LEGAL ARGUMENT
STANDARD OF APPELLATE REVIEW In reviewing the enforceability of a preliminary injunction an appellate court is not bound by the trial court 's findings of fact, but may weigh the evidence anew and enter its own findings of fact and conclusions of law. Kennedy v. Kennedy, 160 N.C. App. 1, 8, 584 S.E.2d 328, 332 (2003). Thus, if we must consider the facts anew, the court has to determine the enforceability of a preliminary injunction just as how the trial court determines it. Preliminary injunctions may be issued by order by a judge: “When, during the litigation, it appears by affidavit that a party thereto is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual; Or” North Carolina General Statutes § 1-485 (West 1973). A trial court issues a preliminary injunction only “(1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff 's rights during the course of a litigation.” Triangle Leasing Co., Inc. v. McMahon, 327 N.C. 224, 227, 393 S.E.2d 854,856-857 (1990) (Citing Waff Bro., Inc. v. Bank, 289 N.C. 198, 221 S.E.2d 273 (1976)). There is no dispute between parties that the Plaintiff will suffer irreparable harm. Therefore, the sole remaining issue is whether if a plaintiff is able to show likelihood of success on the merits of the case. The preliminary injunction is premised on the plaintiff 's substantial right to protect its business interests, and the defendant’s substantial right to freedom of trade. A restrictive covenant between an employer and employee is enforceable “if they are (1) in writing; (2) made part of a contract of employment; (3) based on valuable consideration; (4) reasonable both as to time and territory; and (5) not against public policy.” Phelps Staffing LLC v. C.T. Phelps, Inc., 740 S.E.2d 923, 927 (N.C. App 2013) (quoting United Laboratories, Inc. v. Kuykendall, 322 N.C. 643,648-649, 370 S.E.2d 375,380 (1988)). The restrictive covenant was in writing, made part of a contract of employment and it was based on valuable consideration. The remaining issues are determining whether the covenant is (1) reasonable both as to time and territory; and (2) not against public policy. I. PLAINTIFF 'S RESTRICTIVE COVENANT WAS REAONABLLY DRAWN TO PROTECT ITS BUSINESS INTERESTS, AS TO SCOPE OF TIME AND TERRITORY. The preliminary injunction enforcing the restrictive covenant should be upheld on the basis of time and territory. The defendant, Halbridge, argues on appeal that the covenant is too broad on the basis of time and territory. Additionally, they argue that the scope of the restriction is wider than necessary to protect the employer’s …show more content…
v. Bowers, 181 N.C. App. 85, 89, 638 S.E.2d 617, 619 (quoting Baskin , at 279). In addition, “to show reasonableness of a geographic restriction, 'an employer must first show where its customers are located and that the geographic scope of the covenant is necessary to maintain those customer relationships. '” Id. at 89 (quoting Hartman v. W.H. Odell and Associates, Inc., 117 N.C.App. 307, 311, 450 S.E.2d 912,917 (1994)). The restriction is within Jackson County and counties contiguous to Jackson County. Halbridge was assigned to work in all the areas his employer conducted business. Halbridge was actually subject to work in, Jackson, Hayword, Franklin, and Transylvania counties; all the places that HealthPro operated. R at 35. The business was in health care services where Halbridge was in personal contact with a large amount of HealthPro 's patients. Halbridge was the only employee that solely provided wound care services. That puts him in a position to have a great wealth of knowledge on how HealthPro conducts its business, particularly in wound care services. The six factors show the geographic restriction as drawn protects HealthPro 's business interests. Halbridge came in contact with well over a 100 patients that all come from the counties that HealthPro provided his service. The nature of Halbridge 's job, which he was constantly in physical contact with patients because that was the only way he could treat
STANDARD OF APPELLATE REVIEW In reviewing the enforceability of a preliminary injunction an appellate court is not bound by the trial court 's findings of fact, but may weigh the evidence anew and enter its own findings of fact and conclusions of law. Kennedy v. Kennedy, 160 N.C. App. 1, 8, 584 S.E.2d 328, 332 (2003). Thus, if we must consider the facts anew, the court has to determine the enforceability of a preliminary injunction just as how the trial court determines it. Preliminary injunctions may be issued by order by a judge: “When, during the litigation, it appears by affidavit that a party thereto is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual; Or” North Carolina General Statutes § 1-485 (West 1973). A trial court issues a preliminary injunction only “(1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff 's rights during the course of a litigation.” Triangle Leasing Co., Inc. v. McMahon, 327 N.C. 224, 227, 393 S.E.2d 854,856-857 (1990) (Citing Waff Bro., Inc. v. Bank, 289 N.C. 198, 221 S.E.2d 273 (1976)). There is no dispute between parties that the Plaintiff will suffer irreparable harm. Therefore, the sole remaining issue is whether if a plaintiff is able to show likelihood of success on the merits of the case. The preliminary injunction is premised on the plaintiff 's substantial right to protect its business interests, and the defendant’s substantial right to freedom of trade. A restrictive covenant between an employer and employee is enforceable “if they are (1) in writing; (2) made part of a contract of employment; (3) based on valuable consideration; (4) reasonable both as to time and territory; and (5) not against public policy.” Phelps Staffing LLC v. C.T. Phelps, Inc., 740 S.E.2d 923, 927 (N.C. App 2013) (quoting United Laboratories, Inc. v. Kuykendall, 322 N.C. 643,648-649, 370 S.E.2d 375,380 (1988)). The restrictive covenant was in writing, made part of a contract of employment and it was based on valuable consideration. The remaining issues are determining whether the covenant is (1) reasonable both as to time and territory; and (2) not against public policy. I. PLAINTIFF 'S RESTRICTIVE COVENANT WAS REAONABLLY DRAWN TO PROTECT ITS BUSINESS INTERESTS, AS TO SCOPE OF TIME AND TERRITORY. The preliminary injunction enforcing the restrictive covenant should be upheld on the basis of time and territory. The defendant, Halbridge, argues on appeal that the covenant is too broad on the basis of time and territory. Additionally, they argue that the scope of the restriction is wider than necessary to protect the employer’s …show more content…
v. Bowers, 181 N.C. App. 85, 89, 638 S.E.2d 617, 619 (quoting Baskin , at 279). In addition, “to show reasonableness of a geographic restriction, 'an employer must first show where its customers are located and that the geographic scope of the covenant is necessary to maintain those customer relationships. '” Id. at 89 (quoting Hartman v. W.H. Odell and Associates, Inc., 117 N.C.App. 307, 311, 450 S.E.2d 912,917 (1994)). The restriction is within Jackson County and counties contiguous to Jackson County. Halbridge was assigned to work in all the areas his employer conducted business. Halbridge was actually subject to work in, Jackson, Hayword, Franklin, and Transylvania counties; all the places that HealthPro operated. R at 35. The business was in health care services where Halbridge was in personal contact with a large amount of HealthPro 's patients. Halbridge was the only employee that solely provided wound care services. That puts him in a position to have a great wealth of knowledge on how HealthPro conducts its business, particularly in wound care services. The six factors show the geographic restriction as drawn protects HealthPro 's business interests. Halbridge came in contact with well over a 100 patients that all come from the counties that HealthPro provided his service. The nature of Halbridge 's job, which he was constantly in physical contact with patients because that was the only way he could treat