FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-389

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CONVERGENT TECHNOLOGIES,

INC.,

Appellant,

v.

JASPER STONE, KURT A.

BERNARD, PAUL R. HUTCHINSON,

and MICHAEL D. FLEMING,

Appellees.

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On appeal from the Circuit Court for Escambia County.

John L. Miller, Judge.

November 13, 2018

PER CURIAM.

Appellant, Convergent Technologies, Inc. (“CTI”), the plaintiff 

below, appeals the trial court’s Decision and Order Granting 

Motion for Summary Judgment, which entered final summary 

judgment in favor of Appellees, defendants below, in a lawsuit 

alleging breaches of non-solicitation agreements. Having 

considered the depositions, affidavits, and other materials of 

record in a light most favorable to CTI as the non-moving party, 

see Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129, 1131 (Fla. 

1st DCA 2017), we conclude that the trial court erred in entering 

summary judgment, and reverse.

CORRECTED PAGES: pg 2, 4, 6, 7, 

and 11

CORRECTIONS ARE UNDERLINED IN 

RED

MAILED: November 15, 2018

BY: FTA
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I.

CTI provides cyber-security training both as a prime 

contractor and subcontractor with the United States government.

George Dands is CTI’s president.

Acting in the latter capacity in 2010, CTI entered into a 

subcontract with Telecommunications Systems, Inc. (“TCS”), to 

provide instructors for a Joint Cyber Analysis Course (“JCAC”), a 

beginner’s level cyber-security program for Navy personnel at Cory 

Field in Pensacola, Florida. Over the course of three years, CTI 

hired Appellees Paul Hutchinson, Kurt Bernard, Jasper Stone, 

and Michael Fleming as instructors for the JCAC job. Each 

appellee signed an employment contract with CTI that contained 

a non-solicitation clause. Although CTI refined the wording of the 

clauses over the years as each Appellee was hired, the following 

clause contained in Paul Hutchinson’s contract—the first hire—

conveys the gist of the other non-solicitation agreements:

In accordance with contract guidelines, I also agree that 

I will not solicit employment with any other company 

associated with the JCAC contract during the customer 

review period, full-time employment period, or a six 

month post employment [sic] period.

In his affidavit, George Dands claimed that CTI required 

Appellees to execute the non-solicitation agreements primarily for 

the following four reasons: (1) the considerable resources expended 

in recruiting and “on-boarding” Appellees for the JCAC project; (2) 

the fact that Appellees would be managed remotely from CTI’s 

Maryland headquarters; (3) the significant training expense and 

time CTI would incur in replacing Appellees on the project; and (4) 

the fact that CTI’s relationship with TCS required the nonsolicitation agreements as “a term of employment.”

Along with CTI, TCS had a number of other subcontractors to 

support its efforts on the JCAC contract. One of the other 

subcontractors was Epsilon, Inc. (“Epsilon”). Under the terms of 

the contract between TCS and CTI, the companies agreed they 

would not solicit or hire each other’s employees who provided

services under the JCAC contract. There was no similar agreement 

between CTI and Epsilon, or between it and any of the other
3

subcontractors on the JCAC job. That fact served as the proverbial 

“crack in the door” through which slid employment negotiations 

between Appellees and Epsilon. In light of the non-solicitation 

clauses, the crux of the motion for summary judgment was who 

solicited whom for employment.

In his affidavit, Christopher Gaukel asserted that prior to 

March 2016, he worked for Epsilon as the lead instructor and

considered himself to be “work friends” with Paul Hutchinson. 

Gaukel stated that Hutchinson told him he was frustrated with, 

and had concerns about, his employment with CTI regarding pay 

rates, health insurance, training courses, and the “complete lack 

of response and communication from CTI senior management and 

its owner, George Dands.” Gaukel “encouraged” Hutchinson to 

“reach out” to Keith Pabst, TCS’s project manager on the JCAC 

project. 

In addition, around September 2013, Gaukel informed Peter 

Penzell—Epsilon’s Chief Executive Officer—about “some of the 

issues employees with CTI were having with CTI’s management,” 

based on his conversations with Hutchison. Gaukel told 

Hutchinson that Penzell might contact him about a potential 

employment opportunity with Epsilon. Hutchinson told Gaukel he 

would be “interested in taking the call.”

