Tampa., Florida - Employment Law lawyer represented Appellant with breaching certain restrictive covenants in an employment agreement.

Joseph Spine, P.A., appeals the trial court's February 10,

2021, nonfinal order denying its motion for a temporary injunction

enjoining Dr. Andrew Moulton from breaching certain restrictive

covenants in an employment agreement. We have jurisdiction. See

Fla. R. App. P. 9.030(b)(1)(B). For the reasons set forth below, we

reverse the order on appeal and remand with instructions for

proceedings consistent with this opinion.

I.

Joseph Spine is a medical practice that treats patients with

spinal disorders. Dr. Moulton is a physician who specializes in the

treatment of spinal disorders. The parties entered into an

employment agreement (the Agreement) in December 2017, wherein

Dr. Moulton became employed by Joseph Spine and consequentially

agreed to be bound by certain restrictive covenants. Specifically,

Dr. Moulton agreed to not compete directly or indirectly within the

"restricted territory,"1

or to engage in, be employed by, or consult

with any business that competes with Joseph Spine, for a period of

twenty-four months after termination from the practice (the

restricted period). Pursuant to the Agreement, Dr. Moulton was

1

The restricted territory is defined in the Agreement as a

fifteen-mile radius "as the crow flies" surrounding Joseph Spine's

office locations and all healthcare facilities in which Joseph Spine

provides medical services.

3

also prohibited from soliciting business from any patients or

specific prospective patients, referral sources, employees, or

independent contractors of Joseph Spine during the restricted

period. Dr. Moulton further agreed to terminate his provider

privileges at any facilities located within the restricted territory.

The parties amended the Agreement twice after its execution to

reflect changes to Dr. Moulton's compensation plan, but the

restrictive covenants remained the same in each version of the

Agreement. During the time Dr. Moulton was employed by Joseph

Spine, he primarily saw patients in the Safety Harbor office location

and performed most surgeries at Mease Countryside Hospital and

the Dunedin Surgery Center. Prior to his employment with Joseph

Spine, Dr. Moulton did not have staff privileges at Mease. Joseph

Spine alleges that it facilitated Dr. Moulton obtaining privileges at

Mease and paid the requisite application fee.

Joseph Spine claims that in May 2020, Dr. Moulton told Dr.

Samuel Joseph, Joseph Spine's founder, that he intended to open a

new spinal medical practice in Safety Harbor, in close proximity to

4

Joseph Spine's Safety Harbor location.2

Joseph Spine alleges that

during the same conversation, Dr. Moulton told Dr. Joseph that he

and his wife, Jenna Bonelli, who is also a former employee of

Joseph Spine, had obtained the names of patients from Joseph

Spine's database and intended to "compete" with Joseph Spine.

This conversation allegedly occurred on May 6, 2020. Dr. Moulton

was terminated from his employment on May 7, 2020. It was later

revealed that in March 2020, Dr. Moulton and Ms. Bonelli had

formed a medical practice named All Spine Care, LLC, which is

located within two miles of Joseph Spine's Safety Harbor office

location.

Dr. Moulton denies Joseph Spine's recounting of the

termination of employment, claiming instead that the parties had

verbally mutually agreed to Dr. Moulton exercising his option to

"buy out" of the restrictive covenants for $500,000 in accordance

with a provision in the Agreement, but that he was abruptly fired

2

Joseph Spine has four offices within the Tampa Bay region.

For purposes of the temporary injunction, Joseph Spine requested

that the trial court enjoin Dr. Moulton from providing medical

services and seeing patients within the restricted territory

surrounding the Safety Harbor office location.

5

the following day. The buyout provision of the Agreement specified

that Dr. Moulton would be released from the restrictive covenants

upon payment of $500,000 within thirty days of his termination of

employment. It is undisputed that this payment by Dr. Moulton to

Joseph Spine did not occur.

Joseph Spine filed a two-count lawsuit against Dr. Moulton in

May 2020, requesting that the trial court enjoin Dr. Moulton from

violating the restrictive covenants and seeking damages from Dr.

