In the Supreme Court of Florida

IN THE SUPREME COURT OF FLORIDA

CBS RADIO STATIONS, INC. F/K/A INFINITY RADIO, INC.,

Petitioner, Case Nos. SC10-2189 SC10-2191 (consolidated) v. L.T. Case No. 4D08-3504

ELENA WHITBY a/k/a JENNIFER ROSS, JAMES CRYSTAL LICENCES, LLC, JAMES CRYSTAL HOLDINGS, INC., AND JAMES CRYSTAL ENTERPRISES, LLC,

Respondents. ______/

RESPONDENT/APPELLEE ELENA WHITBY’S BRIEF ON JURISDICTION

DAVID L. GORMAN Florida Bar No. 222453 DAVID L. GORMAN, P.A. Attorneys for Respondent/Appellee, Elena Whitby 618 U.S. Hwy One, Suite 303 North Palm Beach, FL 33408 Tele.: (561) 842-0808 Fax: (561) 842-0914 TABLE OF CONTENTS Page

TABLE OF CONTENTS ...... i

TABLE OF CITATIONS ...... ii

INTRODUCTION ...... 1

STATEMENT OF THE CASE AND FACTS ...... 2

SUMMARY OF ARGUMENT ...... 4

ARGUMENT ...... 5

IT WOULD BE ERROR TO AWARD BOTH INJUNCTIVE RELIEF FOR THE FULL CONTRACT PERIOD AND DAMAGES ...... 5

CBS WAIVED ANY CLAIM FOR NOMINAL DAMAGES BY FAILING TO RAISE IT BEFORE THE TRIAL COURT OR IN ITS ANSWER BRIEF ...... 6

CBS WOULD NOT BE THE PREVAILING PARTY FOR PURPOSES OF COST OR ATTORNEY’S FEE AWARDS EVEN IF IT RECOVERED NOMINAL DAMAGES ...... 7

CONCLUSION ...... 8

CERTIFICATE OF COMPLIANCE ...... 8

CERTIFICATE OF SERVICE ...... 9

i TABLE OF CITATIONS

CASES

Blinn v. Florida Department of Transportation, 781 So.2d 1103, 1110 (Fla. 1st DCA 2001) ...... 7

Brannon v. Auto Center Manufacturing, Co., 393 So.2d 75, 76 (Fla. 5ht DCA 1981) ...... 6

Environmental Services, Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009) ...... 5

Fiesta Fashions, Inc. v. Capin, 450 So.2d 1128, 1129 (Fla. 1st DCA 1984) ...... 7

James Crystal Licenses, LLC v. Infinity Radio, Inc., 43 So.3d 68 (Fla. 4th DCA 2010) ...... 1

Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla. 1992) ...... 7

Reliance Wholesale, Inc. v. Godfrey, 50 So.3d 561, 566 (Fla. 3rd DCA 2010)...... 5

INTRODUCTION

This brief is filed on behalf of Elena Whitby (“Whitby”), one of the

Defendants at the trial level and an Appellant below. In this action CBS Radio

Stations, Inc., f/k/a Infinity Radio, Inc. (“CBS”) seeks review of James Crystal

Licenses, LLC v. Infinity Radio Inc., 43 So.3d 68 (Fla. 4th DCA 2010) which vacated an award of compensatory damages against Whitby and awards of compensatory and punitive damages against the three corporate Defendants

(collectively, the “James Crystal Entities”).

The majority of CBS’s brief is directed to the reversal of the punitive damage award. There was no claim for punitive damages against Whitby, however, and, therefore, she will not respond to that aspect of CBS’s brief.

Beginning at Point IIB of its brief, CBS attacks the Fourth District’s opinion because it did not remand the case for an award of nominal damages against

Whitby for breach of contract or against the James Crystal Entities for tortious interference. In this brief Whitby will address CBS’s argument that this Court should accept jurisdiction to instruct the Fourth District to remand with directions to enter an award of nominal damages against Whitby.

The symbol “A” followed by a number will be a reference to a page in the

Appendix which accompanied CBS’s jurisdictional brief. All emphasis in this brief is that of the writer unless otherwise indicated. 1

STATEMENT OF THE CASE AND FACTS

In September 2000 Whitby’s contract as an on-air radio personality with

CBS expired, and she went to work for a competitive radio station which was owned by the James Crystal Entities. CBS immediately filed a one-count complaint against Whitby seeking injunctive relief based upon her violation of a non-compete agreement in her employment contract. A2.