In his affidavit, Penzell explained that problems with 

management, such as Hutchinson had described, “could cause 

employees to resign,” a “situation” that might “adversely affect the 

ability of TCS and the subcontractors to continue to provide and 

deliver to the United States government the high level of 

instructor services required under the JCAC Contract.” 

Accordingly, Penzell said he called Keith Pabst, who—without 

naming names—“confirmed that the four CTI employees were very 

unhappy and that CTI had been unresponsive” to their concerns. 

Penzell added that Pabst had “noted that each of the CTI 

employees had come to him about their problems and concerns, 

including lack of communication, unpaid expense report costs, lack 

of training, lapses in health insurance benefits and other 

discrepancies, including improper 401K contributions and 

matching.” When Penzell asked Pabst whether TCS would fill the 

positions if the CTI employees resigned, Pabst informed him that 
4

the provisions in the contract between CTI and TCS prohibited 

each company from hiring the other’s employees. Penzell 

responded, “‘Nothing prevents me from hiring these guys.’”

Accordingly, Penzell contacted his recruiter, Michael Kane, and 

assigned him the task of contacting Hutchinson and proposing that 

he come to work for Epsilon. Kane interviewed Hutchinson and

reported back to Penzell that Hutchinson was willing to speak with 

Epsilon.

When deposed, Hutchinson admitted that he had spoken to 

Kane, who told him that he would pass on the information to 

Penzell. During a phone call from Penzell, Hutchinson shared with 

him the same issues he had discussed with Kane—his 

qualifications, experience, and his concerns with CTI. During the 

call, Hutchinson also expressed his concern about the nonsolicitation agreement he had signed with CTI. Hutchinson 

scanned and emailed a copy of the agreement to Epsilon for its 

lawyers to review. When the call with Penzell ended, Hutchinson

was left with the “understanding that this was not necessarily a 

simple situation,” but that they would continue to talk about the 

possibility of hiring. 

Hutchinson went on to testify that the next time he spoke with 

Penzell, Penzell informed him that the non-solicitation agreement 

was “laughable” and Epsilon would pay his legal fees if necessary. 

Penzell then asked Hutchinson if there were other disaffected CTI 

employees on the JCAC contract. Hutchinson named Stone,

Fleming, and Bernard, who were experiencing the same 

frustrations working for CTI. Hutchinson could not remember how 

that call with Penzell ended, but he estimated that between their

first conversation and when he received an offer of employment

from Epsilon, he spoke to Penzell no less than ten times. 

Hutchinson estimated that he had been a part of about a dozen 

“personal conversations” with Stone, Fleming, and Bernard 

concerning potential employment with Epsilon.

Jasper Stone testified in deposition that he first spoke to 

Keith Pabst about his complaints with CTI in October 2013, and 

related that the others—Hutchinson, Bernard, and Fleming—all 

had the same complaints. He stated he had looked to Paul 

Hutchinson for guidance, as the JCAC job was his first government 
5

contract, and the two talked together with Pabst. According to 

Stone, Pabst told them he would get in touch with Dands and 

would let them know the result of the conversation. Stone admitted 

that in November 2013, he was involved in a four-way conversation 

between himself, Hutchinson, Fleming, and representatives from 

Epsilon on their personal cell phones outside the building where 

they were working for CTI. He said Pabst had asked him “in 

passing” if he would be interested in working for Epsilon. Stone 

brought up the non-solicitation agreement and Pabst ended the 

conversation there. Stone then testified that it was Hutchinson 

who told him that Penzell wanted to have a phone conversation 

with them concerning employment. Stone again raised the nonsolicitation clause and was told by Hutchinson that it was not they 

who were doing the soliciting; it was Epsilon who had initiated 

contact with them as a group and was interested in talking about 

employment. Stone maintained that it “might be hard to prove 

where the first contact came from,” but insisted it “definitely” had 

been Epsilon soliciting them for employment. What ultimately

eased his mind was his conversation with Penzell, who informed 

him Epsilon’s general counsel had advised him that Florida law 

would not recognize the non-solicitation agreement because 

Florida is a “right to work” state and it had been Epsilon who had 

solicited them.

In early to mid-November 2013, Penzell asked Gaukel to 

reach out to Appellees for their contact information in order that 

he could speak to them directly about employment with Epsilon. 

