PALMER, J.
Heather Heiderich Farmer, D.V.M., and her practice, Equine Performance Veterinary Practice, L.L.C. (collectively Dr. Farmer), timely appeal the non-final order enforcing, by entry of a temporary injunction, a non-compete agreement executed by Dr. Farmer and her former employer, Florida Equine Veterinary Services, Inc. (FEVS).
A trial court's grant of a temporary injunction is subject to an abuse of discretion standard of review. DiChristopher v. Bd. of County Comm'rs, 908 So.2d 492, 495 (Fla. 5th DCA 2005).
In August 2009, the parties entered into a one-year Employment Agreement that included the following non-compete provision:
FEVS formally terminated Dr. Farmer's employment by letter dated July 1, 2010. FEVS later forwarded a separate letter to Dr. Farmer reminding her of the non-compete provision of the Employment Agreement:
FEVS filed suit against Dr. Farmer seeking to enforce the parties' non-compete agreement. The complaint asserted that the fact that Dr. Farmer's office was located outside the 30-mile radius of FEVS's office was of no import because the Employment Agreement prohibited her from delivering veterinary services within that 30-mile radius. FEVS moved for a temporary injunction enjoining Dr. Farmer from delivering veterinary services within the 30-mile radius of FEVS's location.
The trial court granted the motion and entered a temporary injunction prohibiting Dr. Farmer from practicing veterinary medicine within a 30-mile radius of FEVS's office. In so ruling, the trial court concluded:
Dr. Farmer challenges this ruling, arguing that the non-compete agreement is unambiguous and should have been enforced as written. The clause, according to Dr. Farmer, prohibits her from owning or being employed by a business or profession engaged in equine veterinary practice located within a 30-mile radius of FEVS. It does not, she contends, prohibit her from practicing veterinary medicine anywhere within the 30-mile radius. We agree. Subsection B of the non-compete agreement does not prohibit Dr. Farmer from providing equine veterinary services within a 30-mile radius of FEVS's office, as long as her business office is outside that radius.
The appellate court is to "`undertake an independent assessment'" of the meaning of a covenant not to compete. Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1263 (Fla. 5th DCA 2009) (quoting Coastal Loading, Inc. v. Tile Roof Loading, Inc., 908 So.2d 609, 611 (Fla. 2d DCA 2005)). In assessing such a covenant, Florida law specifically provides that "[a] court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract." § 542.335(1)(h), Fla. Stat. (2010).
In Tam-Bay Realty, Inc. v. Ross, 534 So.2d 1200 (Fla. 2d DCA 1988), rev. denied, 542 So.2d 1334 (Fla.1989), a covenant not to compete provided that the sellers of a real estate brokerage firm were not to compete with the business "by opening, operating, serving as an officer, director or other employee of any real estate brokerage business located within the geographical boundaries of Pinellas County, Florida.. . ." Id. After the sale closed, the sellers advertised in the St. Petersburg phone book, obtained a St. Petersburg phone number, ran advertisements that included homes located in Pinellas County in the St. Petersburg newspaper, and listed themselves in a directory as doing business in almost all Pinellas County communities. The buyer sued for breach of the covenant not to compete clause and won, with the trial court ruling:
Id. at 1201. However, on appeal, the Second District reversed, concluding that the sellers had not breached the covenant because they had not competed by "opening, operating, serving as an officer or director of any brokerage business located within Pinellas County." Id. at 1201-02 (emphasis in original). Rather, the sellers had competed within Pinellas County "from a brokerage business located outside of Pinellas County thereby adhering to the literal meaning of the non-compete agreement." Id. at 1202.
As in Tam-Bay Realty, here the parties' non-compete agreement did not prohibit Dr. Farmer from providing equine veterinary services within the 30-mile radius of FEVS's office. As such, the trial court erred in entering the temporary injunction.
REVERSED and REMANDED.
JACOBUS, J., concurs.
SAWAYA, J., dissents with opinion.
SAWAYA, J., dissenting.
I respectfully dissent because I believe the trial court correctly interpreted and applied the clear provisions of the non-compete agreement. The provision at issue states that
(Emphasis added).
The trial court ruled that the non-compete agreement "prohibited Dr. Farmer from practicing equine veterinary medicine within a 30-mile radius of [FEVS's] office. . . for a period of two years" and also prohibited Dr. Farmer from soliciting any "past, present or prospective clients of FEVS." Specifically, it found that the geographic restriction "is not limited to the location of Dr. Farmer's office as Defendants have asserted" and that Dr. Farmer
I believe the trial court got it right. The emphasized portion of this agreement clearly prohibits the former employee, Heather Heiderich Farmer, from engaging or participating in the practice of veterinary medicine within the proscribed area.
Furthermore, the decision to grant the temporary injunction is in accord with the provisions of section 542.335(1)(h), Florida Statutes (2010), which provides:
I believe that the trial court's interpretation of the non-compete agreement comports with these statutory dictates and that the majority's decision does not. Accordingly, I would affirm the temporary injunction entered by the trial court.