The trial court initially denied CBS’s motion for a temporary injunction, and

CBS appealed to the Fourth District Court of Appeal. A2. While the appeal was pending, CBS amended its complaint to add damage claims against Whitby and the only James Crystal Entity which had been joined in the litigation at that point in time. The 4th DCA reversed and remanded for further proceedings. In April

2001, after remand the trial court enjoined Whitby from working for the James

Crystal Entities in any capacity for the entire one year period contemplated by the employment agreement. Whitby then sat out from late April 2001 through late

April 2002.

Despite the fact that CBS had already received the full benefit of the one- year non-compete agreement, it continued to press its claim for damages against

Whitby. A first jury trial was conducted in April 2005, resulting in a total of $2.3 million in compensatory damages against Whitby and the James Crystal Entities, severally, i.e., the trial court entered judgment for $575,000.00 against each of the 2

four defendants. The trial court also awarded $13.2 million in punitive damages against one of the James Crystal Entities. A2.

The defendants appealed the judgment to the 4th DCA which reversed because CBS’s evidence of lost profits resulting from Whitby’s violation of the non-compete agreement was speculative. The 4th District remanded the case for a new trial to give CBS the opportunity to prove damages, stressing that CBS would have to present evidence “directly linking” any damages to some activity of

Whitby. A5.

After remand, CBS presented its claim for damages for lost profits in a second two-week jury trial. This time the jury awarded $126,511.48 in compensatory damages against Whitby and the James Crystal Entities, jointly and severally, and $2.3 million in punitive damages against the James Crystal Entities.

A4.

The defendants again appealed to the 4th DCA, and the 4th DCA once again reversed the judgment because the only evidence presented to establish CBS’s alleged lost profits was incompetent hearsay and because CBS had failed to factor its overhead in its damage model. A4-6. CBS had already been given two bites at the apple, so after the second reversal the District Court remanded to the trial court with instructions to enter judgment for the defendants. A14.

Although CBS argues that it was entitled to an award of nominal damages, 3

it never requested a jury instruction on nominal damages. It made no mention of entitlement to nominal damages in its brief at the 4th DCA or during oral argument.

In fact, the first time CBS suggested that it was entitled to an award of nominal damages was in its motion for rehearing at the 4th DCA.

SUMMARY OF ARGUMENT

Because damages flowing from the violation of a non-compete agreement are notoriously difficult to prove, injunctive relief is the preferred remedy to enforce a non-compete agreement. In this case, CBS received an injunction which enforced the non-compete agreement for the entire one year period of non- competition contained in the contract.

CBS received the full benefit of its bargain in the form of an injunction which kept Whitby off the air for an entire year. It would be error to permit CBS to enjoin Whitby for the entire contract period and recover damages as well, since that would put CBS in a better position than it would have been had the contract been fully performed.

Moreover, this is not a case where CBS established that it sustained some damage but the precise amount could not be proved. CBS did not establish that it suffered any damage at all from Whitby’s breach. In any case, CBS never requested a jury instruction on nominal damages, and it raised the issue at the appellate level for the first time in its motion for rehearing. 4

Refusing to award nominal damages in a case where the non-compete has been fully enforced by injunctive relief will not prevent employers from enforcing their rights under their contracts. It may, however, encourage them not to embark upon vindictive campaigns such as that waged by CBS over the past ten years. In any case, even if CBS had recovered nominal damages, Whitby would have been the prevailing party in the significant issues presented both at trial and on appeal.

POINT I

IT WOULD BE ERROR TO AWARD BOTH INJUNCTIVE RELIEF FOR THE FULL CONTRACT PERIOD AND DAMAGES

It is well settled that injunctive relief is the favored remedy for enforcement of a covenant not to compete. Environmental Services, Inc. v. Carter, 9 So.3d

1258, 1261 (Fla. 5th DCA 2009) (“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.”);

Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561, 566 (Fla. 3rd DCA 2010)

(“although a trial court may award damages for breach of an employee’s agreement not to compete, ‘the normal remedy is to grant an injunction.’”

