{ "id": 8411802, "name": "VISIONAIR, INC., Plaintiff v. DOUGLAS S. JAMES AND COLOSSUS INCORPORATED d/b/a INTERACT PUBLIC SAFETY SYSTEMS, Defendants", "name_abbreviation": "Visionair, Inc. v. James & Colossus Inc.", "decision_date": "2004-12-21", "docket_number": "No. COA03-1453", "first_page": "504", "last_page": "512", "citations": [ { "type": "official", "cite": "167 N.C. App. 504" } ], "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": "561 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "281-82", "parenthetical": "trial court decision to issue or deny an injunction will be upheld where there is \"competent evidence\" to support the decision" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367404 ], "year": 2002, "pin_cites": [ { "page": "578", "parenthetical": "trial court decision to issue or deny an injunction will be upheld where there is \"competent evidence\" to support the decision" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0572-01" ] }, { "cite": "117 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "434", "parenthetical": "non-compete covenant overbroad and unenforceable where it \"excludes the defendant from too much territory and from too many activities\"" } ], "opinion_index": 0 }, { "cite": "253 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626208 ], "year": 1960, "pin_cites": [ { "page": "534-35", "parenthetical": "non-compete covenant overbroad and unenforceable where it \"excludes the defendant from too much territory and from too many activities\"" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0529-01" ] }, { "cite": "668 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "273" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251078 ], "year": 2002, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0630-01" ] }, { "cite": "571 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "11", "parenthetical": "plaintiff must show likelihood of success on the merits for preliminary injunction to issue" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250199 ], "year": 2002, "pin_cites": [ { "page": "423", "parenthetical": "plaintiff must show likelihood of success on the merits for preliminary injunction to issue" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0421-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-154", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "899 F. Supp. 1477", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7841790 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "1484", "parenthetical": "likelihood of success on the merits of breach of confidentiality contract not shown where plaintiff described confidential information and alleged breach only in general terms" }, { "page": "1484", "parenthetical": "preliminary injunction inappropriate where trade secret described only in general terms and where evidence of blatant misappropriation not shown" } ], "opinion_index": 0, "case_paths": [ "/f-supp/899/1477-01" ] }, { "cite": "486 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "446", "parenthetical": "plaintiff must allege \"the facts constituting the breach\"" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712298 ], "year": 1997, "pin_cites": [ { "page": "608", "parenthetical": "plaintiff must allege \"the facts constituting the breach\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0602-01" ] }, { "cite": "235 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "292 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572541 ], "year": 1977, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0668-01" ] }, { "cite": "385 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "355", "parenthetical": "to show likelihood of success on the merits, party must show that the non-compete covenant is enforceable" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520760 ], "year": 1989, "pin_cites": [ { "page": "165", "parenthetical": "to show likelihood of success on the merits, party must show that the non-compete covenant is enforceable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0160-01" ] }, { "cite": "379 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "828", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482252 ], "year": 1989, "pin_cites": [ { "page": "528", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0523-01" ] }, { "cite": "257 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "114", "parenthetical": "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": "521", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0515-01" ] }, { "cite": "450 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "916" }, { "page": "920", "parenthetical": "non-compete agreement may not restrict a party from unrelated