author: STUART, Justice. MURDOCK, Justice

text:
    ORIX FINANCIAL SERVICES, INC. v. John Allen MURPHY.
    1070996.
    Supreme Court of Alabama.
    Nov. 26, 2008.

      Romaine S. Scott III of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellant.
    Charles M. Ingrum, Jr., of Ingram, Rice & Parr, Opelika, for appellee.
   STUART, Justice.

Orix Financial Services, Inc., appeals the order of the Lee Circuit Court holding the default judgment Orix obtained against Opelika resident John Allen Murphy in a New York court void. We reverse and remand.

I.

On February 7, 1998, Murphy executed a promissory note pursuant to which he agreed to pay Orix $67,048. That promissory note contained the following clause:

“As part of the consideration for making the advance represented by this promissory note, [Orix], maker(s), and any endorser(s) hereby designate and appoint Edwin M. Baum, Esq., and C-A Credit Corp., both of New York, or either of them, as their true and lawful attorney-in-fact and agent for them and in their name, place and stead to accept service of any process within the State of New York, the party causing such process to be served agreeing to notify the other party(ies) at their address indicated above, or at their last known address, certified mail, within three days of such service having been effected. [Orix], maker(s) and any endorser(s) hereby agree to the EXCLUSIVE VENUE AND JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE AND COUNTY OF NEW YORK for all actions, proceedings, claims, counterclaims or cross-claims arising directly or indirectly in connection with, out of, or in any way related to this promissory note, whether based in contract or in tort or at law or in equity, with the sole exceptions that an action to obtain possession of all or part of the collateral or any other assets of the maker(s) or endorser(s) however denominated and equitable proceedings to enforce the terms of this promissory note, may, in the sole discretion of [Orix], be brought in a state or federal court having jurisdiction over the collateral, and/or any other assets of the maker(s) or endorser(s) may be located.”

(Capitalization in original.)

Murphy thereafter defaulted on the promissory note when he failed to make the scheduled payments. On December 19, 2006, Orix sued Murphy in the Supreme Court of the State of New York, New York County. On January 23, 2007, pursuant to the relevant clause in the promissory note, Orix served the summons and complaint upon Murphy’s designated agent, C-A Credit Corp., and also mailed copies to Murphy’s address in Opelika, which was the address shown on the promissory note. C-A Credit maintains that it also forwarded the summons and complaint it received to Murphy the same day it received them. Murphy denies receiving any of these mailings.

On May 7, 2007, after failing to receive a response from Murphy, the New York court entered a default judgment against Murphy for $31,857. On August 15, 2007, Orix filed a copy of the default judgment with the Lee Circuit Court pursuant to the Alabama Uniform Enforcement of Foreign Judgments Act, § 6-9-230 et seq., Ala. Code 1975. On August 17, 2007, Murphy filed a motion to stay the domestication of that judgment, arguing that he had not been properly served with the complaint and that he had had no knowledge of the New York action or opportunity to defend himself. After a hearing and further briefing, the trial court, on January 29, 2008, entered an order making the following findings:

“1. The note provided by [Orix] for [Murphy] to sign already contained the name of the designated agent for [Orix] to serve in the event of default and was not a matter negotiated by [Murphy].
“2. Under the New York law, i.e., N.Y. C.P.L.R. §§ 308 and 318 (2007), the effectiveness of the designated agent expires three (3) years after the date of the signing of the note, and therefore the time for the effectiveness of the designation of the agent expired prior to the filing of the lawsuit.
“3. [Murphy] did not receive any actual notice that the suit was being filed in New York.
“4. The ‘forum selection clause’ was not negotiated by [Murphy].
“5. The distance between the states of New York and Alabama was too great to be convenient for [Murphy] to defend the matter and was not fair to [Murphy],
“6. [Murphy] had insufficient contacts with the State of New York.
“7. Enforcement of the New York default judgment in the courts of Alabama through the domestication process under all of the circumstances would be unfair to [Murphy] and create an injustice.”

The trial court concluded by declaring the default judgment entered by the New York court void for lack of personal service. After the trial court denied Orix’s subsequent motion to alter, amend, or vacate its judgment, Orix filed its notice of appeal to this Court.

II.

Murphy’s motion to stay the domestication of the default judgment entered against him by the New York court was the equivalent of a postjudgment motion made pursuant to Rule 60(b)(4), Ala. R. Civ. P., challenging a judgment as void. See Ex parte Trinity Auto. Servs., Ltd,., 974 So.2d 1005, 1009 (Ala.Civ.App.2006) (“Both our Supreme Court and this court have held that the appropriate procedural mechanism by which to collaterally attack a foreign judgment on the basis that the judgment is void for lack of jurisdiction is by a motion filed pursuant to Rule 60(b)(4).”). In Insurance Management & Administration, Inc. v. Palomar Insurance Corp., 590 So.2d 209, 212 (Ala.1991), we explained that we review de novo a trial court’s ruling on such a motion:

“The standard of review on appeal from the denial [or granting] of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).”

Additionally, we note that “[t]he validity and effect of a foreign judgment, of course, are to be determined by the law of the state in which it was rendered.” Morse v. Morse, 394 So.2d 950, 951 (Ala.1981) (citing Forbes v. Davis, 187 Ala. 71, 65 So. 516 (1914)).

III.

The trial court held the default judgment entered by the New York court void for essentially two reasons — a perceived lack of due process in the service of process and its belief that the forum-selection clause in the promissory note was unenforceable. A review of the relevant New York law, however, reveals that Murphy was lawfully served and that he submitted to the jurisdiction of the New York court by signing a promissory note containing a clause designating New York as the venue for any and all legal disputes related to that note. In regard to whether the service of process provided Murphy complied with due-process requirements, we agree with the rationale of the United States District Court for the Southern District of New York, which decided a similar dispute involving Orix in Orix Financial Services, Inc. v. Kielbasa, (No. 01 Civ. 1789, Dec. 3, 2007) (S.D.N.Y.2007) (not published in F.Supp.2d):

“Service in New York is governed by N.Y. C.P.L.R. § 308(3) (2007), which provides, in relevant part, that service of process may be made upon an individual ‘by delivering the summons within the state to the agent for service of the person to be served as designated under N.Y. C.P.L.R. § 318 (2007).’
“[The defendant] contends that Orix did not fulfill the requirements of sections 308(3) and 318 of the C.P.L.R. Specifically, [the defendant] argues that the guaranty, as the writing that designated C-A Credit as [the defendant’s] agent, did not contain C-A Credit’s signed endorsement; that there is no proof that the guaranty was filed in the county clerk’s office; and that the guaranty was dated November 1995, more than three years prior to service of the complaint, and the designation of an agent remains in effect for only three years after the execution of the writing that designates the agent.
“C-A Credit was a valid agent for acceptance of senice of process on [the defendant’s] behalf, despite non-compliance with the provisions of the C.P.L.R. ‘It is well settled that parties to a con tract “may agree to service upon a third person with respect to litigation arising from the contract, even where that person is not an agent authorized under ... C.P.L.R. §318.’” Orix Financial Services, Inc. v. First Choice Freight Sys., Inc., No. 03 Civ. 9296(RMB) ... [not reported in F.Supp.2d] (S.D.N.Y. Aug. 1, 2006) (quoting Orix Financial Services, Inc. v. Baker, 1 Misc.3d 288, 291, 768 N.Y.S.2d 780 (N.Y.Sup.Ct. 2003)); see also National Equip. Rental v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1963). Here, it is undisputed that the guaranty expressly designated C-A Credit as [the defendant’s] agent for acceptance of service of process in New York. Thus, C-A Credit was a valid agent, despite C-A Credit’s non-compliance with technical provisions of C.P.L.R. section 318.

(Emphasis added.) See Orix Fin. Servs., Inc. v. Baker, 1 Misc.3d 288, 291, 768 N.Y.S.2d 780 (N.Y.Sup.Ct.2003) (recognizing that New York courts have held that service upon a designated agent agreed upon by the parties for the purpose of litigation arising from a contract dispute is acceptable); and National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1963) (recognizing the validity of a provision in a contract creating agency for service of process in litigation in New York). Thus, New York law provides for the designation of an agent for the receipt of process in an action related to a contract dispute pursuant to the procedure set forth in N.Y. C.P.L.R. §§ 308 and 318 or within the contract itself. See also Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 272, 406 N.E.2d 747, 751, 428 N.Y.S.2d 890, 893 (1980) (“A corporation may appoint an agent to accept service without observing the formalities necessary to ‘designate’ an agent pursuant to C.P.L.R. § 318. Designation is merely a type of appointment which might, under certain circumstances, offer special benefits to the corporation or principal.... In any event the designation procedure is optional. It is not the only way of appointing an agent for receipt of process ....”). It is undisputed that the promissory note provided that C-A Credit could accept service on behalf of Murphy and that C-A Credit did in fact do so; therefore, service in this case was proper.