[quoting from Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla. 1974)]). In this case CBS’s rights under the non-compete agreement were fully enforced by the

imposition of an injunction which prevented Whitby from working for the full year contemplated by the non-compete covenant.

The Fifth District has explicitly rejected the position advocated by CBS, i.e., that it is entitled to a full year of non-competition and an award of damages. In

Brannon v. Auto Center Manufacturing Co., 393 So.2d 75, 76 (Fla 5th DCA 1981) an employer sued its former employee to enforce an agreement not to compete.

The trial court entered an injunction for the full one-year period provided for in the contract, and retained jurisdiction to award damages for lost profits. On appeal the 5th DCA reversed, holding “that it is not proper to award damages and to enforce the entire contract.” Id. No policy reason exists to depart from the holding of Brannon v. Auto Center Manufacturing Co., particularly in a case such as this where CBS could not present competent evidence to support the conclusion that it suffered any damages in not one, but two jury trials.

POINT II

CBS WAIVED ANY CLAIM FOR NOMINAL DAMAGES BY FAILING TO RAISE IT BEFORE THE TRIAL COURT OR IN ITS ANSWER BRIEF

CBS never argued at the trial court that it was entitled to an award of nominal damages, and it never requested a jury instruction on nominal damages.

In fact, the first time CBS raised its alleged entitlement to an award of nominal

damages was in its motion for rehearing. That is simply too late. As the First

District held in denying a motion for rehearing in Blinn v. Florida Department of

Transportation, 781 So.2d 1103,1110 (Fla. 1st DCA 2001), “authorities not cited and issues not raised in the briefs or oral argument cannot be raised for the first time on motion for rehearing.” See, also, Fiesta Fashions, Inc. v. Capin, 450

So.2d 1128, 1129 (Fla. 1st DCA 1984) (an issue not raised by the briefs cannot be raised for the first time on rehearing.).

POINT III

CBS WOULD NOT BE THE PREVAILING PARTY FOR PURPOSES OF COST OR ATTORNEY’S FEE AWARDS EVEN IF IT RECOVERED NOMINAL DAMAGES

CBS argues that it should be awarded nominal damages so that it would be entitled to an award of costs or attorney’s fees for the nearly ten years it has kept this litigation pending since it was awarded an injunction. Even if it were awarded nominal damages, however, CBS would not be the prevailing party under the test enunciated by this Court in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810

(Fla. 1992), i.e., the prevailing party is the party which “has in fact prevailed on the significant issues tried before the court.” The issue which was tried to two separate juries was whether CBS was entitled to millions of dollars in damages, not whether CBS was entitled to nominal damages. Whitby, not CBS, prevailed

on that issue. Accordingly, even if nominal damages were awarded, Whitby, not

CBS, would be entitled to recover her costs and attorney’s fees.

CONCLUSION

This case presents no issue which warrants consideration by this Court.

Accordingly, the Court should decline to accept jurisdiction.

Respectfully submitted,

DAVID L. GORMAN, P.A. Attorneys for Elena Whitby 618 U.S. Hwy One, Suite 303 North Palm Beach, FL 33408 Tele.: (561) 842-0808 Fax: (561) 842-0914 [email protected]

By______David L. Gorman, Esq. Fla. Bar No. 222453

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Reply complies with the requirements of

Florida Rule of Appellate Procedure 9.210(a)(2) in that all type is in Times New

Roman 14-point font.

By:______David L. Gorman Fla. Bar No. 222453

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Facsimile and U.S. Mail to: Alan Rosenthal, Esq. and Natalie

Carlos, Esq., Carlton Fields, P.A., 4000 International Place, 100 S.E. Second

Street, Miami, FL 33131-2114, Matthew J. Conigliaro, Esq., Carlton Fields, P.A.,

200 Central Avenue, Suite 2300, St. Petersburg, Florida 33701, and Robert Haile,

Esq., Haile, Shaw, et al, 660 US Highway One, 3rd Floor, North Palm Beach, FL

33408 this _____day of March, 2011.

DAVID L. GORMAN, P.A. Attorneys for Respondent/Appellee Elena Whitby 618 U.S. Highway One, Suite 303 North Palm Beach, FL 33408 Tele.: (561) 842-0808 Fax: (561) 842-0914 Email: [email protected]

By:______David L. Gorman Fla. Bar No. 222453