenant not to compete by which Dill and Thurman

agreed that they “will not (anywhere in the United States where the Company or any of its

subsidiaries then conducts business) engage or participate in, . . . or assist in the management

of, or provide advisory or other services to . . . any business which is Competitive with the

Company” for 2 years after termination of employment. The agreements provided that they

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would “be construed under and enforced in accordance with the internal laws of the State of

Florida.”

Dill and Thurman testified that they were generally not happy working for Continental

after the company was acquired by Fortegra. They felt that they were not getting sufficientlydetailed financial information to effectively run the company, and to monitor whether they

were on track to meet their earnings goals, referred to as “EBIDTA,” an acronym for

“earnings before interest, depreciation, taxes, and amortization.” The EBIDTA goals were

important to Dill and Thurman because their employment agreements provided for a yearly

bonus of up to 30% of their base pay if both Fortegra and Continental met their earnings

targets. Approximately four months after Fortegra acquired Continental, it purchased United

Motor Club, formerly Continental’s biggest businessrival and, according to all the testimony,

a bitter enemy. Dill and Thurman were dissatisfied with the corporate structure after the

acquisition of United – they believed that they had been promised by Fortegra executives,

before the Continental purchase, that if Fortegra bought other car clubs, they would be placed

under Dill and Thurman’s management at Continental. After Fortegra bought United and,

later, a third car club called Auto Knight, the three car club companies were each generally

run as separate and equal branches of Fortegra’s motor club division, and were directed not

to compete with one another for already-existing customers. Thirteen months after Dill and

Thurman began working for Fortegra, Joe McCaw was replaced as their supervisor by John

Short, who was formerly Fortegra’s general counsel. Dill and Thurman were unhappy with

the change in their supervision.

On July 27, 2011, Dill and Thurman each sent an identical letter of resignation to

Fortegra management, which stated in pertinent part as follows:

Please be advised that I am compelled to terminate my

employment with Good Reason. Below is an enumeration of

several of the reasons.

1. The inability of Fortegra to produce and deliver accurate and

timely financial statements constitutes a breach in [sic] contract

in that I have not been given the tools to properly manage

Continental Car Club (CCC). Thus I was potentially rendered

unable to reach prescribed goals for performance and bonus.

Basic financials have been requested since July of 2010. When

they have been sporadically provided, they have been inaccurate

and misleading. As those inaccuracies were pointed out, no

explanation of any adjustments or corrections was provided.

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2. No review regarding 2010 CCC performance has been done.

3. No goals for 2011 have been discussed or set for expected

performance or bonus potential.

4. With the dictate of the CEO that no employees may be hired

without his approval, my position and authority as an executive

charged with the management of CCC has been diminished

without proper notification.

Both Dill and Thurman testified that they intended to start a competing car club immediately

after resigning. A day or so before resigning, they hired a company called VOLState, Inc.

to copy all of the data on their work computers owned by Fortegra to recently-purchased

personal laptops. John Short testified that upon receiving the resignation letters, he

immediately called Dill and Thurman to try to alleviate their concerns and address their

complaints, in an attempt to dissuade them from leaving Fortegra. After a meeting where it

became clear that Dill and Thurman could not be persuaded to stay, Fortegra sent letters on

August 3, 2011, reminding them of the contractual provisions restricting competition or

solicitation of Fortegra’s customers for 24 months. The letters stated that “none of the items

enumerated in your resignation letter constitute Good Reason as defined in the Employment

Agreement.”

On August 18, 2011, Dill and Thurman filed a complaint against Continental and

Fortegra, alleging fraudulent inducement, misrepresentation, breach of contract, and breach

of the implied duty of good faith and fair dealing. They requested injunctive relief and asked

the trial court to declare that they were entitled to full severance pay under their employment

contracts, and that the non-compete provisions were void and unenforceable. Fortegra

answered and filed a counterclaim alleging breach of the employment agreements,

conversion, and violation of the Tennessee and/or Florida Uniform Trade Secrets Act.

Following a hearing, the trial court denied the plaintiffs’ request for temporary injunctive

relief and ruled that Florida law was applicable under the agreements. After a bench trial,

the trial court entered an order incorporating its final judgment that contained the following

findings of fact and conclusions of law:

Under Florida law, any breaches of the Executive Employment

and Non-Competition Agreements . . . by Defendants are not

sufficient to excuse Plaintiffs’ continued performance under the

Agreements. Therefore, Plaintiffs must comply with their

Agreements – including the non-competition and nonsolicitation provisions in Section 9 of their Agreements – for a

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period of twenty-four months from Plaintiffs’ termination of

employment on July 27, 2011.

. . . [T]he Court finds that Plaintiffs terminated their

employment with Defendants for “Good Reason” under the

Agreements and have not violated Sections 8 or 9 of the

Agreements. Because Plaintiffs terminated their employment

for “Good Reason,” Plaintiffs are entitled to compensation and

any other damages outlined in Section 7.02 of the Agreements.

* * *

Regarding Defendants’ counterclaim, the Court finds in favor of

Defendants and against Plaintiffs on Defendants’ claim of

[c]onversion. Plaintiffs are ordered to return any information

belonging to Defendants that Plaintiffs removed from

Defendants’ computers. The Court expressly finds that

Plaintiffs took that information for the purposes of litigation

only and Defendants did not suffer any damages as a result of

Plaintiffs taking any such information. Therefore, no further

damages are awarded to Defendants on their counterclaim.

Fortegra timely filed a notice of appeal.

II.

On appeal, Fortegra raises the following issues, as quoted from its appellate brief:

1. Did the trial court err in determining that Dill and Thurman

resigned their employment with Fortegra Financial Corporation

for “Good Reason” as that term is defined in Section 6.06 of

their Executive Employment and Non-Competition Agreements?