Moreover, Orix submitted evidence to the trial court, both documentary and in the form of affidavits from personnel at Orix and C-A Credit, indicating that both it and C-A Credit sent notice of the action to Murphy’s correct address. Murphy’s argument that the otherwise proper service effected on C-A Credit somehow became improper because he did not receive notice of the action is not supported by New York law. See Beckman v. Greentree Sec., Inc., 87 N.Y.2d 566, 570, 640 N.Y.S.2d 845, 663 N.E.2d 886, 888 (1996) (“Due process does not require actual receipt of notice before a person’s liberty or property interests may be adjudicated; it is sufficient that the means selected for providing notice was ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,’ (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 [ (1950) ]).”).

We further note that although the trial court specifically found that Orix had selected C-A Credit as Murphy’s agent and that Murphy had not negotiated that aspect of the promissory note, Murphy has wisely chosen not to argue to this Court that the clause appointing C-A Credit as Murphy’s agent was unconscionable for that reason. We are aware of no New York caselaw that would support that argument, and caselaw from the Supreme Court of the United States would appear to weigh against it. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. at 317-18, 84 S.Ct. 411 (“It is argued, finally, that the agency sought to be created in this case was invalid because [the designated agent] may have had a conflict of interest. This argument is based upon the fact that she was not personally known to the respondents at the time of her appointment and upon a suggestion in the record that she may be related to an officer of the petitioner corporation. But such a contention ignores the narrowly limited nature of the agency here involved. [The designated agent] was appointed the respondents’ agent for the single purpose of receiving service of process. An agent with authority so limited can in no meaningful sense be deemed to have had an interest antagonistic to the respondents, since both the petitioner and the respondents had an equal interest in assuring that, in the event of litigation, the latter, be given that adequate and timely notice which is a prerequisite to a valid judgment.”).

Having established that Murphy was properly served via his designated agent C-A Credit, we now turn to the forum-selection clause and the issue whether Murphy submitted to the jurisdiction of the New York court when he signed the promissory note containing the forum-selection clause. New York courts generally enforce a forum-selection clause unless it is shown to be unreasonable. See, e.g., Brooke Group Ltd. v. JCH Syndicate 4-88, 87 N.Y.2d 530, 534, 663 N.E.2d 635, 637, 640 N.Y.S.2d 479, 481 (1996) (“Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract. Such clauses are prima facie valid and enforceable unless shown by the resisting party to be unreasonable.”). Our Court of Civil Appeals specifically recognized this fact in a similar case when it stated:

“Specifically, New York courts will enforce an otherwise valid forum-selection clause as a basis for .personal jurisdiction over a nonresident defendant unless enforcement of the clause would be
“ ‘unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.’
“Premium Risk Group, Inc. [v. Legion Ins. Co.], 294 A.D.2d [345,] 346, 741 N.Y.S.2d [563,] 564 [(2002)]. Under New York law, a defendant challenging the enforcement of a forum-selection clause bears the burden of proving a basis for nonenforcement of the clause. Id.”

Ex parte Trinity Auto. Servs., Ltd., 974 So.2d at 1010-11. In the present case, Murphy successfully argued to the trial court that the clause was unreasonable, and therefore unenforceable, because: (1) he did not negotiate it; (2) it would be highly inconvenient for him to defend an action in New York because of the distance between New York and Alabama; and (3) he had insufficient contacts with New York to warrant being subject to suit there. The trial court erred, however, because, under the relevant law, none of these reasons is sufficient to merit the invalidation of the forum-selection clause.

Although Murphy did not negotiate the forum-selection clause in the promissory note, he nevertheless signed the note and is therefore subject to its terms. As the United States District Court for the Southern District of New York has stated:

“A forum selection clause can bind contracting parties even when the contract in question is a form contract and not subject to negotiation. See Carnival Cruise [Lines, Inc. v. Shute], 499 U.S. [585,] 593, 111 S.Ct. 1522 [ (1991) ] (enforcing a forum selection clause written on the backs of passenger ship tickets, despite the passengers’ objection that they had not been able to bargain over the tickets’ conditions); Design Strategy Corp. Iv. Nghiem], 14 F.Supp.2d [298,] 301 [ (S.D.N.Y.1998) ] (refusing to set aside a forum selection clause contained in a standard employment contract). By signing the Purchase Order Form, [the plaintiffs] officers accepted the prerequisites of doing business with [the defendant], and [the plaintiffs] complaint that it did not fully negotiate these conditions is unavailing. ‘The forum selection clause was part of the bargain into which [the plaintiff] freely entered,’ Bense [v. Interstate Battery Sys. of America, Inc.], 683 F.2d [718,] 722 [ (2d Cir.1982) ], and [the plaintiff] can not now escape its terms.”

Strategic Marketing & Commc’ns, Inc. v. Kmart Corp., 41 F.Supp.2d 268, 272 (S.D.N.Y.1998).

Similarly, our Court of Civil Appeals has previously reviewed New York law and addressed the arguments that the distance between Alabama and New York makes defending an action in New York so inconvenient as to make it unreasonable to defend one’s self in a New York court, and that an Alabama defendant must have some level of minimum contacts with New York, even in the presence of a forum-selection clause identifying New York as the forum for a dispute, to be subject to suit there and found those arguments to be lacking. In Ex parte Trinity Automotive Services, Ltd,., the Court of Civil Appeals specifically stated:

“[U]nder New York law, the distance between Alabama and New York is not sufficient to hold that the forum-selection clause in the present case is unenforceable in the absence of any evidence that [the defendant] was unable to travel to New York for the purpose of defending itself against [the plaintiff’s] claim.”

974 So.2d at 1013. Similarly, Murphy has presented no evidence in the present case indicating that he would be utterly unable to travel to New York to defend himself in an action in that forum. In that same case, the Court of Civil Appeals stated:

“[A] forum-selection clause can be sufficient under federal and New York law, without more, to vest a New York court with jurisdiction over a nonresident defendant, notwithstanding the defendant’s lack of sufficient contacts with the State of New York or an independent jurisdictional basis under the New York long-ann statute. See Burger King Corp. [v. Rudzewicz], 471 U.S. [462,] 472 n. 14, 105 S.Ct. 2174[, 2182 n. 14 (1985)].”

Ex parte Trinity Auto. Setvs., Ltd., 974 So.2d at 1011 n. 4. Thus, whether Murphy had some other level of contact with New York is ultimately irrelevant to a determination of whether the forum-selection clause should be enforced.

IV.

The trial court held that the default judgment entered against Murphy by a New York court was void because Murphy had not been served and because that court did not have personal jurisdiction over Murphy. However, because the agent Murphy designated in the promissory note to receive service on his behalf was properly served and because the promissory note contained a valid forum-selection clause designating New York as the appropriate venue for any disputes related to the promissory note, the trial court’s judgment was erroneous. The default judgment entered against Murphy in New York is valid and Orix has established that it is now entitled to domestication of that judgment in Alabama. Accordingly, the judgment entered by the trial court is hereby reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately to comment briefly upon the standard of review and to explain my understanding of the Court’s holding today regarding service of process.

First, I agree with the proposition that appellate review in this case is de novo, as it typically is in appeals from the denial of a motion filed under Rule 60(b)(4), Ala. R. Civ. P. This case, like most such cases, does not involve factual findings by the trial court based on live testimony of witnesses that could implicate the ore tenus rule and thereby require some deference by this Court to the findings of the trial court. The factual findings of the trial court in this case were based upon affidavits and documentary evidence, evidence which this Court is as competent to assess as was the tidal court.

As for the merits of this case, the main opinion states that “the promissory note provided that C-A Credit could accept service on behalf of Murphy and that C-A Credit did in fact do so; therefore, service in this case was proper.” 9 So.3d at 1245 (emphasis added). That statement is correct so far as it goes, but it should not in my opinion be read to mean that service on C-A Credit alone is all that was required to make “service in this case ... proper.” It is important to note that the same contractual provision by which Murphy authorized Orix to deliver process to C-A Credit, instead of directly to Murphy, coupled that authorization with a requirement that Orix contemporaneously (within three days) mail notice of any legal action in a prescribed manner directly to Murphy. In the present case, however, the record indicates that this mailing requirement was met.

