       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                      ANAKARLI BOUTIQUE, INC.,
                         a Florida corporation,
                               Appellant,

                                     v.

                             NAHOMI ORTIZ,
                                Appellee.

                              No. 4D14-2188

                           [November 26, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 12-1236
(03).

   John Arrastia, Jr. of Arrastia Capote & Phang LLP, Miami, for appellant.

   Gustavo A. Bravo of Bravo Law, Plantation, for appellee.

GROSS, J.

   This is an appeal from an order denying a motion for temporary
injunction in a case involving the violation of a non-compete agreement.
The circuit court denied a temporary injunction because the non-compete
period had run, mostly during the appeal of an earlier ruling. Once again,
we reverse for the trial court to decide the motion for temporary injunction
on the merits.
   This is the second visit of the case to this court. See Anarkali Boutique,
Inc. v. Ortiz, 104 So. 3d 1202 (Fla. 4th DCA 2012). Anarkali I was also an
appeal from an order denying a temporary injunction. That case sets forth
the non-compete/non-solicitation agreement, which applied for a period
of 2 years after appellee was no longer engaged as “an employee” with the
company, the appellant in this case. Id. at 1203. In 2011, appellee left
the company and opened her own business near the company’s location.
The company’s complaint for injunctive relief alleged (1) the existence of
legitimate business interests justifying the agreement’s restrictive
covenants, (2) that the restrictive covenants were reasonably necessary to
protect the company’s established interests, and (3) the elements
necessary to obtain a temporary injunction. Id. at 1204; see § 542.335(1),
Fla. Stat. (2012). There was an evidentiary hearing. Id. The circuit court
denied the motion for temporary injunction, ruling that the two-year non-
compete period began to run when appellee became an independent
contractor and “expired before [she] left to start her business.” Id. at 1205.
   We reversed, holding that the two-year non-compete period did not
begin to run until appellee left the company. Id. We remanded to the
circuit court to make the factual findings as to whether the company
“proved section 542.335’s requirements” along with the elements of a
temporary injunction. Id. at 1206. We indicated that the court could
“review the record” or hold a further hearing. Id.
   On remand, the circuit court requested that the transcript of the
evidentiary hearing be provided for the court’s consideration. Without
further hearing, the court denied the motion for temporary injunction as
moot, reasoning that the two-year non-compete period, measured from the
date appellee left the company, had expired on November 22, 2013.
Obviously, much of this two year period was consumed by the appeal in
Anarkali I.1
   It would be stunningly unfair if the law held that a valid non-compete
clause could be nullified because the non-compete period was devoured
by the time it took to appeal an erroneous ruling on the interpretation of
the clause. Where there has been a delay in the entry of a non-compete
injunction enforceable under section 542.335(1)(c)2, the party seeking to

1The notice of appeal in Anarkali I was filed on April 13, 2012, and the mandate
issued on March 1, 2013. Appellee sought discretionary review in the Florida
Supreme Court on March 11, 2013; the Supreme Court declined to accept
jurisdiction on October 30, 2013.

2Section 542.335(1)(c), Florida Statutes (2012), sets the boundaries for the
enforcement of a restrictive covenant:

      A person seeking enforcement of a restrictive covenant also shall
      plead and prove that the contractually specified restraint is
      reasonably necessary to protect the legitimate business interest or
      interests justifying the restriction. 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

                                      -2-
enforce the non-compete clause is entitled to receive the benefit of its
bargain, which is the enforcement of the full non-compete period specified
in the agreement between the parties. See Orkin Exterminating Co., v.
Bailey, 550 So. 2d 563, 565 (Fla. 4th DCA 1989); Kverne v. Rollins
Protective Servs. Co., 515 So. 2d 1320, 1321-22 (Fla. 4th DCA 1987); Mut.
Benefits Corp. v. Goldenberg, 709 So. 2d 204 (Fla. 4th DCA 1998);
Capelouto v. Orkin Exterminating Co. of Fla., 183 So. 2d 532, 534 (1966).
Such enforceability assumes that the trial court has found the
“contractually specified restraint” not to be “overbroad, overlong, or
otherwise not reasonably necessary to protect the legitimate business
interest” of the party seeking to enforce the restraint. § 542.335(1)(c), Fla.
Stat. (2012).

   Once again, we reverse the circuit court’s order denying a temporary
injunction and remand for a determination of “whether the company
proved section 542.335’s requirements or the elements of a temporary
injunction.” Anarkali I, 104 So. 3d at 1206. The trial court may review
the record or, given the length of time that has passed since the original
hearing, hold a further hearing.

   Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

                             *          *          *

   Not final until disposition of timely filed motion for rehearing.




      business interest or interests, a court shall modify the restraint and
      grant only the relief reasonably necessary to protect such interest
      or interests.

                                       -3-
