IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 16

- 1137 Filed: 20 June 2017 Onslow County, No. 16CVS 2477 SIA GROUP, INC. , Plaintiff,

v. CLIFFORD G. PATTERSON , Defendant.
Appeal by d efendant from a preliminary injunction entered 3 Octo ber 2016 by Judge John E. Nobles , Jr. in Onslow County Superior Court. Heard in the Court of Appeals 22 February 2017

. Crossley McIntosh Collier Hanley & Edes, PLLC, by Norwood P. Blanchard, III , for plaintiff

- a ppellee. Poyner Spruill, LLP, by Andrew H. Erteschik and Kevin M. Ceglowski, for defendant

- a

ppellant.

BERGER , Judge.
Clifford G. Patterson (“Defendant”) appeals from a prel iminary injunction entered on October 3, 2016 by Judge John E . Nobles, Jr. in Onslow County Superior Court. Defendant has failed to establish this Court’s jurisdiction because he is unable to show that the preliminary injunction deprived him of a substantial right . We therefore dismiss this appeal as interlocutory

. Factual HistorySIA G ROUP , I NC
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- Plaintiff , SIA Group, Inc. (“ SIA ”) , is an insurance agency, which solicits, sells, and services insurance and related financial products

. SIA hired D efendant in December 2002 as a “ sales executive ” to s ell and servic e “property, casualty, and other incidental insurance coverages” for c ommercial clients. When Defendant was hired by SIA, he signed a n e mployment agreement (“the Agreement”) , which included non solicitation and non

- disclosure covenant s . For two years foll owing Defendant’s departure from SIA, t he Agreement’s non

- solicitation covenant barred Defendant from solicit ing or accept ing business for himself in totum from those who were current or prospective SIA clients for the three years prior to his departure fr om SIA , and from “divert [ing] or attempt [ing] to divert” current or prospective SIA clients to an SIA competitor. The Agreement’s non

- disclosure covenant barred Defendant from

“ divulg[ing] , disclos [ing] , or communicat [ing] ” any confidential information wh ich related to SIA’s business , acted in SIA’s detriment, c ompete d with SIA, or attempt ed to adversely affect a relationship between SIA and its current or prospective clients. In 2011, Defendant was promoted to a corporate position and a team leader positi on at SIA. Through these position s , Defendant gained “complete access to all

. . . confidential files of . . . SIA Group ’s customers and prospects , not just the customers that [Defendant] himself serviced or solicited.” In February 2016, SIA modified its compensation structure. This upset Defendant because h e believed his performance as one of SIA’s top salesmen should g enerate more income. On Ma rch 24, 2016,SIA G ROUP , I NC
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- without the knowledge or consent of SIA , Defendant emailed a n SIA customer list of approximately 300 client names, addresses, phone numbers, and email addresses from his SIA email address to his personal email address. I n May 2016, Def endant resigned from SIA and took a positi on with an SIA competi tor, BB&T Insurance Services, Inc. Procedural History On June 29, 2016, SIA filed suit against Defendant for breach of contract alleg ing Defendant had violated the non

- solicitation and non

- disclosu re covenants in the Agreement . SIA also filed a motion for a preliminary injunction to prevent Defendant from fu rther violating the covenants. On October 3, 2016, the trial court issued a preliminary injunction against Defendant . In its order, the trial court found that Defendant had “solicit[ed] business [while working for SIA’s competitor] from the clients he formerly serviced while working for SIA” and concluded “it [was] appropriate to limit [the preliminary injunction] to just those specific customer s listed in the ‘customer list’ ” that Defendant emailed to himself in March 2016. Pursuant to the preliminary injunction , Defendant could not solicit or accept SIA clients who were on the customer list or disclos e “confidential information of any kind, nature, or description relating to SIA Group ’s business,” which inclu ded, but was not limited to , the customer list. It is from this preliminary injunction that Defendant timely appealed.SIA G ROUP , I NC
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- Analysis Defendant argues that this Court must address this interlocutory appeal because the trial court’s order issuing the preliminary injunction affects a substantial right. He argues that the preliminary injunction affects his right to earn a living ; that this right is a subs tantial right; and that the substantial right doctrine, therefore , confers jurisdiction on this Court. We disagree and dismiss Defendant’s appeal

.

“ A trial court ’ s ruling on a motion for preliminary injunction is interlocutory. ” Bessemer City Express, I nc. v. City of Kings Mountain , 155 N.C. App. 637, 639, 573 S.E.2d 712, 714 (2002) (citing Rug Doctor, L.P. v. Prate , 143 N.C. App. 343, 345 , 545 S.E.2d 766, 767 (2001)). “The appeals process is designed to eliminate the unnecessary delay and expense of re peated fragmentary appeals, and to present the whole case for determination in a single appeal from a final judgment.” Stanford v. Paris , 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (citation and quotation marks omitted). Therefore, “interlocutory appeal s are discouraged except in limited circumstances,” Id

. , and, “[a]s a general rule, there is no right of appeal from an interlocutory order.” Larsen v. Black Diamond French Truffles, Inc. , ___ N.C. App. ___, ___, 772 S.E.2d 93, 95 (2015).

