An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1032-2
                        NORTH CAROLINA COURT OF APPEALS

                                 Filed: 6 May 2014


ALLEN INDUSTRIES, INC.,
     Plaintiff-Appellee,

      v.                                      Guilford County
                                              No. 13 CVS 5637
JODY P. KLUTTZ,
     Defendant-Appellant.


      Appeal by      Defendant from order           entered 28 June 2013          by

Judge   Ronald     E.   Spivey    in    Superior    Court,    Guilford     County.

Heard originally in the Court of Appeals 4 February 2014, and

unpublished      opinion    filed      18   March   2014.      A   petition     for

rehearing was filed 11 April 2014.             Pursuant to the petition for

rehearing, the matter was reheard in the Court of Appeals.                     This

opinion supersedes the 18 March 2014 opinion previously filed in

this matter.


      Tuggle Duggins P.A., by Denis E. Jacobson and Martha R.
      Sacrinty, for Plaintiff-Appellee.

      Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by
      James R. DeMay and James E. Scarbrough, for Defendant-
      Appellant.


      McGEE, Judge.
                                            -2-
       Allen Industries, Inc. (“Plaintiff”) filed a complaint on 9

May 2013 against Jody P. Kluttz (“Defendant”), alleging breach

of     employment     contract        and    seeking        injunctive      relief      and

damages.      The employment contract that Plaintiff and Defendant

entered      into   on   21    September        2009    contained      the     following

covenant:

              During the term of his employment hereunder
              and for a period of one (1) year thereafter,
              the Employee will not within the State of
              North Carolina, South Carolina, Virginia,
              Georgia, Tennessee, or Florida directly or
              indirectly, own, manage, operate, control,
              be employed by, participate in or be
              connected in any manner with the ownership,
              management, operation or control of any
              business in the same industry as that of the
              Employer at the time of the termination of
              Employment of the Employee hereunder.

       Plaintiff      filed     a     motion      on    9    May     2013     seeking     a

preliminary     injunction          enjoining     Defendant        from,    inter    alia,

“being employed by . . . any business in the same industry as

that    of   [Plaintiff]      in     the    states     of    North   Carolina,       South

Carolina,     Virginia,       Georgia,      Tennessee,       or    Florida”    until     15

March 2014.         The trial court granted Plaintiff’s motion in an

order entered 28 June 2013, enjoining Defendant from the above

conduct “through March 14, 2014[.]”                    Defendant appeals from the

trial court’s 28 June 2013 order granting Plaintiff’s motion for

preliminary injunction.

       Defendant filed a motion to stay and/or modify enforcement
                                        -3-
of the preliminary injunction order pending appeal on 3 July

2013.     The trial court denied Defendant’s motion in an order

entered 15 July 2013, and Defendant does not appeal from this

order.     Furthermore, no motion for a temporary stay or petition

for writ of supersedeas was granted by this Court.               As a result,

the preliminary injunction has expired by its own terms.

       “A preliminary injunction is interlocutory in nature and no

appeal lies from such order unless it deprives the appellant of

a   substantial        right   which    he    would   lose   absent   immediate

review.”       Wade S. Dunbar Ins. Agency, Inc. v. Barber, 147 N.C.

App.    463,    466,    556    S.E.2d   331,    334   (2001)   (citing   A.E.P.

Industries v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759

(1983)); see also N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b)(3)(a)

(2013).

       When “the questions originally in controversy between the

parties are no longer at issue, the appeal will be dismissed for

the reason that this Court will not entertain or proceed with a

cause merely to determine abstract propositions of law or to

determine which party should rightly have won” in the trial

court.     Corpening Ins. Ctr., Inc. v. Haaff, 154 N.C. App. 190,

192-93, 573 S.E.2d 164, 165 (2002).                   “Our Supreme Court has

stated that ‘where time is of the essence, the appellate process

is not the procedural mechanism best suited for resolving the
                                      -4-
dispute.    The parties would be better advised to seek a final

determination on the merits at the earliest possible time.’”

Wade S. Dunbar Ins. Agency, Inc., 147 N.C. App. at 467, 556

S.E.2d at 334 (quoting A.E.P. Industries, 308 N.C. at 401, 302

S.E.2d at 759).

    Where “the restrictions imposed by a preliminary injunction

expire within the pendency of an appeal, issues concerning the

propriety of the injunctive relief granted are rendered moot by

the passage of time.”          Artis & Assocs. v. Auditore, 154 N.C.

App. 508, 510, 572 S.E.2d 198, 199 (2002).              In “the case of a

covenant not to compete, a plaintiff can only seek to enforce

the covenant for the period of time within which the covenant

proscribes.”      Rug Doctor, L.P. v. Prate, 143 N.C. App. 343, 345,

545 S.E.2d 766, 767 (2001).

    “It     is    not   this   Court’s——or    any     court’s——function    to

entertain or proceed with a cause merely to determine abstract

propositions of law or to determine which party should rightly

have won in the lower court.”          Corpening, 154 N.C. App. at 193-

94, 573 S.E.2d at 166 (internal quotation marks omitted).                  In

Corpening, the non-compete covenant expired on 19 October 2002.

Id. at 193, 573 S.E.2d at 166.          This Court heard the appeal on

12 September 2002, and the opinion was filed on 19 November

2002.      This   Court   dismissed    the   appeal    because   the   issues
                                  -5-
regarding   injunctive   relief   had   been   rendered   moot   by   the

passage of time.   Id. at 193-94, 573 S.E.2d at 166.

    Likewise, in the present case, the one-year time limitation

of the non-compete covenant expired on 15 March 2014.        That date

has passed.    We decline to address the merits of the appeal

because the issues on appeal regarding injunctive relief have

been rendered moot by the passage of time.         See Corpening, 154

N.C. App. at 193, 573 S.E.2d at 166.

    Dismissed.

    Judges STEELMAN and ERVIN concurred.

    Report per Rule 30(e).