By November 25, 2013, Penzell, himself, contacted Hutchinson, 

Stone, and Fleming and conveyed an offer of employment with 

Epsilon on the JCAC project. Penzell interviewed them, and all 

three discussed their work experience as CTI employees on the 

JCAC contract, while voicing their concerns with CTI. Penzell 

allayed their fears that CTI would take legal action against them 

for leaving its employ and going to work for Epsilon, but, again,

assured them that Epsilon would pay their attorney’s fees in the

event of a lawsuit.

Hutchinson, Stone, and Fleming each expressed their

willingness to accept employment with Epsilon. In his affidavit, 

Penzell said he explained to them that a formal written job offer 

would be conditioned on their being able to receive updated 
6

security clearances from the U.S. government. To obtain the 

updates, Hutchinson, Stone, and Fleming would have to provide 

Epsilon with updated “packages” for Standard Form 86—the 

Questionnaire for National Security Positions (“SF 86”). Epsilon 

provided the three men with the SF 86 clearance materials and 

coordinated their submission for forwarding to the government. No 

other documents, such as resumes, applications, or other personnel 

forms, were required of Appellees before they started work with 

Epsilon.

The last remaining CTI employee to be officially contacted by 

Epsilon was Kurt Bernard. It was in late November 2013 when

Gaukel asked him about coming on board. Bernard said he was 

interested and would be willing to speak with Penzell. Gaukel 

informed Penzell of Bernard’s response, but because Bernard did

not hear from Penzell by early December, he contacted Fred Luke, 

a friend employed by Epsilon. Bernard explained to Luke that 

Gaukel had approached him about a job and asked Luke if he knew 

anything about the offer. Luke said he did not, but would check on 

the status of the matter. He subsequently informed Bernard that 

Bernard would be receiving a call soon. 

When Bernard did not hear from Penzell by December 20, 

Luke suggested he call or convey his contact information. Bernard 

did the latter and Penzell called him, apologizing for not calling 

sooner. Penzell confirmed Epsilon’s offer of employment to him and 

informed him Gaukel had been personally authorized by him to 

offer him a job with Epsilon. Nevertheless, during the 

conversation, Penzell directly indicated he would like to hire 

Bernard and advised him his job would be conditioned upon 

Epsilon’s receipt of Bernard’s updated SF 86 clearance. Epsilon 

staff members facilitated the paper work for Bernard, as it had 

done for the other three Appellees.

Jasper Stone was the first to begin working as an instructor 

in support of the JCAC contract for Epsilon, on January 17, 2014.

Then, in February 2014, a “meet and greet” was held in Pensacola 

in order for Penzell to meet Appellees. Although Michael Fleming

attended, he later flatly denied that there was any discussion 

about transitioning his employment to Epsilon during the 

gathering. Instead, he said the evening was for socializing, and 
7

later in the evening, they were joined by other Epsilon employees.

Nevertheless, in March 2014, Fleming, along with Hutchinson and 

Bernard, resigned their positions with CTI and became employed 

by Epsilon as JCAC instructors.

II.

On June 3, 2014, CTI filed a complaint against Appellees to 

have the non-solicitation agreements enforced and treated as noncompete agreements, to enjoin Appellees from working for Epsilon 

or any other company associated with the federal government 

contract, and to recover damages for breach of contract. Appellees 

filed a motion for summary judgment on June 27, 2015. On 

September 9, the trial court entered a partial summary judgment 

in favor of Appellees on CTI’s claim of breach of non-compete 

agreements, but found genuine issues of material fact remained on 

the question of the enforceability of the non-solicitation 

agreements, entitlement to relief and damages for breach of 

contract, and Appellees’ affirmative defenses.

A hearing was held on the remainder of Appellees’ motion for 

summary judgment on November 6, 2017, at which time the 

parties presented their arguments. Ultimately, the trial court 

granted Appellees’ motion. In its Decision and Order Granting 

Motion for Summary Judgment, the trial court ruled:

[T]here is no genuine issue of material fact or law and [] 

the evidence presented in the record before the Court 

clearly shows that Epsilon solicited these Defendants, 

and not the converse. Defendants responded and 

eventually accepted offers from Epsilon. Defendants’ 

conduct was what would be characterized as the normal 

job application processing for the job of an instructor on 

the JCAC Contract. Defendants’ actions, as reflected in 

this case, were simply in response to Epsilon’s offer of 

employment and were the process they had to go through 

to accept the job. Because Defendants did not engage in 

any proactive solicitation, although Epsilon did, 

Defendants did not violate or breach their nonsolicitation agreements.
8

Pivotal to its decision was the trial court’s rejection of CTI’s 

argument that Scarbrough v. Liberty National Life Insurance Co., 

872 So. 2d 283 (Fla. 1st DCA 2004), controlled and, under that 

opinion’s analysis, that Appellees had engaged in sufficiently 

“proactive” conduct to constitute a breach of the non-solicitation 

agreements, regardless of who made the first contact. Instead, the

trial court found “instructive and persuasive” the decision of the 

Indiana Court of Appeals in Enhanced Network Solutions Group, 

Inc. v. Hypersonic Technologies Corp., 951 N.E.2d 265 (Ind. Ct. 

