DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TRANSUNION RISK AND ALTERNATIVE DATA SOLUTIONS, INC.,

Appellant,

v.

JAMES REILLY,

Appellee.

No. 4D15-494

[December 2, 2015]

Appeal of non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, West Palm Beach County; Jessica Ticktin, Judge; L.T. 

Case No. 2014CA012997.

James G. Sammataro and Brendan S. Everman of Stroock & Stroock & 

Lavan, LLP, Miami, for appellant.

Michael R. Tolley, Dennis Richard and Douglas J. Giuliano of Richard 

and Richard, P.A., Miami, for appellee.

DAMOORGIAN, J.

Appellant, Transunion Risk and Alternative Data Solutions, Inc. 

(“TRADS”), appeals from an order denying its motion for a preliminary 

injunction to enforce a restrictive covenant not to compete against its 

former employee, James Reilly. Because the trial court failed to correctly 

apply the statutory presumption of irreparable injury under section 

524.335(1)(j), Florida Statutes (2013), and its remaining findings are not 

adequately supported, we reverse and remand for further proceedings. 

Background

By way of background, TRADS sued Reilly and sought to enforce a 

non-compete agreement. In conjunction with its suit, TRADS also filed a 

motion for temporary injunction to enforce the non-compete. Following a 

partial evidentiary hearing1 wherein the court adjourned after TRADS 

presented its case without requiring Reilly to put on his defense, the court 

 

1 We have sealed portions of the evidentiary hearing as confidential. 
2

entered an order denying TRADS’ motion. As sole grounds for denial, the 

court’s order provided: 

[T]he presumption of irreparable harm was rebutted based 

upon the evidence received and admissions of [TRADS’] 

witnesses; that [TRADS] failed to establish that it has no 

adequate remedy at law; that [TRADS] failed to establish that 

it has a substantial likelihood of success on the merits; and 

that [TRADS] failed to establish that a temporary injunction 

will serve the public interest.

Analysis

We review this order under a hybrid standard of review. Hilb Rogal & 

Hobbs of Fla., Inc. v. Grimmel, 48 So. 3d 957, 959 (Fla. 4th DCA 2010). 

“‘To the extent the trial court’s order is based on factual findings, we will 

not reverse unless the trial court abused its discretion; however, any legal 

conclusions are subject to de novo review.’” Id. (quoting E.I. DuPont de 

Nemours & Co. v. Bassett, 947 So. 2d 1195, 1196 (Fla. 4th DCA 2007)).

Section 542.335, Florida Statutes, governs the enforcement of 

restrictive covenants. Under section 542.335, “[a] trial court may grant a 

temporary injunction if the complainant proves ‘(1) the likelihood of 

irreparable [injury], (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.’” Grimmel, 48 So. 3d at 959

(quoting Envtl. Servs., Inc. v. Carter, 9 So. 3d 1258, 1261 (Fla. 5th DCA 

2009)). We address the court’s findings as to each element TRADS was 

required to prove. 

1) The Likelihood of Irreparable Injury

With respect to the first element, the “likelihood of irreparable injury, 

section 542.335(1)(j) provides, in relevant part, that “[t]he violation of an 

enforceable restrictive covenant creates a presumption of irreparable 

injury to the person seeking enforcement of a restrictive covenant.” An 

enforceable restrictive covenant is one in which “the contractually 

specified restraint is reasonably necessary to protect [a] legitimate 

business interest.” § 542.335(1)(c), Fla. Stat. Section 542.335(1)(b) sets 

forth a non-exhaustive list of “legitimate business interests.” “Therefore, 

to benefit from the presumption of irreparable injury, the party seeking to 

enforce a covenant not to compete must show that the covenant protects 

a legitimate business interest as defined by section 542.335(1)(b) and that 
3

the covenant was violated.” Walsh v. Paw Trucking, Inc., 942 So. 2d 446, 

448 (Fla. 2d DCA 2006). 

Although the court found that the presumption of irreparable injury 

applied, and thus also necessarily found that TRADS established Reilly 

violated an enforceable restrictive covenant, it concluded that the 

presumption was rebutted by the evidence. This conclusion establishes 

that the trial court misapplied the presumption. Once the party seeking 

to enforce the covenant establishes that it is entitled to the presumption 

of irreparable injury, “the statute shifts the burden to the respondent to 

establish the absence of injury.” DePuy Orthopaedics, Inc. v. Waxman, 95 

So. 3d 928, 939 (Fla. 1st DCA 2012). As the trial court’s ruling was issued 

before Reilly presented any evidence, Reilly could not have met his burden 

of presenting evidence overcoming the presumption. 

2) Unavailability of an Adequate Remedy at Law 

The trial court also denied TRADS’ motion on the grounds that it failed 

to establish the unavailability of an adequate remedy at law. In light of 

the court’s finding that the presumption applied, this was also error as the 

continued breach of a non-compete agreement threatens a former 

employer’s “goodwill and relationships with its customers, and nothing 

short of an injunction would prevent this loss.” Id. at 940 (citing Variable 

Annuity Life Ins. Co. v. Hausinger, 927 So. 2d 243, 245 (Fla. 2d DCA 2006)

(holding that the ability to demonstrate actual monetary damages does not 

preclude a finding of irreparable harm to support injunctive relief)).

2

3) Substantial Likelihood of Success on the Merits

The trial court found that TRADS “failed to establish that it has a 

substantial likelihood of success on the merits.” This finding runs 

contrary to the trial court’s implied finding that TRADS established Reilly 

violated an enforceable restrictive covenant. Walsh, 942 So. 2d at 448 

(“Evidence that an enforceable covenant not to compete was breached will 

support a trial court’s finding of the likelihood of success on the merits.”). 

4) The Public Interest in Issuing an Injunction

 

2 We note also that TRADS’ inability to document Reilly’s “use” of 

“confidential information” is not dispositive when analyzing the presumption of 

irreparable injury. See, e.g., Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 

1233 (11th Cir. 2009).
4

Under section 542.335(1)(i), a trial court must specifically articulate an 

overriding public policy reason if it refuses to enforce a non-compete 

covenant based on public policy grounds. § 542.335(1)(i), Fla. Stat. 

Although the court ruled that “TRADS failed to establish that a temporary 

injunction will serve the public interest,” it failed to “specifically articulate 

an overriding public policy reason” as required by the statute. 

Conclusion 

In sum, while the trial court recognized that the presumption of 

irreparable harm arose, it erred as a matter of law by concluding that it 

was rebutted by Reilly when Reilly did not put on a rebuttal case. In that 

vein, the trial court’s remaining findings were either misinformed or 

inadequate under section 542.335. Accordingly, we reverse and remand 

for the trial court to complete the hearing to consider Reilly’s opposition to 

temporary injunctive relief. 

Reversed and remanded.

GROSS and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.