2. Did the trial court err in determining that Dill and Thurman

did not violate Articles 8 and 9 of the Executive Employment

and Non-Competition Agreements when they surreptitiously

copied all documents and data on their work computers

immediately prior to their resignations for the purpose of

starting a competing car club and retained the Company

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information even after Fortegra requested that all material

belonging to the Company be returned?

3. Did the trial court err in determining that Dill and Thurman

did not violate the Florida and/or Tennessee Uniform Trade

Secrets Act?

Additionally, Dill and Thurman raise the following issues:

4. Did the trial court err in enforcing the non-competition and

non-solicitation provisions of the employment agreements?

5. Did the trial court err in finding in favor of the defendants on

their conversion claim?

III.

In this non-jury case, our review is de novo upon the record, with a presumption of

correctness as to the trial court’s factual determinations, unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d

674, 678 (Tenn. 2005). The trial court’s conclusions of law, however, are accorded no such

presumption. Udom, 166 S.W.3d at 678; Campbell v. Florida Steel Corp., 919 S.W.2d 26,

35 (Tenn. 1996). Our de novo review is subject to the well-established principle that the trial

court is in the best position to assess the credibility of the witnesses; accordingly, such

determinations are entitled to great weight on appeal. Columbus Med. Servs., LLC v.

Thomas, 308 S.W.3d 368, 383 (Tenn. Ct. App. 2009); Vantage Tech., LLC v. Cross, 17

S.W.3d 637, 644 (Tenn. Ct. App. 1999).

The first two issues – whether Dill and Thurman resigned for “Good Reason” as

defined in the agreements, and whether they violated Sections 8 or 9 of the agreements –

require the interpretation of their employment contracts. Under Florida law,

[t]he trial court’s interpretation of a contract is a question of law

subject to de novo review. Whitley v. Royal Trails Prop.

Owners’ Ass’n, Inc., 910 So. 2d 381, 383 (Fla. 5th DCA 2005).

The parties’ intent, which must be gleaned from the four corners

of the document, governs contract interpretation and

construction. Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla.

2011); Whitley, 910 So. 2d at 383. A clear, complete and

unambiguous contract does not require judicial construction.

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Jenkins v. Eckerd Corp., 913 So. 2d 43, 50 (Fla. 1st DCA

2005). In interpreting a contract, “[c]ourts are not to isolate a

single term or group of words and read that part in isolation; the

goal is to arrive at a reasonable interpretation of the text of the

entire agreement to accomplish itsstated meaning and purpose.”

Delissio v. Delissio, 821 So. 2d 350, 353 (Fla. 1st DCA 2002);

see also Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd.,

593 So. 2d 195, 197 (Fla. 1992) (stating determination of intent

requires consideration of contract’s language, subject matter,

and object and purpose).

Horizons A Far, LLC v. Plaza N 15, LLC, 114 So. 3d 992, 994 (Fla. Dist. Ct. App. 2012).

Furthermore, “[t]he contract should be reviewed as a whole and all language given effect,

and where the language is clear and unambiguous, the contract should be enforced as it

reads.” PNC Bank, N.A. v. Progressive Emp’r Servs. II, 55 So. 3d 655, 658 (Fla. Dist. Ct.

App. 2011) (quoting Leisure Resorts, Inc. v. City of West Palm Beach, 864 So. 2d 1163,

1166 (Fla. Dist. Ct. App. 2003)).

IV.

A.

The first issue we address is whether the trial court correctly concluded that Dill and

Thurman established that they resigned for “Good Reason” – as that term is specifically

defined in the employment agreements as follows:

For this purpose, the term “Good Reason” shall mean: (i) the

assignment to the Executive of any duties inconsistent in any

substantial respect with the Executive’s position, authority or

responsibilities as contemplated by Section 1 of this

Agreement[.]

2

Resolution of this issue will determine whether Dill and Thurman are entitled to a significant

benefit – severance pay in the amount of their regular base salaries for two years, plus

additional substantial benefits such as continuing health, dental and life insurance coverage,

The agreements further define “Good Reason” as “the assignment to the Executive of any duties

2

. . .which are illegal or unethical; or (ii) any material failure to pay the compensation or benefits described

in Sections 4 or 5 of this Agreement.” Neither Dill nor Thurman has alleged that Fortegra asked them to do

anything illegal or unethical, or that it failed to pay them as required by the contract. 

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as agreed to by the parties in Section 7.02 of the agreements. We conclude that Dill and

Thurman did not establish that they resigned for “Good Reason” for the following reasons:

(1) several of the complaints made by Dill and Thurman about their work environment, and

later relied upon as reasons for quitting, were not enumerated or raised in their resignation

letters, as required by the agreements; (2) none of Dill and Thurman’s complaints, including

those that they failed to raise with Fortegra, establish that Fortegra assigned to either Dill or

Thurman “any duties inconsistent in any substantial respect with [his] position, authority or

responsibilities”; and (3) the testimony, including that of Dill, establishes that Fortegra had

effectively cured perhaps the most serious complaint, the lack of sufficiently detailed

financial information, well before Dill and Thurman resigned.

The employment agreements evince the clear intent of the parties that Fortegra must

be given specific notice of the employees’ alleged “Good Reason” complaints supporting

their decision to resign, and an opportunity to cure them. In this regard, the agreements state:

The Executive may terminate this Agreement effective upon

written notice to the Company for Good Reason. Such notice

must provide a detailed description of the Good Reason. . . .

Notwithstanding the foregoing, in the event the Executive

provides notice of Good Reason . . ., the Company shall have

the opportunity to cure such Good Reason within 30 days of

receiving such notice.

