IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-431

Filed: 19 March 2019

Wake County, No. 14 CVS 012804

AESTHETIC FACIAL & OCULAR PLASTIC SURGERY CENTER, P.A., Plaintiff,

v.

RENZO A. ZALDIVAR and OCULOFACIAL PLASTIC SURGERY CONSULTANTS, 

P.A., SURGICAL, LLC, Defendants.

Appeal by plaintiff from order entered 16 December 2015 by Judge G. Bryan 

Collins, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 16 

October 2018.

The Law Offices of Michele A. Ledo, PLLC, by Michele A. Ledo; and Law Office 

of Samuel A. Forehand, P.A., by Samuel A. Forehand, for plaintiff-appellant.

Zaytoun Law Firm, PLLC, by Matthew D. Ballew, John R. Taylor, and Robert 

E. Zaytoun, for defendants-appellees. 

STROUD, Judge.

This case arises from plaintiff’s claim to enforce restrictive covenants in an 

employment agreement involving two highly specialized physicians. After two years, 

Dr. Renzo Zaldivar left Aesthetic Facial and Ocular Plastic Surgery Center, P.A., an 

ocular and facial plastic surgery practice started by Dr. Frank Christenson, and 

started his own practice. Dr. Zaldivar’s employment agreement with Dr. 

Christensen’s practice included a covenant not to compete in certain geographical
AESTHETIC FACIAL V. ZALDIVAR

Opinion of the Court

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areas in North Carolina, and a covenant not to solicit former patients or referrals 

from individuals or businesses with a referring relationship to plaintiff. After 

carefully reviewing the covenants, we find that they are unenforceable because they 

violate public policy and affirm the trial court’s grant of summary judgment for 

defendants.

I. Background

Dr. Frank Christensen is a board-certified physician practicing ophthalmology, 

with specialized “surgical training in ocular and plastic surgery.” He has been in 

practice for about 30 years, and, because of his highly specialized practice, he sees

patients “based upon referrals from optometrists and ophthalmologists throughout 

the eastern half of North Carolina.” For most of his years in practice, Dr. Christensen 

was the only physician working for his practice, Aesthetic Facial & Ocular Plastic 

Surgery Center, P.A. (“plaintiff”). Plaintiff has an office in Raleigh, but Dr. 

Christensen saw and treated patients in office spaces rented from other physicians

or in hospitals in Central and Eastern North Carolina.

In 2008, Dr. Christensen “actively recruited an additional surgeon to 

supplement the practice specifically seeking a surgeon trained in both ophthalmic

and plastic surgery.” “After an extensive recruiting process,” he offered to employ 

defendant, Dr. Renzo Zaldivar. Dr. Zaldivar completed his ophthalmology training 

and a fellowship with the Mayo Clinic and University of Minnesota, and Dr. 
AESTHETIC FACIAL V. ZALDIVAR

Opinion of the Court

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Christensen offered Dr. Zaldivar employment with plaintiff in a letter dated 26 

November 2008 (“the Agreement”). This Employment Agreement contained 

provisions covering salary, benefits, and Dr. Zaldivar’s obligations to plaintiff. The 

Agreement also contained non-compete and non-solicitation covenants. Dr. Zaldivar 

accepted Dr. Christensen’s offer and was employed by plaintiff starting in July of 

2009. The Agreement stated Dr. Zaldivar’s employment was “at will” but anticipated 

“continuing year to year thereafter until terminated as provided herein.” In June of 

2011, Dr. Zaldivar gave notice of his resignation to Dr. Christensen and formed his 

own practice, defendant Oculofacial Plastic Surgery Consultants, P.A., Surgical, LLC. 

Dr. Zaldivar immediately began practicing in the same geographical region as 

plaintiff.

On 24 September 2014, plaintiff filed a complaint against Dr. Zaldivar and his 

practice (“defendants”) alleging claims of breach of the covenants in the employment 

agreement, tortious interference with contractual relations, civil conspiracy, and 

unfair and deceptive trade practices. Defendants answered, denying the material 

allegations of the complaint and alleging that the non-compete covenant and 

non-solicitation covenants of the Agreement were unenforceable for various reasons. 

Defendants counterclaimed for breach of contract, fraud, negligent 

misrepresentation, unjust enrichment, and unfair and deceptive trade practices. 

