### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA
F OURTH D ISTRICT July Term 2014

ANAKARLI BOUTIQUE, INC., a Florida corporation

, Appellant,

v.

NAHOMI ORTIZ , Appellee

.

No. 4D 14

- 2188

[ November 26, 2014 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Mily Rodriguez Powell , Judge; L.T. Case No. 12

- 1236 (03)

.

John Arrastia, Jr. of Arrastia Capote & Phang LLP, Miami, for appellant.

Gustavo A. Bravo of Bravo Law, Plantation, for appellee.

G ROSS , J.

This is an appeal from an order denying a motion for temporary injunction in a case involving the violation of a non

- compete agreement. The circuit court denied a temporary injunction because the non

- compete period had run, mostly during the appeal of an earlier ruling. O nce again, we reverse for the trial court to decide the motion for temporary injunction
on the merits.

This is the second visit of the case to this court. See Anarkali Boutique,
Inc. v. Ortiz , 104 So. 3d 1202 (Fla. 4 th DCA 2012). Anarkali I was also an appeal from an order denying a temporary injunction. That case sets forth
the non

- compete/non

- solicitation agreement, which applied for a period of 2 years after appellee was no longer engaged as “an employee” with the

company, the appellant i n this case. Id. at 1203. In 2011, appellee left the company and opened her own business near the company’s location. The company’s complaint for injunctive relief alleged (1) the existence of legitimate business interests justifying the agreement’s res trictive covenants, (2) that the restrictive covenants were reasonably necessary to- 2

-

protect the company’s established interests, and (3) the elements necessary to obtain a temporary injunction. Id. at 1204; see § 542.335(1), Fla. Stat. (2012). There was an evidentiary hearing. Id. The circuit court denied the motion for temporary injunction, ruling that the two

- year non

compete period began to run when appellee became an independent contractor and “expired before [she] left to start her business.” Id. at 1205.

We reversed, holding that the two

- year non

- compete period did not begin to run until appellee left the company. Id . We remanded to the circuit court to make the factual findings as to whether the company “proved section 542.335’s requirements ” along with the elements of a temporary injunction. Id. at 1206. We indicated that the court could “review the record” or hold a further hearing. Id.

On remand, the circuit court requested that the transcript of the evidentiary hearing be provided f or the court’s consideration. Without further hearing, the court denied the motion for temporary injunction as

moot , reasoning that the two

- year non

- compete period, measured from the date appellee left the company, had expired on November 22, 2013.
Obvio usly, much of this two year period was consumed by the appeal in
Anarkali I

. 1

It would be stunningly unfair if the law held that a valid non

- compete clause could be nullified because the non

- compete period was devoured by the time it took to appeal an err oneous ruling on the interpretation of the clause. Where there has been a delay in the entry of a non

- compete injunction enforceable under section 542.335(1)(c) 2 , the party seeking to

1 The notice of appeal in Anarkali I was filed on April 13, 2012

, and the mandate issued on March 1, 2013. Appellee sought discretionary review in the Florida Supreme Court on March 11, 2013; the Supreme Court declined to accept jurisdiction on October 30, 2013.

2 Section 542.335(1)(c), Florida Statutes (2012)

, sets th e boundaries for the
enforcement of a restrictive covenant:

A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually sp ecified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to p rotect the legitimate- 3

-

enforce the non

- compete clause is entitled to receive the benefit of it s bargain, which is the enforcement of the full non

- compete period specified in the agreement between the parties. See Orkin Exterminating Co., v. Bailey , 550 So. 2d 563, 565 (Fla. 4 th DCA 1989); Kverne v. Rollins
Protective Serv s. Co. , 515 So. 2d 1320, 1 321

- 22 (Fla. 4 th DCA 1987); Mut

. Benefits Corp. v. Goldenberg , 709 So. 2d 204 (Fla. 4 th DCA 1998); Capelouto v. Orkin Exterminating Co. of Fla. , 183 So. 2d 532, 534 (1966). Such enforceability assumes that the trial court has found the “contractually specified restraint” not to be “overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest” of the party seeking to enforce the restraint. § 542.335(1)(c), Fla. Stat. (2012).

Once again, we reverse the circuit court’s order denying a temporary injunction and remand for a determination of “whether the company proved section 542.335’s requirements or the elements of a temporary injunction.” Anarkali I , 104 So. 3d at 1206. The trial court may review
the record o r, given the length of time that has passed since the original hearing, hold a further hearing.

Reversed and remanded for proceedings consistent with this opinion

.

D AMOORGIAN , C.J., and S TEVENSON , J., concur.

* * *

Not final unti l disposition of timely filed motion for rehearing.

business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest
or interests.