final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 17-15057 Eric William
Barakat Law, PA, and Brian Barakat, for appellant.
Garcia-Menocal & Perez, P.L., and Anthony J. Perez and
Alfredo Garcia Menocal; The Carbonell Law Group, and Jorge
Carbonell, for appellees.
ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
plaintiff below, Data Payment Systems, Inc. d/b/a One Payment
("Data Payment"), appeals a non-final order denying
its motion seeking to temporarily enjoin appellees,
defendants below, from violating covenants of non-compete
agreements executed by two of the entity defendants. Because
it appears from the transcript of the hearing on Data
Payment's motion that the trial court (i) failed to
consider the statutory presumption of irreparable injury
potentially implicated in this case, and (ii) erroneously
determined that Data Payment had an adequate remedy at law
that precluded injunctive relief, we reverse and remand for
the trial court to conduct a new hearing on Data
RELEVANT FACTS AND PROCEDURAL BACKGROUND
Payment is in the business of providing credit card and
payment processing services to merchants in Florida and
throughout the United States. Data Payment provides its
services to its customers directly, and also through
independent contractors referred to as
2016, Data Payment entered into a written sub-office
agreement with defendant Ignite Payments, Inc.
("Ignite"). This written sub-office agreement (the
"Ignite agreement") contains restrictive covenants,
including a non-compete clause and a confidentiality
clause. Defendant Juan Marcos Batista executed
this agreement on behalf of Ignite.
Batista, along with another defendant, Christopher Caso,
allegedly created defendant Onepay LLC ("Onepay").
In January 2017, Data Payment entered into a sub-office
agreement with Onepay (the "Onepay agreement").
This agreement contains restrictive covenants nearly identical
to those contained in the Ignite agreement, including a
"twelve-month" non-compete clause. The Onepay
agreement was also executed by Batista.
according to Data Payment, defendants Caso and Batista
allegedly created a new business venture, Ireland Pay LLC
("Ireland Pay") to provide payment processing
services in Florida in direct competition with Data Payment.
Data Payment then terminated the Ignite and Onepay agreements
for cause. Data Payment alleges that Caso and Batista,
through their access to Data Payment's system by virtue
of the Ignite and Onepay agreements, began to misappropriate
Data Payment's trade secrets and to solicit Data
Payment's customers. Caso also allegedly confronted a
Data Payment employee at the place of business of a Data
Payment customer and threatened the Data Payment employee
2017, Data Payment initiated the instant action against
Ignite, Onepay, Ireland Pay, Batista and Caso. Data
Payment's multi-count Second Amended Complaint asserts
claims for temporary and permanent injunctive relief,
misappropriation of trade secrets, breach of contract,
tortious interference, and to pierce the corporate veils of
Ignite, Onepay and Ireland Pay. Relying on the non-compete
and confidentiality provisions of the Ignite and Onepay
agreements, Data Payment also sought emergency, temporary
injunctive relief to enjoin: (i) each of the defendants from
threatening any further acts of violence toward Data Payment
and its employees; (ii) each of the defendants from retaining
any of Data Payment's trade secrets or other confidential
business information; (iii) Batista, Ignite, and Onepay from
violating the restrictive covenants set forth in the Ignite
and Onepay agreements; and (iv) Caso and Ireland Pay from
aiding and abetting the other defendants in violating the
restrictive covenants set forth in the Ignite and Onepay
October 2017, the trial court conducted an evidentiary
hearing on Data Payment's temporary injunction motion,
and, on October 27, 2017, entered the appealed-from order
denying Data Payment's motion. The otherwise unelaborated
order denies Data Payment's motion "as to all
parties for reasons stated on the record." The
transcript from the hearing indicates that the trial court
denied Data Payment's motion because (i) Data Payment
presented no testimony "putting a quantification"
on any irreparable harm Data Payment allegedly would suffer
if the injunction were not entered, and (ii) the availability
of other causes of action ...