{ "id": 11241359, "name": "NEW HANOVER RENT-A-CAR, INC., Plaintiff v. HOLLY N. MARTINEZ, Defendant", "name_abbreviation": "New Hanover Rent-A-Car, Inc. v. Martinez", "decision_date": "2000-02-15", "docket_number": "No. COA99-321", "first_page": "642", "last_page": "647", "citations": [ { "type": "official", "cite": "136 N.C. App. 642" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "423 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "793" }, { "page": "795", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523733 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0268-01" ] }, { "cite": "72 S.E. 150", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "151", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "156 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270259 ], "year": 1911, "pin_cites": [ { "page": "91", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/156/0088-01" ] }, { "cite": "86 S.E- 807", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "170 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657156 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/170/0064-01" ] }, { "cite": "12 S.E. 902", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1891, "pin_cites": [ { "page": "904", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650065 ], "year": 1891, "pin_cites": [ { "page": "140-41", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/108/0134-01" ] }, { "cite": "257 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "113", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555021 ], "year": 1979, "pin_cites": [ { "page": "519-20", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0515-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "152 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "269 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563126 ], "year": 1967, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0284-01" ] }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "760", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "year": 1983, "pin_cites": [ { "page": "402", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "574", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "year": 1977, "pin_cites": [ { "page": "701", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0688-01" ] } ], "analysis": { "cardinality": 666, "char_count": 13485, "ocr_confidence": 0.754, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32397757552660406 }, "sha256": "aa3db4e0334f94944301f4460af8c515ba51df0a18bf7b08b8bfb44b95c35904", "simhash": "1:a93b766836c384c6", "word_count": 2192 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HORTON concur." ], "parties": [ "NEW HANOVER RENT-A-CAR, INC., Plaintiff v. HOLLY N. MARTINEZ, Defendant" ], "opinions": [ { "text": "EDMUNDS, Judge.\nDefendant Holly Martinez appeals the trial court\u2019s grant of a preliminary injunction. We reverse.\nPlaintiff New Hanover Rent-A-Car, Inc., is a corporation that owns Avis automobile rental franchises in New Bern, Wilmington, Jacksonville, and Greenville, North Carolina; and Florence, South Carolina. Each location draws customers from an area within a 100-mile radius of the airport in that city. Because all auto rental companies offer vehicles that are essentially identical, the business is driven principally by the prices charged by competing rental agencies. However, according to John Dalton, plaintiffs president, customer service, including the services provided by franchise employees who work at the rental counter in each airport, is also an important factor in the business.\nDefendant successfully interviewed for employment with plaintiff near the end of July 1998 and reported for training on 17 August 1998. She was given a packet of materials to read and sign. The packet included an agreement not to compete, which is at the center of this dispute. Defendant worked for plaintiff from 17 August 1998 through 17 December 1998. Her duties included taking reservations over the phone, serving customers at the counter, and performing other routine daily chores. On 17 December 1998, defendant informed plaintiff she was resigning her position to return to school, adding that she hoped to obtain part-time work in the auto rental business. The next day, defendant began working for the Hertz Rent-A-Car Agency in New Bern at a counter adjacent to plaintiffs counter.\nOn 29 December 1998, plaintiff obtained a temporary restraining order to prevent defendant from working for Hertz. Following a hearing on 8 January 1999, the trial court granted a preliminary injunction enjoining defendant from continuing her employment with Hertz Rent-A-Car Agency in New Bern, North Carolina, and from accepting employment with any other rental car business within a 100-mile radius of any city where plaintiff has other rental car franchises. Defendant appeals.\nDefendant contends the trial court erred in granting the preliminary injunction. Our Supreme Court has said regarding a preliminary injunction:\n[It] is an extraordinary measure taken by a court to preserve the status quo of the parties during litigation. It will be issued only (1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiffs rights during the course of litigation.\nInvestors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977) (citations omitted). \u201c[0]n appeal from an order of [a] superior court granting or denying a preliminary injunction, an appellate court is not bound by the findings, but may review and weigh the evidence and find facts for itself.