Moulton's breach of the Agreement. In July 2020, Joseph Spine

filed its motion for a temporary injunction. The trial court held

three hearings on the motion, in November and December of 2020,

and in February 2021. Joseph Spine alleged that Dr. Moulton saw

eighty-two of its patients since his departure from the practice. Dr.

Moulton testified that he had treated all of those patients during his

employment with Joseph Spine and that all had come to him

following his departure to continue their treatment. Dr. Joseph

acknowledged during his testimony that the eighty-two patients had

been treated by Dr. Moulton while at Joseph Spine but denied that

it was "necessary" for Dr. Moulton to provide their follow-up care

6

because the other physicians employed by Joseph Spine were

capable of providing the necessary follow-up care.

Dr. Joseph alleged that Dr. Moulton personally contacted

three Joseph Spine patients about transferring their care to his new

practice. Only one patient, Mr. Joseph Albino, testified at the

hearing. Dr. Moulton acknowledged calling Mr. Albino regarding

his departure from Joseph Spine and offering Mr. Albino continuing

care, but he said that he did so because Mr. Albino was scheduled

for surgery. Dr. Moulton also said that he called somewhere

between six and twelve patients who were scheduled for surgery to

alert them that he was leaving the practice. Mr. Albino, however,

denied he was scheduled for surgery at the time Dr. Moulton

contacted him. He did not follow Dr. Moulton to his new practice

and instead had his surgery with Joseph Spine.

Dr. Moulton further testified that of all of the Joseph Spine

patients that he had seen while on call at Mease, none had become

patients of All Spine. Dr. Moulton claimed that in their discussions

prior to Dr. Moulton's departure, he and Dr. Joseph discussed Dr.

Moulton continuing his services for a portion of patients seen under

letters of protection, wherein Joseph Spine would receive Dr.

7

Moulton's collectibles in exchange for the release of restrictive

covenants. It is undisputed that Dr. Moulton continued to see

patients of Joseph Spine for follow-up care following his

termination, care for which the compensation was paid to Joseph

Spine. The parties also agree that Joseph Spine paid to Dr.

Moulton his collectibles for ninety days following Dr. Moulton's

termination. Dr. Joseph denies that he agreed to revise the "buyout

terms" of the Agreement from the $500,000 amount stated in the

contract to $1.5 million in receivables.

The trial court specified in its findings of fact that Joseph

Spine did not meet its burden of establishing three of the four

required elements necessary to support a temporary injunction: (1)

irreparable harm; (2) an inadequate remedy at law; and (3) that an

injunction against Dr. Moulton would serve the public interest. The

trial court stated during the hearing that in making its ruling, it

considered Joseph Spine's entitlement to a presumption of

irreparable harm by virtue of section 542.335(1)(j), Florida Statutes

(2021), but that it was not certain the presumption afforded to

Joseph Spine would "carry the day." Ultimately, the trial court

8

found that Joseph Spine failed to meet its burden of proof that it

suffered irreparable harm.

II.

The standard of appellate review of a trial court's order on a

temporary injunction is a hybrid. Surgery Ctr. Holdings, Inc. v.

Guirguis, 318 So. 3d 1274, 1277 (Fla. 2d DCA 2021). "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 REV

Recreation Grp., Inc. v. LDRV Holdings Corp., 259 So. 3d 232, 235

(Fla. 2d DCA 2018)). "Where the trial court's temporary injunction

concerns matters within the trial court's discretion, '[a]n appellant

who challenges the trial court's order [on a motion for temporary

injunction] has a heavy burden; the trial court's ruling is presumed

to be correct and can only be reversed where it is clear the court

abused its discretion.' " Id. at 1277 (first alteration in original).

To prevail on a motion for temporary injunction, the movant

must demonstrate "(1) irreparable harm to the moving party unless

the injunction issues, (2) unavailability of an adequate legal

remedy, (3) a substantial likelihood of success on the merits, and

9

(4) that the public interest is supported by the entry of the

injunction." Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63, 64–65

(Fla. 2d DCA 2010).