“ For appellate review to be proper, the trial court's order must: (1) certify the case for appeal pursuant to N.C. R. Civ. P. 54(b); or (2) have deprived the appellantSIA G ROUP , I NC
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- of a substantial right that will be lost absent review before final disposition of the

case. ” Bessemer City Express, 155 N.C. App. at 639, 573 S.E.2d at 714 (citing N.C. Gen. Stat. §§ 1

– 277(a) and 7A

– 27(d)(1) (2001) ). In this case, the trial court’s order

was not certif

ied for immediate appeal ; nor does it affect a substantial right. To establish that a court order affects a substantial right, appellant must show that “ the right itself [is] substantial; and

. . . the deprivation of that substantial right

. . . potentially work[s] injury to the party if not corrected befo re appeal from final judgment.” Id. , 573 S.E.2d at 714 (citation, quotation marks, and brackets omitted). North Carolina courts “have recognized the inability to practice one’s livelihood and the deprivation of a significant property in terest to be substantial rights. ” Id

. at 640 , 573 S.E.2d at 714 (citations omitted) . However, “[n]ot every order which affects a person’s right to earn a living is deemed to affect a substantial right.” A & D Environmental Services, Inc. v. Miller , ___ N.C. App. ___, ___, 776 S.E.2d 73 3, 735 (2015). “Rather, whether such an order affects a substantial right depends on the extent that a person’s right to earn a living is affected.” Id

. at ___, 776 S.E.2d at 735. This Court has previously held a preliminary injunction affects an individual’s substantial right to earn a living when the “ preliminary injunction . . . effectively prevents a person from [engaging in] ‘a realistic opportunity to use his own skill and tal ents,’ ” but not where the injunction “merely limits a person’s ability to earn a living.” Id. at ___, 776 S.E.2d at 7 35

- 36 (citations omitted) (emphasis in original).SIA G ROUP , I NC
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- Accordingly , this Court found that a defendant

- employee’s substantial right to earn

a living was not impacted by a preliminary injunction that “d[ id ] not prevent [the d]efendant from working in [ the p]laintiff’s industry, but

. . . limit[ed] [the defendant’s] activities by not allowing him to call on or service a narrowly defined group of c ustomers” in that industry. Id

. at ___, 776 S.E.2d at 736. In A & D Environmental Services , this Court did not find it had jurisdiction to address the merits of an appealed preliminary injunction that barr ed th e defendant from soliciting or servicing ind ividuals with whom he had previously conducted business. Id . at ___, 776 S.E.2d at 736. T his Court explained the preliminary injunction’s restrictive scope was not so large that it left “very few, if any, viable prospects or customers for a defendant to call on.” Id. at __

_ , 776 S.E.2d at 736 nn.1

- 2. See Consolidated Textiles v. Sprague , 117 N.C. App. 132, 134, 450 S.E.2d 348, 349 (1994) (holding that a defendant’s substantial right, that of earning a living, was not impacted where a preliminary injunction enforcing a covenant not to compete barred the defendant from contacting the plaintiff’s “customers actively solicited within the year prior to [the defendant’s] resignation” because it “appear[ed] to only restrict him from contacting approximat ely three hundred customers

— a fraction of the thousands
t hat remain[ed] available ” (citations omitted) )

. In the case sub judice , from the time when Defendant separat ed from SIA to the issuance of the preliminary injunction, Defendant sold insurance policie s toSIA G ROUP , I NC
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- “numerous” clients he serviced while employed at SIA and earned over $180,000.00 in commissions from the newly

- generated policies. Before the injunction was issued, Defendant was neither “prevented” nor “limited” from soliciting, accepting, or
genera ting business in the insurance industry. Only after the preliminary injunction’s issuance was Defendant restricted from soliciting or accepting business from the approximately 30 0 SIA clients contained in the customer list, exclusive of those clients who named Defend ant as their broker of record. Therefore , the preliminary injunction does not prevent or “destroy” Defendant’s ability to earn a living or sustain a livelihood. See Copypro, Inc . v. Musgrove , 232 N.C. App. 194, 197 , 754 S.E.2d 188, 191 (2014) (“ [ W ] hen th e entry of an order [for] . . . a preliminary injunction has the effect of destroying a party’s livelihood, [it] affects a substantial right. . . .” (citation omitted) ). Its terms “merely limit s [ Defendant’s] activities by not allowing him to [solicit or passively accept business from] a narrowly defined group of customers.” A&D Environmental Services , ___ N.C. App. at ___, 776 S.E.2d at 736. Defendant continues to have a “realistic opportunity t o use his own skill and talents” to generate new client relationships outside the customer list on which the preliminary injunction focuses. Id . at ___, 776 S.E.2d at 735 (citations and quotation marks omitted). Defendant did not establish that the trial cou rt’s preliminary injunction affected his ability to earn a livin g to the extent at which it affects a substantial right. “Because it is theSIA G ROUP , I NC
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- appellant’s burden to present appropriate grounds for this Court’s acceptance of an interlocutory appeal, and D efendant[ has] not met [his] burden, Defendant[’ s] appeal must be dismissed. ” Larsen , 241 N.C. App. at 79, 772 S.E.2d at 96 (citation, quotation marks, and brackets omitted) . Furthermore, we will not grant Defendant’s petition for a writ of certiorari to address the merits of this appeal at this stage of litigation

. Conclusion As Defendant has failed to establish that the trial court’s preliminary injunction affected a substantial right, we have no appellate jurisdiction to consider this interlocutory app eal. W e also deny Defendant’s petition for a writ of certiorari. Accordingly, we must dismiss. DISMISSED

. Judge s CALABRIA and HUNTER, JR. concur.