The main opinion goes on to state (1) that Orix submitted evidence “both documentary and in the form of affidavits from personnel at Orix and C-A Credit” indicating that they each had mailed notice of the lawsuit to Murphy, and (2) that Murphy’s argument that sendee upon him was “somehow ... improper because he did not receive [the mailed notices] is not supported by New York law.” 9 So.3d at 1245 (emphasis added). In the context of the particular contractual provisions of the promissory note at issue in this case, I agree that actual receipt by Murphy is not the condition to which he and Orix agreed. The provision in the promissory note for notice to be addressed either to the address shown on the note or to Murphy’s “last known address,” and posted via “certified mail” (with no requirement for a signed, returned receipt), is more consistent with a contractual obligation by the plaintiff to mail the notification in a certain manner than with a contractual condition that the defendant actually receive that mailing. Having agreed to this method of notification as a supplement to the formal service of process upon C-A Credit, Murphy in essence took the risk that it would be effective. See Beckman v. Greentree Sec., Inc., 87 N.Y.2d 566, 570, 640 N.Y.S.2d 845, 663 N.E.2d 886, 888 (1996) (“The notice procedure chosen need not eliminate all risk that notice might not actually reach the affected party.”); see also note 3, supra.

I do not read the main opinion as saying that it would make no difference if the record before us indicated that Orix and C-A Credit did not actually mail the required notifications to Murphy in the agreed-upon manner. In such an event, the contractually agreed-upon method of service, formal service upon a specially designated New York-based agent coupled, with a supplemental notification by mail, would not have been fully satisfied. Cf. National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 318, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) (“A different case would be presented if [the designated agent] had not given prompt notice to the respondents, for then the claim might well be made that her failure to do so had operated to invalidate the agency.”) (quoted with approval in Orix Fin. Servs., Inc. v. Baker, 1 Misc.3d 288, 290, 768 N.Y.S.2d 780, 782 (2003)).

But that is not the case before us. In the ease before us, affidavits from both Orix and C-A Credit evidence the actual mailing of the notifications to Murphy. Furthermore, the record contains a copy of a certified-mail receipt evidencing the mailing by Orix to the required address. In response, Murphy’s affidavit essentially is limited to an averment that he did not receive these mailings. I also note that he did not assert that the address to which Orix and C-A Credit averred that they mailed the required notices was not his correct address. Based on this evidence and the above-described law, I agree that the New York judgment in favor of Orix should be domesticated.

      . When Murphy entered into this transaction, the name of the other party to the note was Orix Credit Alliance, Inc. On September 26, 2000, Orix Credit Alliance formally changed its name to Orix Financial Services, Inc. For convenience, the entity is referred to simply as ‘'Orix” throughout this opinion.

      "1 The guaranty provides, and the parties agree, that this case is governed by New York law.

      “2Section 318, in turn, states: ‘A person may be designated by a natural person, corporation or partnership as an agent for service in a writing, executed and acknowledged in the same manner as a deed, with the consent of the agent endorsed thereon. The writing shall be filed in the office of the clerk of the county in which the principal to be served resides or has its principal office. The designation shall remain in effect for three years from such filing unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal termination of the agent or principal.’ ”

      . Under New York law, a party seeking the invalidation of a forum-selection clause must do more than merely establish that it would be expensive, time-consuming, and inconvenient to defend a claim in a New York court. Rather, the party must show that such a trial " 'would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.' ” Bell Constructors, Inc. v. Evergreen Caissons, Inc., 236 A.D.2d 859, 860, 654 N.Y.S.2d 80, 81 (N.Y.App.Div.1997) (quoting Price v. Brown Group, Inc., 206 A.D.2d 195, 198, 619 N.Y.S.2d 414, 416 (N.Y.App.Div.1994)).

      . As the main opinion goes on to note, due process, and not just New York law alone, " 'does not require actual receipt of notice before a person’s liberty or property may be adjudicated; it is sufficient that the means selected for providing notice was "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” ' " 9 So.3d at 1246 (quoting Beckman v. Greentree Sec., Inc., 87 N.Y.2d 566, 570, 640 N.Y.S.2d 845, 663 N.E.2d 886, 888 (1996)) (emphasis added).


source: Caselaw Access Project

author: BASCHAB, Presiding Judge.

license: Public Domain

text:
    Spencer CAMPBELL v. STATE of Alabama.
    CR-07-0545.
    Court of Criminal Appeals of Alabama.
    May 30, 2008.
    Spencer Campbell, pro se.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

On December 1, 1969, the appellant, Spencer Campbell, pled guilty to robbery, and the trial court sentenced him to serve a term of thirty years in prison. He did not appeal his conviction. On June 14, 2007, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case. Specifically, he contends that he did not personally enter his guilty plea and that the trial court erroneously accepted his guilty plea without first waiting three days after he gave notice of his intent to plead guilty. The State did not specifically refute the appellant’s claims. Also, in its order dismissing the petition, the circuit court did not specifically address the claims. Because the appellant’s claims could be meritorious, the circuit court erred in not addressing them.

Accordingly, we remand this case to the circuit court for that court to make specific, written findings of fact concerning each of the appellant’s claims. On remand, the circuit court may require the State to respond specifically to the appellant’s contentions and/or may conduct an evidentia-ry hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact; the State’s response and/or a transcript of the evidentiary hearing, if applicable; and, if they are available, copies of the case action summary sheet, the indictment, and a transcript of the guilty plea proceedings.

REMANDED WITH INSTRUCTIONS."

McMILLAN and WISE, JJ„ concur.

SHAW and WELCH, JJ„ concur in the result.

      . Because of our disposition of this case, we pretermit discussion of the remaining claims the appellant raises in his brief to this court. * Note from the reporter of decisions: On August 22, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On October 3, 2008, that court denied rehearing, without opinion. On November 21, 2008, the Supreme Court denied certiora-ri review, without opinion (1080064).


author: PER CURIAM.

text:
    Corian Tennille JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 07-2295.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Rehearing Denied May 22, 2009.
    Corian Tennille Jones, in proper person.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: CORTIÑAS, J.

text:
    The STATE of Florida, Appellant, v. Alvaro ARANGO, Appellee.
    No. 3D07-2250.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied May 19, 2009.

      Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellant.
    Jason M. Wandner, Miami, for appellee.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   CORTIÑAS, J.

Appellant, the State of Florida, seeks review of the trial court’s order granting Alvaro Arango’s (“defendant”) motion to dismiss and the court’s earlier grant of defendant’s motion to suppress. We find the trial court erred and, accordingly, reverse.

Detective Vila (“Vila”) received an anonymous tip advising him that marijuana was being cultivated at a particular residence. Upon arriving at the residence, Vila detected the odor of marijuana, determined it was emanating from the residence, and returned to his car to prepare a search warrant for the residence. As Vila was writing out the warrant, the defendant drove onto the residence’s driveway and the garage door opened. The defendant then casually entered the garage and shortly thereafter, saw Vila, and with a look of surprise, returned to his vehicle and drove away. The garage door closed after the defendant exited. Vila testified that while the garage door was open, he noticed an R-Max board and approximately two to five filled black garbage bags.

Vila, along with another officer, followed the defendant and stopped him shortly thereafter. When the defendant lowered his window to inquire why he was being stopped, Vila noticed the odor of marijuana emanating from the defendant’s car. The defendant stepped out of his vehicle and, as Vila and the defendant continued to talk and walk along the defendant’s vehicle, Vila observed, in the passenger seat, rolls of tape, one of which had marijuana residue, and black trash bags on the floor of the passenger side. Defendant was arrested and invoked his Miranda rights.

Vila and the other officer returned with the defendant to the residence and obtained the search warrant later that day. Vila testified that as he and other officers at the scene prepared to forcibly enter the residence through the front door, a conversation ensued between him and the defendant. During this conversation, the defendant informed Vila that there was a garage door opener in the defendant’s vehicle. It is unclear as to who initiated the conversation. The officers entered the residence and discovered a hydroponics lab. Several items were seized by the officers, including beer bottles, cigarette butts, and fingerprints from various items and from the walls of the residence. Also seized were 88.4 pounds of marijuana, and an additional bag of marijuana from the refrigerator.

The defendant filed a motion to suppress, and the trial court granted the motion as to 1) the investigative stop and any evidence obtained pursuant to the stop, 2) statements made by the defendant after he was arrested and invoked his Miranda rights, 3) beer bottles and any further evidence obtained from the beer bottles, 4) cigarette butts, 5) fingerprints obtained from walls or other items not authorized by the warrant, and 6) anything recovered from the refrigerator. Shortly thereafter, the defendant filed a motion to dismiss stating, in part, that the evidence against the defendant had been significantly diminished as a result of the motion to suppress. The court granted the motion to dismiss with prejudice. This appeal followed.

The State argues that the evidence obtained from Vila’s stop of the defendant should not have been suppressed. We agree. Section 901.151, Florida Statutes provides, in pertinent part:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

§ 901.151(2), Fla. Stat. (2005).