(Emphasis added.) The resignation letters complain of the following: inability of Fortegra

to produce and deliver accurate and timely financial statements; no review of Continental’s

2010 performance; no earnings goals set for 2011; and Fortegra CEO Rick Kahlbaugh’s

decision to require approval for all new company hires. However, much of Dill and

Thurman’s proof and argument at trial and on appeal focus on a different set of complaints:

(1) Fortegra’s subsequent acquisition of Continental’s chief rival, United, and Dill and

Thurman’s allegation that Fortegra broke a promise that any other car clubs bought later by

Fortegra would be put under their leadership at Continental; (2) the shift of accounting

methods from a cash basis (used by Continental before the sale) to an accrual basis, which

was required by the Securities and Exchange Commission and comported with Generally

Accepted Accounting Principles; and (3) the replacement of Joe McCaw with John Short as

the immediate supervisor of Dill and Thurman. The trial court held as follows with regard

to these complaints:

Some of these are matters that are the realities of moving into a

large corporate structure and could have been anticipated. There

are no specific promises or guarantees in the contract itself

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regarding the future realignment or dealing with Mr. Short’s

[sic: McCaw’s] retirement or the fact that he might leave the

company for some other reason, and neither did the contract

specify no other car club would[] be bought or, if so, it would be

put under their direction. These are matters that could have

been put into the contract at the time of negotiation.

We agree with these observations. We also agree with the trial court’s ruling that Dill and

Thurman established no breach of the employment agreements by Fortegra. Moreover,

regarding the complaints that Dill and Thurman failed to raise with Fortegra before filing this

lawsuit, because the agreements required them to provide written notice with a detailed

description of their “Good Reasons,” they should not be heard to argue after the fact that

these complaints provided them with “Good Reason” to resign.

When John Short received the resignation letters, he immediately called Dill and

Thurman to set up a face-to-face meeting to address their complaints. Short testified that he

was surprised by the resignations. When Short met with Dill and Thurman, they discussed

the grievances enumerated in the letters point-by-point. Short testified that he looked at the

resignation letters and “said, well, we can address all these thingsimmediately and just ticked

them off . . . It’s like we can address and fix, cure, if you will, all these things and give it to

them.” All of Fortegra’s executives testified to the effect that they wanted to work with Dill

and Thurman and keep them as employees. Dill testified as follows about the meeting with

Short:

Two days after Jim Thurman and I quit, we had been speaking

back and forth to John [Short] and he stated repeatedly that he

was sorry about the situation, that he wanted to try to keep

us. . . .[He said] I want to do what we can to keep you guys. We

spoke over and over.

Dill had complained in early 2011 about his dissatisfaction with the financial

information that he was receiving from the company. Short responded by directing Teresa

Peel, the vice president of financial operations for Fortegra’s motor club division, and Krista

Gayle, a CPA working for Fortegra, to provide Dill more detailed financial information. On

March 15, 2011, Short sent an email to Dill informing him that “Teresa Peel and Krista Gayle

will be providing financial analysis and reporting support for our group. I encourage them

to work directly with each of you and your teams, and you too should look at them as a

resource that you should call upon directly.” Peel testified that she began sending detailed

monthly financial reports as Dill had requested. She never received a request from Dill

asking for more information or questioning the accuracy of the reports. Dill testified that

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Peel sent him the detailed financial information he requested in February 2011, stating as

follows:

Q: And tab 54 should be all company reports for the months of

February, March, April, May, and June?

A: I – I see one for February. Okay. This appears to be March,

April, May.

Q: You got these every month, right?

A: Yes.

Q: And these reports, again, identified by customer and client

their sales for the month, sales for the year, cancellations by the

month and year, and all commissions paid by month and year?

A: Yes.

* * *

Q: Look under tab 57. It’s a quarterly report for all of the car

clubs, is it not?

A: It says consolidated car clubs, yes.

Q: All right. You received this from Teresa Peel?

A: I received it from somebody with regard to the planning

meeting that was going to take place in May.

Q: All right. In that document it contains a breakout of

Continental Car Club’s performance; correct?

A: Yes.

* * *

Q: . . .So you’ve got the breakout, then, for your totals that

include membership fees, which are your sales?

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A: Okay. . . .

Q: Okay. It identifies commissions, correct?

A: I’m not seeing a line item that just says commissions.

Q: Second and third line under activity name, one is auto club

service fee income, which are the commissions paid on the

sales.

A: Okay.

Q: And change in deferred commissions?

A: Yes.

Q: Right? And then you’ve got claims and cancellations?

A: Yes, under activity name. Yes.

Q: Correct?

A: Yes.

Q: The breakout of the fee income that you requested in [your]

February 18 letter?

th

A: Yes.

* * *

Q: So as of May 20 , now you’re getting the information

th

requested in your February 18 letter?

th

A: For the most part, yes.

The evidence, including the testimony cited above, preponderates in favor of a conclusion

that Fortegra was providing Dill and Thurman the detailed financial information needed to

run Continental, as Dill requested, months before their resignations on July 27, 2011.

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Regarding the resignation letters’ complaint that CEO Kahlbaugh had required

approval of all new hires, both Dill and Thurman testified that they never made a request to

hire anyone after that policy change took place, and that Kahlbaugh did not ever deny a

request to hire anyone. Thurman, when asked whether “that directive didn’t affect your job

one way or another,” stated, “no, it hadn’t as of that time.”

With regard to whether Fortegra assigned to Dill any duties inconsistent in any

substantial respect with his position, authority or responsibilities, Dill testified as follows:

Q: After the purchase of Continental by Fortegra, you continued

to oversee all operations at Continental?

A: For the most part.

* * *

Q: What were your responsibilities once you became employed

with Fortegra?

A: To oversee the general operation of Continental Car Club and

to continue my relationship with my customers.

Q: You continued to do that throughout your employment with

Continental?

A: Yes, I did.

Q: Your duties and responsibilities never changed, did they?

A: Somewhat, yes, they – they changed.

Q: How did they change?

