DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

ANAKARLI BOUTIQUE, INC.,

a Florida corporation,

Appellant,

v.

NAHOMI ORTIZ,

Appellee.

No. 4D14-2188

[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.

GROSS, 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. Once 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. 4th 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 in 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 restrictive 

covenants, (2) that the restrictive covenants were reasonably necessary to 
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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 noncompete 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 for 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. 

Obviously, 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 erroneous 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 

 

1The 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.

2Section 542.335(1)(c), Florida Statutes (2012), sets the 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 specified 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 protect the legitimate 
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enforce the non-compete clause is entitled to receive the benefit of its 

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. 4th DCA 1989); Kverne v. Rollins 

Protective Servs. Co., 515 So. 2d 1320, 1321-22 (Fla. 4th DCA 1987); Mut.

Benefits Corp. v. Goldenberg, 709 So. 2d 204 (Fla. 4th 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 or, 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.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

* * *

Not final until 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.