After discovery and depositions, defendants filed a motion for summary judgment. 
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After a hearing on the motion, the trial court entered an order granting defendants’

motion. On 12 December 2017, defendants voluntarily dismissed all counterclaims, 

and plaintiff timely appealed. 

II. Standard of Review 

Our standard of review of an appeal from summary 

judgment is de novo; such judgment is appropriate only 

when the record shows that there is no genuine issue as to 

any material fact and that any party is entitled to a 

judgment as a matter of law. When considering a motion 

for summary judgment, the trial judge must view the 

presented evidence in a light most favorable to the 

nonmoving party. If the movant demonstrates the absence 

of a genuine issue of material fact, the burden shifts to the 

nonmovant to present specific facts which establish the 

presence of a genuine factual dispute for trial.

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and 

quotation marks omitted).

III. Restrictive Covenants 

Plaintiff argues that the trial court erred in granting summary judgment 

because there are genuine issues of material fact related to the enforceability of the 

non-compete covenant and non-solicitation covenant in the Agreement and that the 

covenants do not not violate public policy. Defendants contend that enforcement of 

the covenants would create a “substantial question of potential harm to the public 

health” because Dr. Zaldivar is one of very few specialists in North Carolina who 

practice his particular subspecialty of ocluofacial plastic surgery. 
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Opinion of the Court

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“[I]n North Carolina, restrictive covenants between an employer and employee 

are valid and enforceable if they are (1) in writing; (2) made part of a contract of 

employment; (3) based on valuable consideration; (4) reasonable both as to time and 

territory; and (5) not against public policy.” United Labs., Inc. v. Kuykendall, 322 

N.C. 643, 649-50, 370 S.E.2d 375, 380 (1988). There is no dispute that the parties 

entered a written employment contract based on valuable consideration; their dispute 

is based upon the territory and the public policy considerations of the restrictions. 

Defendants contend that the territorial restrictions of the covenants are 

unreasonable, and for purposes of addressing the public policy issue, we express no 

opinion on the reasonableness of the territory. For purposes of this argument, we 

will view the Agreement in the light most favorable to the plaintiff and assume the 

restrictions cover the full territory alleged by plaintiff. Dr. Christensen had 

arrangements with other physicians or hospitals to provide services in Chapel Hill,

Durham, Fayetteville, Greensboro, Greenville, Pinehurst, Raleigh, Rocky Mount, 

Supply, Wake Forest, Wilmington, and Wilson. The Agreement provided that the 

covenants covered a 15-mile radius around each of plaintiff’s practice locations.

a. Covenant not to Compete

North Carolina courts have considered several cases involving non-compete 

agreements involving physicians, and depending upon the specialization of the 

physician and the territory of the restriction, several cases have recognized the 
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Opinion of the Court

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potential for harm to the public health from denial of needed medical care to the 

public: 

If ordering the covenantor to honor his contractual 

obligation would create a substantial question of potential 

harm to the public health, then the public interests 

outweigh the contract interests of the covenantee, and the 

court will refuse to enforce the covenant. But if ordering 

the covenantor to honor his agreement will merely 

inconvenience the public without causing substantial 

harm, then the covenantee is entitled to have his contract 

enforced.

Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 27-28, 373 S.E.2d 449, 

453 (1988) (citations omitted), aff’d, 324 N.C. 327, 377 S.E.2d 750 (1989).

This Court considers the following factors in determining 

the risk of substantial harm to the public: the shortage of 

specialists in the field in the restricted area, the impact of 

establishing a monopoly in the area, including the impact 

on fees in the future and the availability of a doctor at all 

times for emergencies, and the public interest in having a 

choice in the selection of a physician. 

Calhoun v. WHA Med. Clinic, PLLC, 178 N.C. App. 585, 599-600, 632 S.E.2d 563, 572 

(2006) (quotation marks and ellipsis omitted). 