A: Who I report to changed, how I report. There were different

accounting departmentsI guess – bookkeeping departments, that

changed. Every week there was somebody else that needed

some type of documentation. So, yes, it did change.

Q: The way you did your job changed because you had different

people to report to. But what you did didn’t change, did it?

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A: Well, that’s part of what I did.

Q: All right. You ran Continental Car Club and that remained

the same?

A: That aspect, yes.

Q: They didn’t bring anybody else in to take over your

responsibilities for the operations of Continental?

A: No.

Q: Didn’t reassign you to work with different customers than the

ones you were already working with?

A: No.

Q: And as soon as the business was sold, even though your dad

remained kind of in a consulting arrangement, you were the one

who was in charge of Continental?

A: Yes.

Thurman testified similarly, stating as follows:

Q: Your responsibilities at Fortegra following Fortegra’s

purchase of Continental, what were those?

A: Sales and more of a leadership role in the office working

with the ladies to fix problems with commissions, claims, or

cancellations, and deal with complaints.

Q: Those job duties and responsibilities remained the same

throughout your employment?

A: Yes.

Q: No change in title?

A: No.

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Q: No decrease in pay?

A: Nope. No.

* * *

Q: When Mr. Short became your immediate supervisor, your job

duties didn’t change, did they?

A: No, sir.

Based on the above, we reverse the trial court’s holding that Dill and Thurman established

that they resigned for “Good Reason” as defined and agreed upon in their employment

contracts.

B.

Additionally, we hold that the evidence preponderates in favor of finding that Dill and

Thurman are not entitled to severance pay under their employment agreements because they

violated the provisions of Section 8 of the agreements. The agreements provide that Dill and

Thurman would be entitled to severance pay if they resigned with Good Reason “as long as

the Executive does not violate the provisions of Section 8 and Section 9 hereof.” (Emphasis

added). Section 8 provides as follows:

Section 8.01. Proprietary Information. In the course of service

to the Company, the Executive will have access to confidential

specifications, know-how,strategic or technical data, marketing

research data, product research and development data,

manufacturing techniques, confidential consumer lists, [and]

sources of supply and trade secrets, all of which are confidential

and may be proprietary and are owned or used by the Company,

or any of its subsidiaries or affiliates. Such information shall

hereinafter be called “Proprietary Information” and shall

include any and all items enumerated in the preceding

sentence[.]

Section 8.02. Fiduciary Obligations. The Executive agrees that

Proprietary Information is of critical importance to the

Company. . . .The Executive agrees that he shall keep all

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Proprietary Information in a fiduciary capacity for the sole

benefit of the Company.

Section 8.03. Non-Use and Non-Disclosure. The Executive shall

not during the Term or at any time thereafter (a) disclose,

directly or indirectly, any Proprietary Information to any person

other than the Company or Executives thereof . . . or (b) use any

Proprietary Information, directly or indirectly, for his own

benefit or for the benefit of any other person or entity. At the

termination of his employment, the Executive shall deliver to the

Company all notes, letters, documents and records which may

contain Proprietary Information which are then in his possession

or control and shall destroy any and all copies and summaries

thereof.

* * *

Section 8.05. Return of Documents. All notes, letters,

documents, records, tapes and other media of every kind and

description relating to the business, present or otherwise, of the

Company or its affiliates and any copies . . . shall be the sole and

exclusive property of the Company. The Executive shall

safeguard all Documents and shall surrender to the Company at

the time his employment terminates, . . . all Documents then in

the Executive’s possession or control.

(Underlining in original.)

Both Dill and Thurman candidly admitted that they intended to go into business

together running a competing car club as soon as their resignations were effective. Dill

stated, “I planned on starting another car club, going back into business as a car club in the

same industry, in the same niche.” When Dill was asked what “Freedom Car Club” was, he

responded, “that’s a name I reserved on the internet for what I thought might be a good name

for another car club.” Thurman hired VOLState to register two internet domain names for

him and Dill – “freedomcarclub.com” and freedomroadclub.com.” When Thurman was

asked on what date he “obtain[ed] the website for Freedom Car Club,” he recalled it was on

July 25 or 26 of 2011, a few days before they resigned. However, David Snyder, who runs

VOLState, testified that he registered the domain name “freedomcarclub.com” on March 16,

2011. He didn’t remember exactly when Thurman asked him to do it, but stated that it had

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to have been before the middle of March – over three months before Dill and Thurman quit.

As already noted, shortly before sending their resignation letters, Dill and Thurman

copied all of the data from their Fortegra-owned work computers to recently purchased

personal laptops. They did not tell anyone at Fortegra they had done this. After it became

clear that Fortegra was not going to persuade them to change their minds and stay, Dill and

Thurman were asked to return all company property. They did not mention or return the

copied computer data. They testified that they copied the data for only two reasons – because

some of it was personal and in anticipation of possible litigation. Thurman further testified

as follows:

Q: You understand that you were obligated to return all

company documents and materials back to Fortegra; correct?

A: Yes.

Q: And yet you walked out the door with all the information

contained on your work computer?

A: That is correct, yes.

Q: Contained financial information belonging to the company?

A: I would assume, yes.

Q: Some of those financial documents had every single

customer and client of Continental Car Club?

A: I can’t say that I had a listing of every single customer of

Continental on my computer. I –

Q: Had one of the all company reports that identifies sales,

claims, and commissions that we looked at under tab 54 earlier

that contains the entire client list of clients and customers?

A: My computer’s – it’s been examined. If it was on there, it

was on there. I mean, I – I’m not saying it was not.

* * *

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Q: That information was transferred over to your Freedom Car

Club account; correct?

A: Yes.

In his testimony, Dill stated the following, including his unequivocal admission that he

violated Section 8 of his employment agreement:

Q: You copied your entire computer, not just your personal

information from the Continental Car Club laptop that you had

the day before you resigned?

