{
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  "name": "NORTHERN STAR MANAGEMENT OF AMERICA, LLC, Plaintiff v. MARK SEDLACEK, Defendant",
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    "judges": [
      "Judge STROUD and Judge HUNTER, JR. concur."
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    "parties": [
      "NORTHERN STAR MANAGEMENT OF AMERICA, LLC, Plaintiff v. MARK SEDLACEK, Defendant"
    ],
    "opinions": [
      {
        "text": "DILLON, Judge.\nMark Sedlacek appeals from the trial court\u2019s order enjoining him from violating non-compete provisions contained in an agreement he entered into with his former employer, Northern Star Management of America, LLC (\u201cNorthern Star\u201d). For the following reasons, we vacate and remand for further proceedings consistent with this opinion.\nI. Factual & Procedural Background\nNorthern Star is a company which specializes in the design, development and administration of insurance products. Its principal place of business is located in North Carolina, though its parent company, Northern Star Management, Inc., is based in New Jersey. Mr. Sedlacek, a North Carolina resident, has worked in the insurance industry since 1982 and specializes in \u201ccreating and managing insurance products for and on behalf of commercial carriers related to collateral recovery (repossession), automobile transporters, and towing.\u201d\nIn early 2010, Mr. Sedlacek was an officer and part-owner of AEON Insurance Group, Inc., when AEON was purchased by Northern Star. Mr. Sedlacek thereafter worked for Northern Star, on and off, until June 2013. During this time, Mr. Sedlacek and Northern Star entered into three agreements, each of which contained non-compete and confidentiality provisions (hereinafter referred to generally as the \u201ccovenants\u201d), whereby Mr. Sedlacek agreed to refrain from engaging in certain activities in the insurance business within certain territories for a specified period of time.\nThe parties entered into the first two agreements (collectively, the \u201c2010 Agreements\u201d) around the time of Northern Star\u2019s purchase of AEON, and each included a provision designating New Jersey law as governing the agreements. Mr. Sedlacek signed the first agreement (the \u201cAsset Purchase Agreement\u201d) as an owner of AEON, agreeing to sell AEON\u2019s assets and liabilities to Northern Star and to refrain from using Northern Star\u2019s confidential information and from engaging in certain activities in the insurance business with Northern Star \u201cworldwide.\u201d In the second agreement (the \u201cConsulting Agreement\u201d), Mr. Sedlacek agreed to work as a consultant for Northern Star and further agreed not to engage in certain activities in the insurance business and not to use Northern Star\u2019s confidential information outside his relationship -with Northern Star for a certain period in the United States and its territories.\nThe parties entered into the third agreement (the \u201cSeverance Agreement\u201d) in February 2013, when Mr. Sedlacek temporarily separated from Northern Star. Pursuant to this agreement, Mr. Sedlacek accepted a severance payment and acknowledged that his obligations under the prior agreements would continue in accordance with their terms. The Severance Agreement contained a provision designating North Carolina law as governing that agreement. Mr. Sedlacek was rehired by Northern Star the day after the parties executed the Severance Agreement and continued his employment with Northern Star for approximately four additional months before resigning on 23 June 2013.\nNorthern Star commenced the present action in August 2013, within two months of Mr. Sedlacek\u2019s resignation, alleging that Mr. Sedlacek had engaged in competitive activities in violation of the covenants contained in the 2010 Agreements. Northern Star requested an injunction proscribing Mr. Sedlacek from further violation of the covenants.\nAt the preliminary injunction hearing, Northern Star introduced evidence that Mr. Sedlacek had violated the covenants. Mr. Sedlacek asserted that the covenants imposed overly broad restrictions, rendering them unenforceable under North Carolina law. Northern Star countered that New Jersey law governed and that, accordingly, even if the covenants were overly broad as written, the court possessed the authority to modify the covenants to bring them into compliance with New Jersey law.