Here, both Dr. Zaldivar and Dr. Christensen practice a sub-specialty of 

oculo-facial surgery. There is no factual dispute there are very few physicians 

practicing this subspecialty in the territory covered by the restrictions, or even in the 

entire state of North Carolina.
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If a particular type of medical care is readily available in the restricted 

territory, a covenant which restricts a medical professional from providing care may 

not offend public policy. For example, in Jeffrey R. Kennedy, D.D.S., P.A. v. Kennedy, 

this Court addressed a general dentist who signed a restrictive covenant not to 

compete within fifteen miles of the practice in Chapel Hill for three years following 

his departure from the practice. 160 N.C. App. 1, 4, 584 S.E.2d 328, 330 (2003). The 

defendant dentist began practicing dentistry in violation of the covenant, and the 

plaintiff dental practice filed a complaint seeking a preliminary injunction, which the 

trial court denied. Id. at 5, 584 S.E.2d at 331. This Court reversed the trial court 

and concluded the covenant was enforceable because “the covenant at issue does not 

cause substantial harm to the public health and, at most, merely inconveniences 

dental patients.” Id. at 11, 584 S.E.2d at 335. The evidence in that case showed that 

many dentists were available in the restricted area, and the defendant dentist did 

not practice any sort of specialized dental care not provided by most general dentists. 

Id. This Court stated that “[p]rior cases concluding that such restrictions harm the 

public health involve circumstances wherein the health care provider is the sole such 

provider in the area, or is one of few specialists in a particular area.” Id.

This Court addressed a non-compete agreement involving a specialized 

physician in an area where few similar specialists were available in Iredell Digestive 

Disease Clinic v. Petrozza. 92 N.C. App. 21, 373 S.E.2d 449. In Iredell Digestive 
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Disease Clinic, the defendant specialized in gastroenterology and internal medicine. 

92 N.C. App. at 22, 373 S.E.2d at 450. Defendant signed a covenant not to compete 

for three years within twenty miles of Statesville or five miles of any hospital or office 

serviced by plaintiff. Id. at 23, 373 S.E.2d at 450-51. Defendant submitted affidavits

from 41 physicians in Statesville which stated that “one gastroenterologist would not 

be able to meet the community’s demand for such services; that losing defendant 

Petrozza’s services would create an excessive workload on plaintiff; and would ‘likely 

result in undesirable and possible critical delays in patient care and treatment.’” Id.

at 28, 373 S.E.2d at 453. Plaintiff submitted affidavits from 14 physicians who stated 

“that there are presently four surgeons in Statesville who can perform certain semisurgical procedures performed by gastroenterologists; and that in severe cases 

patients can be transferred by helicopter from the hospital in Statesville to Baptist 

Hospital in Winston-Salem.” Id. at 28, 373 S.E.2d at 453-54. The trial court 

acknowledged that “there is conflict between plaintiff’s and defendant’s affidavits as 

to the precise impact Dr. Petrozza’s leaving would have on the community. However, 

we believe after reviewing the affidavits de novo, that the trial court was correct in 

finding that the public health and welfare would be harmed if there were only one 

gastroenterologist in Statesville.” Id. at 29, 373 S.E.2d at 454.

Similarly, in Statesville Medical Group v. Dickey, defendant specialized in 

endocrinology and signed an employment contract that prohibited him from 
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Opinion of the Court

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competing with plaintiff for two years in Iredell County. 106 N.C. App. 669, 670-71, 

418 S.E.2d 256, 257 (1992). The trial court granted a preliminary injunction

preventing the defendant from practicing in the restricted area under the covenant. 

Id. at 671, 418 S.E.2d at 257. On appeal, this Court reversed the trial court and found 

that the covenant posed a risk of substantial harm to the public due to 

the shortage of specialists in the field in the restricted area, 

the impact of plaintiff establishing a monopoly of 

endocrinology practice in the area, including the impact on 

fees in the future and the availability of a doctor at all 

times for emergencies, and the public interest in having a 

choice in the selection of a physician. 

Id. at 673, 418 S.E.2d at 259. 

In Nalle Clinic Co. v. Parker, defendant specialized in pediatrics and pediatric 

endocrinology. 101 N.C. App. 341, 342, 399 S.E.2d 363, 364 (1991). Defendant signed 

a contract with plaintiff that prevented defendant from practicing in Mecklenburg 

County for two years following his employment with plaintiff. Id. After defendant 

resigned from employment with plaintiff, plaintiff sought a preliminary injunction 

which the trial court granted. Id. at 342-43, 399 S.E.2d at 365. Under the specific 

facts of the case, including the defendant’s specialization and the lack of other 

pediatric endocrinologists in the geographic area, this Court reversed the trial court 

because “enforcement of the covenant not to compete would create a substantial 

question of potential harm to the public health.” Id. at 345, 399 S.E.2d at 366 

(quotation marks omitted). 
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Opinion of the Court