Prior to Vila stopping the defendant, Vila had followed-up on an anonymous tip that marijuana was being grown at the residence, personally detected the odor of marijuana emanating from the residence, and observed the filled trash bags and R-Max board in the residence’s garage. Section 901.151(2) merely requires that Vila had encountered the defendant “under circumstances which reasonably indicate[d] that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state....” Id. The circumstances under which Vila encountered the defendant were sufficient to satisfy this requirement.

When examining whether a traffic stop is proper, “the first and most critical question is whether the police had a reasonable articulable suspicion that illegal activity was afoot at the time they sought to stop” the defendant. See State v. Herrera, 991 So.2d 390, 392 (Fla. 3d DCA 2008) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Moreover,

Police may stop and investigate a motor vehicle when there is a “founded suspicion” of criminal activity in the mind of the police officer. “A ‘founded suspicion’ ... has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge.”

State v. Gil, 780 So.2d 297, 298 (Fla. 3d DCA 2001) (citing Kehoe v. State, 521 So.2d 1094, 1095-96 (Fla.1988), rev’d on other grounds, Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171 (Fla.2004)). When determining whether “there were ample grounds to give the police officer a founded suspicion of criminal activity, we look at the cumulative impact of the circumstances perceived by the officers.” Gil, 780 So.2d at 299 (quoting Kehoe, 521 So.2d at 1096). “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citations omitted). Additionally, the “determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” United, States v. Nunez, 455 F.3d 1223, 1226 (11th Cir.2006) (quoting Wardlow, 528 U.S. at 125, 120 S.Ct. 673).

Vila stated in his affidavit that he had been a member of the Miami-Dade County Police Department for sixteen and a half years, was “trained in the identification of narcotics and dangerous drugs,” and was “involved in numerous cases involving seizures of hydroponics labs where hundreds of pounds of grown marijuana were handled, smelled, and seized.” The foregoing, combined with the anonymous tip, the smell of marijuana emanating from the residence, Vila’s knowledge that hydroponics growr houses are generally kept secure and secret, Vila’s observation of the defendant’s demeanor upon entering the garage and his reaction to seeing Vila, and the defendant’s subsequent departure from the garage, provided sufficient grounds for reasonable suspicion. Vila himself testified that he stopped the defendant “for suspicion.” When conducting a stop, an officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” See Alvarez v. City of Hialeah, 900 So.2d 761, 767 (Fla. 3d DCA 2005). Given the cumulative facts to which Vila testified, Vila had reasonable suspicion to conduct an investigative stop of the defendant. As such, the evidence obtained as a result of the stop was improperly suppressed.

The State also argues that the court’s suppression of evidence obtained from the residence but not specifically set forth in search warrant was improper. The warrant obtained by Vila read, in pertinent part:

“The Premises” being in, Miami-Dade County, Florida, hereinafter referred to as: “The Premises,” the laws of the State of Florida related to narcotics or drug abuse are being violated therein, to wit: Possession of a Controlled Substance, 893.13 Florida Statutes, as evidenced by a quantity of controlled substance, to wit: marijuana, exhaust fans/ vents, carbon dioxide cylinders, air conditioning units, sun circles, solar tracks, reflective light hoods, high pressure sodium vapor bulbs, ballasts, grow mediums, feeder reservoirs, drug paraphernalia, and/or currency, titles, receipts, and other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances, hereinafter referred to as “The Property.”

(emphasis added).

When issuing its verbal order partially granting the motion to suppress, the trial court ruled as follows on the evidence obtained pursuant to the search warrant:

[Tjhere were [sic] testimony from the police officers that they recovered some beer bottles. It is clearly granted to the beer bottle [sic] and anything that is obtained from the beer bottle [sic].
There might be testimony about cigarette butt [sic] obtained or recovered as a result of that as well, it is granted as a result of cigarette butt [sic].
... there was no testimony of robber glove, [sic] fingerprint recovered from key cover or other things off the wheel. There was testimony from the police officer that they looked into refrigerator [sic]. I don’t have a return of the warrant to indicate what items were taken.
If in fact fingerprints were lifted from none [sic] inclusive evidence, that will be anything that could not reportedly [sic] be related to hydroponics grow house [sic], then those fingerprints would have been obtained illegally without the proper documentation on the warrant and they will be suppressed. And as would anything recovered from the refrigerator or any fingerprints recovered from the walls unless there is clearly articulated, previously articulated indication that there were things on the wall from which the fingerprints were recovered that is [sic] related to hydroponics grow house [sic].

Courts have found that “[officers executing a search warrant are ‘required to interpret it,’ and they are ‘not obliged to interpret it narrowly.’ ” United States v. Stiver, 9 F.3d 298, 303 (3d Cir.1993) (citing Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.1992)). Furthermore, “police armed with a valid search warrant may permissibly seize items not listed in the warrant when the incriminating nature of the items is immediately apparent.” Black v. State, 630 So.2d 609, 613 (Fla. 1st DCA 1993) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). A “seizing officer is not required to ‘know certain items are contraband or evidence of a crime ... ’; what is required is that ‘the facts available to the [seizing] officer would ‘warrant a person of reasonable caution in the belief,’ that certain items may be ... useful as evidence of a crime.... ” Black, 630 So.2d at 613-14 (citing Texas v. Brown, 460 U.S. 730, 741-42, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). The beer bottles, cigarette butts and fingerprints obtained by the officers were properly seized because the officers could reasonably believe that these items would be “useful as evidence of a crime” and assist in ascertaining the identities of the individuals growing marijuana at the residence. See id. Accordingly, the beer bottles, cigarette butts, fingerprints, and any further evidence they yielded, should not have been suppressed.

The court also erred in suppressing evidence obtained from the refrigerator in the residence. “[P]olice officers are allowed to search throughout the specified premises for the items described in the warrant, so long as the areas and containers searched are ones in which the described items might reasonably be found.” State v. Weber, 548 So.2d 846, 847 (Fla. 3d DCA 1989) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)); see also State v. Ridgway, 718 So.2d 318, 319 (Fla. 2d DCA 1998). Once the officers searched the refrigerator and discovered marijuana, they were authorized by the warrant to seize the contraband.

Although the trial court suppressed the statements made by the defendant after he invoked his Miranda rights, it is unclear whether the court did so because it deemed the investigative stop illegal or whether the court found that the officers initiated conversation with the defendant. As such, we reverse the suppression of the post -Miranda statements and remand so that the court may consider witness testimony from officer(s) and/or defendant and rule on this issue in light of our finding that the investigative stop was proper.

Lastly, the State also appeals the trial court’s order granting the defendant’s motion to dismiss with prejudice. The motion to dismiss was based in large part on the court’s suppression of evidence obtained by the officers. Because we reverse the suppression of the evidence obtained from the investigative stop as well as the suppression of the items obtained pursuant to the search warrant, we likewise reverse the trial court’s order of dismissal in light of the evidence.

Reversed and remanded.

      . R-Max boards are fairly common insulation materials, but are often used in connection with hydroponics labs.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .The record is unclear as to what specific items were seized. Vila testified, for example, that he did not remember whether cigarette butts were seized. Other allegedly seized items such as heat lamps, transformers, an irrigation system and rubber gloves were not suppressed by the trial court. As such, we do not address these items.

      . Despite having ruled that the investigative stop of the defendant was improper, the court found that the officers had sufficient probable cause for the issuance of the warrant prior to their contact with the defendant.


text:
    Joe CARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-410.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Joe Carrington, Sunrise, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s motion for postconviction relief. Appellant entered a negotiated plea to three third-degree felony counts and was placed on probation. His motion generally alleged that counsel performed deficiently and provided misadvice. Our review of the record reveals that counsel negotiated a very favorable plea bargain for appellant and that the factual basis was sufficient.

The motion fails to specifically identify how counsel’s performance fell below that of reasonably competent counsel and fails to demonstrate that but for counsel’s deficient performance appellant would not have entered the plea and would have insisted on going to trial. See Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.2004). Appellant should be afforded at least one opportunity to amend the facially insufficient motion if he can do so in good faith. Spera v. State, 971 So.2d 754, 762 (Fla.2007).

Accordingly, affirmance is without prejudice for appellant to file a facially sufficient motion within thirty (30) days of the date of this court’s mandate if he can do so in good faith. Appellant is advised that, if successful in collaterally attacking his plea, he will again be facing five years in prison on each count including the one-year mandatory minimum terms of incarceration he was facing on two of the counts.

POLEN, STEVENSON and TAYLOR, JJ., concur.

      . The motion included allegations about financial and civil matters which are not grounds for postconviction relief. Also, the motion attempted to go behind the plea to raise issues that were known at the time the plea was entered which is not permitted. Stano v. State, 520 So.2d 278 (Fla.1988); Gid-

        ney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006).