\nBy order entered 4 September 2013, the trial court concluded that New Jersey law applied with respect to its interpretation of the covenants; granted Northern Star\u2019s request for a preliminary injunction; and directed that Mr. Sedlacek refrain from further violation of the covenants contained in the 2010 Consulting Agreement. The trial court also indicated in its order that Northern Star had presented sufficient evidence to establish that it would likely prevail on the merits of its claims against Mr. Sedlacek and, moreover, that Northern Star would likely sustain irreparable loss absent the injunction. From this order, Mr. Sedlacek appeals.\nII. Jurisdiction\nThe trial court\u2019s preliminary injunction order is interlocutory in nature, in that it \u201cdoes not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). This Court has jurisdiction over an interlocutory appeal where the order \u201c \u2018affects some substantial right claimed by [the] appellant and will work injury to him if not corrected before an appeal from the final judgment.\u2019 \u201d Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (citation omitted). We have stated that \u201c[i]n cases involving an alleged breach of a non-competition agreement[,] North Carolina appellate courts have routinely reviewed interlocutory court orders both granting and denying preliminary injunctions . . . .\u201d QSP, Inc. v. Hair, 152 N.C. App. 174, 175, 566 S.E.2d 851, 852 (2002); see also Copypro, Inc. v. Musgrove, _ N.C. App. _, _, 754 S.E.2d 188, 191 (2014) (\u201c[W]hen the entry of an order granting a request for the issuance of a preliminary injunction has the effect of destroying a party\u2019s livelihood, the order in question affects a substantial right and is, for that reason, subject to immediate appellate review.\u201d). We accordingly proceed to address the merits of Mr. Sedlacek\u2019s appeal.\nIIL Standard of Review\nIn order to obtain a preliminary injunction, the movant must demonstrate (1) that it will likely succeed on the merits of its case; and (2) that it will likely sustain irreparable harm absent the injunction. Ridge Cmty. Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977). Mr. Sedlacek does not challenge any of the trial court\u2019s factual findings; rather, he takes issue with the trial court\u2019s legal conclusions, which this Court reviews de novo on appeal. Copypro, Inc., _ N.C. App. at _, 754 S.E.2d at 191 (stating that where \u201cthe ultimate question for our consideration is whether the trial court correctly applied the applicable law to the undisputed record evidence, [we] utilize a de novo standard of review\u201d).\nIV. Analysis\nMr. Sedlacek raises three primary contentions on appeal: (1) the trial court erred in applying New Jersey law instead of North Carolina law; (2) the trial court erred in concluding that the covenants contained in the Asset Purchase Agreement apply; and (3) the trial court erred in concluding that the terms of the covenants were valid and enforceable as written. Upon careful review of the record and the parties\u2019 arguments, we conclude that the trial court did not err in applying New Jersey law and in determining that the Asset Purchase Agreement was applicable. We further conclude, however, that in applying New Jersey law the trial court should have determined whether the scope of the covenants was overly broad and, if so, should have appropriately narrowed the restrictions and tailored the preliminary injunction accordingly. Thus, for the reasons set forth below, we vacate the trial court\u2019s order and remand to the trial court for entry of findings and conclusions concerning the scope of the preliminary injunction consistent with this opinion.\nA. Choice of Law\nMr. Sedlacek argues that the trial court incorrectly applied New Jersey law, in that the choice-of-law provision in the Severance Agreement \u2014 which designates North Carolina law as governing that agreement \u2014 effectively supersedes the choice-of-law provisions in the Asset Purchase Agreement and the Consulting Agreement, both of which designate New Jersey law as governing.\n\u201cWhenever a court is called upon to interpret a contract its primary purpose is to ascertain the intention of the parties at the moment of its execution.\u201d Lane v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973). The intent of the parties \u201cis to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.\u201d Gould Morris Elec. Co. v. Atl. Fire Ins. Co., 229 N.C. 518, 520, 50 S.E.2d 295, 297 (1948). Where \u201ca contract is \u2018in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact,\u2019 the intention of the parties is a question of law [.]\u201d Vue-Charlotte, LLC v. Sherman, _ N.C. App. _, _, 719 S.E.2d 161, 163 (2011) (citation omitted).