Consolidated Textiles, Inc. v. Sprague

450 S.E.2d 348 | N.C. Ct. App. | 1994

450 S.E.2d 348 (1994) 117 N.C. App. 132

CONSOLIDATED TEXTILES, INC., Plaintiff-Appellant/Appellee,
v.
Richard C. SPRAGUE, Defendant-Appellant/Appellee.

No. 9426SC180.

Court of Appeals of North Carolina.

November 15, 1994.

Smith Helms Mulliss & Moore, L.L.P. by Peter J. Covington and Irving M. Brenner, Charlotte, for plaintiff appellee.

Casstevens, Hanner, Gunter & Gordon, P.A. by Nelson M. Casstevens, Jr., and Teresa L. Conrad, Charlotte, for defendant appellant.

ARNOLD, Chief Judge.

Contex has filed a motion to dismiss defendant's appeal as interlocutory, and argues that a substantial right is not affected by the injunction because Sprague continues to work as a salesman for Stein. For the reasons stated below, the motion is allowed.

"No appeal lies from a trial court's grant of an interlocutory preliminary injunction unless the defendant would be deprived of a substantial right which he would lose absent a review prior to final determination." Triangle Leasing Co. v. McMahon, 96 N.C.App. 140, 146, 385 S.E.2d 360, 363 (1989), aff'd in part, rev'd in part, 327 N.C. 224, 393 S.E.2d 854 (1990). A substantial right is affected by the entry of a preliminary injunction if it prevents one from practicing his livelihood, or the right to work and earn a living. Id; see also Masterclean of North Carolina v. Guy, 82 N.C.App. 45, 345 S.E.2d 692 (1986).

Here, defendant is not prevented from earning a living or practicing his livelihood. The only restrictions imposed by the injunction are that he cannot contact Contex customers actively solicited within the year prior to his resignation, nor can he disclose to third persons information identified as Contex trade secrets. This appears to restrict him from contacting approximately three hundred customers—a fraction of the thousands that remain available, and this case is clearly different from others in which the Court found a substantial right was affected. See Milner Airco, Inc. v. Morris, 111 N.C.App. 866, 433 S.E.2d 811 (1993) (finding substantial right where injunction prevented defendants from working during season installing air-conditioning units); Masterclean of North Carolina v. Guy, 82 N.C.App. 45, 345 S.E.2d 692 (1986) (finding substantial right where injunction would prevent defendant from practicing his livelihood in five states). A substantial right is not affected in this case and this appeal is

Dismissed.

COZORT and LEWIS, JJ., concur.