work for a potential competitor" }, { "page": "920" }, { "page": "920" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525264 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "311" }, { "page": "317" }, { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0307-01" ] }, { "cite": "530 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "881", "parenthetical": "quoting Hartman v. W. H. Odell and Assocs., Inc., 117 N.C. App. 307, 311, 450 S.E.2d 912, 916 (1994)" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079390 ], "year": 2000, "pin_cites": [ { "page": "279", "parenthetical": "quoting Hartman v. W. H. Odell and Assocs., Inc., 117 N.C. App. 307, 311, 450 S.E.2d 912, 916 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0276-01" ] }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "574" }, { "page": "574", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "701" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0688-01" ] }, { "cite": "579 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "452" }, { "page": "453", "parenthetical": "citations omitted" }, { "page": "454" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187224 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "465" }, { "page": "468" }, { "page": "469-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0462-01" ] }, { "cite": "320 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523458 ], "year": 1984, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0537-01" ] }, { "cite": "271 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "404", "parenthetical": "\"Where there is a full, complete and adequate remedy at law, the equitable remedy of injunction will not lie.\"" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521715 ], "year": 1980, "pin_cites": [ { "page": "423", "parenthetical": "\"Where there is a full, complete and adequate remedy at law, the equitable remedy of injunction will not lie.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0421-01" ] }, { "cite": "424 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "228-29" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525092 ], "year": 1993, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0590-01" ] }, { "cite": "584 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8953616 ], "year": 2003, "pin_cites": [ { "page": "5-6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0001-01" ] }, { "cite": "322 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "194", "parenthetical": "\"no appeal lies from an interlocutory order unless such ruling or order deprives an appellant of a 'substantial right' which may be lost if appellate review is disallowed\"" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525716 ], "year": 1984, "pin_cites": [ { "page": "450", "parenthetical": "\"no appeal lies from an interlocutory order unless such ruling or order deprives an appellant of a 'substantial right' which may be lost if appellate review is disallowed\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0448-01" ] }, { "cite": "593 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917234 ], "year": 2004, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0318-01" ] }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1983, "pin_cites": [ { "page": "759" }, { "page": "759" }, { "page": "762-63" }, { "page": "762", "parenthetical": "order denying injunction generally proper where adequate remedy at law is available" }, { "page": "759" }, { "page": "759", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "400" }, { "page": "400" }, { "page": "406-08" }, { "page": "406" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] } ], "analysis": { "cardinality": 798, "char_count": 18519, "ocr_confidence": 0.754, "pagerank": { "raw": 2.64379299780204e-07, "percentile": 0.8233725209462018 }, "sha256": "42330646055c3270fbb1bf577e8158feb89c006c729a44a69cc34ee0012a5408", "simhash": "1:11a0d0fcf64d5df0", "word_count": 2834 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "VISIONAIR, INC., Plaintiff v. DOUGLAS S. JAMES AND COLOSSUS INCORPORATED d/b/a INTERACT PUBLIC SAFETY SYSTEMS, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff VisionAIR, Inc. appeals from an order of the trial court denying its motion for a preliminary injunction in an action filed against Defendants Douglas James and Colossus Incorporated d/b/a/ InterACT Public Safety Systems (collectively \u201cDefendants\u201d). VisionAIR contends the trial court erred in denying its motion for a preliminary injunction because VisionAIR is likely to succeed on the merits of its claims that James violated employment and non-disclosure agreements, that InterACT tortiously interfered with contract, and that Defendants misappropriated VisionAIR\u2019s trade secrets and engaged in unfair trade practices, unfair competition, and civil conspiracy. VisionAIR further contends it will suffer irreparable harm unless an injunction is issued. For the reasons set forth herein, we affirm the trial court\u2019s denial of a preliminary injunction.