      . The negotiated plea called for a sanction below the 64.05 months in prison which was the minimum permissible sentence under the CPC scoresheet. A basis for a downward departure does not appear to have been given. See § 921.00265(1), Fla. Slat. (2003). Absent a downward departure, the court would be required to impose this sentence if appellant is convicted as charged.


author: ORFINGER, J.

text:
    ENVIRONMENTAL SERVICES, INC., Appellant, v. Ryan CARTER, Devin Hannon, et al., Appellee.
    No. 5D08-3224.
    District Court of Appeal of Florida, Fifth District.
    April 24, 2009.

      Rene M. Fix and Cristine M. Russell, of Rogers Towers, P.A., Jacksonville, for Appellant.

      John F. Dickinson and J. Ray Poole, of Constangy, Brooks & Smith, LLP, Jacksonville, for Appellee.
   ORFINGER, J.

Environmental Services, Inc. (“ESI”) appeals a trial court order denying in part its application to temporarily enjoin three of its former employees, Ryan Carter, Daniel LeJeune and Devin Hannon (collectively “former employees”), and their current employer, Natural Resource Consultants, LLC (“NRC”), from violating certain restrictions contained in their confidentiality and non-solicitation agreements (“agreement”) with ESI. We affirm in part, reverse in part, and remand for further proceedings.

ESI is an environmental consulting firm that works with property owners, builders and developers in connection with permitting and regulatory compliance. ESI analyzes data that it obtains through field assessments and aerial photography of its clients’ properties to identify issues concerning wetlands, protected habitats and protected species. The former employees were all employed at ESI’s St. Augustine office until late February 2008. Carter was the manager of ESI’s St. Augustine office, and supervised its employees, including LeJeune and Hannon. He also managed all client relationships in the office; had access to ESI’s confidential records, including financial records, client files, proposals, billing rates, employee salaries and marketing strategies; coordinated the office’s administrative activities; and oversaw personnel and training of staff. LeJeune was a senior project manager who also had access to ESI’s confidential files and trade secrets, including client files, proposals, billing rates and marketing strategies. LeJeune, like Carter who was just above him in the corporate hierarchy, represented clients before governmental agencies. Hannon was a senior graphics systems technician who engaged in marketing activities for ESI but typically had little client contact.

Carter and Hannon both admitted that they signed the agreement. LeJeune admitted signing an agreement, but testified that he only “skimmed it” and could not recall its contents. ESI was unable to locate LeJeune’s agreement in its files, and could only produce the agreements signed by Carter and Hannon. Those agreements were identical. Robin Bullock, ESI’s human resources director, testified that ESI had only used one form of the agreement since 2005.

According to LeJeune, beginning in October 2007 and continuing until February 2008, he, Carter and Hannon discussed leaving ESI and starting a new environmental consulting business. Between December 2007 and February 2008, Carter, while working for ESI, performed environmental work for LAN Associates (“LAN”), an engineering firm, and exchanged several e-mails with LAN officers. In these emails, Carter discussed ESI’s compensation rates and attached documents stamped “confidential” concerning compensation proposals for Carter, LeJeune, and Hannon. Carter also discussed LAN’s bonus program and LAN’s attorneys reviewed Carter’s agreement with ESI. Ultimately, LAN agreed to finance NRC, the new company created by the former employees, in exchange for a 63.88 percent ownership interest in NRC.

ESI subsequently filed suit for injunc-tive relief, declaratory judgment, and damages against the former employees and NRC, alleging various violations of their agreements by performing services for ESI’s customers after they resigned, by retaining and utilizing ESI’s confidential and proprietary information in their new business, and by interfering with the relationship between ESI and its employees. ESI then sought temporary injunctive relief (1) prohibiting the former employees from continuing to work for NRC, a subsidiary of LAN, a former ESI client; (2) prohibiting the former employees from directly or indirectly performing services for clients of ESI with whom the former employees had business-related contact while employed at ESI; (3) prohibiting the former employees from possessing, using or disclosing ESI’s confidential information including trade secrets; (4) requiring the former employees to produce their computers for inspection; and (5) prohibiting the former employees from interfering with the relationship between ESI and its employees, including attempting to hire away its employees.

The trial court granted in part and denied in part ESI’s motion for temporary relief. The court declined to enforce any restrictive covenants against LeJeune because it could not determine the precise terms of the agreement due to ESI’s failure to produce an executed copy of the agreement. However, the court determined that as to Carter and Hannon, the agreement contained five restrictive covenants: non-competition, non-solicitation, confidentiality, surrender of employment documents upon termination of employment and prohibition on interference with other ESI employees’ employment. The court refused to enforce the non-compete clause against Carter and Hannon, concluding that the provision was invalid as it was hidden within a two-paragraph clause entitled “non-solicitation.” The trial court further held that the non-compete provision was invalid as it was not limited to a specific geographic area. While the court ruled that the non-solicitation covenant was valid, it refused to enforce that covenant, finding that ESI’s clients sought out Carter and Hannon without any solicitation from them. As to the confidentiality covenant, the court found that ESI was entitled to temporary injunctive relief. As a result, it prohibited Carter and Hannon from using or disclosing ESI’s confidential information and/or trade secrets, as well as ordered them to return all documents containing ESI’s confidential information to ESI. Finally, the court determined that the prohibition on interference with ESI’s employees was valid but found that ESI failed to prove its entitlement to temporary injunctive relief as the evidence revealed that Carter, Hannon and LeJeune did not entice each other to resign from ESI.

We find no error with the court’s determination on the non-solicitation, confidentiality, surrender of employment documents upon termination of employment and prohibition on interference with other ESI employees’ employment provisions of the agreement. However, we reverse the court’s determination as to the non-compete provision and its refusal to enforce the agreement against LeJeune.

In order to establish entitlement to temporary injunctive relief, a party must prove: (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest. Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002). The usual remedy in cases involving a valid covenant not to compete is injunctive relief since it is extremely difficult for a court to determine what damages are caused by breach of the covenant. Sentry Ins. v. Dunn, 411 So.2d 336, 336 (Fla. 5th DCA 1982) (citing Miller Meek, Inc. v. Ruth, 300 So.2d 11 (Fla.1974)).

Post-employment restrictive covenant agreements are valid restraints of trade or commerce under certain conditions. Specifically, section 542.335, Florida Statutes (2005), which took effect on July 1, 1996, contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants contained in employment contracts. Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 726 (Fla. 5th DCA 2006). A violation of an enforceable restrictive covenant creates a presumption of irreparable injury. Id. Section 542.335 employs the term “restrictive covenants” and includes all contractual restrictions such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade. Id. If valid, a restrictive covenant may be enforced by way of temporary and permanent in-junctive relief. § 542.335(l)(j), Fla. Stat. (2005).

Section 542.335(1), Florida Statutes, permits enforcement of contracts that restrict or prohibit competition, but only “so long as such contracts are reasonable in time, area, and line of business....” The statute also requires “that any restrictive covenant be set forth in a writing signed by the person against whom enforcement is sought, and that the restraint be shown to be reasonably necessary to protect a ‘legitimate business interests’ justifying the restriction.” Henao, 929 So.2d at 726. A “legitimate business interest” includes “substantial relationships with specific prospective or existing customers ... or clients.” § 542.335(l)(b)3., Fla. Stat. (2005). The party seeking enforcement of the non-compete agreement must present a prima facie case that the restrictions are reasonably necessary to protect its legitimate business interests. § 542.335(l)(c), Fla. Stat. (2005). The opposing party then has the burden of proving the contractual restraint is overbroad, overlong, or otherwise not reasonably necessary to support the restriction. Henao, 929 So.2d at 726-27. If the restraint is overbroad or unreasonable, the court “shall modify the restraint and grant only the relief reasonably necessary to protect such [legitimate business] interest or interests.” Id. Section 542.335(l)(h), Florida Statutes (2005), directs that the court “shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement,” and “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.”

ESFs Agreement

We review the interpretation of a contract de novo. Steritech Group, Inc. v. MacKenzie, 970 So.2d 895, 898 (Fla. 5th DCA 2007). “[Although the interpretation of a covenant not to compete is a matter of law to be resolved by a trial court, an appellate court is nevertheless empowered to undertake an independent assessment of the covenant’s meaning.” Coastal Loading, Inc. v. Tile Roof Loading, Inc., 908 So.2d 609, 611 (Fla. 2d DCA 2005) (citing Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995)).

In relevant part, the agreement prohibited:

3. Non-Solicitation

a. During the course of his/her employment with the Company, Employee shall devote to the Company all of his/her working time, attention, knowledge and skills, and shall not accept alternative employment or engage in any independent and/or separate business activity in the Company’s Field of Business.
b. For a period of one (1) year after the termination of his/her employment for any reason whatsoever, Employee shall not, directly or indirectly, solicit business from or perform services for any current, former or prospective customers of the Company with whom Employee had any business-related contact (contact intended to advance the Company’s business interests) during his/her employment with the Company.

