          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1050
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CRISTINA TARANTOLA, M.D.,

    Appellant,

    v.

WILLIAM B. HENGHOLD, M.D.,
P.A.,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.

                         August 30, 2018


PER CURIAM.

     Dr. Christina Tarantola appeals an order denying her motion
to terminate a temporary injunction. This is her third appeal
regarding a non-compete agreement she entered into as part of her
employment with the Henghold Practice. We agree the trial court
abused its discretion and reverse accordingly.

     In Tarantola I, this Court concluded the temporary injunction
was overly broad insofar as it could be construed as prohibiting Dr.
Tarantola from practicing general dermatology, unrelated to
restricted performance of Mohs surgery within a specified
geographical area. The temporary injunction was reversed in part,
and remanded with directions that the trial court narrow the
injunction. Tarantola v. Henghold, 214 So. 3d 726, 726-27 (Fla. 1st
DCA 2017). Thereafter, in Tarantola II, Dr. Tarantola successfully
sought certiorari review of an order holding her in civil contempt
for violating the terms of the temporary injunction, specifically its
ban on advertising. Tarantola v. Henghold, 233 So. 3d 508, 509
(Fla. 1st DCA 2017). This Court granted the petition finding Dr.
Tarantola had not purposefully violated the advertising provision
in the temporary injunction. Id. at 511. With respect to this case,
Dr. Tarantola filed a motion with the trial court requesting the
temporary injunction be terminated, claiming the two-year non-
compete period had passed. The trial court disagreed, finding the
two year period had tolled because Dr. Tarantola violated the
covenant not to compete by launching a website purportedly
advertising restricted activities. Dr. Tarantola appeals the denial.

     Dr. Tarantola resigned from the Henghold Practice in March
2015. We are now over three years from the date of Dr. Tarantola’s
resignation, with a temporary injunction still in place to enforce a
two-year agreement not to compete. The parties agree the two-
year non-compete period was tolled because Dr. Tarantola was in
violation of the agreement beginning in October 2015 through
issuance of the temporary injunction and conditions in September
2016, due to her performance of Mohs surgery in the restricted
area. However, Dr. Tarantola argues that even with the “tolling
period” extension, the two-year non-compete period has ended, and
the temporary injunction should be terminated. Henghold
counters by claiming Dr. Tarantola was in further violation of the
covenant not to compete beginning in May 2015 as a result of
improper advertising through a website, which would extend the
injunction at least an additional five months. The trial court
properly framed the issue as, “whether or not the website Dr.
Tarantola established and used in May of 2015 constitutes
‘advertising or marketing activity.’ If it does, then the temporary
injunction should not be terminated. If it does not, the temporary
injunction should be terminated either February 10, 2018 or thirty
days after that date.” Ultimately, the trial court determined the
website did constitute “advertising or marketing activity”
prohibited by the non-compete agreement and extended the
injunction “at least an addition 134 days” from the date of the order
denying Dr. Tarantola’s motion.


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     We find the trial court abused its discretion in considering and
relying upon the screenshots of the website as proof the website
was in existence in May 2015. Henghold argues the screenshot of
the website proves Dr. Tarantola improperly advertised. It further
claims that despite a date stamp on the website screenshot of
October 14, 2015, the website was actually launched in May 2015
without evidence to support this. Henghold attempts to correct
this deficiency by pointing to May 2015 Facebook posts, which
direct viewers to Dr. Tarantola’s website. However, the Facebook
posts do not show the website submitted to the trial court was the
website in place at the time of the posts. Regardless, the
screenshots purportedly showing Dr. Tarantola in violation of the
agreement by improperly advertising were not introduced into
evidence, but were attached to pleadings. The record is void of any
evidence establishing the website’s existence in May 2015, and any
such finding is based on mere speculation. Accordingly, the trial
court abused its discretion in its determination that the website
existed in May 2015.

     Nonetheless, even if evidence of record supported that the
website existed in May 2015, we agree with Dr. Tarantola that the
website did not constitute improper advertising or marketing in
violation of the non-compete agreement. Dr. Tarantola describes
herself on the website as “Mohs surgery and fellowship trained,”
but does not advertise availability and performance of Mohs-
related services in the restricted area. It was not improper for Dr.
Tarantola to provide biographical information on the website of
her new medical practice, when additional advertising was not
included. See Tarantola II, 233 So. 3d at 511 (finding Dr.
Tarantola did not advertise Mohs-related services when
biographical information was provided). The website provided
information about Dr. Tarantola which would be expected of any
resume or biographical summary.

     The trial court added to its tolling calculation a thirty-day
“wind down period.” This period began upon the temporary
injunction taking effect in September 2016 to allow Dr. Tarantola
to complete any emergencies and allow patients in need of Mohs
procedures to make other arrangements. We agree with the trial
court that this thirty-day period should extend the time period
under the non- compete agreement. See Capelouto v. Orkin

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Exterminating Co. of Fla. Inc., 183 So. 2d 532 (Fla. 1966). However,
even considering this extension, the temporary injunction has now
expired.

     We reverse with instructions to vacate the order on appeal. In
light of this disposition, we find the two-year non-compete period
expired thirty days after February 10, 2018, and is, therefore,
deemed concluded. This opinion should not be read as precluding
Dr. Tarantola from argument that she was wrongfully enjoined
from practicing general dermatology in the restricted geographical
area.

    REVERSED and REMANDED with directions.

LEWIS, MAKAR, and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


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

Trevor A. Thompson of Clark Partington, Tallahassee; Jeremy C.
Branning and Daniel E. Harrell of Clark Partington, Pensacola,
for Appellee.




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