\nMr. Sedlacek relies on paragraph 16 of the Severance Agreement which provides as follows:\n16. Governing Law. This Agreement and any amendments hereof shall be governed and interpreted in accordance with the laws (both substantive and procedural) of the State of North Carolina and without regard to any conflict of laws provisions. Each of the parties to this Agreement irrevocably consents to the exclusive jurisdiction and venue of any state or federal court of the State of North Carolina permitted by law to have jurisdiction over any and all actions between or among any of the parties, whether arising hereunder or otherwise, except as otherwise directed by such court....\nMr. Sedlacek asserts in his brief that this provision \u201cclearly states that North Carolina law will apply substantively and procedurally to any and all actions between the parties, whether arising under the Severance Agreement or otherwise.\u201d We disagree.\nWe interpret paragraph 16 as indicative of the parties\u2019 intent that \u201cThis Agreement,\u201d i.e., the Severance Agreement, \u201cbe governed and interpreted in accordance with\u201d North Carolina law. Further, the language \u201cany and all actions between or among any of the parties, whether arising hereunder or otherwise\u201d - to which Defendant directs this Court\u2019s attention - does not support Defendant\u2019s position that North Carolina law -will govern any action between or among the parties. Rather, this provision reveals only that the parties intended North Carolina courts to have \u201cexclusive jurisdiction and venue\u201d over any such action. In other words, this provision evidences the parties\u2019 intent that any action between or among them be heard in North Carolina, not that any such action be governed by North Carolina law.\nThis interpretation is reinforced when construing paragraph 16 in conjunction with paragraph 8, which provides as follows:\n8. Non-disparagement. Non-Solicitation. Non-Competition, and Confidentiality. In connection [with Mr. Sedlacek\u2019s] termination, [Defendant] . . . understands and acknowledges that all of his duties as a consultant of [Northern Star] ceased on the Separation Date, except that all obligations, including all non-disclosure, non-solicitation and non-competition obligations, that [Mr. Sedlacek] owes to [Northern Star], under law or any agreement [Mr. Sedlacek] has with [Northern Star], will continue after the Separation Date pursuant to the terms of those laws and/ or agreements.\nWe believe the language in paragraph 8 reflects the parties\u2019 intent that Mr. Sedlacek remain bound by all previously assumed \u201cnon-competition obligations,\u201d including, but not limited to, the covenants in the 2010 Agreements. We note that neither this provision nor any other provision in the Severance Agreement seeks to redefine Mr. Sedlacek\u2019s \u201cnon-competition obligations\u201d; rather, as paragraph 8 states, such obligations \u201cwill continue... pursuant to the terms of those... agreements.\u201d (Emphasis added). Both 2010 Agreements specify that Mr. Sedlacek\u2019s \u201cnon-competition obligations\u201d are to be defined with reference to New Jersey law, which includes the approach employed by New Jersey courts of permitting the trial court to rewrite an otherwise unreasonably restrictive covenant. Thus, to accept Mr. Sedlacek\u2019s position that the Severance Agreement superseded the prior agreements would also require this Court to accept the unlikely proposition that Northern Star intended to remove the non-compete covenants from the purview of New Jersey\u2019s flexible approach in favor of North Carolina\u2019s more restrictive approach, which does not permit the trial court to rewrite an overly broad restrictive covenant. See, e.g., Whittaker Gen. Med. Corp. v. Daniel, 324 N.C. 523, 528, 379 S.E.2d 824, 828 (1989) (\u201cThe courts will not rewrite a contract if it is too broad but will simply not enforce it.\u201d). Thus, respecting the intent of the parties as manifested in the terms of their agreements, we hold that the trial court correctly concluded that New Jersey law governed its determination concerning the enforceability of the parties\u2019 non-compete covenants.