\u201d A.E.P. Industries v. McClure, 308 N.C. 393, 402, 302 S.E.2d 754, 760 (1983) (citations omitted).\nAn agreement not to compete will not be enforced unless it is: \u201c(1) in writing, (2) entered into at the time and as a part of the original contract of employment, (3) based on a valuable consideration, (4) reasonable both as to the time and territory embraced in the restrictions, (5) fair to the parties, and (6) not against public policy.\u201d U-Haul Co. v. Jones, 269 N.C. 284, 286, 152 S.E.2d 65, 67 (1967). The requirement that an agreement not to compete be in writing includes a requirement that the writing be signed. \u201cNo contract or agreement hereafter made, limiting the rights of any person to do business anywhere in the State of North Carolina shall be enforceable unless such agreement is in writing duly signed by the party who agrees not to enter into any such business within such territory . . . .\u201d N.C. Gen. Stat. \u00a7 75-4 (1999). We have held: \u201cG.S. 75-4 is consistent with the other \u2018statute of frauds\u2019 provisions in our law which require only that the writing be \u2018signed by the party charged therewith[,\u2019] or require that the writing be signed by \u2018the party against whom enforcement is sought.\u2019 \u201d Manpower, Inc. v. Hedgecock, 42 N.C. App. 515, 519-20, 257 S.E.2d 109, 113 (1979) (internal citations omitted); see N.C. Gen. Stat. \u00a7 75-4.\nThe case at bar may be resolved by an examination of the requirement that the writing be signed by defendant. The agreement not to compete is in the form of a printed \u201cEMPLOYMENT AGREEMENT.\u201d It begins with a line at the top for the date. This line has been filled in by hand and reads \u201c17 August 1998.\u201d The next line begins: \u201cI, _, in consideration of being accepted for employment . . . .\u201d and continues with the substantive terms of the agreement. This second blank has been filled in by hand with the printed name \u201cHolly N. Martinez.\u201d At the bottom of the form, following the substantive provisions, there is a line titled \u201cSignature.\u201d This line is blank. Beneath the signature line is a notarization, signed by Robin Dalton, who is plaintiff\u2019s secretary/treasurer and wife of plaintiff\u2019s president. Defendant argues the agreement is invalid because she did not sign it. Plaintiff responds that a signature is not the same as a subscription, and that by printing her name on the top of the agreement, defendant signed it and thereby agreed to its terms.\nOur Supreme Court has held that when a statute dictates that a document has to be subscribed, the signature should be at the end of the document, but \u201cit is not essential that the signatures should be placed at the end of the deed or other instrument, where the law requires signing only.\u201d Devereux v. McMahon, 108 N.C. 134, 140-41, 12 S.E. 902, 904 (1891) (citation omitted); see also Peace v. Edwards, 170 N.C. 64, 86 S.E- 807 (1915).\nThe signature, it is obvious, is most regularly and properly placed at the foot or end of the instrument signed; but it is decided in many cases that although the signature be in the middle or beginning of the instrument, it is as binding as if at the foot; although, if not signed regularly at the foot, there is always a question whether the party meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it.\nLove v. Harris, 156 N.C. 88, 91, 72 S.E. 150, 151 (1911) (emphasis added).\nIn determining whether defendant signed the agreement not to compete, we find guidance in Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 423 S.E.2d 791 (1992). In that case, the plaintiff terminated his dealership agreement with the defendant Snap-On Tools. As part of the termination, the defendant presented to the plaintiff a document entitled \u201cTermination Agreement.\u201d Id. at 269, 423 S.E.2d at 793. This agreement contained a printed provision binding the plaintiff to pay the difference between any amount the plaintiff owed the defendant, loss' any credit the plaintiff received from the defendant by turning in unused inventory. The parties wrote the terms of the plaintiffs repayment plan on the back of the document, and the plaintiff signed his name beneath this recitation of terms. Another printed provision in the document bound the parties to arbitration. The printed signature line at the bottom of the document contained the signature of one of the defendant\u2019s representatives but not the signature of the plaintiff. In reviewing the trial court\u2019s determination that there was no meeting of the minds as to the arbitration agreement in the printed document, we observed that when an \u201cagreement is ambiguous, interpretation of the contract is a question for the fact-finder to resolve, and parol or extrinsic evidence is admissible to explain or qualify the written instrument.\u201d Id. at 273, 423 S.E.2d at 795 (internal citations omitted). Because \u201cplaintiff signed below only the added language . . . and not on the applicable signature line, an ambiguity results as to whether plaintiff agreed to all the terms contained in the Termination Agreement or merely those terms in the added sentence immediately preceding his signature.\u201d Id. We went on to affirm the trial court\u2019s decision that the plaintiff did not agree to all the terms in the agreement.