\nThe procedural and factual history of the instant appeal is as follows: VisionAIR is a software company that develops support products for public safety agencies. From September 1996 through March 2003, VisionAIR employed James, by the end of his tenure, as a software architect. On 26 September 1996, VisionAIR and James executed an Employment Agreement that included a restrictive covenant prohibiting James from \u201csell[ing] or develop [ing] any software products which will directly or indirectly compete with any of the Employer\u2019s software products\u201d and \u201cown[ing], managing], be[ing] employed by or otherwise participat[ihg] in, directly or indirectly, any business similar to Employer\u2019s ... within the Southeast\u201d during James\u2019s employ with VisionAIR and for two years thereafter. The Employment Agreement also included provisions prohibiting the disclosure of VisionAIR\u2019s trade secrets and mandating the surrender of VisionAIR\u2019s trade secrets upon the termination of James\u2019s employment. On 21 August 2002, VisionAIR and James executed a Non-Disclosure Agreement preventing James from disclosing VisionAIR\u2019s \u201cconfidential information.\u201d Under the Non-Disclosure Agreement, \u201cconfidential information\u201d included \u201call information about Employer and its business, products, and services, furnished to the Employee[.]\u201d\nIn March 2003, James left VisionAIR to become a senior software engineer at InterACT, another software company active in providing products to law enforcement agencies. On 20 March 2003, VisionAIR filed a complaint and motion for a temporary restraining order, preliminary injunction, permanent injunction, damages, and expedited discovery, claiming breach of the Employment Agreement, breach of the Non-Disclosure Agreement, tortious interference with contract, misappropriation of trade secrets, unfair trade practices, common law unfair competition, civil conspiracy, and injunctive relief. On 20 March 2003, the trial court granted VisionAIR\u2019s motion for a temporary restraining order prohibiting James from performing services and developing products at InterACT or any other VisionAIR competitor and disclosing or using VisionAIR\u2019s trade secrets to the benefit of InterACT or any other VisionAIR competitor. However, on 3 April 2004, the trial court ordered the temporary restraining order dissolved and denied VisionAIR\u2019s motion for a preliminary injunction because VisionAIR had failed to make a sufficient showing of likelihood of success on the merits of its claims. Plaintiff appealed from this order.\nVisionAIR argues on appeal that the trial court erred in denying its motion for preliminary injunction because VisionAIR is likely to succeed on the merits of its claims and because VisionAIR will suffer irreparable harm unless an injunction is issued. For the reasons stated below, we affirm the decision of the trial court.\nA preliminary injunction is interlocutory and thus generally not immediately reviewable. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983); N.C. Farm P\u2019ship v. Pig Improvement Co., 163 N.C. App. 318, 321, 593 S.E.2d 126, 129 (2004). An appeal may be proper, however, in cases, including those involving trade secrets and non-compete agreements, where the denial of the injunction \u201cdeprives the appellant of a substantial right which he would lose absent review prior to final determination.\u201d A.E.P. Indus., Inc., 308 N.C. at 400, 302 S.E.2d at 759; see also, e.g., Hopper v. Mason, 71 N.C. App. 448, 450, 322 S.E.2d 193, 194 (1984) (\u201cno appeal lies from an interlocutory order unless such ruling or order deprives an appellant of a \u2018substantial right\u2019 which may be lost if appellate review is disallowed\u201d).