Section 542.335(1)(j) confers a presumption of irreparable

injury where there is a violation of a valid restrictive covenant. See

Variable Annuity Life Ins. Co. v. Hausinger, 927 So. 2d 243, 244

(Fla. 2d DCA 2006). This presumption is rebuttable. See Surgery

Ctr. Holdings, 318 So. 3d at 1280; Ansaarie v. First Coast

Cardiovascular Inst., P.A., 252 So. 3d 287, 292 (Fla. 1st DCA 2018).

Notwithstanding the parties' differing accounts of the facts

surrounding Dr. Moulton's termination, it is undisputed that Dr.

Moulton opened a spinal medical practice within two miles of

Joseph Spine's Safety Harbor location and that he treated Joseph

Spine patients following his departure. And in fact, Dr. Moulton

acknowledges that he did so, which clearly establishes violation of

the restrictive covenants. Thus, the statutory presumption of

irreparable injury arose. See Surgery Ctr. Holdings, 318 So. 3d at

1280 (reversing order denying temporary injunction against

defendant physicians where "the evidence showed that three

doctors are treating former patients in violation of the prohibition

10

against solicitation in the [employment] agreements"). However, the

trial court concluded that Joseph Spine failed to establish

irreparable injury. This was error.

In the face of a clear violation of a valid restrictive covenant,

the trial court must apply the presumption afforded in section

542.335.3

Id.; see also Medco Data, LLC v. Bailey, 152 So. 3d 105,

107 (Fla. 2d DCA 2014) ("[B]ecause Medco Data was entitled to a

presumption of irreparable injury based on the findings the court

had already made, the court was required to apply the presumption

pursuant to subsection (1)(j), shifting the burden to the defendants

to establish its absence."). In other words, if the trial court finds

that the restrictive covenants are enforceable and have been

3

Section 542.335(1) provides that "contracts that restrict or

prohibit competition during or after the term of restrictive

covenants, as long as such contracts are reasonable in time, area,

and line of business, is not prohibited." Additionally, "a court shall

presume reasonable in time any restraint 6 months or less in

duration and shall presume unreasonable in time any restraint

more than 2 years in duration." § 542.335(1)(d)(1). While the

record does not indicate the trial court made a specific finding that

the restrictive covenants at issue here are "reasonable," the twoyear time period, geographic area, and line of business restricted

appear to be reasonable based upon Florida caselaw. See, e.g.,

Ansaarie, 252 So. 3d at 292 (affirming temporary injunction against

physician restricted from practicing within a five-mile radius of

former employer's practice for two years).

11

violated, it is non-negotiable that the statutory presumption of

irreparable injury be applied. The burden is then placed on the

person who violated the restrictive covenant "to establish the

absence of such injury." See Variable Annuity Life Ins. Co., 927 So.

2d at 245.

The trial court did not articulate why it found that Joseph

Spine failed to establish irreparable injury or, as seems more likely

from our review of the proceedings below, that it inferred that Dr.

Moulton successfully rebutted that presumption. The record

provides us with reason to believe that at least one likely reason

was Dr. Joseph's testimony regarding the economic impact Joseph

Spine incurred due to Dr. Moulton's breach. Dr. Joseph testified

that the revenue at his Safety Harbor office, where Dr. Moulton

primarily saw patients, remained "stable" following Dr. Moulton's

departure, although Dr. Joseph clarified that he suffered no loss in

revenue because he and the other physicians at his practice

"worked harder" to account for the loss of business after Dr.

Moulton left. The trial court also heard testimony that although Dr.

Moulton contacted a handful of Joseph Spine patients following his

departure from the practice, the parties disputed the purpose of the

12

contact and none of the patients in question left Joseph Spine to

become patients of All Spine.4

Whether or not this theory bears any

weight, the trial court was obligated to articulate in the record the

support for its conclusion that Dr. Moulton successfully rebutted

the statutory presumption of section 542.335. Id.

Further, despite Dr. Joseph's testimony regarding his

practice's relative economic stability following Dr. Moulton's breach,

the trial court received other evidence that Dr. Moulton's competing

medical practice and his refusal to terminate privileges at Mease

significantly affected new patient referrals to Joseph Spine,

representing loss of future revenue and referral sources that cannot

be quantified. "The question of whether an injury is 'irreparable'

turns on whether there is an adequate legal remedy available."