A: Yes.

* * *

Q: Right. Contained – any e-mails that were on the computer got

copied?

A: Yes.

Q: All of your Outlook contents got copied?

A: Yes.

Q: Which had names and telephone numbers of customers and

clients?

A: Just e-mails, I assume.

Q: [I]t had any documents related to the operation of the

business?

A: It had some documents related that were e-mails, the e-mails

that were sent from Jacksonville, yes.

Q: Contained financial information about the company?

A: Yes.

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Q: Contained the reports off of David O’Neil’s system which

identifies customer and amount of sales broken down with

commissions that are paid on each of these customers that are

generated on a monthly basis?

A: Yes.

Q: Contained copies of the agreements that you use in order to

sell the car club?

A: I don’t recall.

Q: And at the time you walked out with that information, you

were prepared to start up a new car club; correct?

A: Yes.

* * *

Q: Section 8.05.

A: Return of documents.

Q: Return of documents. You understood, then, at the time you

signed the agreement that you had an obligation at the end of

your employment to return all documents belonging to the

company and related to its business?

A: Yes.

* * *

Q: And when you took the information off of your computer, you

violated that section; correct?

A: Yes.

Based on the foregoing, we reverse the trial court’s award of severance pay to Dill and

Thurman, because, in addition to failing to establish a “Good Reason” to resign as defined

in the employment agreements, they violated Section 8 of the agreements.

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V.

We now turn to the issue of the enforceability of the non-compete provision of the

employment agreements. As a preliminary matter, we must determine whether Florida law

or Tennessee law applies. Although the agreements contain a choice-of-law provision that

designates Florida law, Dill and Thurman argue that Florida law regarding the interpretation

and enforcement of non-compete covenants is contrary to public policy in Tennessee. We

agree with Dill and Thurman. We have observed that “ ‘Tennessee will honor a choice of

law clause if the state whose law is chosen bears a reasonable relation to the transaction and

absent a violation of the forum state’s public policy.’ ” Wright v. Rains, 106 S.W.3d 678,

681 (Tenn. Ct. App. 2003) (quoting Bright v. Spaghetti Warehouse, Inc., No. 03A01-9708-

CV-00377, 1998 WL 205757 at *5 (Tenn. Ct. App. E.S., filed Apr. 29, 1998)). Resolution

of the question of whether applying Florida law would violate Tennessee public policy

requires an examination of the law of each state.

In Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d at 678, the Tennessee

Supreme Court’s most recent decision interpreting a non-compete agreement, our High Court

reiterated the following principles:

In general, covenants not to compete are disfavored in

Tennessee. See Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471,

472 (Tenn. 1984). These covenants are viewed as a restraint of

trade, and as such, are construed strictly in favor of the

employee. Id. However, if there is a legitimate business interest

to be protected and the time and territorial limitations are

reasonable then non-compete agreements are enforceable. Id.

at 473. Factors relevant to whether a covenant is reasonable

include: (1) the consideration supporting the covenant; (2) the

threatened danger to the employer in the absence of the

covenant; (3) the economic hardship imposed on the employee

by the covenant; and (4) whether the covenant is inimical to the

public interest. Id. at 472-73 (citing Allright Auto Parks, Inc.

v. Berry, 219 Tenn. 280, 409 S.W.2d 361, 363 (1966)). Also,

the time and territorial limits must be no greater than necessary

to protect the business interest of the employer. Allright Auto

Parks, 409 S.W.2d at 363.

(Emphasis added.) Numerous Tennessee appellate decisions have restated and applied the

rule that covenants not to compete “are construed strictly in favor of the employee.” See,

e.g., Hasty, 671 S.W.2d at 472; Vantage Tech., 17 S.W.3d at 644. Further, in Tennessee,

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“the economic hardship imposed on the employee by the covenant” not to compete must be

considered, and can be an important factor, in determining whether the covenant will be

deemed reasonable and enforced. Udom, 166 S.W.3d at 678; Columbus Med. Servs., 308

S.W.3d at 391 (examining hardship on former employee and stating, “[r]espectfully, in

evaluating the reasonableness and enforceability of the Therapist Defendants’ non-compete

covenants, the trial court’s analysis of the hardship to the employees should have ended with

its conclusion that the burden on the Therapist Defendants was ‘difficult’ or ‘intolerable.’ ”).

In Florida, unlike Tennessee, the interpretation of a covenant not to compete is

primarily governed by statute. Florida Statutes Annotated Section 542.335(1) provides the

following in pertinent part:

(g) In determining the enforceability of a restrictive covenant, a

court:

1. Shall not consider any individualized economic or other

hardship that might be caused to the person against whom

enforcement is sought.

* * *

(h) A court shall construe a restrictive covenant in favor of

providing reasonable protection to all legitimate business

interests established by the person seeking enforcement. A court

shall not employ any rule of contract construction that requires

the court to construe a restrictive covenant narrowly, against

the restraint, or against the drafter of the contract.

(Emphasis added). An examination of Florida’sstatutory scheme revealsthat, although there

are similarities, it differs from Tennessee law in two significant ways: (1) it requires

construction in favor of the former employer seeking to enforce the covenant not to compete,

as contrasted with the law in Tennessee requiring strict construction in favor of the former

employee; and (2) it bars the court from considering hardship that might be caused to the

employee by enforcement of the covenant not to compete. We conclude that Tennessee law

applies to the issue of the enforceability of the non-competition provisions of the

employment agreements. Courts in other jurisdictions considering this issue have reached

a similar conclusion. See Southwest Stainless, L.P. v Sappington, No. 07-CV-0334-CVEPJC, 2008 WL 918706 at *4, *6 (N.D.Okla., filed Apr. 1, 2008) (applying Oklahoma rather

than Florida law based on conclusion that “the application of Florida law contravenes

Oklahoma public policy” regarding interpretation of restrictive covenant not to compete);

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Hostetler v. Answerthink, Inc., 599 S.E.2d 271, 274-75 (Ga. Ct. App. 2003) (applying

Georgia law to restrictive covenant not to compete despite Florida choice-of-law provision).