\nB. Covenants in Asset Purchase Agreement\nMr. Sedlacek argues that the trial court erred in concluding that the covenants included in the 2010 Asset Purchase Agreement applied because they were superseded by the covenants set forth in the 2010 Consulting Agreement. We do not believe that this issue is properly before us, since the trial court only enjoined Mr. Sedlacek from continued violations of the covenants contained in the Consulting Agreement. Specifically, the trial court enjoined Mr. Sedlacek in three ways, ordering that he \u201crefrain from (i) soliciting, servicing, selling, designing, developing, producing, forming, purchasing, administering, or procuring for third-parties Local, Intermediate and Long Haul Commercial Auto, Garage, Towing, Collateral Recovery (Repossession), Auto Dismantles and Automobile Transporters insurance products . . . within the Restricted Area as defined by the 2010 Consulting Agreement; (ii) furnishing, divulging and/or making accessible to others Confidential Information as defined in the 2010 Consulting Agreement; and (in) continuing to be a member of a partnership or a stockholder, investor, officer, director, employee, agent, associate or consultant or persons and entities engaging in the foregoing activities [described in the Consulting Agreement].\u201d Accordingly, this argument is dismissed.\nC. Enforceability of Non-Compete Covenants\nFinally, Mr. Sedlacek argues that the covenants are not enforceable, even under New Jersey law. Under New Jersey law, a covenant not to compete is enforceable to the extent that it is \u201creasonable under the circumstances.\u201d Solari Indus., Inc. v. Malady, 55 N.J. 571, 585, 264 A.2d 53, 61 (1970). To be deemed reasonable under the circumstances, a non-compete covenant (1) must be reasonably necessary to protect the employer\u2019s legitimate interests; (2) must not cause undue hardship on the former employee; and (3) must not be contrary to the public interest. Id. New Jersey courts have stated that an \u201cemployer has no legitimate interest in preventing competition as such,\u201d Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 33, 274 A.2d 577 (1971), and, therefore, will not enforce \u201ca restrictive agreement merely to aid the employer in extinguishing competition . . . from a former employee.\u201d Campbell Soup, 58 F.Supp.2d at 489. However, New Jersey courts will enforce a non-compete provision where doing so is necessary to protect legitimate interests of the employer, for'instance, the \u201cemployer\u2019s interest in protecting trade secrets, confidential information, and customer relations.\u201d Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 628, 542 A.2d 879 (1988). Further, the New Jersey Supreme Court has recognized that \u201cemployers may have legitimate interests in protecting information that is not a trade secret or proprietary information, but highly specialized, current information not generally known in the industry, created and stimulated by the research environment furnished by the employer, to which the employee has been exposed and enriched solely due to his employment.\u201d Id. at 638, 542 A.2d 879 (internal quotation marks omitted).\nHere, Mr. Sedlacek argues that the trial court\u2019s order enforces a non-compete covenant that is overly broad as a matter of law. Northern Star counters that the non-compete covenant is not overly broad and that, in any event, Mr. Sedlacek\u2019s contentions to the contrary are \u201cpremature because the Trial Court has not ruled that any of the restrictive covenants at issue are to be enforced in their entirety.\u201d\nWe do not believe that Mr. Sedlacek\u2019s challenges with respect to the enforceability of the non-compete covenant set forth in the Consulting Agreement are premature. See, e.g., Coskey\u2019s T.V. & Radio Sales v. Foti, 253 N.J. Super. 626, 602 A.2d 789 (App. Div. 1992) (further limiting the scope of a non-compete covenant - after trial court had trimmed the covenant\u2019s scope - upon review of the trial court\u2019s preliminary injunction order). Accordingly, we address each portion of trial court\u2019s injunction order.\nFirst, the trial court enjoined Mr. Sedlacek from engaging in certain insurance-related business activities within the areas described in the Consulting Agreement, namely, the fifty states, the District of Columbia and Puerto Rico. While the uncontested findings support the restrictions on the activities described, they do not support the geographic scope of those restrictions. Specifically, the trial court made no findings with respect to the geographic regions where Northern Star competes for business. Accordingly, we vacate and remand this portion of the injunction order for entry of findings with respect to the reasonableness of the geographic scope of the covenants as set forth in the Consulting Agreement, and to tailor the geographic scope of the restrictions to that area that is reasonable under the circumstances as supported by the court\u2019s findings.\nSecond, the trial court\u2019s order enjoins Mr. Sedlacek from divulging confidential information of Northern Star. However, Mr. Sedlacek does not make any argument challenging this portion of the injunction as unreasonable, and we accordingly do not address this portion of the order.