ESI argues that the trial court erred in failing to enforce paragraph 3.b. of the agreement, which prohibited the former employees from “performing] services for any current, former or prospective customers of the Company with whom Employee had any business-related contact ... during his/her employment with the Company.”

Restrictive covenants are valid if reasonable in time, area and line of business, set forth in a writing signed by the party against whom enforcement is sought, and the contractually specified restraint is supported by at least one legitimate business interest justifying the restraint, and reasonably necessary to protect that interest. § 542.335, Fla. Stat. (2005); Henao, 929 So.2d at 726-27. As to Carter and Han-non, the writing requirement of paragraph 3.b. was clearly satisfied, and the non-compete language relates to a “legitimate business interest,” which includes “substantial relationships with specific prospective or existing customers ... or clients.” § 542.335(l)(b)3., Fla. Stat. (2005). Moreover, with respect to reasonableness in time, the language limits non-competition to one year, which is presumptively not unreasonable. See § 542.335(l)(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”). With regard to area, while the trial court correctly noted the absence of a geographical limitation in the non-compete provision, we believe the court misperceived the effect of that omission.

The non-compete clause does not prohibit all competition by the former employees with ESI. Rather, it prohibits the former employees from performing services “for any current, former or prospective customers” of ESI “with whom the Employee had any business-related contact (contact intended to advance the Company’s business interests) during his/her employment with the Company.” Other than customers with whom the former employees had business contact while employed by ESI, they are free to compete with ESI in St. Augustine or elsewhere. This is not an instance where the covenant is being used as a tool simply to eliminate all competition. See generally Edwards v. Harris, 964 So.2d 196 (Fla. 1st DCA 2007).

Decisional law demonstrates that a relatively narrow restriction, such as the one here, is not invalid because it fails to contain a geographic limitation. See Health Care Fin. Enter., Inc. v. Levy, 715 So.2d 341 (Fla. 4th DCA 1998) (reiterating that court is required to modify unreasonable geographic restriction rather than refuse to enforce non-compete agreement). But compare Joseph U. Moore, Inc. v. Neu, 500 So.2d 561 (Fla. 2d DCA 1986) (holding that non-competition clause, which prohibited soliciting or accepting business of employer’s customers, not invalid because it failed to include geographic limitation, provided, on remand, court determines reasonable geographic limitation), and Sentry Ins. Co. v. Dunn, 411 So.2d 336 (Fla. 5th DCA 1982) (upholding non-compete provision without remanding for reasonable geographic limitation since non-compete clause merely prohibited employee from soliciting previous customers for two years after employment termination but employee remained free to write insurance and serve any other customers).

The trial court’s concern regarding the “hidden” nature of the non-compete language is also unpersuasive. The language employed in the agreement is clear and unambiguous. Under such circumstances, the contracting parties are bound by the contractual language. Coastal Loading, 908 So.2d at 612; see Institutional & Supermarket Equip., Inc. v. C & S Refrigeration, Inc., 609 So.2d 66, 68 (Fla. 4th DCA 1992) (“Where words of a contract are clear and definite, they must be understood according to their ordinary meaning.”). Paragraph 3.b. of the agreement clearly prohibits ESI’s former employees from soliciting business or performing services for its current, former or prospective customers with whom the former employees had business-related contact as a direct result of their employment at ESI. See Knight, Vale & Gregory v. McDaniel, 37 Wash.App. 366, 680 P.2d 448 (1984) (upholding as reasonable and enforceable, non-compete covenant that restrained employees from performing accounting services during three-year period following their termination of employment for only those former clients of firm with whom employees came into contact as direct result of employment). As a result, the trial court was obligated by section 542.335(l)(h) to construe this provision “in favor of providing reasonable protection to all legitimate business interests” established by ESI.

The former employees argue that equitable estoppel bars enforcement of the non-compete provision because ESI’s memorandum to employees, furnished contemporaneously with the agreement, described the confidentiality and non-solicitation provision as follows:

The agreement basically asks that if you leave ESI you do not contact any of the clients you gained or made contact with while employed with ESI.... This does not mean that if you left ESI you could not work in your field it simply means you cannot contact any of your ESI clients within a one year time frame from the time you leave.

Significantly though, the agreement contains the following merger clause:

10. Binding Agreement
This Agreement constitutes the complete agreement between the parties with respect to the subject matter contained herein and revokes and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.

Although the existence of a merger clause does not conclusively establish that the integration of the agreement is total, it is a highly persuasive statement that the parties intended the agreement to be totally integrated and generally works to prevent a party from introducing parol evidence to vary or contradict the written terms. See Jenkins v. Eckerd Corp., 913 So.2d 43, 53 (Fla. 1st DCA 2005). Here, the non-compete clause was clear and complete, and thereby, the merger clause precludes the consideration of other documents to vary the terms of the agreement. See id.

Equally unavailing is the former employees’ argument that ESI failed to present sufficient evidence of a “legitimate business interest.” The former employees note that former clients are not included among the “legitimate business interests” protected by section 542.335(l)(b), which references “substantial relationships with specific prospective or existing customers.” We agree that the protection of former customers generally does not qualify as a legitimate business interest where no identifiable agreement exists with such customers establishing that they would return with future work. See generally Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994) (holding that claim for tortious interference with business relationship would not lie for past customers where furniture business had no identifiable agreement with past customers that they would engage in future commerce with business). However, here, there was ample evidence that the former employees and their newly-created company, NRC, were performing work for specific existing ESI customers. In several instances, the former employees transferred many of their existing projects at ESI to NRC. These were clearly identified, active ESI customers, not transient, distant clientele.

Still, relying on Shields v. Paving Stone Company, Inc., 796 So.2d 1267 (Fla. 4th DCA 2001), the former employees insist that ESI needed an exclusive relationship with its clients to enforce the non-compete provision, and that in the absence of such relationship, clients were free to take new projects to whatever environmental consulting firm they wished. Contrary to the former employees’ assertions, Shields does not hold that only exclusive relationships with clients are protected “legitimate business interests.” In that case, Shields appealed the entry of a temporary injunction, which enjoined him from contacting his former employer’s customer base going back several years. Many of these customers were not actually doing business with the former employer and evidence was presented that Shields had obtained business through an open bidding process after the former employer had been terminated from work. While the Fourth District found that the former employer had demonstrated a legitimate business interest in need of protection, i.e. its customer log, it found the temporary injunction was overly broad since the employer did not have exclusive relationships with any of its customers and information on its customers was readily obtainable through the yellow pages and trade subscriptions, and it had no control over contracts awarded through open bidding. As a result, the court ordered the injunction be modified to limit the prohibition on solicitation so that it did not include customers obtained through the open bidding process. Shields was not concerned with customers who, as here, were in the midst of active relationships with the former employer. Unlike the circumstances in Shields, ESI was attempting to protect established relationships with identifiable clients with whom it either had current projects or ongoing relationships. See Ins. Field Servs., Inc. v. White & White Inspection & Audit Serv., Inc., 384 So.2d 303 (Fla. 5th DCA 1980).

The former employees maintain that the evidence established that ESI’s customers elected to end their relationship with ESI of their own accord and sought out NRC. As a result, the former employees argue that ESI lacked any legitimate business interest worthy of protection by way of enforcement of the non-compete clause. In Scarbrough v. Liberty National Life Insurance Co., 872 So.2d 283, 285 (Fla. 1st DCA 2004), the First District discussed the situation where former clients initiate contacts with employees at their new place of business, explaining that “solicitation” can include a transaction in which the employee was proactive, regardless of whether the customer or employee initiated the transaction. Here, Carter confirmed that he discussed his new business venture, NRC, with ESI clients. There was also ample evidence that Carter actively enticed existing customers away from ESI. More importantly, regardless of who initiated the contact, the agreements clearly prevent the former employees from “[performing] services for any current, former or prospective customers [ESI] with whom employer had any business-related contact (contact intended to advance the Company’s business interests) during his/her employment with the Company.” Given that ESI established a “legitimate business interest” that justified the non-compete restriction, it must be presumed that it suffered irreparable injury, and it was the former employees’ responsibility to demonstrate the absence of irreparable injury, which they failed to do. § 542.335(l)(j), Fla. Stat. (2005); see Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243 (Fla. 2d DCA 2006) (holding that employer’s presentation of evidence as to its known financial losses did not rebut the statutory presumption of irreparable harm; harm presumed from breach also included potential damage to employer’s longstanding relationships with customers and protection of confidential client information). For these reasons, we conclude that the trial court erred in ruling that the non-eompete provision in paragraph 3.b. was unenforceable.

