Cut N Up Hair Salon of Carolina Beach, LLC v. Bennett

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .

NO. COA13-1417
NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

CUT N UP HAIR SALON OF CAROLINA
BEACH, LLC, and KIMBERLY A. LEWIS,
Plaintiffs,

v. New Hanover County
No. 12 CVS 3023
STEPHANIE BENNETT and JODA
BENNETT,
Defendants.

Appeal by Defendants from Order entered 23 August 2013 by

Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.

Heard in the Court of Appeals 4 June 2014.

Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady
Richardson, Jr., for Plaintiffs.

Broadwell Phillips & Potter, PLLC, by J. Hunter Broadwell,
for Defendants.

STEPHENS, Judge.

Factual Background and Procedural History

This case arises from the operation of a home-based

hairstyling salon by Defendants Stephanie Bennett (“Ms.

Bennett”) and Joda Bennett (“Mr. Bennett”) in Carolina Beach,
 -2-
North Carolina. Before opening the home-based salon, Ms. Bennett

owned and operated a beauty salon under the trade name “Cut N

Up.” On 17 May 2010, Ms. Bennett sold Cut N Up to Plaintiff

Kimberly A. Lewis for $20,000.

Ms. Bennett is a licensed cosmetologist. She does not have

a high school diploma or a college degree. Lewis has an

undergraduate degree in business administration. The purchase

agreement was prepared by Lewis, who downloaded a template from

the internet and made various handwritten changes. In pertinent

part, the signed agreement provided that Ms. Bennett (1) would

not engage in a competitive business for a period of five years

and within a fifty-mile radius of Cut N Up, and (2) would not

make known the names and addresses of the Cut N Up customers or

solicit those customers for a competitive business (the

“restrictive covenants” or the “non-compete provisions”). No

handwritten changes were made to this section of the agreement.

For approximately two years following the sale, Ms. Bennett

remained at Cut N Up as an independent cosmetologist. She was

paid by the customers and rented salon space from Lewis.

Pursuant to the purchase agreement, which stipulated that Ms.

Bennett had “1 yr. of pre-paid [b]ooth rent,” her rent for the
 -3-
first year was paid out of the total purchase price for the

salon. Afterward, Ms. Bennett paid the rent herself.

On 30 April 2012, Lewis decided not to renew Ms. Bennett’s

rental contract and asked Ms. Bennett to leave the salon. In an

attempt to avoid litigation, Lewis then offered to reduce the

geographic limitation in the restrictive covenant from fifty

miles to twenty miles in exchange for certain commitments by Ms.

Bennett. Ms. Bennett declined that offer and, in May, began

practicing cosmetology from her home with the help of Mr.

Bennett. Ms. Bennett’s home is located approximately two miles

from Cut N Up Hair Salon.

On 1 August 2012, Plaintiffs Lewis and Cut N Up Hair Salon

of Carolina Beach, LLC (“Cut N Up”), filed suit against

Defendants, seeking compensatory damages, punitive damages,

costs and expenses, attorneys’ fees, and an injunction. On 13

August 2012, the trial court, Judge Paul L. Jones presiding,

issued a temporary restraining order enjoining Defendants from

operating the home-based salon. Approximately one month later,

on 18 September 2012, the trial court, Judge Gary E. Trawick

presiding, entered a consent order. The order memorialized the

parties’ agreement, without prejudice to either party, and
 -4-
stated that Defendants would be permitted to continue operating

the home-based salon subject to certain restrictions.

Plaintiffs sought to dissolve the consent order one year

later, on 6 August 2013. By order filed 23 August 2013, the

trial court, Judge W. Allen Cobb, Jr., presiding, granted

Plaintiffs’ motion, dissolved the consent order, and permanently

enjoined Defendants from operating the home-based salon until

the restrictive covenants were set to expire on 17 May 2015. By

separate order filed that same day, the trial court granted

Plaintiffs’ motions for attorneys’ fees, costs, and sanctions in

the amount of $13,660.60. On 10 September 2013, Defendants filed

notice of appeal from the trial court’s order, seeking review

only “of the provisions of the [o]rder imposing a permanent

injunction against Defendants.”