\nAccordingly, in this case, we review the trial court\u2019s denial of a preliminary injunction only as to VisionAIR\u2019s claims for breach of the Employment Agreement, and specifically the non-compete provisions therein, breach of the Non-Disclosure Agreement, and misappropriation of trade secrets, as these arguably encompass substantial rights that might be lost absent immediate review. A.E.P. Indus., Inc., 308 N.C. at 406-08, 302 S.E.2d at 762-63; Kennedy v. Kennedy, 160 N.C. App. 1, 5-6, 584 S.E.2d 328, 331 (2003); Barr-Mullin, Inc. v. Browning, 108 N.C. App. 590, 594, 424 S.E.2d 226, 228-29 (1993). VisionAIR\u2019s claims for tortious interference with contract, unfair trade practices, unfair competition, and civil conspiracy, and Assignments of Error Nos. 1, 5, 6, and 7, and Cross Assignment of Error No. 7 as they relate to those claims, will not escape review but for interlocutory appeal and thus are not addressed here. C.f. A.E.P. Indus., Inc., 308 N.C. at 406, 302 S.E.2d at 762 (order denying injunction generally proper where adequate remedy at law is available); Bd. of Light and Water Comm\u2019rs of the City of Concord v. Parkwood Sanitary Dist., 49 N.C. App. 421, 423, 271 S.E.2d 402, 404 (1980) (\u201cWhere there is a full, complete and adequate remedy at law, the equitable remedy of injunction will not lie.\u201d).\nThe standard of review from a preliminary injunction is \u201cessentially de novo.\" Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 540, 320 S.E.2d 693, 696 (1984). Nevertheless \u201ca trial court\u2019s ruling on a motion for a preliminary injunction is presumed to be correct, and the party challenging the ruling bears the burden of showing it was erroneous.\u201d Analog Devices, Inc. v. Michalski, 157 N.C. App. 462, 465, 579 S.E.2d 449, 452 (2003); see also DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 578, 561 S.E.2d 276, 281-82 (2002) (trial court decision to issue or deny an injunction will be upheld where there is \u201ccompetent evidence\u201d to support the decision).\nBecause a preliminary injunction is \u201can extraordinary measure,\u201d it will issue only upon the movant\u2019s showing that: (1) there is a \u201clikelihood of success on the merits of his case;\u201d and (2) the movant will likely suffer \u201cirreparable loss unless the injunction is issued[.]\u201d Ridge Cmty. Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977); A.E.P. Indus., Inc., 308 N.C. at 401, 302 S.E.2d at 759.\nIn this case, the order being challenged denied VisionAIR\u2019s motion for a preliminary injunction based on VisionAIR\u2019s failure to establish the likelihood of success on the merits. We therefore review VisionAIR\u2019s likelihood of success on the merits.\nA. Breach of the Employment Contract\u2019s Nori-Compete Covenant\n(Assignments of Error Nos. 1, 2, 4, 5, and 7; Cross Assignments of Error Nos. 1 and 7)\nWe first determine whether VisionAIR has demonstrated a likelihood of success on its claim for breach of the Employment Agreement\u2019s non-compete covenant. \u201cCovenants not to compete between an employer and employee are \u2018not viewed favorably in modem law.\u2019 \u201d Farr Assocs., Inc. v. Baskin, 138 N.C. App. 276, 279, 530 S.E.2d 878, 881 (2000) (quoting Hartman v. W. H. Odell and Assocs., Inc., 117 N.C. App. 307, 311, 450 S.E.2d 912, 916 (1994)). To be valid, the restrictions on the employee\u2019s future employability by others \u201cmust be no wider in scope than is necessary to protect the business of the employer.\u201d Manpower of Guilford County, Inc. v. Hedgecock, 42 N.C. App. 515, 521, 257 S.E.2d 109, 114 (1979) (citations omitted). If a non-compete covenant \u201cis too broad to be a reasonable protection to the employer\u2019s business it will not be enforced. The courts will not rewrite a contract if it is too broad but will simply not enforce it.\u201d Whittaker Gen. Med. Corp. v. Daniel, 324 N.C. 523, 528, 379 S.E.2d 824, 828 (1989) (citations omitted).\nHere, the non-compete covenant in the Employment Agreement is overbroad and. therefore not enforceable. Notably, the covenant states that James may not \u201cown, manage, be employed by or otherwise participate in, directly or indirectly, any business similar to Employer\u2019s . . . within the Southeast\u201d for two years after the termination of his employ with VisionAIR. Under this covenant James would not merely be prevented from engaging in work similar to that which he did for VisionAIR at VisionAIR competitors; James would be prevented from doing even wholly unrelated work at any firm similar to VisionAIR. Further, by preventing James from even \u201cindirectly\u201d owning any similar firm, James may, for example, even be prohibited from holding interest in a mutual fund invested in part in a firm engaged in business similar to VisionAIR. Such vast restrictions on James cannot be enforced. See, e.g., Henley Paper Co., 253 N.C. at 534-35, 117 S.E.2d at 434 (non-compete covenant may not restrict too many activities).