*1 APPEALS defendant, guilt innocence of the should have had access this evidence in considering alleged whether the offense occurred. reasons,

For the foregoing should be trial. New (Robert M.) Judge

Chief concur. MORRIS MARTIN INDUSTRIES, A. E. P. v. R. INC. BRUCE McCLURE

No. 8226SC144 (Filed 1982) July Injunctions § preliminary injunction 13.1— denial of —failure The trial court did its discretion in the denial of a defendant, pending to restrain from continued breach covenants and not to use or disclose confidential information ground failed to show that it was threatened with harm if pending trial.

APPEAL by plaintiff from Snepp, Opinion and Judge. Court, Superior filed December County. MECKLENBURG May Heard in the Court Appeals alia, brought alleging, suit inter that defendant breached covenants not and not to use or disclose con- fidential information. Plaintiff moved for a preliminary injunction defendant, action, pending trial of the from continued breach of the covenants. motion,

From a denial of plaintiff appeals. this Bell, Seltzer, Gibson, by Park & James D. Myers and Ronald T. Lindsay, plaintiff appellant. Elam, Stroud, Seaford, Stroud, McGinnis & Keith M. appellee.

WHICHARD, Judge. as injunction to a preliminary it is entitled contends disagree. law. We

a matter of . . .: A preliminary (1) that the by the appears When it relief, demanded, and this or entitled to relief thereof, the commission restraining consists

part or contin- some act the commission continuance which, would litigation, produce during uance injury to the plaintiff. (Cum. 1981). The threatened 1-485 Supp.

G.S. v. immediate. Co. Telephone real and irreparable, must be (1975). 49, 235, Inc., 232, An in- Plastics, 51 287 N.C. is an adequate where there ordinarily will not be granted junction is the and efficient as remedy practical “which as legal 546, Co., 257 v. Public N.C. remedy.” Durham Service equitable 557, (1962). 315, 2d 323 126 S.E. granted pend- Ordinarily a temporary (1) merits, probable sup- if there is cause for ing primary to sustain equi- will be able posing [its] ty, if there is reasonable apprehension if in the court’s injunctive relief granted, loss unless reasonably necessary protect plaintiff’s appears opinion controversy between and defendant can be until the right [it] determined. Miles, Teasley v. Creech and v. Creech Conference (1962).

128, 619, 139, 123 2d 626 It to determine lies within discretion of granted upon pleadings will be preliminary whether 139-40, Conference, 123 S.E. 256 N.C. at 2d at affidavits. “the in- In court should consider exercising its discretion well as the benefit damage convenience and defendant as 140, 626; Id. at 123 S.E. 2d at see also plaintiff.” accrue 174, 182, Jones, 273 159 S.E. Board Elders v. N.C. 2d (1968). 551-52 must offer party moving preliminary Pharr irreparable injury. facts its claim of supporting E.A. P. Industries v. McClure 803, 815, 115 S.E. N.C. In review- Garibaldi ing injunction, the denial of a appellate court is court, Plastics, Inc., not bound findings the lower 51; at 214 S.E. 2d at N.C. but there is presumption that the correct, Conference, lower court decision was at S.E. 2d at 627.

Assuming, arguendo, that the termination of enforceable, employment agreements in question are valid and likely to succeed on merits at nevertheless cannot *3 to find that

failing was plaintiff threatened with rights that its protection needed pending trial. The pleadings and affidavits reveal following: alleges that defendant has breached covenants information,

not to compete and not to use confidential sug- but gests specific ways no in which plaintiff has been harmed. Plain- tiff one in only affidavit which the allegations of harm are the following: defendant has contacted at least nine “[T]hat of substantial customers who plaintiff,” together account for ten to fifteen percent plaintiff’s annual sales in the geographical subject covenant not to compete; that “defendant has to. been soliciting sales and orders products of others which are directly with competitive products which are manufactured customer”; meet the needs of each such that these activities “highly damaging are sales . . program . and also leading damaging are confusion these customers no doubt consider repre- to still [who] [defendant] sent plaintiff” defendant continues “suffer damage.”

Defendant offered affidavits from of five employees different companies purchase manufacture the products These allege manufactures. affidavits that identity of who use their products, customers such and individual product requirements, readily all in are available to salesmen trade; that industry practice and standard is for customers to deal with several place response manufacturers and to orders in Further, competitive bids. defendant himself stated af- fidavit he had dollars in expenses incurred several thousand in setting up (admittedly his own business with competition OF APPEALS hiring on office space lease including assuming

plaintiff), would without a source of income that he two employees; from sales activities. enjoined injunction, reasoning if de- The trial court denied . . . the from this business engaging restrained immediate, made and he could will be real him ultimately a determina- prevails upon though whole of the merits. tion hand, has failed establish the other

On the reasonable likelihood substan- through If the monetary damage. plain- tial no in the action matter prevailed would in effect have tiff the final determination be. might what no basis in record We find concluding. its discretion so Milholen, App. Machinery Co. v. argues that (1975), controlling precedent requires there, however, here. The granting only after of confidential information

disclosure similar, *4 factually Although plaintiff. to record of detriment the here. the does not dictate that case of discretion. there has been an abuse review is whether issue on deny to an issue or A decision ample competent on there appeal generally decision, though the evidence support its own court could substitute conflicting and the appellate 697, 700, 184 Corporation, Banner v. Button findings. (1936); Goldston, see also Studios amply here We the decision find by the record. supported not court did

In view our showing inadequate based denying unnecessary to deem it we plaintiff, statements certain arguments further discuss validity the termination challenge rule, parol violate agreement of employment (2) other statements irrelevant or self-serving, and (3) the court erred in plaintiff’s customer lists and business methods were not confidential.

Affirmed.

Judge CLARK concurs. dissents. WEBB I dissent from the majority. The record shows that de- voluntarily into entered a contract with under the terms which he would with the plaintiff within a certain geographic prescribed time. The majority does question reasonableness of the time and area. He changed later his with the plaintiff and for consideration, substantial signed a new contract which he again agreed within the same area and same time. The was not required sign this contract I it is believe error us to he does not have to abide - it. That will be the effect limited to money damages may may which not be to prove, able which it might not able to if it gets money collect judgment.

The majority relies on the failure of the I damages. is one think That reason should issue. It prove difficult to in this yet of case and damages know I damages. could suffer substantial believe the effect majority opinion tois allow the defendant to flaunt terms of a contract he freely assented. I This would not do. I vote to reverse.