In determining whether, under Tennessee law, a former employer has “a legitimate

business interest to be protected,” Udom, 166 S.W.3d at 678, this Court has provided the

following analytical framework:

Several principles guide the determination of whether an

employer has a business interest properly protectable by a

non-competition covenant. Because an employer may not

restrain ordinary competition, it must show the existence of

special facts over and above ordinary competition. [Hasty, 671

S.W.2d at 473.] These facts must be such that without the

covenant, the employee would gain an unfair advantage in

future competition with the employer. Id. Considerations in

determining whether an employee would have such an unfair

advantage include (1) whether the employer provided the

employee with specialized training; (2) whether the employee is

given access to trade or business secrets or other confidential

information; and (3) whether the employer’s customers tend to

associate the employer’s business with the employee due to the

employee’s repeated contacts with the customers on behalf of

the employer. Id. These considerations may operate

individually or in tandem to give rise to a properly protectable

business interest. See, e.g., AmeriGas Propane, Inc. v. Crook,

844 F.Supp. 379 (M.D. Tenn. 1993); Flying Colors of

Nashville, Inc. v. Keyt, C/A No. 01A01-9103-CH-00088, 1991

WL 153198 (Tenn. App. M.S., filed August 14, 1991).

An employer does not have a protectable interest in the general

knowledge and skill of an employee. Hasty, 671 S.W.2d at 473.

This is not only true of knowledge and skill brought into the

employment relationship, but also true asto that acquired during

the employment relationship, even if the employee obtained

such general knowledge and skill through expensive training.

See Hasty, 671 S.W.2d at 473 (“general knowledge and skill

appertain exclusively to the employee, even if acquired with

expensive training and thus does not constitute a protectible

[sic] interest of the employer”).

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In contrast, an employer may have a protectable interest in the

unique knowledge and skill that an employee receives through

special training by his employer, at least when such training is

present along with other factors tending to show a protectable

interest. Id.; Selox, Inc. v. Ford, 675 S.W.2d 474, 476 (Tenn.

1984) (“A line must be drawn between the general skills and

knowledge of the trade and information that is peculiar to the

employer’s business.”) (quoting RESTATEMENT (SECOND) OF

CONTRACTS § 188 cmt. g (1981)). See also Flying Colors of

Nashville, 1991 WL 153198 at *5 (holding that training in

specialized techniques and processes of paint-mixing, together

with a special relationship with the employer’s customers, gives

rise to a properly protectable interest).

Thus, whether an employer has a protectable interest in its

investment in training an employee depends on whether the skill

acquired as a result of that training is sufficiently special as to

make a competing use of it by the employee unfair.

An employer has a legitimate business interest in keeping its

former employees from using the former employer’s trade or

businesssecrets or other confidential information in competition

against the former employer. Hasty, 671 S.W.2d at 473. A

trade secret is defined as any secret “formula, process, pattern,

device or compilation of information that is used in one’s

business and which gives him an opportunity to obtain an

advantage over competitors who do not use it.” Hickory

Specialties, Inc. v. B & L Labs., Inc., 592 S.W.2d 583, 586

(Tenn. App. 1979) (quoting Allis-Chalmers Mfg. Co. v.

Continental Aviation & Eng’g Corp., 255 F.Supp. 645, 653

(E.D. Mich. 1966)). The subject matter of a trade secret must be

secret and not well known or easily ascertainable. Hickory

Specialties, 592 S.W.2d at 587.

What constitutes “confidential information” is somewhat less

clear. In Heyer-Jordan & Assocs., Inc. v. Jordan, 801 S.W.2d

814 (Tenn. App. 1990), we held that the identities of the

employer’s customers did not amount to “confidential business

information” within the meaning of the employment agreement

because such information was generally available in the trade.

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We reasoned that “confidential information” is analogous to

“trade secret” and that, because customer identities are not

secret, they cannot be considered confidential. See also Amarr

Co. v. Depew, C/A No. 03A01-9511-CH-00412, 1996 WL

600330, *4-*5 (Tenn. App. W.S., filed October 16, 1996)

(holding that customer lists, customer credit information, pricing

information, and profit and loss statements did not constitute

confidential information because such information is easily

available from sources other than the employer).

An employer may also have a legitimate protectable interest in

the relationships between its employees and its customers. See

Hasty, 671 S.W.2d at 473. It is often the case that the customer

associates the employer’s business with the employee due to the

employee’s repeated contacts with the customer. The employee

in essence becomes “the face” of the employer. This

relationship is based on the employer’s goodwill. The

employee’s role in this relationship is merely that of the

employer’s agent. In this role, the employee is made privy to

certain information that is personal, if not technically

confidential. Because this relationship arises out of the

employer’s goodwill, the employer has a legitimate interest in

keeping the employee from using this relationship, or the

information that flows through it, for his own benefit. This is

especially true if this special relationship exists along with the

elements of confidential information and/orspecialized training.

Vantage Tech., 17 S.W.3d at 644-46 (emphasis in original; paragraph headings omitted).

The employment agreements at issue here provide as follows:

Section 9.01. Acknowledgments. The Executive and Company

agree that he is being employed hereunder in a key capacity with

the Company and that the Company is engaged in a highly

competitive business and that the success of the Company’s

business in the marketplace depends upon its goodwill and

reputation for quality and dependability. . . .