The Lost Agreement

Section 542.335(l)(a), Florida Statutes, provides that “[a] court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” While Lejeune admitted that he signed an agreement in August 2007, he could not recall its terms, and ESI was unable to produce the actual document or a copy of it. ESI argued that the document was lost and tried to establish its contents through Bullock, who testified that ESI had only used one form of the agreement since 2005. The trial court refused to enforce the agreement against Lejeune, finding:

[ESI] failed to provide the Court an executed Agreement for Daniel Lejeune [sic]. Instead [ESI] provided the Court testimony that Lejeune was provided with the Agreement during his employment with ESI and that execution of the agreement was a condition of employment. Further, Lejeune testified that he signed a non-solicitation agreement while employed with ESI. However, Le-jeune testified that he was unsure as to the terms of that agreement. § 542.335 provides: “A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” Fla. Stat. § 542.335(l)(b). Defendant Le-jeune clearly opposed the Agreement’s enforcement against him. Without a copy of an executed Agreement, the Court is unable to enforce the restrictive covenants contained therein against the particular defendant as the Court is unable to determine the precise terms and validity of the terms.

On appeal, ESI argues that as the written executed agreement was lost, the trial court should have allowed it to establish the contents of the agreement pursuant to section 90.954, Florida Statutes (2005).

Section 90.954(1), Florida Statutes (2008), provides, inter alia, that the original of a writing is not required and other evidence of its contents is admissible when “all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.” Florida law expressly permits the introduction of parol evidence to prove the contents of a contract where the proponent provides a satisfactory explanation that the original contract was lost or destroyed. § 90.954(3), Fla. Stat. (2008); Ins. Co. of State of Pa. v. Genova Exp. Lines, Inc., 605 So.2d 941, 942-43 (Fla. 3d DCA 1992). As a general rule, the loss or unintentional destruction of a written document does not affect the validity of the transaction of which it is the evidence, or the rights and liabilities of the parties to the instrument. 35 Fla. Jur.2d Lost & Destroyed Instruments & Records § 4 (2009). While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011, Florida Statutes (2008), the failure to do so is not fatal to ESI’s attempt to enforce the agreement against Lejeune, provided that the trial court is satisfied as to its essential terms. O’Donovan v. Citibank FSB, 710 So.2d 654, 655 (Fla. 3d DCA 1998); Gutierrez v. Bermudez, 540 So.2d 888, 891 (Fla. 5th DCA 1989).

On remand, if the essential terms of the written agreement are established to the satisfaction of the trial court, it should be enforced against LeJeune in the same manner as against the other defendants. See O’Neal v. Bolling, 409 So.2d 1171, 1172 n. 1 (Fla. 3d DCA 1982) (noting that while manual reproduction of documents were not duplicates, on remand, trial court could allow party to establish contents of documents under section 90.954); Action Fire Safety Equip., Inc. v. Biscayne Fire Equip. Co., 383 So.2d 969 (Fla. 3d DCA 1980) (holding that form non-compete agreement was properly admitted in enforcement action where employer established only one agreement was utilized and employee’s signature on agreement was witnessed and original was within control of adverse party).

We find no merit in the remaining issues raised by ESI. The order is affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO and COHEN, JJ., concur.

      . By contrast, the previous version provided that, except to the extent authorized in section 542.33(2) and (3), all restraints of trade were illegal and unenforceable. See § 542.33(1), Fla. Stat. (1995). Given this significant change in approach, decisional law construing restrictive covenants in employment agreements executed prior to 1996 must be carefully scrutinized to determine whether it comports with the terms of the current section 542.335.

      . Other “legitimate business interests’’ under section 542.335(l)(b) include trade secrets, valuable confidential business and professional information that otherwise does not qualify as trade secrets, and customer, patient or client goodwill, which includes “extraordinary or specialized training.”

      .The courts also recognize that the public has an interest in the enforcement of valid restrictive covenants. N. Am. Prods. Corp. v. Moore, 196 F.Supp.2d 1217, 1231-32 (M.D.Fla.2002) (recognizing that section 542.335 sharply limits use of 'contrary to public policy' defense to enforcement of restrictive covenant, and observing that court may not refuse enforcement on grounds of public policy unless it articulates public policy with specificity and finds that specified public policy requirements substantially outweigh need to protect interest established by proponent of restriction).

        . Failure of the former employees to adequately read and understand the terms of the confidentiality and non-solicitation agreements does not constitute a valid defense to enforcement of such agreements. See Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So.2d 311 (Fla. 5th DCA 1985).

      . A merger or integration clause is "[a] contractual provision stating that the contract represents the parties' complete and final agreement and supersedes all informal understandings and oral agreements relating to tire subject matter of the contract.” Jenkins v. Eckerd Corp., 913 So.2d 43, 53 n. 1 (Fla. 1st DCA 2005) (quoting Black's Law Dictionary 813 (7th ed. 1999)).

      . We note that the former employee's reliance on Kephart v. Hair Returns, Inc., 685 So.2d 959 (Fla. 4th DCA 1996), is misplaced. In Kephart, the employee, a hair replacement technician, signed an agreement with her employer containing a non-compete clause, which specifically prohibited her from servicing the employer’s customers for one year following termination of employment. Following her termination, the employee began working for a competitor and servicing her former employer's customers. The employee admitted servicing these customers but only because they sought her out. The appellate court reversed the temporary injunction, explaining the then-applicable statute, section 542.33, Florida Statutes (1995), did not prohibit servicing customers who voluntarily follow an employee to his/her new place of employment, and there was no finding that the former employee directly solicited the customers or used her former employer’s trade secrets or customer lists. As a result, the court concluded that there was no irreparable harm and determined that the injunction was issued in error. Unlike our present case, Kep-hart: (1) involved application of the earlier statute (section 542.33) governing restrictive covenants, which operated from the premise that all restraints of trade were illegal and unenforceable other than the exceptions contained in the statute; (2) did not involve trade secrets or confidential business information and their misappropriation by the employee; and (3) concerned whether solicitation occurred, not enforcement of a restriction against performing services for former clients.


author: LAWSON, J.

text:
    CITY OF ORLANDO, et al., Appellant, v. WEST ORANGE COUNTRY CLUB, INC., Appellee.
    Nos. 5D08-1887, 5D08-1901.
    District Court of Appeal of Florida, Fifth District.
    April 24, 2009.

      Martha Lee Lombardy, Orlando, for Appellant City of Orlando.
    Thomas B. Drage, County Attorney, and William C. Turner, Jr., Assistant County Attorney, Orlando, for Appellant Orange County.
    Victor L. Chapman and R. Steven Ruta of Barrett, Chapman & Ruta, P.A., Orlando, for Appellee.
   LAWSON, J.

In this consolidated appeal, the City of Orlando and Orange County, Florida, defendants below, timely challenge a summary final judgment ordering them to hon- or the terms of a purported contract to provide reclaimed water at no charge, for twenty years, to West Orange Country Club, plaintiff below. Because the purported contract was not approved by the governing boards of either Defendant, and was never signed by them, we find that the trial court erred in ordering specific enforcement of the agreement. As argued by Defendants, below and on appeal, enforcement of the agreement is barred by the statute of frauds. The trial court rejected the statute of frauds defense, finding that Defendants were estopped from denying the contract. However, the doctrine of promissory estoppel cannot be used to circumvent the statute of frauds.

Facts

Water Conserv II is a water reclamation project owned jointly by Defendants. The project was created in response to a judgment entered against Defendants, which required them to stop discharging water from their respective waste treatment facilities into Shingle Creek. As a result of the adverse judgment, Defendants jointly developed a plan to upgrade their facilities to produce reclaimed water and then discharge the water for agricultural irrigation or to a rapid infiltration basin in west Orange County and southeast Lake County. As a result of the creation of the Water Conserv II project, Defendants were looking for new customers to receive the reclaimed water and were willing to provide the water free of charge. Some of the Defendants’ customers entered into long-term contracts for the receipt of specific quantities of reclaimed water, at no cost. Other customers accepted the free water without a long-term contract.

Plaintiff owns and operates a country club and golf course located in west Orange County. As of December 1997, Plaintiff utilized its own ground water system to irrigate its golf course under a consumptive use permit from the St. John’s River Water Management District, (“SJRWMD”). In December 1997, Defendants contacted Plaintiff to discuss Plaintiff switching to the Water Conserv II system and receiving reclaimed water for irrigation.

To receive reclaimed water from the Water Conserv II system, Plaintiff needed to modify its water distribution system by installing a booster pump station, changing the drainage system currently in use, and installing pipelines to connect the station to the existing irrigation system and the Water Conserv II system. Additionally, to provide reclaimed water to Plaintiff, Defendants needed to design and construct a “turnout” from the Water Conserv II system to the edge of Plaintiffs property.

