The Broker relies upon case law holding that the illegality of a restrictive covenant under section 542.335 ’s predecessor, section 542.33, is an affirmative defense. SeeMiami Elecs. Ctr., Inc. v. Saporta , 597 So. 2d 903, 904 (Fla. 3d DCA 1992) ("[W]e reject the defendants’ contentions that (a) the non-compete provision of the agreement was illegal and therefore unenforceable under Section 542.33, Florida Statutes (1991), .... The defendants did not plead illegality as an affirmative defense, and the issue was not tried below by consent; accordingly, the defendants have waived this defense."); see alsoTomasello, Inc. v. de Los Santos , 394 So. 2d 1069, 1071 (Fla. 4th DCA 1981) (applying section 542.33 ’s predecessor statute, section 542.12, and holding that the trial court should not have considered the reasonableness of the geographical area covered by the noncompetition clause "when the issue of reasonableness was not raised by the pre-trial stipulation or pleadings nor tried by the consent of the parties"). The Broker also relies upon Whitby v. Infinity Radio Inc. , 951 So. 2d 890 (Fla. 4th DCA 2007), but that case does not hold that section 542.335 is an affirmative defense.
VNA also argues that JMC waived the defense of illegality. Miami Elecs. Ctr., Inc. v. Saporta, 597 So.2d 903, 904 (Fla. 3d DCA 1992) (“The defendants did not plead illegality as an affirmative defense, and the issue was not tried below by consent; accordingly, the defendants have waived this defense.”). We disagree.
An arbitrator cannot order a party to perform an illegal act.") (citing Hill v. Norfolk W.Ry. Co., 814 F.2d 1192, 1195 (7th Cir. 1987)); I.U.B.A.C. Local Union No. 31 v. Anastasi Bros. Corp., 600 F.Supp. 92, 94, 95 (S.D. Fla. 1984) ("[A] court may not enforce a contract that is illegal or contrary to public policy. . . . [T]he legality of the contract clause at issue here must be determined before the arbitration award can be enforced."). VNA also argues that JMC waived the defense of illegality. Miami Elecs. Ctr., Inc. v. Saporta, 597 So. 2d 903, 904 (Fla. 3d DCA 1992) ("The defendants did not plead illegality as an affirmative defense, and the issue was not tried below by consent; accordingly, the defendants have waived this defense."). We disagree.
PER CURIAM. The judgment below dismissing the appellants' action for partition is affirmed because (a) there was no showing of a cotenancy on which to bottom such an action as required by section 64.031, Fla. Stat. (1995); see Weed v. Knox 157 Fla. 896, 27 So.2d 419 (1946); Serkissian v. Newman, 85 Fla. 388, 96 So. 378 (1923); Barden. v. Pappas, 532 So.2d 707 (Fla. 5th DCA 1988), and (b) the effect of any partition would be inequitably to interfere with the enforcement of the agreement specifically approved in Miami Electronics Center, Inc., v. Saporta 597 So.2d 903 (Fla. 3d DCA 1992), review denied, 613 So.2d 8 (Fla. 1992). See Fisher v. Davenport, 84 So.2d 910 (Fla. 1956); Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA 1986); review denied, 494 So.2d 1151 (Fla. 1986); Peacock v. Peacock, 439 So.2d 984 (Fla. 3d DCA 1983); Cohen v. Roth, 417 So.2d 743 (Fla. 3d DCA 1982).
42 Am.Jur.2d § 49, at 790. Air Ambulance Network, Inc., 511 So.2d at 702-03; see Capraro v. Lanier Business Products, Inc., 466 So.2d 212 (Fla. 1985); Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla. 1974); Miami Electronics Center, Inc. v. Saporta, 597 So.2d 903 (Fla. 3d DCA 1992). See generally Douglas Laycock, The Death of the Irreparable Injury Rule 47, 70 n. 114 (1991) (citing Capraro, 466 So.2d at 212).