Section 9.02. General Restrictions. During the Term and for the

Non-Competition Period . . . the Executive will not (anywhere

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in the United States where the Company or any of its

subsidiaries then conducts business) engage or participate in,

directly or indirectly, as principal, agent, employee, employer,

consultant, investor or partner, or assist in the management of,

or provide advisory or other services to . . . any business which

is Competitive with the Company. . . . [A] business shall be

considered “Competitive with the Company” only if it offers

products or provides marketing, distribution, administration or

related products and services for automobile club membership

plans to financial institutions or other entities or otherwise

engages in any other business the Company and/or its

subsidiaries are engaged in or have taken steps to be engaged in

prior to the Executive’s termination of employment.

* * *

For purposes of this Agreement, the “Non-Competition Period”

shall mean the longer of (i) the Term and (ii) a period of twentyfour (24) consecutive months after the Executive’s employment

terminates and (iii) the period during which the Company is

paying any amounts to the Executive hereunder or otherwise

providing benefits to the Executive.

(Underlining and italics in original.) The agreements further provide for a similar 24-month

non-solicitation period requiring that Dill and Thurman, after termination of employment,

will not “call upon, solicit, divert or attempt to solicit or divert from the Company or any of

its affiliates or subsidiaries any of their customers, agents or suppliers, or potential

customers, agents or suppliers.”

Fortegra does not argue that it provided Dill and Thurman with specialized training

during the approximately fourteen months they worked there. Dill and Thurman were

already effectively running Continental before Fortegra bought it, and presumably already

had sufficient training and experience to do what Fortegra hired them to do – essentially

continue to run and expand Continental. Fortegra argues that the second and third Vantage

Tech factors apply to provide them a legitimate protectable business interest. Specifically,

Fortegra asserts that Dill and Thurman were given access to trade or business secrets or other

confidential information; and that Continental/Fortegra’s customers tend to specifically

associate their business with Dill and Thurman due to their repeated contacts and

relationships with the customers on Continental’s behalf. We agree. The evidence in the

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record fully supports Fortegra’s argument that it had a legitimate business interest that was

protectable by a covenant not to compete.

All the witnesses at trial testified that the non-compete agreements were essential to

the sale of Continental to Fortegra. Fortegra would not have bought the company without

them. Several witnesses testified that the reason for this is that what Fortegra was primarily

buying was the personal customer relationships and attendant goodwill built and established

primarily by Dill and Thurman. Dill testified that he and Thurman personally knew every

significant customer of Continental. Mike Vrban, Fortegra’s senior vice president of

financial operations, testified that of the $11.9 million purchase price, $11.829 million was

categorized as “goodwill,” and further stated:

Q: Can you explain why $11.829 million was listed as good

will?

A: Because there were no tangible assets to the company per se.

Q: So what does that represent?

A: So what that would represent is obviously the value of what

we would place upon the earning stream that would come

forward which is obviously the relationships of the clients,

making sure that we do not have people who can compete with

us and take the business away, that’s really what this reflects.

Vrban testified that under applicable accounting rules, $6.4 million of the purchase was

ultimately designated “intangible assets” related to goodwill, existing customer relationships

and the non-compete agreements. Vrban explained that they had to have the non-compete

agreements because without them, “they have the ability basically to sell us a business that

they can then just take away from us.” Dale Bullard stated that “this is very much a

relationship business” and further testified that

typically there’s someone who is so critical to the business that

you say I’m only going to buy this business if certain people

continue to be here and sign an employment agreement that

includes non-compete language . . .

Q: And why does that matter?

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A: Because if you didn’t have that, I mean, they could leave

tomorrow and virtually clean out everything you just bought. . . .

Essentially they hang a shingle, be in business, and in this

business take a very significant portion of what you just bought.

Dill testified that he understood the importance and significance of the non-competes to the

deal, stating:

Q: At the time Fortegra purchased you, you understood that the

reason that your signing employment agreements with him was

important is because you had been the one running the business?

A: Yes.

Q: And then if you left, you would be able to go out and take all

of the clients away from this business that Fortegra had just

purchased?

A: Yes. There was that potential.

* * *

Q: You knew that if you were to not go with Fortegra and you

set up your own car club, you could get a lot of these customers

to come over with you because you had that relationship?

A: Potentially.

Q: And the non-compete was to make sure that that didn’t

happen?

A: Yes.

Q: I believe from when we talked in October there wasn’t a

significant client of Continental Car Club that you didn’t know

personally?

A: Yes.

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Regarding business secrets or confidential information, John Short testified as

follows:

The commission structure for selling Continental Car Club or –

like I say, they’re almost all custom built. One customer we

have one commission rate. Another has a different rate. One

gets paid a commission that all goes to the central office. One

gets paid a commission, you know, a part goes to every

employee at the account that sold it. Some go to the branch

manager and some go to central company. So very complicated,

unique. . . .

Q: What effect would that information have or what competitive

advantage would a competitor gain if they came into possession

of that information?

A: Well, it would give them immediate ability to know what our

pricing is, try and attack it, underbid the pricing, and it would be

– that’s what everyone is trying to find out. . . .

Q: So this is information that Fortegra holds closely as

confidential?

A: Absolutely.

Q: And both Mr. Dill and Mr. Thurman had access to all of that

information?

A: I would say in large part they helped create it.

Dill and Thurman had access to customer lists of both Continental and United after

Fortegra’s purchase of United. We have observed that “ ‘it has long been settled that present

customers are a protectable interest of an employer.’ ” Money & Tax Help, Inc. v. Moody,

180 S.W.3d 561, 565 (Tenn. Ct. App. 2005) (quoting Thompson, Breeding, Dunn, Creswell

& Sparks v. Bowlin, 765 S.W.2d 743, 745 (Tenn. Ct. App. 1987)) (emphasis in original).

Based on the evidence, we have no hesitancy in affirming the trial court’s ruling that Fortegra

had a legitimate business interest that was protectable by a covenant not to compete.