Surgery Ctr. Holdings, 318 So. 3d at 1282 (quoting Corp. Mgmt.

Advisors, Inc. v. Boghos, 756 So. 2d 246, 247-48 (Fla. 5th DCA

2000)). "[C]ovenants not to compete[] by their nature lend

4

Dr. Moulton claimed that he contacted the patients on whom

he had recently performed surgery in an effort to provide continuity

of care. Dr. Joseph testified that he and the remaining physicians

at Joseph Spine were capable of providing postoperative care and

that the contact was unnecessary and violative of the Agreement.

13

themselves principally to enforcement by injunction because of the

difficulty of arriving at a dollar figure for the actual damage done as

the result of the breach." Id. (quoting Boghos, 756 So. 2d at 247-

48). In finding that Dr. Moulton met his burden of rebutting

irreparable injury, the trial court in effect concluded that Joseph

Spine has another legal remedy at its disposal other than injunctive

relief—a remedy that is not apparent to this court.

III.

Another likely factor in the trial court's conclusion that the

presumption of irreparable injury was rebutted was Dr. Moulton's

contention that Joseph Spine placed a dollar figure on its damages

in the form of the buyout provision of the Agreement. Dr. Moulton

claims the buyout provision is actually a liquidated damages clause

in disguise. "Damages are liquidated when the proper amount to be

awarded can be determined with exactness from the cause of action

as pleaded; i.e., from a pleaded agreement between the parties, by

an arithmetical calculation or by application of definite rules of

law." Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA

2005) (quoting Bowman v. Kingsland Dev. Corp., 432 So. 2d 660,

662-63 (Fla. 5th DCA 1983)). Liquidated damages are

14

distinguishable from alternative methods of performing an

agreement, i.e., the payment of a specific amount to alleviate one's

obligation of performance of another duty under the agreement.

See Bradley v. Health Coalition, Inc., 687 So. 2d 329, 332 (Fla. 3d

DCA 1997) (citing Restatement (Second) of Contracts § 361 cmt. b

(1981)).5

We conclude that the buyout provision of the Agreement

is an alternative method of performance, and nothing in the record

provides a reasonable basis leading us to believe that Dr. Moulton

alleviated himself of the restrictive covenants by alternative

performance of the Agreement—here, the payment of $500,000

within thirty days of his departure from the practice.6

5

Comment b provides: "Provision for alternative performance

distinguished. Although parties who merely provide for liquidated

damages are not taken to have fixed a price for the privilege not to

perform, there is no reason why parties may not fix such a price if

they so choose. If a contract contains a provision for the payment

of such a price as a true alternative performance, specific

performance or an injunction may properly be granted on condition

that the alternative performance is not forthcoming. But if the

obliger chooses to pay the price, equitable relief will not be granted."

Additionally, even assuming the parties verbally agreed to a

modified buyout, such a modification was required by the terms of

the Agreement to be in writing and signed by the parties, which was

not the case here.

6

Dr. Moulton testified that the parties verbally discussed

modifying the terms of the buyout provision so that Joseph Spine

15

IV.

The most specific findings of the order on appeal pertained to

the public policy impact of a temporary injunction against Dr.

Moulton, and the trial court expressed concern at the hearings

below that enforcing the restrictive covenants would adversely affect

patients' continuity of care, freedom in choosing their physicians,

the bearing of risk between physicians after surgery, and the

proximity of follow-up care for patients relative to where their

procedures were performed.7

A trial court that refuses to enforce a

restrictive covenant based on public policy concerns must specify in

its findings the compelling reasons why enforcement is not in the

public interest. See TransUnion Risk and Alt. Data Sols., Inc. v.

Reilly, 181 So. 3d 548, 551 (Fla. 4th DCA 2015) ("Under section

would receive payment owed to Dr. Moulton for services rendered

under letters of protection in lieu of the $500,000, but nothing else

in the record supports Dr. Moulton's contention, and Dr. Joseph

denies the conversation ever occurred. It is undisputed that Dr.