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Here, the covenant not to compete is titled “Restrictive Covenant” in the 

employment agreement. The covenant provides that for a period of two years after 

his employment with plaintiff ends, defendant

will not render any ophthalmology and/or oculo-facial 

plastic and reconstructive surgery services on behalf of 

yourself, any business, practice or entity within a fifteen 

(15) mile radius of any office, satellite or other place of 

business used by the Practice at the time your employment 

commences, or within a fifteen (15) mile radius of any 

future office, satellite or other place of business used by the 

Practice at the time your employment ends (or within one 

(1) year prior to the time your employment ends). This 

promise specifically includes your not practicing 

ophthalmology and/or oculo-facial plastic and 

reconstructive surgery services or any of their disciplines 

at any hospital, surgery center or laser center at which you 

or the Practice’s other physicians had active staff privileges 

at the time your employment ends (or within one (1) year 

prior to the time your employment ends). 

Dr. Zaldivar resigned in September 2011, and plaintiff did not pursue an 

injunction to stop Dr. Zaldivar from competing in the restricted area; plaintiff waited 

until September 2014 to file a complaint. To support their motion for summary 

judgment, defendants submitted affidavits from eight physicians practicing 

ophthalmology in North Carolina; six are specialists in oculofacial plastic surgery. 

These physicians described the medical necessity of Dr. Zaldivar’s services and the 

potential impact on public health from enforcing the restrictive covenants:

Dr. Zaldivar is a much needed member of the North 

Carolina medical community. Should Dr. Zaldivar not be 

permitted to practice in the alleged “restricted area” of the
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Opinion of the Court

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“non-compete covenant” that is involved in this dispute, 

this could potentially cause harmful delay in delivery of 

specialized medical care in the emergency setting . . . . 

Removing Dr. Zaldivar from practice in this broad and 

highly populated geographic area would cause an increased 

burden on the limited number of oculofacial plastic 

specialists practicing from Greensboro to the North 

Carolina Coast. 

In addition, the eight physicians noted the limited number of oculofacial plastic 

surgeons in the area:

There are currently a limited number of oculofacial plastic 

surgeons practicing in the North Carolina from Greensboro 

to the East Coast. These subspecialty eye surgeons handle 

emergencies and time-sensitive face and eye surgeries for 

a population of millions of people in this geographic area, 

including children seen in emergency rooms for acute or 

trauma injuries to the eyes and face.

The physicians also noted that Dr. Zalidivar provides several highly specialized 

surgical procedures not provided by other physicians in the area:

Dr. Zaldivar provides patients with access to highly 

specialized medical procedures and orbital surgeries, 

including but not limited to optic nerve sheath 

fenestrations, which are currently only available in 

Eastern North Carolina through Dr. Zaldivar’s practice. 

This procedure is usually necessitated in an emergency 

situation where pressure on the optic nerve can cause 

permanent vision loss without prompt surgical 

intervention.

Where defendants have presented evidence supporting a summary judgment 

motion, plaintiff cannot rely on its complaint but must produce evidence to create a 

genuine issue of material fact. See N.C. Gen. Stat. §1A-1, Rule 56(e) (“When a motion 
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Opinion of the Court

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for summary judgment is made and supported as provided in this rule, an adverse 

party may not rest upon the mere allegations or denials of his pleading, but his 

response, by affidavits or as otherwise provided in this rule, must set forth specific 

facts showing that there is a genuine issue for trial.”). However, we “view the 

presented evidence in a light most favorable to the nonmoving party.” In re Will of 

Jones, 362 N.C. at 573, 669 S.E.2d at 576.

In response to defendants’ motion for summary judgment, plaintiff submitted

affidavits of Dr. Christensen and two other employees of plaintiff. In his deposition, 

Dr. Christensen acknowledged that both he and Dr. Zaldivar are in a very highly 

specialized area of practice. When Dr. Zaldivar joined plaintiff, Dr. Christensen sent 

out a letter to his referral sources describing his unique qualifications and extensive 

training:

I believe you will be impressed with my new associate Dr. 

Renzo Zaldivar. He is a very talented surgeon with the 

highest of training credentials and excellent personal 

demeanor. Dr. Zaldivar has completed a formal, two-year 

fellowship in oculoplastics at the Mayo Clinic which is one 

of thirty recognized by the American Society of Ophthalmic 

Plastic and Reconstructive Surgery (ASOPRS). . . . We will 

be the only fellowship trained oculoplastic and orbital 

specialists that have both completed a fellowship approved 

by the American Society of Ophthalmic Plastic and 

Reconstructive Surgeons and are also members of this 

society who treat patients in Raleigh and Cary (Dr. Zaldivar 

will be admitted to ASOPRS society October, 2009).

