               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-1397

                             Filed: 15 September 2015

Guilford County, No. 14CVS6328

A&D ENVIRONMENTAL SERVICES, INC., Plaintiff,

              v.

JOEL E. MILLER, Defendant.


        Appeal by Defendant from order entered 8 October 2014 by Judge A. Robinson

Hassell in Guilford County Superior Court. Heard in the Court of Appeals 20 May

2015.


        Graebe Hanna & Sullivan, PLLC, by Mark R. Sigmon and M. Todd Sullivan,
        for Defendant-Appellant.

        Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James C. Adams,
        II, and Andrew L. Rodenbough, for Plaintiff-Appellee.


        DILLON, Judge.


        This is the second appeal taken by Joel E. Miller (“Defendant”) in this

proceeding. The first appeal was from an order by the trial court denying Defendant’s

Rule 12(b)(3) motion to dismiss based on improper venue, for which we have filed an

opinion. A&D Environmental Services v. Miller, ___ N.C. App. ___, 770 S.E.2d 755

(filed 7 April 2015). This second appeal is from a preliminary injunction which was

entered by the trial court while the first appeal was still pending before our Court.

We affirm in part and dismiss in part.
                     A&D ENVIRONMENTAL SERVICES V. MILLER

                                  Opinion of the Court



                                    I. Background

      A&D Environmental Services, Inc., (“Plaintiff”) is a company which provides

environmental services. Defendant went to work for Plaintiff in 2011, signing a non-

compete, non-solicitation, confidentiality agreement (the “Agreement”).          The

Agreement provided, in part, that for a period of 24 months following Defendant’s

last day of employment, Defendant would not, inter alia, solicit business from or

provide services for a defined group of customers or prospects.

      In early 2014, Defendant resigned from Plaintiff to work for a competitor.

Plaintiff came to believe that Defendant was performing duties for the competitor

which were in violation of the Agreement.

      On 4 June 2014, Plaintiff commenced this action in Guilford County seeking

an order to enjoin Defendant from violating the Agreement. In its verified Complaint,

Plaintiff stated that its principal place of business was in Guilford County.

             A. First Appeal – Defendant’s Rule 12(b)(3) Venue Motion

      Defendant moved the trial court to dismiss the action pursuant to Rule 12(b)(3)

of the North Carolina Rules of Civil Procedure, arguing that venue in Guilford County

was improper based on a provision in the Agreement requiring that all disputes

thereunder be maintained in Mecklenburg County.




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                      A&D ENVIRONMENTAL SERVICES V. MILLER

                                   Opinion of the Court



      On 6 June 2014, the trial court entered an order denying Defendant’s Rule

12(b)(3) motion to dismiss. On 10 June 2014, Defendant entered his notice of appeal

– the first appeal in this proceeding – from this order.

      On 7 April 2015, this Court filed its opinion in the first appeal, affirming the

trial court’s order denying Defendant’s Rule 12(b)(3) motion to dismiss.

         B. Second Appeal – Plaintiff’s Motion for a Preliminary Injunction

      However, while the first appeal was pending in this Court, Plaintiff filed a

motion in the trial court for a preliminary injunction after discovering that Defendant

was performing certain duties for the competitor which it believed were in violation

of the Agreement. The trial court conducted a hearing on the motion.

      At the hearing, Defendant argued that Guilford County was not the proper

venue, but for an entirely different reason than the reason he gave at the hearing on

his Rule 12(b)(3) motion. Specifically, he represented to the trial court that he had

recently discovered evidence suggesting that Plaintiff’s principal place of business

was not in Guilford County, and that Plaintiff’s representation in its Complaint to

the contrary was false. Defendant argued that the trial court should consider this

new-found evidence as a basis to deny Plaintiff’s motion. Alternatively, Defendant

argued that the trial court should determine that it lacked jurisdiction to act on

Plaintiff’s motion for a preliminary injunction while the first appeal was pending

before our Court.



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                     A&D ENVIRONMENTAL SERVICES V. MILLER

                                  Opinion of the Court



      On 8 October 2014, while the first appeal was still pending before our Court,

the trial court granted Plaintiff’s motion, entering a preliminary injunction which

enjoined Defendant from marketing, selling or providing any services or products to

a defined group of customers.      In part of the order, the trial court essentially

concluded that since the issue of venue was pending before our Court, it would not be

appropriate for the trial court to consider Defendant’s new venue theory which

concerned the actual location of Plaintiff’s principal place of business. Defendant

timely noticed his appeal from the preliminary injunction order, which is the subject

of this second appeal.

                                   II. Jurisdiction

      On appeal, Defendant makes a venue argument and a jurisdiction argument

to attack the preliminary injunction. First, Defendant argues that the trial court

erred in refusing to address the merits of his new improper venue theory, a theory

which was being considered by our Court in the first appeal. Second, Defendant

argues that the trial court lacked jurisdiction to issue the injunction while the first

appeal was still pending in this Court.

      This appeal, however, is interlocutory. Though the general rule is that “there

is no right of immediate appeal from interlocutory orders and judgments[,]” Travco

Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992),




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                                    Opinion of the Court



one exception to this rule is where the interlocutory order “affects a substantial right.”

N.C. Gen. Stat. § 7A-27(b)(3)(a).

      Defendant claims that we have jurisdiction over this interlocutory appeal

because the preliminary injunction affects two substantial rights. First, Defendant

states that the preliminary injunction affects his right to have the case heard in the

proper venue. Defendant argues that this right is a substantial right. We agree.