\nMoreover, the non-compete covenant also prohibits James from \u201cselling] or developing] any software products which will directly or indirectly compete with any of the Employer\u2019s software products\u201d for two years after the termination of his employ with VisionAIR. This broad restriction would prevent James from engaging in sales, work unrelated to that which he did for VisionAIR, as well as from developing products that, while competitive with VisionAIR\u2019s, may, for example, be based on technology wholly unrelated to that upon which VisionAIR\u2019s products are based. Again, these broad restrictions cannot be enforced. See, e.g., Hartman, 117 N.C. App. at 317, 450 S.E.2d at 920 (non-compete agreement may not restrict a party from unrelated work for a potential competitor).\nBecause the non-compete covenant in the Employment Agreement is overbroad and thus unenforceable, VisionAIR has not demonstrated likely success on the merits as to its claim for breach of that covenant. See Elec. S., Inc. v. Lewis, 96 N.C. App. 160, 165, 385 S.E.2d 352, 355 (1989) (to show likelihood of success on the merits, party must show that the non-compete covenant is enforceable).\nB. Breach of the Non-Disclosure Agreement\n(Assignments of Error Nos. 1, 2, 4, 5, and 7; Cross Assignment of Error No. 1)\nWe next determine whether VisionAIR has demonstrated likely success on its claim for breach of the Non-Disclosure Agreement. To state a claim for breach of the Non-Disclosure Agreement, \u201cas in any other contract case \u2014 -the complaint must allege ... the facts constituting the breach[.]\u201dRGK, Inc. v. U.S. Fid. & Guar. Co., 292 N.C. 668, 675, 235 S.E.2d 234, 238 (1977); see also, e.g., Glaggett v. Wake Forest Univ., 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997) (plaintiff must allege \u201cthe facts constituting the breach\u201d).\nIn its complaint, VisionAIR alleged that James had breached, or would immediately breach, the Non-Disclosure Agreement in the course of his employment with InterACT. VisionAIR has, however, neither alleged facts supporting the alleged breach, nor specified confidential information James shared with InterACT or any other party. VisionAIR\u2019s conclusory statements are insufficient to state a claim for breach of the Non-Disclosure Agreement. See FMC Corp. v. Cyprus Foote Mineral Co., 899 F. Supp. 1477, 1484 (W.D.N.C. 1995) (likelihood of success on the merits of breach of confidentiality contract not shown where plaintiff described confidential information and alleged breach only in general terms).\nBecause VisionAIR has failed to state facts supporting the alleged breach of the Non-Disclosure Agreement, VisionAIR has not demonstrated likely success on the merits as to its claim for breach of that agreement.\nC. Misappropriation of Trade Secrets\n(Assignments of Error Nos. 1, 3, and 5; Cross Assignment of Error No. 2)\nWe next determine whether VisionAIR has demonstrated likelihood of success on its claim for misappropriation of trade secrets. The North Carolina Trade Secrets Protection Act provides that \u201cactual or threatened misappropriation of a trade secret may be preliminarily enjoined during the pendency of the action and shall be permanently enjoined upon judgment finding misappropriation.\u201d N.C. Gen. Stat. \u00a7 66-154(a) (2003). To plead misappropriation of trade secrets, \u201ca plaintiff must identify a trade secret with sufficient particularity so as to enable a defendant to delineate that which he is accused of misappropriating and a court to determine whether misappropriation has or is threatened to occur.\u201d Analog Devices, Inc., 157 N.C. App. at 468, 579 S.E.2d at 453 (citations omitted); see also FMC Corp., 899 F. Supp. at 1484 (preliminary injunction inappropriate where trade secret described only in general terms and where evidence of blatant misappropriation not shown).\nIn its complaint, VisionAIR made general allegations that James\u2019s employment at InterACT has or will immediately engender misappropriation of trade secrets. VisionAIR has failed to identify with any specificity the trade secrets allegedly misappropriated, mentioning only broad product and technology categories. VisionAIR\u2019s sweeping and conclusory statements are insufficient to state a claim for misappropriation of trade secrets. See Analog Devices, Inc., 157 N.C. App. at 469-70, 579 S.E.2d at 454 (injunction properly denied where only general areas of research were identified as trade secrets and an absolute bar to activity in those areas was sought).\nBecause VisionAIR has failed to identify specific trade secrets allegedly misappropriated, VisionAIR has not demonstrated likely success on the merits as to its claim for misappropriation of trade secrets.