. . . .
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I am very excited to have an associate with his excellent 

credentials. Although results cannot be guaranteed I 

believe that the first responsibility as a surgeon is to obtain 

the best and most advanced training available through 

education and then to apply this knowledge. 

(Emphasis added.)

Based upon the entire forecast of evidence, viewed in the light most favorable 

to plaintiff, there is no genuine issue of material fact as to Dr. Zaldivar’s specialized 

qualifications and the very limited number of physicians in the territory covered by 

the covenant—or even in North Carolina—who can provide oculofacial plastic surgery 

and particularly optic nerve sheath fenestrations. Plaintiff seeks to minimize the 

importance of the optic nerve sheath fenestration surgery, arguing it is “so rare you 

don’t see many of them,” but plaintiff does not dispute that when a patient needs optic 

nerve sheath fenestration surgery, the patient may go blind if the procedure is not 

performed promptly. And even if very few patients need this procedure, one person 

losing his or her sight because of the lack of a specialist to perform the surgery is one 

too many.

There is no genuine issue of material fact regarding the nature of Dr. Zaldivar’s 

practice or the very limited availability of other physicians practicing in the relevant

area of North Carolina. We conclude that restricting Dr. Zaldivar’s ability to practice 

in the most populated areas of North Carolina when there are very few oculofacial 

plastic surgeons, and even fewer who perform some of the specialized procedures he 
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Opinion of the Court

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is trained to provide, raises a “substantial question of potential harm to the public 

health.” Iredell Digestive Disease Clinic, 92 N.C. App. at 27, 373 S.E.2d at 453. 

Accordingly, the covenant violates public policy and will not be enforced.

b. Buy-Out Provision

Plaintiff contends that even if enforcement of the Agreement by enjoining Dr. 

Zaldivar from practicing would pose a risk to public health, this risk is not present 

here because he did not seek to enjoin Dr. Zaldivar from practicing his specialty after 

leaving plaintiff’s practice. Plaintiff waited until after the expiration of the two year 

covenant to file its claim against defendants and seeks damages under the buy-out 

provision of the Agreement. This provision provides that 

the Practice agrees to release you from the restrictive 

covenant of this Paragraph 11 (but not the non-solicitation 

provisions of Paragraph 12) if you purchase and actually 

pay for a release from the restrictive covenant from the 

Practice. Your purchase of a release from the restrictive 

covenant and your actual payment for such release prior to 

your practicing in the restricted areas after your 

employment ends will permit you to practice in the 

restricted areas described above after termination of your 

employment. You hereby agree that reasonable 

compensation to the Practice for such a release from the 

restrictive covenant is an amount equal to one hundred 

fifty percent (150%) of your annual base salary in effect 

immediately prior to the termination of your employment 

with the Practice. Thus, should you elect to practice in the 

restricted areas after your employment ends, you agree to 

pay and the Practice agrees to accept such amount to 

provide you a release from the restrictive covenant to 

which you have agreed in this Paragraph 11.
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Plaintiff argues that the buy-out provision is enforceable because it does not 

prevent Dr. Zaldivar from providing medical care; it only requires him to pay Plaintiff 

to be released from the non-compete provisions of the Agreement (but not the nonsolicitation provision, which we will address below). Plaintiff contends that “[t]his 

Court has held that there is no potential harm to public health where a physician can 

pay his former employer to practice in a restricted area, whether the payment 

provision is cast as a liquidated damages provision or a forfeiture provision.” We 

disagree with plaintiff’s characterization of this Court’s prior holdings.

Plaintiff argues this Court approved damages in lieu of enforcement of a noncompete agreement in Eastern Carolina Internal Medicine, P.A. v. Faidas. 149 N.C. 

App. 940, 564 S.E.2d 53, aff’d, 356 N.C. 607, 572 S.E.2d 780 (2002). But Faidas did 

not address a covenant not to compete; this Court held “that the ‘Cost Sharing’ 

provision is not a covenant not to compete and we do not subject it to the strict 

scrutiny as to reasonableness and public policy required with a covenant not to 

compete.” Id. at 945, 564 S.E.2d at 56. Relying on Faidas, this Court in Calhoun v. 

