CRISTINA TARANTOLA, M.D., 

(INCORRECTLY SET FORTH 

AS CHRISTINA TARANTOLA, 

M.D.),

Appellant,

v.

WILLIAM B. HENGHOLD, M.D, 

P.A.,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-3718

_____________________________/

Opinion filed March 7, 2017.

An appeal from the Circuit Court for Escambia County.

J. Scott Duncan, Judge.

Todd M. Ladouceur, Jessica L. Scholl, and Chris K. Ritchie of Galloway, Johnson, 

Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellant.

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

Pensacola, for Appellee.

JAY, J.

In this appeal from an order granting a temporary injunction pursuant to a 

covenant not to compete, we affirm in all respects except as to appellant’s claim that 

the trial court misconstrued the covenant as prohibiting appellant from “practicing 

dermatological medicine including Mohs surgery.” We conclude that the injunction 
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is overly broad insofar as it can be construed as prohibiting appellant from practicing 

general dermatology unrelated to Mohs surgery.

Appellant entered into an employment contract containing a covenant not to 

compete that restricted her from “[d]irectly or indirectly rendering medical services 

that include performing Mohs surgery in any capacity for Employee’s own account 

or for others.” After appellant left her employment, her employer filed a complaint 

for injunctive relief and breach of contract alleging that appellant violated the 

covenant not to compete. In its order granting a temporary injunction, the trial court 

interpreted “medical services” to “encompass all dermatological services including 

Mohs surgery.” This appeal followed.

In evaluating “employment agreements, as with all contracts, courts must 

apply the ‘most commonly understood meaning with regard to the subject matter 

and circumstances of the contract.’” DePuy Orthopaedics, Inc. v. Waxman, 95 So. 

3d 928, 934 (Fla. 1st DCA 2012) (citation omitted). This requires construing the 

pertinent language “in accordance with the plain meaning of the words contained” 

in the agreement. Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla. 

1st DCA 2009). Here, the contractual term “medical services” is modified by the 

restrictive clause “that include performing Mohs surgery.” Barnhart v. Thomas, 540 

U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (“[A] limiting clause or phrase 

... should ordinarily be read as modifying only the noun or phrase that it immediately 
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follows.”). Based on this language, appellant is clearly restricted from providing 

medical services that involve the provision of Mohs surgery. This restriction applies

not only to performing Mohs surgery, but also to any pre-operative and postoperative medical services associated with this type of surgery. However, it would 

not prohibit appellant from practicing general dermatology provided that her

dermatology practice does not encompass services that directly or indirectly relate

to the provision of Mohs surgery. 

As written, the trial court’s temporary injunction generally restricts appellant 

from practicing “dermatological medicine” because the participial phrase “including 

Mohs surgery” is not one of limitation. See Include, Black’s Law Dictionary (10th 

ed. 2014) (“The participle including typically indicates a partial list <the plaintiff 

asserted five tort claims, including slander and libel>. But some drafters use phrases 

such as including without limitation and including but not limited to—which mean 

the same thing.”). Accordingly, we reverse the temporary injunction in part and 

remand with directions that the trial court narrow the injunction so that appellant is 

not prohibited from practicing general dermatology unrelated to Mohs surgery. 

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

OSTERHAUS and WINSOR, JJ., CONCUR.