Moulton did not pay $500,000 to Joseph Spine within thirty days of

his termination, as required by the terms of the buyout provision.

7

This point seems to be a nonfactor considering the proximity

of the Joseph Spine Safety Harbor office, Dr. Moulton's Safety

Harbor office, and Mease, which are all within approximately two

miles of each other.

16

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."). Here, the trial court found in the

order on appeal only that "specifically, as it relates to this case, a

temporary injunction would interfere with a patient's right to

receive post-surgical care performed by [Dr. Moulton]."

Dr. Moulton urges us that continuity of care is an "overriding

public policy reason," and points to Mr. Albino as an example of a

patient who was dissatisfied with his care at Joseph Spine and

elected to leave that practice. There are two problems with Dr.

Moulton's argument: first, the record reflects that he had not

actually performed surgery on Mr. Albino at the time of his

termination and departure from Joseph Spine. Instead, Dr.

Moulton called Mr. Albino to advise him that he would no longer be

employed with Joseph Spine and suggested that he could still

perform the surgery if Mr. Albino wished to proceed. Second,

despite the trial court's findings that its public policy concerns were

limited to "this case, with these facts," the record does not indicate

any unique or special circumstances distinguishing continuity of

care with the patients affected here from other patients who are

17

generally affected by restrictive covenants enforced against

physicians practicing in Florida. In fact, Joseph Spine argues that

the Fifth District has flatly rejected the position that because

covenants against a physician interfere with a patient's right to

patronize a particular physician within a specific geographic area,

they are "facially 'contrary to public health, safety, and welfare.' "

See Jewett Orthopaedic Clinic, P.A. v. White, 629 So. 2d 922, 925

(Fla. 5th DCA 1993), superseded by statute § 542.33, Fla. Stat.

(1990), as recognized in King v. Jessup, 698 So. 2d 339, 340-41

(Fla. 5th DCA 1997). But see § 542.335(1)(j), Fla. Stat. (1996)

(creating rebuttable presumption of irreparable injury in presence of

valid restrictive covenants). While Joseph Spine somewhat

mischaracterizes the Fifth District's dicta in Jewett, it is true that

our sister court observed that the 1990 amendment to section

542.33 reflected that "the legislature intended to codify prior case

law . . . which recognized that courts are not bound to enforce a

covenant against a physician . . . when enforcement would be

inimical to the public health, safety or welfare" but also recognized

that there may be times when enforcement of a restrictive covenant

against a physician may cause harm to patients and the public.

18

Jewett, 629 So. 2d at 925; see also Lloyd Damsey, M.D., P.A. v.

Mankowitz, M.D., 339 So. 2d 282 (Fla. 3d DCA 1976) (affirming

denial of injunction against surgeon where trial court found that

restricting surgeon from practicing in geographic area that had

shortage of surgeons would have adverse impact on the public);

Surgery Ctr. Holdings, 318 So. 3d at 1282 ("[A]n injunction cannot

be denied on this basis unless the trial court specifically articulates

the public policy and how the public policy outweighs the need for

the injunction.").

Section 542.335(1)(i), which controls restrictive covenants

entered into after July 1, 1996, requires a trial court to explain why

a patient's continuity of care "substantially outweighs" Florida's

long-established precedent of protecting legitimate business

interests. Here, the trial court's brief mention of protecting

patients' continuity of care does not explain why this concern

substantially outweighs enforcement of the restrictions against Dr.

Moulton. Dr. Moulton failed to present evidence that patients in

this geographic area are underserved or otherwise unable to obtain

the healthcare he provides.

Because Joseph Spine was entitled to a presumption of

irreparable injury and there is inadequate evidence supporting a

finding that Dr. Moulton successfully rebutted that presumption,

the trial court's denial of Joseph Spine's motion for a temporary

injunction was error. It is also clear that Joseph Spine had no

other adequate remedy at law than the injunctive relief it sought.

Accordingly, we reverse the order on appeal and remand to the trial

court for entry of a temporary injunction against Dr. Moulton.



Reversed and remanded with instructions.