KOHLMEIER v. DIVERSIFIED DRILLING CORPORATION (2005)

District Court of Appeal of Florida,Second District.

Robert J. KOHLMEIER, Appellant/Cross-Appellee, v. DIVERSIFIED DRILLING CORPORATION, Appellee/Cross-Appellant.

Nos. 2D04-1901, 2D04-3557.

Decided: March 04, 2005

C. Berk Edwards of Geraghty, Dougherty, Edwards, Goldberg, McQuagge, Bosseler & Morgan, P.A., Fort Myers, for Appellant/Cross-Appellee. Stacy D. Blank of Holland & Knight, LLP, Tampa, for Appellee/Cross-Appellant.

In case number 2D04-1901 of these consolidated appeals, Robert J. Kohlmeier (Kohlmeier) challenges a final judgment declining to grant him declaratory relief that his proposed drilling of four-inch residential wells in Lee County, Florida, would not violate the terms of his Employment and Non-Competition Agreement (the Agreement) with Diversified Drilling Corporation (Diversified) or, alternatively, that Diversified did not have a legitimate business interest in precluding Kohlmeier from engaging in the drilling of four-inch wells in Lee County, Florida. We affirm the final judgment without discussion.

In case number 2D04-3557, Diversified argues that the trial court erred in denying its motion for attorney's fees based on an attorney's fee provision in the Agreement. The Agreement provides, in pertinent part, as follows:

9. RESTRICTIVE COVENANTS-REMEDIES:

․ The Employee [Kohlmeier] further agrees that, if legal proceedings should have to be brought by the Company [Diversified] against the Employee to enforce the Restrictive Covenants, the Company shall be entitled to all available civil remedies, including without limitation:

․

(b) Attorneys' [sic] fees in the trial and appellate courts․

We agree with Diversified that this provision authorizes an award of attorney's fees in the declaratory judgment action brought by Kohlmeier to challenge the enforceability of the noncompetition provisions in the Agreement. See Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla.1998). Even if the Agreement did not entitle Diversified to an attorney's fee award, section 542.335(1)(k), Florida Statutes (2003), would provide an alternative basis for an award of attorney's fees to Diversified in this case. Accordingly, we reverse the order denying Diversified's motion for attorney's fees, and we remand this case to the trial court for the entry of an order awarding attorney's fees to Diversified.

Affirmed in part, reversed in part, and remanded.

PER CURIAM.

CASANUEVA, SILBERMAN, and WALLACE, JJ., Concur.

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