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Tarantola v. Henghold

Florida Court of Appeals, First District

December 21, 2017

CRISTINA TARANTOLA, M.D., Petitioner,
v.
WILLIAM B. HENGHOLD, M.D., P.A., Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Petition for Writ of Certiorari -- Original Jurisdiction.

          Todd M. LaDouceur and Chris K. Ritchie of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Petitioner.

          Daniel E. Harrell and Robert J. Powell of Clark Partington, Pensacola, for Respondent.

          OSTERHAUS, J.

         Dr. Cristina Tarantola seeks certiorari review of an order holding her in civil contempt for violating the terms of a preliminary injunction related to an employment, non-compete agreement entered into by the parties. We grant the petition and quash the order below.

         I.

         In 2012, Dr. Tarantola signed an employment agreement with Dr. Henghold that contained a covenant not to compete. Among other things, the covenant prohibited Dr. Tarantola, after leaving employment, from "[d]irectly or indirectly rendering medical services that include performing Mohs surgery in any capacity for [her] own account or for others" within a forty-mile radius of Dr. Henghold's office and from "[p]articipating in any advertising or marketing activity within the restricted area for the purpose of soliciting patients to obtain medical services that include or may include Mohs surgery."

         When Dr. Tarantola's employment ended, Dr. Henghold sought to enforce the non-compete covenant in the trial court. He obtained a preliminary injunction enjoining Dr. Tarantola from practicing dermatological medicine within a forty-mile radius of the Henghold Practice. Dr. Tarantola 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. Tarantola from practicing general dermatology unrelated to Mohs surgery. Id. at 727.

         After the opinion issued, Dr. Tarantola put up a billboard advertising her practice and activated a website for her business. Dr. Henghold believed that these actions violated the preliminary injunction's advertising ban and he moved for civil contempt sanctions. The trial court held a hearing and agreed with Dr. Henghold. It found a violation of the preliminary injunction and held Dr. Tarantola in civil contempt for advertising herself "as a doctor who could provide Mohs surgery related services" within the restricted area. The order threatened a $1, 640 per day fine unless Dr. Tarantola complied with the following alternative conditions:

a. Take down and deactivate the current Tarantola Dermatology website.
b. Remove the current Tarantola Dermatology billboard that is located in either Pensacola or Escambia County, Florida.
c. Place at her reception desk in both her Pensacola and Gulf Breeze offices the following notice in at least 20 point Times New Roman or Arial type: "Dr. Tarantola is currently prohibited from performing Mohs surgery and any preoperative or postoperative medical services associated with Mohs surgery in this office pursuant to the injunction entered in Case No: 15-1805 CA in and for Escambia County, Florida."
d. Do not notify patients in her Pensacola and Gulf Breeze offices that she can perform Mohs surgery related ...

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