04-1096 SOUTHERNMOST V. TORREGROSA

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 04-1096 SOUTHERNMOST V. TORREGROSA

Case Date: 12/22/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004 SOUTHERNMOST FOOT AND ANKLE SPECIALISTS, P.A., Appellant, vs. JOHN F. TORREGROSA, D.P.M., Appellee. ** Opinion filed December 22, 2004. An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge. Lauri Waldman Ross; McLuskey, for appellant. McLuskey & McDonald and John W. ** ** ** ** ** LOWER TRIBUNAL NO. 03-21004 CASE NO. 3D04-1096

Jay M. Levy, for appellee. Before GODERICH, SHEVIN, and RAMIREZ, JJ. GODERICH, Judge. The P.A. plaintiff, Southernmost appeals Foot a and final Ankle Specialists, granting

[Southernmost],

from

judgment

declaratory relief.

We affirm, in part; reverse, in part; and

remand for entry of a corrected final judgment. Southernmost is a medical podiatry practice that maintains offices in Key West, Big Pine Key, Marathon, Key

Largo/Tavernier, Homestead, and Kendall.

In May 2001, John F.

Torregrosa, D.P.M., executed a written contract of employment with Southernmost that contained three restrictive covenants: 1) a covenant not to compete for a period of two years after his termination of employment within all of Monroe County and within a five-mile radius of any Southernmost office in Miami-Dade

County, 2) a covenant prohibiting either the solicitation of or communication with Southernmost's patients for a period of two years following his termination of employment, and 3) a covenant not to use or disclose confidential trade information or trade secrets. While employed with Southernmost, Dr. Torregrosa worked

exclusively at its Key Largo/Tavernier1 and Marathon offices. Dr. Torregrosa obtained hospital privileges at Fishermen's

Hospital in Marathon, at Mariner's Hospital in Key Largo, and at Homestead Hospital. On July 31, 2003, when Dr. Torregrosa left

employment with Southernmost, he indicated by letter his desire to practice podiatric medicine in Key Largo and Monroe County. In response, Southernmost offered to sell Dr. Torregrosa its Key
1

The Key Largo office later moved to Tavernier. 2

Largo office. office failed,

When negotiations for the sale of the Key Largo Southernmost filed a multi-count complaint

against Dr. Torregrosa alleging breach of the three restrictive covenants contained in the employment agreement and seeking

declaratory relief.

Southernmost contended that Dr. Torregrosa

was attempting to open a competing podiatry practice and that he was using Southernmost's to of do the so. Dr. confidential Torregrosa and raised and denied proprietary the material

information allegations

complaint

several

affirmative

defenses, including that Southernmost had materially breached the void employment because contract, they did that not the restrictive a covenants were

protect

legitimate

business

interest, and that enforcement of these restrictive covenants was not in the public interest. The parties agreed to sever the count seeking declaratory relief, and on January 27 and February 18, 2004, the trial court conducted an expedited bench trial. At the conclusion of the

trial, the trial court announced its findings that Southernmost had legitimate business interests with regard to its patient base, referral doctors, specific prospective and existing

patients, and patient goodwill.

The trial court determined that

the time and distance limitations of the restrictive covenants were excessive and overbroad. The trial court reduced the

duration of the restraint from two years to one year and reduced

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the geographic limitation from all of Monroe County to "outside of the five miles of the Key Largo/Tavernier line and all the way down to five miles outside of Marathon." The court stated

that "below Marathon and above Key Largo, [Dr. Torregrosa] never worked for Southernmost and he should be allowed to practice as he wishes." The trial court recognized that if a Southernmost

patient contacted Dr. Torregrosa for treatment, he was entitled to see the patient. The trial court found no evidence that

Southernmost had any trade secrets. Before a written judgment was entered, Dr. Torregrosa filed a motion for clarification indicating that it was unclear from the oral pronouncements whether he could perform surgery and see patients at Mariner's and Fisherman's Hospitals, whether he

could open an office at mile marker 100 in Key Largo which is approximately ten miles north of Southernmost's Tavernier

office, and whether he could open an office in Islamorada which was more than five miles south of Southernmost's Tavernier

office and thirty miles north of Southernmost's Marathon office. Because the trial court had not defined Tavernier, Marathon, and Key Largo from a geographic standpoint, Dr. Torregrosa

maintained it was not clear as to where he could open an office. In response to the motion for clarification, each party was instructed to and did file a proposed final judgment.

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The trial court then entered its final judgment. judgment was consistent with the trial

The final oral

court's

pronouncements except with regard to geographic area. The trial court determined that because Dr. Torregrosa had worked at

Southernmost's offices in Marathon and Key Largo/Tavernier, he should radius not of be allowed to open an office offices within in a five-mile and

Southernmost's

present

Tavernier

Marathon.

The court also allowed Dr. Torregrosa to perform

surgery and otherwise comply with the requirements for staff privileges at Mariner's and Fisherman's Hospitals noting that Dr. Torregrosa is the only podiatrist on staff at Mariner's Hospital and that the public interest in allowing Mariner's

Hospital to continue as a full service hospital by maintaining podiatric care outweighs Southernmost's interest in enforcing its covenant. Southernmost's motion for rehearing was denied.

Southernmost's appeal follows. Southernmost contends that the trial court abused its

discretion by entering a final judgment that did not enforce the full two-year term of the restrictive covenant, that provided for geographic limitations that were narrower than those

contained in the trial court's oral pronouncements, and that concluded it was in the public interest for Dr. Torregrosa to remain on staff at Mariner's and Fisherman's Hospitals. Section 542.335(1)(c) provides, in part, that

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If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests. In the instant case, Southernmost's principals testified in detail about how they developed their medical podiatry practice in the Keys over a period of twenty years. They also testified

about how they hired Dr. Torregrosa when he had just finished his hospital training and how they put him into business. The

trial court properly found that this testimony established a prima facie case that the restrictive covenant was reasonably necessary interests to in protect its Southernmost's base, legitimate doctors, business specific With

patient

referral

prospective and existing patients, and patient goodwill.

the burden having shifted, Dr. Torregrosa then testified and attempted to minimize what Southernmost had done for him in terms of putting him into business. After hearing the testimony

in its entirety, the trial court concluded that the restrictive covenant was "too long" in duration and too broad

geographically, and modified it.

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Southernmost

contends

that

the

trial

court

abused

its

discretion by modifying the duration of the restrictive covenant from two years to one year without giving a rationale for the modification. We agree.

Because the restraint in question is neither 6 months or less, nor more than 2 years in duration, it is neither presumed reasonable (2003). the nor unreasonable.

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