As a result of the discussions between the parties, Defendants drafted a Water Conserv II Agreement for Plaintiff, which required Plaintiff to accept at least 75 million gallons of reclaimed water per year for twenty years, which Defendants agreed to provide, at no charge, for the term of the contract. Plaintiff executed the agreement on March 15, 1999, and delivered it to a project manager for the Water Con-serv II Project. Plaintiff also applied for and was granted a permit from SJRWMD allowing it to use reclaimed water from the Conserv II system; however, the permit limited Plaintiffs use to 48.68 million gallons per year, an amount significantly less than that contained in the contract it had signed. The contract was never approved by the governing boards of either Defendant, and was never signed on behalf of either Defendant.

The parties did, however, construct the water systems necessary for Defendants to provide, and Plaintiff to accept, reclaimed water from the Conserv II system. Plaintiff sought and received financial assistance from SJRWMD to aid in the construction of a new irrigation system that was compatible with the Defendants’ reclaimed water system. In total, Plaintiff spent approximately $50,000, which was matched by $50,000 from SJRWMD, to construct its distribution system. The modifications to Plaintiffs system were constructed and completed in 1999. Defendants also spent about $100,000 to design and build the “turnout,” a structure consisting of piping, valves, meters and instrumentation necessary to deliver reclaimed water from the Water Conserv II system to Plaintiff. The turnout was completed, and reclaimed water was first supplied to Plaintiff in April 2000. Plaintiff accepted 46,809,000 gallons of reclaimed water that year, and has never accepted close to the 75 million gallons set forth in the unexecuted contract in any subsequent year.

In 2005, Orange County’s Board of County Commissioners passed a resolution adopting water rates to be charged to customers who had been receiving free water through the Conserv II system. On November 14, 2005, the Orlando City Council approved the same rates previously adopted by the Board. Defendants then informed customers that they would begin charging all customers for reclaimed water beginning January 1, 2006, with an exception for customers with whom they had executed long-term supply contracts. Defendants notified Plaintiff that because its contract had never been approved or executed, it would be required to pay 43 cents per 1,000 gallons for reclaimed water beginning in 2006.

Plaintiff then brought suit against Defendants, seeking to force them to provide reclaimed water at no charge, pursuant to the terms of the contract which it had signed, but which Defendants had not signed. Plaintiff also sought to revert to its old groundwater system. However, SJRWMD denied Plaintiffs groundwater permit in a final order entered November 28, 2006. The permit was denied, in part, based upon SJRWMD’s determination that it was economically feasible for Plaintiff to pay for reclaimed water at the rates approved by Defendants. As a consequence, Plaintiff is now forced to use water from the Conserv II system.

The litigation concluded after both sides agreed that there were no material factual disputes, and that the case should be decided on summary judgment. Defendants argued that the statute of frauds barred enforcement of the contract as a matter of law. The trial court rejected this argument, and instead found that Defendants were estopped from denying the terms of the contract, based upon Plaintiffs expenditure of $50,000 to modify its system in reliance on the promise of free reclaimed water for twenty years, as set forth in the contract. This appeal followed.

Analysis

Section 725.01, Florida Statutes (2007), sets forth Florida’s Statute of Frauds as follows:

725.01. Promise to pay another’s debt, etc.
No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

Here, it is undisputed that Plaintiff seeks to enforce a contract that called for performance for more than a year, and which was not signed by or on behalf of either party which Plaintiff seeks to hold liable for performance. Therefore, the statute of frauds plainly bars enforcement of the contract. Id. With respect to the trial court’s determination that the Defendants can be held liable for performance of the contract under an estoppel theory, the law is well-settled that “[t]he doctrine of promissory estoppel cannot be used to circumvent the statute of frauds.” Harris v. School Bd. of Duval County, 921 So.2d 725, n. 9 ( Osteopathic Hosp., Inc., 190 So.2d 777, 778-79 (Fla.1966)); see also Coral Way Properties, Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990); LynkUs Communications, Inc. v. WebMD Coip., 965 So.2d 1161, 1167 (Fla. 2d DCA 2007). The sole case relied upon by the trial court as the basis for application of an estoppel theory, Killearn Properties, Inc. v. City of Tallahassee, 366 So.2d 172 (Fla. 1st DCA 1979), involved enforcement of a contract signed by the party to be charged, and did not involve the statute of frauds. The case has no application here, where enforcement of the contract is barred by the plain language of section 725.01.

We have considered, but decline to apply in this case, the “tipsy coachman” doctrine, whose parameters the supreme court expressed in Dade County School Board v. Radio Station, WQBA, 731 So.2d 638 (Fla.1999). Plaintiff argues that we should apply the doctrine and find that the parties’ partial performance of the written contract: (1) rendered Defendants’ signatures unnecessary; and (2) created an exception to the statute of frauds. There are a number of problems with Plaintiffs argument.

First, the parties’ “performance” in this case differed materially from the terms of the written document that Plaintiff seeks to enforce. Most significantly, the amount of reclaimed water accepted by Plaintiff was not even close to the amount set forth in the contract. Therefore, it would be hard to conclude that the actions of the parties demonstrated the parties’ mutual agreement, or assent, to the terms of the document. In fact, it is unclear how the “performance” in this case would have differed from that of the Defendants and any customer who connected with the Water Conserv II system without a long-term contract. Presumably, the same types of expenditures would have been required by and on behalf of any entity or person who connected to the Water Conserv II system, irrespective of whether it had entered a long-term contract.

Second, “one of the most firmly established principles of the law of specific performance is that the court will not make a new or different contract for the parties ... [and] will compel the performance of a contract only in the precise terms agreed upon by the parties themselves.” Giehler v. Ward, 77 So.2d 452, 453 (Fla.1955). It would violate this principle to order Defendants to supply reclaimed water at no charge for the term of the agreement, but in quantities materially different than that required by the agreement.

Third, we are not convinced that the part performance exception should ever be applied to a case like this, where one party attempts to use “performance” for a shorter duration to bind another to continued performance of an alleged oral agreement for years into the future. As explained in Collier, “If Florida is to move toward enforcing oral promises intended to be performed beyond one year, or towards compensating those who enter into such agreements, it is the proper function of the Florida Legislature to announce that public policy change, not the function of a district court of appeal.” See also, Restatement (Second) of Contracts, § 130 at comment e (“Part performance not amounting to full performance on one side does not in general take a contract out of the one-year provision.”).

Finally, sovereign immunity would appear to serve as an independent bar to enforcement of a purported contract against a governmental entity that was never approved by that entity. As explained in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4, 4 (Fla.1984), “[i]n Florida, sovereign immunity is the rule, rather than the exception .... ” Although the Legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property, it has not done so for contract claims. Rather, in Pan-Am, the Florida Supreme Court found an implied waiver of sovereign immunity in contract on the premise that because the Legislature authorized state entities to enter into contracts, it must have intended those contracts to be valid and binding on both parties. In recognizing this exception, however, the court cautioned that the waiver of sovereign immunity was “applicable only to suits on express, written contracts into which the state agency has statutory authority to enter.” Id. at 6. It seems axiomatic that this waiver only applies if the written contract is properly approved by or on behalf of the governmental entity sought to be held liable for performance of the contact. Cf Franken-muth Mut. Ins. Co. v. Magaha, 769 So.2d 1012 (Fla.2000) (holding that contract entered by county comptroller could not bind county unless also approved by the board of county commissioners); County of Bre-vard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1051 (Fla.1997) (“One final point must be addressed. MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines .of waiver and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of Pan-Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability.”); Broward County v. Conner, 660 So.2d 288 (Fla. 4th DCA 1995) (holding county attorney “could not bind the county to specific performance of [a] contract in the absence of proper commission approval”); Town of Indian River Shores v. Coll, 378 So.2d 53 (Fla. 4th DCA 1979) (holding contract entered by mayor was ultra vires and unenforceable against city when not properly approved by city council).

Declining to uphold the order on grounds not stated by the trial court, and finding that estoppel could not be used to circumvent the statute of frauds, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . See, e.g., Integrated Health Servs. of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002) (holding that a contract may be binding on a party despite the absence of a party’s signature as the object of a signature is to show mutuality or assent, but these facts may be shown in other ways, including by the acts or conduct of the parties); Sosa v. Shearform Mfg., 784 So.2d 609 (Fla. 5th DCA 2001) (recognizing parties who do not sign a contract may be bound by the provisions of the contract, if the evidence supports that they acted as if the provisions of the contract were in force).

        . See Collier v. Brooks, 632 So.2d 149 (Fla. 1st DCA 1994) (explaining that Florida’s supreme court created a "partial performance” exception to the statute of frauds, applicable when the court is acting in equity, to prevent the statute of frauds from being used as " 'an instrument of fraud.’ ”) (quoting Chabot v. Winter Park Co., 34 Fla. 258, 15 So. 756, 759 (1894)).

      . See section 768.28, Fla. Stat. (2007).