An unpublished opinion of the North Carolina Court of Appeals does not constitute 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unpublished opinion filed 18 March 2014.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 DefendantAppellant.

McGEE, Judge.
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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 
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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 
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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 
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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).