\nThird, the trial court\u2019s order enjoins Mr. Sedlacek from participating in essentially any capacity in any entity engaged in the activities described in the first portion of the injunction, swpra. This portion of the order appears overly broad, in that, for instance, it prohibits Mr. Sedlacek from owning stock as a passive investor in a publicly traded company that engages in any of the insurance businesses described in the Consulting Agreement. We therefore vacate and remand this portion of the injunction order for entry of findings and conclusions with respect to the reasonableness of the scope of these restrictions.\nV. Conclusion\nIn light of the foregoing, we vacate the trial court\u2019s preliminary injunction order and remand for further proceedings consistent with this opinion.\nVACATED AND REMANDED.\nJudge STROUD and Judge HUNTER, JR. concur.\n. We note that the covenants at issue contain a provision assigning a duration of ten years to the restrictions set forth therein. If North Carolina law were applicable, it would be appropriate to consider the reasonableness of this ten-year duration at the preliminary injunction stage of these proceedings. That is, if the ten-year duration were determined to be unreasonable, then, applying North Carolina law, the covenants would be unenforceable and a preliminary injunction would be inappropriate. Here, however, New Jersey law applies, and the preliminary injunction enforces the covenant only until the propriety of a permanent injunction is presented for consideration by the trial court. It will be necessary at that time for the trial court to inquire into the reasonableness of the ten-year duration of the covenants.",
        "type": "majority",
        "author": "DILLON, Judge."
      }
    ],
    "attorneys": [
      "Nelson Levine de Luca & Hamilton, by David G. Harris II, David L. Brown, and John I. Malone, Jr., for Plaintiff.",
      "Carruthers & Roth, P.A., by Mark K. York and J. Patrick Haywood, for Defendant."
    ],
    "corrections": "",
    "head_matter": "NORTHERN STAR MANAGEMENT OF AMERICA, LLC, Plaintiff v. MARK SEDLACEK, Defendant\nNo. COA13-1427\nFiled 19 August 2014\n1. Appeal and Error\u2014interlocutory orders and appeals\u2014 preliminary injunction\u2014substantial right\nDefendant\u2019s appeal from the trial court\u2019s interlocutory order enjoining him from violating non-compete provisions contained in an agreement he had entered into with his former employer was heard on the merits. North Carolina appellate courts have routinely reviewed interlocutory court orders both granting and denying preliminary injunctions in cases involving an alleged breach of a non-competition agreement.\n2. Contracts\u2014non-compete agreement\u2014terms of the agreement\u2014applicable law\nThe trial court correctly concluded that New Jersey law governed its determination concerning the enforceability of the parties\u2019 non-compete covenants. The language of the terms of the parties\u2019 agreement manifested this intent.\n3. Appeal and Error\u2014issue not before the court\u2014argument dismissed\nDefendant\u2019s argument that the trial court erred in concluding that the covenants included in the 2010 Asset Purchase Agreement applied because they were superseded by the covenants set forth in the 2010 Consulting Agreement was dismissed. The issue was not properly before the Court of Appeals because the trial court only enjoined defendant from continued violations of the covenants contained in the Consulting Agreement.\n4. Injunctions\u2014non-compete agreement\u2014overly broad\u2014reasonableness of geographic scope\u2014reasonableness of scope of restricted activities\nAn order enjoining defendant from participating in certain activities based on the terms of a non-competition agreement was vacated and remanded where certain covenants were overly broad. The order was remanded for entry of findings with respect to the reasonableness of the geographic scope of the covenants and to tailor the geographic scope of the restrictions to that area that was reasonable under the circumstances as supported by the court\u2019s findings. The order was also remanded for entry of findings and conclusions with respect to the reasonableness of the scope of the restricted activities.\nAppeal by Defendant from order entered 4 September 2013 by Judge David L. Hall in Guilford County Superior Court. Heard in the Court of Appeals 24 April 2014.\nNelson Levine de Luca & Hamilton, by David G. Harris II, David L. Brown, and John I. Malone, Jr., for Plaintiff.\nCarruthers & Roth, P.A., by Mark K. York and J. Patrick Haywood, for Defendant."
  },
  "file_name": "0588-01",
  "first_page_order": 598,
  "last_page_order": 607
}