WHA Medical Clinic, PLLC, considered a non-compete clause and a damages clause 

dealing with cardiologists and found that “[t]he trial court made findings . . . that 

establish that there is no potential harm to public health given that the physicians 

were able to pay the liquidated damages and had no plans to leave the area.” 178 

N.C. App. at 600, 632 S.E.2d at 573. At trial, the cardiologists subject to the covenant
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Opinion of the Court

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testified “that they had no plans to leave the area and, if the covenant not to compete 

was determined to be enforceable, they were prepared to take all necessary steps to 

ensure continued presence in the medical community and continued treatment of 

patients, even if that meant paying the liquidated damages agreed to in their 

contracts with WHA.” Id. at 593, 632 S.E.2d at 569. They also posted a letter of 

credit with the clerk of superior court further demonstrating their ability to pay the 

liquidated damages. Id. Further, the amount of the liquidated damages in Calhoun

was at a minimum equal to a payout that each doctor had the option to receive or 

forgo and not be subject to the restrictive covenant. Id. at 590, 632 S.E.2d at 567. 

Neither Calhoun nor Faidas stand for the proposition that a damages clause 

in a restrictive covenant makes a covenant in violation of public policy based upon a 

risk to public health enforceable through payment of damages instead of enjoining 

the physician from practicing. The provisions of the Agreement regarding damages 

in Calhoun and the unique facts of that case distinguish it from this case. See id. at 

600, 632 S.E.2d at 573. Faidas did not deal with a covenant not to compete. 149 N.C. 

App. at 945, 564 S.E.2d at 56. The evidence does not demonstrate that Dr. Zaldivar 

had the ability to pay the liquidated damages, nor did he post a letter of credit with 

the clerk of superior court to secure the damages. Both the restrictive covenant and

the liquidated damages provision must be reasonable and not violate public policy. 

See Calhoun, 178 N.C. App. at 599, 632 S.E.2d at 572 (“[T]he agreement . . . contains 
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an unequivocal non-compete clause, and . . . contains a damages provision in the event 

the Physician desires to practice in violation of the non-compete clause. Accordingly, 

under established case law, the provisions are strictly scrutinized as to 

reasonableness and public policy.” (brackets, quotation marks, and emphasis

omitted)). 

 We recognize that we have the benefit of hindsight, since plaintiff waited until 

after the two-year term of the restrictions to bring this lawsuit and Dr. Zaldivar 

continued to practice in the restricted area, so any potential harm to public health 

from limitation of his practice did not happen. But the timing of plaintiff’s lawsuit 

and the damages provision cannot obviate the public policy considerations of this 

covenant. If we allowed enforcement of this type of damages provision in lieu of 

enforcement of an injunction restricting a physician’s practice, physicians in Dr. 

Zaldivar’s position may opt not to continue practicing in the restricted area because 

of the risk of the financial penalty. The practical effect on public health is then the 

same as enjoining the physician’s practice: the public would be denied crucial medical 

care because of the financial penalty imposed by a physician’s non-compete 

agreement. Since there is a risk of substantial harm to the public based on these 

facts, there is strong public policy in favor of not enforcing the non-compete provisions

by an award of damages.

c. Non-Solicitation Covenant
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Plaintiffs argue that the non-solicitation covenant is enforceable because “the 

non-solicit provision is reasonably limited to health care providers and patients with 

whom Christensen Plastics had already established a relationship (or those patients’

family members).” The non-solicitation covenant provides: 

Recognizing that your duty to the Practice as your 

employer extends beyond your employment, you agree that 

both during your employment and thereafter, if your 

employment ends (regardless of the reason or manner of 

termination) and whether or not you practice within the 

restricted area as described above, that you will not 

directly or indirectly: (i) solicit for treatment any former or 

existing patient (or member of any patient’s household) of 

the Practice; (ii) induce or attempt to influence any 

employee, contractor or patient of the Practice to alter his 

or her relationship with the Practice in any way; (iii) induce 

or attempt to influence any hospital, other health care 

facility, any physician, any optometrist, any optician, or 

any other professional with a referring relationship with 

the Practice, including any managed care payor, to alter 

that relationship in anyway; or (iv) solicit any patient 

service contractual arrangement of the Practice. This 

restriction shall apply during the term of your employment 

and for a period of two (2) years immediately following the 

end of your employment. In the event of your breach 

thereof, the two (2) year time limitation expressed above 

shall be from the date of your last violation. 

