CRISTINA TARANTOLA, M.D., (INCORRECTLY SET FORTH AS CHRISTINA TARANTELA, M.D.), APPELLANT,
v.
WILLIAM B. HENGHOLD, M.D, P.A., APPELLEE
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Dr. Cristina Tarantola appealed a temporary injunction enforcing a covenant not to compete in her employment contract with Dr. William Henghold. The court affirmed the injunction's core restriction on Mohs surgery services but reversed and remanded because the trial court's injunction was overly broad in prohibiting all dermatological medicine, when the covenant only restricted medical services involving Mohs surgery.
The court held that the covenant restricts only medical services involving Mohs surgery and pre-operative and post-operative services associated with it, but does not prohibit general dermatology practice unrelated to Mohs surgery. The trial court's temporary injunction was therefore overly broad.
[1] A restrictive clause modifying a noun or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows.
[2] The word "including" typically indicates a partial list, and absent further limiting language, may be construed as non-restrictive.
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Join FLexlaw to unlock all legal intelligence“courts must apply the 'most commonly understood meaning with regard to the subject matter and circumstances of the contract.'”
Establishes the governing standard for interpreting employment contracts and covenants not to compete
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Join FLexlaw to unlock all legal intelligenceDr. Tarantola entered into an employment contract containing a covenant not to compete that restricted her from 'directly or indirectly rendering medi…
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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 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 “[djirectly 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 employ*727ment, 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 Depo/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 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.
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Cristina Tarantola, M.D. v. William B. Henghold, M.D., P.A., 233 So. 3d 508 (Fla. 1st DCA 2017)…Dr. Tarantola from practicing dermatological medicine within a forty-mile radius of the Henghold Practice. Dr. Tar-antola appealed the injunction and this court reversed, finding the preliminary injunction to be overly broad. Tarantola v. Henghold, 214 So. 3d 726, 726 (Fla. 1st DCA 2017). We directed specifically that the injunction should be narrowed because the covenant did not prohibit Dr. Taranto-la from practicing general dermatology unrelated to Mohs surgery. Id. at 727. After the opinion issued, Dr.…
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Cristina Tarantola, M.D. v. William B. Henghold, M.D., P.A., 252 So. 3d 155 (Fla. 1st DCA 2018)…l dermatology, unrelated to restricted performance of Mohs surgery within a specified geographical area. The temporary injunction was reversed in part, and remanded with directions that the trial court narrow the injunction. Tarantola v. Henghold, 214 So. 3d 726, 726-27 (Fla. 1st DCA 2017). Thereafter, in Tarantola II, Dr. Tarantola successfully sought certiorari review of an order holding her in civil contempt for violating the terms of the temporary injunction, specifically its ban on advertising. Taran…
Authorities Cited
- Barnhart v. Thomas, 540 U.S. 20 (U.S. 2003)
- DePUY Orthopaedics, Inc. v. Waxman, 95 So. 3d 928 (Fla. 1st DCA 2012)
- Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866 (Fla. 1st DCA 2009)