\nThe evidence as to the existence of an agreement in the case at bar is ambiguous. Defendant\u2019s name is not found in any form on the signature line of the agreement; however, she did print her name at the top, ahead of the substantive portions of the agreement. Therefore, consistent with Routh, the fact-finder below could consider extrinsic evidence to determine whether defendant signed the document, and consistent with A.E.P., we may review that extrinsic evidence independently.\nDefendant testified that when she began her employment, plaintiff\u2019s office assistant handed her a number of forms. She testified that the office assistant instructed her to date and put her name on the agreement not to compete, and then took the agreement from her after she followed these instructions. Although the notarization form at the bottom of the agreement recites, \u201cBefore me personally appeared Hollv N. Martinez to be known as the person described in and who executed the foregoing instrument, and acknowledged to and before me that she executed said instrument for the purposes therein expressed,\u201d defendant testified that she never discussed the agreement not to compete with any of plaintiff\u2019s employees.\nA comparison of this document with other documents completed by defendant at the same time is instructive.\n(a) Defendant completed in print an \u201cAVIS EMPLOYEE RECORD,\u201d a document that sought basic personal information. This document did not contain a signature line.\n(b) Defendant wrote her name in cursive script at the bottom of a \u201cNON-DISCRIMINATION POLICY\u201d in the space labeled \u201cEmployee.\u201d\n(c) Defendant wrote her name in cursive script in the space labeled \u201cEmployee\u201d at the bottom of a document entitled \u201cACKNOWLEDGMENT OF EMPLOYEE,\u201d in which defendant was asked to acknowledge plaintiff\u2019s company policies and receipt of plaintiff\u2019s company personnel manual.\n(d) Defendant printed her name on State and Federal tax forms where the forms state \u201cType or print your . . . name,\u201d but wrote her name in cursive script on the line calling for \u201cEmployee\u2019s signature.\u201d\n(e) Finally, a document entitled, \u201cNEW HANOVER RENT A CAR RENTAL SALES AND SERVICE AGENT COMPENSATION PACKAGE\u201d contains three spaces at the bottom, labeled \u201cPrint Name,\u201d \u201cSign Name,\u201d and \u201cDate.\u201d Defendant printed her name in the first space, signed her name in cursive scfipt in the second space, and provided the date in the third space.\nPlaintiff responded with evidence provided by Ms. Dalton, who notarized the agreement not to compete. Although the document contains a blank signature line, Ms. Dalton testified that she witnessed defendant \u201ccomplete this document\u201d before she notarized it. Ms. Dalton testified that defendant was told to read the form and, when she asked if defendant had any questions, defendant responded that she did not. Ms. Dalton further testified that when she completed the notary form, she did not notice the signature line directly above the notarization was blank.\nOur review of the record reveals that the preliminary injunction was improperly issued. The evidence established that where a document requested identification information, defendant printed her name, but where a document requested a \u201csignature\u201d as acknowledgment and acceptance of the material or as confirmation of information requested in the document, defendant wrote her name in cursive. There was no cursive script or any writing at all on the signature line of the agreement not to compete and, therefore, no signature. Based on this evidence, we hold that plaintiff was unable to show a likelihood of success on the merits of its case. Accordingly, we need not address the other issues raised by defendant. The action of the trial court is reversed, and the case is remanded for further action consistent with this opinion.\nReversed and remanded.\nJudges McGEE and HORTON concur.", "type": "majority", "author": "EDMUNDS, Judge." } ], "attorneys": [ "Hogue Hill Jones Nash & Lynch, LLP, by David A. Nash, for plaintiff-appellee.", "Rice, Bryant & Mack, P.A., by Ralph T. Bryant, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "NEW HANOVER RENT-A-CAR, INC., Plaintiff v. HOLLY N. MARTINEZ, Defendant\nNo. COA99-321\n(Filed 15 February 2000)\nEmployer and Employee\u2014 covenant not to compete \u2014 signature required\nIn a case where defendant-former employee\u2019s name is not found in any form on the signature line of an agreement not to compete, but defendant did print her name at the top of the agreement ahead of the substantive portions, the trial court erred in granting a preliminary injunction preventing plaintiff from working with other rental car agencies because N.C.G.S. \u00a7 75-4 requires this type of agreement to be signed, and extrinsic evidence of the other employment documents completed at the same time reveals that: (1) where a document requested identification information, defendant printed her name, but where a document request\u00e9d a signature as acknowledgment and acceptance of the material or as conformation of the information requested in the document, defendant wrote her name in cursive; and (2) there was no cursive script or any writing at all on the signature line of the agreement not to compete.\nAppeal by defendant from order entered 8 January 1999 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 9 December 1999.\nHogue Hill Jones Nash & Lynch, LLP, by David A. Nash, for plaintiff-appellee.\nRice, Bryant & Mack, P.A., by Ralph T. Bryant, Jr., for defendant-appellant." }, "file_name": "0642-01", "first_page_order": 676, "last_page_order": 681 }