“To be valid, the restrictions must be no wider in scope than is necessary to 

protect the business of the employer.” Med. Staffing Network, Inc. v. Ridgway, 194 

N.C. App. 649, 656, 670 S.E.2d 321, 327 (2009) (quotation marks omitted). “In North 

Carolina, the protection of customer relations against misappropriation by a 

departing employee is well recognized as a legitimate interest of an employer.” Id.
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(quotation marks and brackets omitted). A restrictive covenant may “be directed at 

protecting a legitimate business interest. But . . . where the Agreement reaches not 

only clients, but potential clients, and extends to areas where Plaintiff had no 

connections or personal knowledge of customers, the Agreement is unreasonable.” 

Hejl v. Hood, Hargett & Assocs., 196 N.C. App. 299, 307, 674 S.E.2d 425, 430 (2009).

In his deposition, when Dr. Christensen was asked for the name of a physician 

whom Dr. Zaldivar solicited in violation of this covenant, he responded: 

I’ll give you one doctor. That’s the question. Kathy Hecker. 

He called Kathy Hecker up and says, I would like you to 

stop sending to Frank and send to me.

But in direct response to this testimony, Dr. Kathryn Hecker swore to the following 

in an affidavit:

2. I have been advised that Dr. Frank Christensen, the 

owner of Aesthetic Facial & Ocular Plastic Surgery 

Center, PA, gave sworn deposition testimony about me 

in his legal proceedings against Dr. Renzo Zaldivar. I 

have read the portions of Dr. Christensen’s depositions 

where he discusses me, which are attached to affidavit 

as Exhibit A, and Dr. Christensen’s testimony about me 

is false. Specifically, Dr. Christensen’s testimony that 

Dr. Zaldivar solicited business from me is not true.

Contrary to Dr. Christensen’s testimony, Dr. Zaldivar 

never called me and asked that I stop referring patients 

to Dr. Christensen and instead refer patients to Dr. 

Zaldivar. Also, I never told Dr. Christensen that Dr. 

Zaldivar solicited me in this way. 

This testimony and affidavit could present a genuine issue of material fact, 

since Dr. Hecker denies that Dr. Zaldivar solicited her, and Dr. Christensen says he 
AESTHETIC FACIAL V. ZALDIVAR

Opinion of the Court

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did. Viewed in the light most favorable to plaintiff, this evidence in addition to the 

affidavits of plaintiff’s employees could show a violation of the non-solicitation 

agreement as to Dr. Hecker, but even if Plaintiff has forecast one potential violation 

of the non-solicitation covenant, the Agreement still is unenforceable because it is 

overbroad and in contravention of public policy. The non-solicitation provision is not 

limited to existing patients or Dr. Zaldivar’s professional contacts made during his 

employment with plaintiff. Instead, it covers “any former or existing patient (or 

member of any patient’s household) of the Practice[.]” (Emphasis added.) This

restriction would apply not just to existing patients, but also to “any member of the 

patient’s household”—a future or potential patient with whom Dr. Christensen had 

no relationship—and is therefore unreasonable. See Hejl, 196 N.C. App. at 307, 674 

S.E.2d at 430.

Because of the highly specialized nature of both Dr. Zaldivar’s and Dr. 

Christensen’s practices, they see patients almost exclusively based upon referrals 

from other physicians. The remaining prohibitions of the non-solicitation provisions 

also impair Dr. Zaldivar’s ability to see future or potential patients because it 

penalizes Dr. Zaldivar for accepting referrals from other medical professionals or 

hospitals with whom Dr. Christensen had a relationship. These limitations on Dr. 

Zaldivar prevent him from 

(ii) induc[ing] or attempt[ing] to influence any employee, 

contractor or patient of the Practice to alter his or her 
AESTHETIC FACIAL V. ZALDIVAR

Opinion of the Court

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relationship with the Practice in any way; (iii) induc[ing]

or attempt[ing] to influence any hospital, other health care 

facility, any physician, any optometrist, any optician, or 

any other professional with a referring relationship with 

the Practice, including any managed care payor, to alter 

that relationship in anyway; or (iv) solicit[ing] any patient 

service contractual arrangement of the Practice. 