We further hold that the terms of the non-compete agreements signed by Dill and

Thurman are reasonable as to time and geographic constraints. “The inquiry as to

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reasonableness under the circumstances is a fact-specific one, and there is no inflexible

formula for determining reasonableness; ‘each case must stand or fall on its own facts.’ ”

Moody, 180 S.W.3d at 565 (quoting Allright Auto Parks, 409 S.W.2d at 363)). Applying

the factors outlined in Udom, we note that Dill and Thurman do not argue that there was

insufficient consideration supporting the covenant, or that the covenant is inimical to the

public interest. The proof establishes that the threatened danger to Fortegra in the absence

of the covenant is significant. Roughly fourteen months before Dill and Thurman quit,

Fortegra paid almost twelve million dollars for Continental, a company with few tangible

assets but very valuable customer accounts and relationships. Fortegra stood to lose much

of that value very quickly if Dill and Thurman walked away with the customer relationships

they had built over two decades, with the intent to compete with Fortegra.

Regarding the economic hardship imposed on Dill and Thurman by the covenant,

while it is not insignificant, it is tempered by the fact that they have education, training, and

experience at an executive managerial level that will be transferrable to other employment.

Further, as reflected in their employment agreements, both Dill and Thurman have been

involved in other commercial business ventures that provide potential income. It is also

3

significant to this analysis that Dill and Thurman voluntarily resigned from their

employment, despite Fortegra’s best efforts to retain them. See Central Adjustment Bureau,

Inc. v. Ingram, 678 S.W.2d 28, 35 (Tenn. 1984) (“Another factor affecting reasonableness

is the circumstances under which an employee leaves.”).

We find that the non-compete agreements are overbroad in one respect, however. The

agreements provide that Dill and Thurman may not engage or participate in any business

“competitive with the company,” and further state that “a business shall be considered

‘Competitive with the Company’ only if it offers products or provides marketing,

distribution, administration or related products and servicesfor automobile club membership

plans to financial institutions or other entities or otherwise engages in any other business the

Company and/or its subsidiaries are engaged in or have taken steps to be engaged in prior

to the Executive’stermination of employment.” (Emphasis added.) The record indicatesthat

Fortegra owns numerous subsidiaries that are generally engaged in a broad-ranging spectrum

of business endeavors. In its brief, Fortegra cites the above provision and states, “[i]n other

words, thissection precludes Plaintiffsfrom establishing a competing car club.” Thisinterest

– keeping Dill and Thurman from establishing a competing car club – is precisely the interest

that is protectable by the non-compete agreement. The italicized language, precluding them

For example, Dill’s employment agreement provided that he “may continue his ownership of 3

business interests in the following entities during the term of this Agreement and any severance period: River

City Financial, People’s Choice Finance, Laurel Financial Group, Inc., Home Town Financial Services, Inc.,

Herald Print Shop, Inc., Collateral Services Corporation, and Dad’s Auto Sales, Inc.” 

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from involvement in “any other business the Company and/or its subsidiaries are engaged

in,” is overbroad, and we hold it should be elided from the agreements. As modified, the

agreements are valid and enforceable.

VI.

Dill and Thurman argue that the trial court erred in finding in favor of Fortegra on its

conversion counterclaim. The trial court ordered Dill and Thurman to return any information

belonging to Fortegra that they took by copying all the data from their work computers. The

court held that Fortegra did not prove any damages resulting from the conversion, so it did

not award Fortegra a judgment other than the injunctive relief. We find no error in the trial

court’s ruling against Dill and Thurman on the conversion claim, nor in its decision declining

to award any monetary damages for the conversion of the computer data. Similarly, we find

no error in the trial court’s disposition of Fortegra’s claim based on the Florida Uniform

Trade Secrets Act (“UTSA”), Florida Statutes Annotated Section 688.001 et seq. Florida’s

version of the UTSA provides for injunctive relief for a party who proves misappropriation

of a trade secret, stating that “[a]ctual or threatened misappropriation may be enjoined,” and

“[i]n appropriate circumstances, affirmative acts to protect a trade secret may be compelled

by court order.” Fla. Stat. Ann. § 688.003(1), (3). Although the Florida UTSA further

provides for monetary damages, which “can include both the actual loss caused by the

misappropriation and the unjust enrichment caused by misappropriation that is not taken into

account in computing actual loss,” id. § 688.004(1), as the trial court held, Fortegra did not

prove damages resulting from the taking of its data.

In its counterclaim, Fortegra included a claim for conversion of the value of 20 tickets

to a University of Tennessee – LSU football game in October of 2011. Fortegra paid for the

tickets. Dill testified that he received them in July and sent them to Continental clients.

After he resigned on July 27, 2011, Dill rented a bus in October and took the Continental

clients to the football game. Dill did not reimburse Fortegra for the value of the tickets. We

hold that Dill is liable to Fortegra for the value of the tickets. At the time he entertained the

Continental customers, he was not working for Continental and had not been for several

months. Although he testified that he did not actually solicit anyone’s business on the trip,

at the same time he was hoping and planning to start a competing car club company. On

remand, the trial court shall enter a judgment against Dill in the amount of the value of the

football tickets.

VII.

The judgment of the trial court holding the non-competition and non-solicitation

provisions valid and enforceable is affirmed as modified. The judgment of the trial court on

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the conversion counterclaim in favor of the defendants is affirmed as modified. The trial

court’s rulings that Dill and Thurman established that they resigned for “Good Reason” as

defined in the employment agreements, and that Dill and Thurman did not violate Section

8 of their agreements, are reversed. Consequently, the awards to Dill and Thurman of

severance pay and benefits are reversed. Costs on appeal are assessed to the appellees,James

F. Dill, Jr., and James C. Thurman, Jr. The case is remanded to the trial court, pursuant to

applicable law, for entry of a judgment in accordance with this opinion and for the collection

of costs assessed below.

__________________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

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