Indeed, we have held that the “grant or denial of a motion asserting a statutory right

to venue affects a substantial right and is immediately appealable.” Snow v. Yates,

99 N.C. App. 317, 319, 392 S.E.2d 767, 768 (1990).

      Second, Defendant states that the preliminary injunction affects his right to

earn a living. Defendant argues that this right is a substantial right. We disagree.

Not every order which affects a person’s right to earn a living is deemed to affect a

substantial right. Rather, whether such an order affects a substantial right depends

on the extent that a person’s right to earn a living is affected. For instance, we have

held that a preliminary injunction which effectively prevents a person from “a realistic

opportunity to use his own skill and talents” rises to the level of a substantial right.

Masterclean v. Guy, 82 N.C. App. 45, 52, 345 S.E.2d 692, 697 (1986). See also

Precision Walls, Inc. v. Servie, 152 N.C. App. 630, 635, 568 S.E.2d 267, 271 (2002)

(substantial right is affected where it “effectively prohibits defendant from earning a

living and practicing his livelihood in [two states]”); Milner Airco v. Morris, 111 N.C.



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                          A&D ENVIRONMENTAL SERVICES V. MILLER

                                         Opinion of the Court



App. 866, 869, 433 S.E.2d 811, 813 (1993) (recognizing that an injunction which

creates the “inability to do business” may affect a substantial right). However, we

have also held that an injunction which merely limits a person’s ability to earn a

living may not affect a substantial right. See Consol. Textiles, Inc. v. Sprague, 117

N.C. App. 132, 134, 450 S.E.2d 348, 349 (1994) (holding that a substantial right was

not affected where “defendant was not prevented from earning a living or practicing

his livelihood” when he was merely enjoined from contacting the customers whom he

had solicited while working with his former employer).                     See also Bessemer City

Express v. City of Kings Mountain, 155 N.C. App. 637, 573 S.E.2d 712 (2002).

        In the present case, the preliminary injunction at issue does not prevent

Defendant from working in Plaintiff’s industry, but rather it merely limits his

activities by not allowing him to call on or service a narrowly defined group of

customers, similar to the narrowly defined group in Sprague.1 Therefore, we hold

that Defendant’s statement – that the preliminary injunction affects his ability to

earn a living – fails to articulate a basis for appellate review.2


        1  The preliminary injunction here states, in relevant part, that “Defendant is enjoined from
marketing, selling, or providing any services or products competitive with services and products
offered by [Plaintiff] to any customer of [Plaintiff] which [Defendant] contacted and serviced on behalf
of [Plaintiff], or about which [Defendant] obtained confidential information through his work with
[Plaintiff], during the last twelve months that [Defendant] worked for [Plaintiff].”
        2 We do not suggest that an injunction which merely prevents a person from working with a

defined group of customers could never affect a person’s substantial rights. For example, it could be
argued in a future case that a defendant’s substantial right is affected where a “defined group of
customers” in the injunction is so large that the injunction leaves very few, if any, viable prospects or
customers for a defendant to call on. In the present case, however, Defendant makes no claim or



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                        A&D ENVIRONMENTAL SERVICES V. MILLER

                                       Opinion of the Court



       In conclusion, we hold that we have jurisdiction to consider the merits of any

argument by Defendant which touch on his right to have the case heard in the proper

venue.     Specifically, Defendant’s argument that the trial court erred at the

preliminary injunction hearing in not considering his new improper venue theory

affects this substantial right; and, therefore, we consider the merits of this argument.

However, Defendant’s argument that the trial court lacked jurisdiction to entertain

Plaintiff’s preliminary injunction motion while the first appeal was pending does not

affect this substantial right; and, therefore, we lack jurisdiction to reach the merits

of this argument. Therefore, Defendant’s jurisdiction argument is dismissed. We

now turn to address the merits of Defendant’s improper venue argument.

                                          III. Analysis

       Defendant argues on this appeal that the trial court erred in refusing to

consider his contention that Guilford County was not a proper venue for Plaintiff’s

preliminary injunction motion to be heard.

       We hold that the trial court acted correctly in accordance with N.C. Gen. Stat.

§ 1-294, which states that an appeal “stays all further proceedings in the court below

upon the judgment appealed from, or upon the matter embraced therein[.]” N.C. Gen.

Stat. § 1-294 (emphasis added). Specifically, the issue of whether venue in Guilford

County was proper was before this Court when the trial court entered the preliminary


showing that the group of customers defined in the preliminary injunction is so large that he has no
one to call on or work with.

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                      A&D ENVIRONMENTAL SERVICES V. MILLER

                                   Opinion of the Court



injunction; and, therefore, Defendant’s argument at the preliminary injunction

hearing that Guilford County was not the proper venue for that hearing was a matter

embraced by the first appeal.

      Defendant, nonetheless, contends that the trial court did have the authority to

consider his venue argument because he was basing his argument on a different

theory than the theory that he had advanced at the Rule 12(b)(3) motion hearing and

in the first appeal. However, the fact that Defendant was advancing a new theory

does not change our conclusion that his argument – that venue in Guilford County

was improper – was “a matter embraced” in the first appeal. Therefore, we hold that

the trial court did not err in its conclusion that Defendant’s “objections regarding

venue are not properly before [the trial court] at this time[.]”

                                    IV. Conclusion

      We affirm the trial court’s refusal to consider Defendant’s venue argument as

a basis to deny Plaintiff’s motion for a preliminary injunction. However, because

Defendant has failed to show how his argument that the trial court lacked jurisdiction

to enter the preliminary injunction during the pendency of the first appeal affects a

substantial right, we dismiss this argument.

      AFFIRMED IN PART, DISMISSED IN PART.

      Judges BRYANT and ELMORE concur.




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