For example, if a patient suffered an eye injury and presented to the emergency 

department of a hospital where Dr. Christensen had practiced, and the hospital 

contacted Dr. Zaldivar to care for the patient, instead of Dr. Christensen, Dr. Zaldivar 

may be in violation of the non-solicitation provision simply because he let the hospital 

know that he was available to care for patients at the hospital and agreed to care for 

the patient—even if Dr. Christensen was not available at that moment to care for the 

patient in the emergency department. This limitation on referrals from other medical 

professionals to a highly specialized physician, where very few such physicians are 

available, would have the same detrimental effect upon availability of medical care 

as the non-compete agreement, and it is therefore unenforceable.

IV. Breach of Contract

Plaintiff argues “[w]here the Referral Source Covenants of the parties’ contract 

are valid and enforceable, the trial court erred in summarily dismissing Christensen 

Plastics’ breach of contract claims.” However, the breach of contract claim is 

contingent on the validity of the unenforceable covenants discussed above. This 

argument is overruled.
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Opinion of the Court

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V. Learned Profession Exemption

Plaintiff argues that “the trial court erred in holding that the ‘learned 

profession’ exemption bars its unfair and deceptive trade practices claim where this 

claim does not involve the provision of medical services.” (Capitalization removed.) 

Plaintiff’s complaint alleged in relevant part:

41. Oculofacial P.A. employed Zaldivar for the 

express purpose of committing acts in breach of his 

agreement with Plaintiff when Oculofacial P.A. and 

Zaldivar knew of the agreement and knew or should have 

known that the acts violated the agreement. 

42. Oculofacial P.A. and Zaldivar engaged in the 

solicitation of patients and in the practice of medicine and

surgery in North Carolina in violation of the agreement 

between Plaintiff and Zaldivar. 

“To prevail on a claim of unfair and deceptive trade practice a plaintiff must 

show (1) an unfair or deceptive act or practice, or an unfair method of competition, 

(2) in or affecting commerce, (3) which proximately caused actual injury to the 

plaintiff or to his business.” Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 460-

61, 400 S.E.2d 476, 482 (1991). “[C]ommerce includes all business activities, however 

denominated, but does not include professional services rendered by a member of a 

learned profession.” N.C. Gen. Stat. § 75-1.1(b) (2017) (quotation marks omitted). “To 

determine whether the learned profession exclusion applies, a two-part inquiry must 

be conducted: first, the person or entity performing the alleged act must be a member 

of a learned profession. Second, the conduct in question must be a rendering of 
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Opinion of the Court

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professional services.” Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App. 584, 

589, 768 S.E.2d 119, 123 (2014) (brackets and quotation marks omitted).

“There is no dispute that doctors . . . are members of a learned profession.” 

Hamlet H.M.A., LLC v. Hernandez, ___ N.C. App. ___, ___, 821 S.E.2d 600, 606 (2018).

Here, the conduct as alleged by plaintiff’s complaint is “the solicitation of patients 

and the practice of medicine and surgery in North Carolina in violation of the 

agreement between Plaintiff and Zaldivar.” (Emphasis added.) The Agreement 

places a limitation on defendant’s ability to provide medical care and therefore arises 

from “a rendering of professional services.” Wheeless, 237 N.C. App. at 589, 768 

S.E.2d at 123. The trial court did not err in determining this claim falls under the 

learned profession exemption, and this argument is overruled. 

VI. Derivative Claims

Plaintiff next argues that “the Referral Source Covenants are valid and 

enforceable. As such, they can properly serve as the basis for a tortious interference 

claim against Zaldivar Plastics.” As the restrictive covenants are not enforceable, 

there is also no basis for plaintiff’s tortious interference claim. This argument is 

overruled. 

VII. Punitive Damages

Plaintiff finally argues, “the trial court . . . erred in holding that Christensen 

Plastics’ punitive damages claim fails.” Because we have held that the covenants are 
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Opinion of the Court

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unenforceable, defendants have no liability for compensatory damages, and thus

there is no basis for awarding punitive damages. N.C. Gen. Stat. § 1D-15(a) (2017) 

(“Punitive damages may be awarded only if the claimant proves that the defendant 

is liable for compensatory damages . . . .”); see Pittmann v. Hyatt Coin & Gun, Inc., 

224 N.C. App. 326, 330, 735 S.E.2d 856, 859 (2012) (“[A] claim of punitive damages is 

dependent upon a successful claim for compensatory damages . . . .”). This argument 

is overruled. 

VIII. Conclusion

For the foregoing reasons, we affirm the trial court’s grant of summary 

judgment for defendants. 

AFFIRMED. 

Judges BRYANT and DAVIS concur.