App. 2011), which distinguished its facts from the proactive 

conduct in Scarbrough. Applying the Indiana appellate court’s

analysis to the facts in the instant case, the trial court concluded 

there was “no genuine issue of material fact or law” and “the record 

clearly shows that Epsilon solicited these Defendants, and not the 

converse.” For the reasons that follow, we respectfully disagree

with the trial court’s conclusion.

III.

An order granting summary judgment is reviewed de novo. 

Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 

130 (Fla. 2000).

The law is well settled in Florida that a party moving 

for summary judgment must show conclusively the 

absence of any genuine issue of material fact and the 

court must draw every possible inference in favor of the 

party against whom a summary judgment is sought. . . . 

A summary judgment should not be granted unless the 

facts are so crystallized that nothing remains but 

questions of law. . . .

If the evidence raises any issue of material fact, if it 

is conflicting, if it will permit different reasonable 

inferences, or if it tends to prove the issues, it should be 

submitted to the jury as a question of fact to be 

determined by it. . . .

Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (emphasis added) 

(citations omitted). As this Court accentuated in Bowman v. 

Barker, 172 So. 3d 1013 (Fla. 1st DCA 2015):
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A summary judgment proceeding is not a trial by 

affidavit or deposition. . . . The movant must demonstrate 

conclusively that no genuine issue exists as to any 

material fact, and the court must draw every possible 

inference in favor of the party opposing summary 

judgment. . . . Moreover, “[A]ll doubts as to the existence 

of a genuine issue of material fact must be resolved 

against the moving party; if the slightest doubt remains, 

a summary judgment cannot stand.”

Id. at 1015 (emphasis added) (citations and some quotation marks 

omitted) (quoting Brock v. Assocs. Fin., Inc., 625 So. 2d 135, 135-

36 (Fla. 1st DCA 1993)).

As we earlier remarked, the trial court resolved the question 

of who initiated solicitation as a matter of law by concluding that 

Enhanced Network Solutions Group—not Scarbrough—compelled

the conclusion that Appellees did not proactively solicit 

employment with Epsilon. We appreciate the trial court’s attempt 

to parse the legal issue central to Scarbrough by comparing it to 

an out-of-state appellate court’s critique of our analysis, but 

Scarbrough is the controlling precedent in the First District and 

the trial court was bound to apply it. Pardo v. State, 596 So. 2d 

665, 666 (Fla. 1992) (holding that “‘[t]he decisions of the district 

courts of appeal represent the law of Florida unless and until they 

are overruled by this Court,’” quoting Stanfill v. State, 384 So. 2d 

141, 143 (Fla. 1980)). Even so, because the trial court felt 

compelled to locate another court’s decision presenting different 

facts in order to distinguish those in Scarbrough exemplifies just 

how fact-driven this particular case is. 

Initially, it is important to note that neither Scarbrough nor 

Enhanced Network Solutions Group were decided on motions for 

summary judgment. Enhanced Network Solutions Group involved 

an appeal from the trial court’s order granting a declaratory 

judgment. The Indiana appellate court restated the issue as being 

“[w]hether the trial court erred when it found that Hypersonic did 

not solicit or induce an employee of ENS to terminate his 

employment in violation of the terms of the Sub-Contractor 

Agreement entered into between Hypersonic and ENS.” 951 

N.E.2d at 266. The appellate court reviewed the trial court’s 
10

findings to determine whether they were supported by the 

evidence and also “considered only the evidence favorable to the 

judgment and all reasonable inferences to be drawn therefrom.” Id.

at 267 (emphasis added) (citations omitted). That standard of 

review clearly differs from the one we must employ in reviewing 

the instant summary judgment order, where every possible 

inference must be resolved in favor of CTI, the party opposing 

summary judgment. Brookie, 213 So. 3d at 1131.