\nBecause VisionAIR has failed to show its likely success on the merits of its claims subject to interlocutory review \u2014 a required element for a preliminary injunction \u2014 we do not reach the question of whether VisionAIR established irreparable harm (Cross Assignment of Error Number 4). See, e.g., Redlee/SCS, Inc. v. Pieper, 153 N.C. App. 421, 423, 571 S.E.2d 8, 11 (2002) (plaintiff must show likelihood of success on the merits for preliminary injunction to issue); Ridge Cmty. Investors, Inc., 293 N.C. at 701, 239 S.E.2d at 574 (same); A.E.P. Indus., Inc., 308 N.C. at 401, 302 S.E.2d at 759 (same).\nIn sum, we affirm the trial court\u2019s denial of the preliminary injunction. We therefore do not address James\u2019s and InterACT\u2019s Cross-Assignments of Error Numbers 3 (that VisionAIR materially breached the Employment Agreement, thereby excusing James\u2019s alleged breach), 5 (that James would suffer extreme hardship if a preliminary injunction were issued), and 6 (that issuing a preliminary injunction would hamper improvements for law enforcement and homeland security).\nAffirmed.\nChief Judge MARTIN and Judge McGEE concur.\n. We recognize that in Precision Walls, Inc. v. Servie, 152 N.C. App. 630, 638, 668 S.E.2d 267, 273 (2002), this Court held that a non-compete covenant may restrict an employee from all employment with competitors. However, the Precision Walls, Inc. opinion also states that \u201cwe conclude that it is within plaintiffs legitimate business interest to prohibit defendant from working in an identical position with a competing business.\u201d Id. (emphasis added). Moreover, the restrictions on the employee in Precision Walls, Inc. were for only one year and in only two states, as opposed to two years and an entire region here. Id. Notably, in other cases, such as Hartman, 117 N.C. App. at 317, 450 S.E.2d at 920, this Court recognized the problem with such all-encompassing restrictions and held that an employee could not be prohibited from working in an unrelated capacity for another business in the same field. Hartman, 117 N.C. App. at 317, 450 S.E.2d at 920 (non-compete covenant is \u201coverly broad in that, rather than attempting to prevent plaintiff from competing for [] business, it requires plaintiff to have no association whatsoever with any business that provides [similar] services.... Such a covenant would appear to prevent plaintiff from working as a custodian for any \u2018entity\u2019 \u201d providing such services); see also Henley Paper Co. v. McAllister, 253 N.C. 529, 534-35, 117 S.E.2d 431, 434 (1960) (non-compete covenant overbroad and unenforceable where it \u201cexcludes the defendant from too much territory and from too many activities\u201d).\n. We note that our affirming the trial court\u2019s decision moots Defendants\u2019 motion to strike VisionAIR\u2019s Reply Brief.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Wyrick Robbins Yates & Ponton L.L.P., by K. Edward Greene and Kathleen A. Naggs, for plaintiff-appellant.", "Wessel & Raney, L.L.P., by W. A. Raney, Jr., and McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for defendant-appellees." ], "corrections": "", "head_matter": "VISIONAIR, INC., Plaintiff v. DOUGLAS S. JAMES AND COLOSSUS INCORPORATED d/b/a INTERACT PUBLIC SAFETY SYSTEMS, Defendants\nNo. COA03-1453\n(Filed 21 December 2004)\n1. Injunctions\u2014 preliminary \u2014 likelihood of success \u2014 non-compete agreement \u2014 overbroad\nA plaintiff seeking a preliminary injunction to enforce a non-compete agreement did not demonstrate a likelihood of success on the merits where the agreement was overbroad and not enforceable.\n2. Injunctions\u2014 preliminary \u2014 likelihood of success \u2014 breach of agreement \u2014 conclusory allegations\nA plaintiff seeking a preliminary injunction to enforce a non-compete agreement did not demonstrate a likelihood of success on the merits where plaintiff alleged that defendant would immediately breach the agreement, but did not allege supporting facts.\n3. Injunctions\u2014 preliminary \u2014 likelihood of success \u2014 misappropriation of trade secrets \u2014 allegations too general\nA plaintiff seeking a preliminary injunction to enforce a non-compete agreement did not demonstrate a likelihood of success on the merits on a claim for misappropriation of trade secrets. Plaintiff\u2019s allegations were general and did not identify with specificity the trade secrets allegedly misappropriated.\nAppeal by Plaintiff from order entered 3 April 2003 by the Honorable Ernest B. Fullwood, in Superior Court, New Hanover County. Heard in the Court of Appeals 30 August 2004.\nWyrick Robbins Yates & Ponton L.L.P., by K. Edward Greene and Kathleen A. Naggs, for plaintiff-appellant.\nWessel & Raney, L.L.P., by W. A. Raney, Jr., and McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for defendant-appellees." }, "file_name": "0504-01", "first_page_order": 534, "last_page_order": 542 }