CRISTINA TARANTOLA, M.D.,              IN THE DISTRICT COURT OF APPEAL
(INCORRECTLY SET FORTH                 FIRST DISTRICT, STATE OF FLORIDA
AS CHRISTINA TARANTOLA,
M.D.),                                 NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-3718

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

      Appellee.

_____________________________/

Opinion filed March 7, 2017.

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

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

Jeremy C. Branning, Daniel E. Harrell, and Andrew M. Spencer of Clark Partington,
Pensacola, for Appellee.




JAY, J.

      In this appeal from an order granting a temporary injunction pursuant to a

covenant not to compete, we affirm in all respects except as to appellant’s claim that

the trial court misconstrued the covenant as prohibiting appellant from “practicing

dermatological medicine including Mohs surgery.” We conclude that the injunction
is overly broad insofar as it can be construed as prohibiting appellant from practicing

general dermatology unrelated to Mohs surgery.

      Appellant entered into an employment contract containing a covenant not to

compete that restricted her from “[d]irectly or indirectly rendering medical services

that include performing Mohs surgery in any capacity for Employee’s own account

or for others.” After appellant left her employment, her employer filed a complaint

for injunctive relief and breach of contract alleging that appellant violated the

covenant not to compete. In its order granting a temporary injunction, the trial court

interpreted “medical services” to “encompass all dermatological services including

Mohs surgery.” This appeal followed.

      In evaluating “employment agreements, as with all contracts, courts must

apply the ‘most commonly understood meaning with regard to the subject matter

and circumstances of the contract.’” DePuy Orthopaedics, Inc. v. Waxman, 95 So.

3d 928, 934 (Fla. 1st DCA 2012) (citation omitted). This requires construing the

pertinent language “in accordance with the plain meaning of the words contained”

in the agreement. Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla.

1st DCA 2009). Here, the contractual term “medical services” is modified by the

restrictive clause “that include performing Mohs surgery.” Barnhart v. Thomas, 540

U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (“[A] limiting clause or phrase

... should ordinarily be read as modifying only the noun or phrase that it immediately

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follows.”). Based on this language, appellant is clearly restricted from providing

medical services that involve the provision of Mohs surgery. This restriction applies

not only to performing Mohs surgery, but also to any pre-operative and post-

operative medical services associated with this type of surgery. However, it would

not prohibit appellant from practicing general dermatology provided that her

dermatology practice does not encompass services that directly or indirectly relate

to the provision of Mohs surgery.

      As written, the trial court’s temporary injunction generally restricts appellant

from practicing “dermatological medicine” because the participial phrase “including

Mohs surgery” is not one of limitation. See Include, Black’s Law Dictionary (10th

ed. 2014) (“The participle including typically indicates a partial list <the plaintiff

asserted five tort claims, including slander and libel>. But some drafters use phrases

such as including without limitation and including but not limited to—which mean

the same thing.”). Accordingly, we reverse the temporary injunction in part and

remand with directions that the trial court narrow the injunction so that appellant is

not prohibited from practicing general dermatology unrelated to Mohs surgery.

      AFFIRMED in part; REVERSED in part; and REMANDED with directions.

OSTERHAUS and WINSOR, JJ., CONCUR.




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