In turn, Scarbrough was an appeal from an order temporarily 

enjoining Scarbrough from soliciting the sale of insurance to 

customers of Liberty National Life Insurance, Scarbrough’s former 

employer. Again, the standard of review differed. On appeal, it was

whether the trial court abused its discretion. But apart from that, 

in Scarbrough we adopted the definition of “solicit” from Black’s 

Law Dictionary to be applied to non-solicitation cases. We

concluded that “[i]t reasonably appears [] that a person may, in 

appropriate circumstances, solicit another’s business regardless of 

who initiates the meeting” because “the term ‘solicit’ in an 

agreement prohibit[s] the employee from being ‘proactive’ in such 

efforts.” Id. at 285 (citing J.K.R., Inc. v. Triple Check Tax Serv., 

736 So. 2d 43, 44 (Fla. 1st DCA 1999)). As a result, Scarbrough

expanded the concept of direct solicitation to encompass conduct

that, while less direct, is nonetheless more active than passive in

nature.

We conclude that whether a defendant’s behavior is proactive

presents a question of fact for the trier of fact. Indeed, the question 

of whether Appellees were “proactive” in soliciting employment 

with Epsilon is just as unsuitable for resolution on a motion for 

summary judgment as was the fraud claim in Bowman, for the 

reason that it is “a subtle thing requiring a full explanation of the 

facts and circumstances of the alleged wrong[.]” 172 So. 3d at 1017

(internal quotation marks omitted) (quoting Palmer v. Santa Fe 

Healthcare Sys., Inc., 582 So. 2d 1234, 1236 (Fla. 1st DCA 1991)).

For instance, in the present case, the essence of Hutchinson’s 

deposition testimony and Gaukel’s affidavit draws forth the

reasonable inference that Hutchinson, along with the other 

Appellees, might have been complaining just a little too loudly 

about employment woes with CTI in a working environment where 
11

everyone involved knew there was more than one subcontractor on 

the job to hear their protests. Furthermore, Hutchinson’s roundup of the other three Appellees also is subject to a reasonable

inference that there might have been a concerted plan to leave CTI

for Epsilon. And, Penzell’s act of referring the issue of the nonsolicitation agreements to his company’s legal team because of 

concerns expressed by Appellees suggests a general 

acknowledgment of a potential conflict with the agreements, 

despite Penzell’s disparaging opinion that CTI’s non-solicitation 

clauses were “laughable.” Those facts, alone, go a long way toward

“permit[ing] different reasonable inferences,” and, moreover, they

“tend[] to prove the issues.” Moore, 475 So. 2d at 668.

It is also worth noting that this is not a case where the issue 

is resolved based on the interpretation of the contractual language, 

or turns on the enforceability of the non-solicit/non-compete 

clause. Cf. White v. Mederi Caretenders Visiting Servs. of Se. Fla., 

LLC, 226 So. 3d 774 (Fla. 2017); Henao v. Prof’l Shoe Repair, Inc., 

929 So. 2d 723 (Fla. 5th DCA 2006); Univ. of Fla., Bd. of Trs. v. 

Sanai, 837 So. 2d 512 (Fla. 1st DCA 2003). Instead, whether the 

terms of the non-solicitation agreements were violated here is 

largely predicated on the inferences to be drawn from the facts of 

Appellees’ behavior prior to, and during, their negotiations with 

Epsilon. On that point, we hold that the facts contained in the 

depositions, affidavits, and other papers of record are not “so 

crystallized that nothing remains but questions of law.” Moore, 475 

So. 2d at 668. Instead, they raise a legitimate doubt so that “‘a 

summary judgment cannot stand . . . .’” Bowman, 172 So. 3d at 

1015 (emphasis added) (quoting Brock, 625 So. 2d at 135–36).

Consequently, the Decision and Order Granting Motion for 

Summary Judgment is reversed and the cause is remanded for 

further proceedings on CTI’s Amended Complaint.

REVERSED and REMANDED.

MAKAR, OSTERHAUS, and JAY, JJ., concur.
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jeremy C. Branning, Daniel E. Harrell, and Andrew M. Spencer of 

Clark Partington, Pensacola, for Appellant.

Ralph A. Peterson, Marcus A. Huff, and John R. Zoesch, III, of 

Beggs & Lane, RLLP, Pensacola, for Appellees.