Discussion

On appeal, Defendants argue that the trial court erred in

granting partial summary judgment to Plaintiffs and imposing a

permanent injunction on Defendants because (1) the restrictive

covenants are unenforceable as a matter of law or, in the

alternative, (2) the case involves disputed issues of material

fact. We disagree.

I. Appellate Jurisdiction
 -5-
As Defendants acknowledge in their notice of appeal, this

case is interlocutory in nature. See Liggett Grp., Inc. v.

Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (“A

grant of partial summary judgment, because it does not

completely dispose of the case, is an interlocutory order from

which there is ordinarily no right of appeal.”) (citations

omitted). Therefore, Defendants have no immediate right of

appeal. Id. (“Such prohibition promotes judicial economy by

preventing fragmentary appeals.”) (citation omitted).

Nonetheless, in two instances a party
is permitted to appeal interlocutory orders:
first, where there has been a final
determination of at least one claim, and the
trial court certifies that there is no just
reason to delay the appeal [under] Rule
54(b); and second, if delaying the appeal
would prejudice a “substantial right.” As
the court below made no certification, the
first avenue of appeal is closed.

Regarding the second, it has been frequently
noted the substantial right test is much
more easily stated than applied. There are a
few general principles governing what
constitutes a “substantial right” and[,]
thus[,] it is usually necessary to consider
the particular facts of each case and the
procedural context in which the
interlocutory decree was entered. [Generally
speaking, a] substantial right . . . is
considered affected if there are overlapping
factual issues between the claim determined
and any claims which have not yet been
determined because such overlap creates the
potential for inconsistent verdicts
 -6-
resulting from two trials on the same
factual issues.

Id. at 23–24, 437 S.E.2d at 677 (citations and certain internal

quotation marks omitted; emphasis in original).

This Court has previously recognized that an injunction

affecting a person’s livelihood involves a substantial right

and, therefore, justifies immediate appellate review. Wade S.

Dunbar Ins. Agency, Inc. v. Barber, 147 N.C. App. 463, 466–67,

556 S.E.2d 331, 334 (2001) (citations omitted). We have also

held that an order enjoining one party from competing in

violation of a non-competition agreement affects a substantial

right. QSP, Inc. v. Hair, 152 N.C. App. 174, 176, 566 S.E.2d

851, 852 (2002). Ms. Bennett’s ability to continue operating the

home-based salon clearly affects her livelihood. Moreover, the

trial court’s order granting Plaintiffs’ motion for partial

summary judgment was issued pursuant to the non-compete

agreement. Accordingly, we agree with Defendants that the trial

court’s order affects a substantial right and, therefore,

proceed to immediate appellate review of this issue.

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
 -7-
that any party is entitled to a judgment as a matter of law.” In

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

(citation and internal quotation marks omitted; italics added).

Review is based only on the pleadings and evidence before the

trial court. Liggett Grp., Inc., 113 N.C. App. at 25, 437 S.E.2d

at 678 (citations omitted). “The burden of establishing a lack

of any triable issue of fact resides with [Plaintiffs] as

movant[s] and[,] thus[,] all evidence must be viewed in the

light most favorable to [Defendants].” Id. (citation omitted).

III. The Restrictive Covenants

Defendants argue that the restrictive covenants are

unenforceable as a matter of law because they exceed Plaintiffs’

legitimate business interests with regard to (1) the restrained

activity and (2) the geographic limitation on that activity. As

a result, Defendants assert, the trial court erred by enjoining

them from operating the home-based salon. We disagree.

Restrictive covenants may be enforced against a former

owner or a former employee. United Labs., Inc. v. Kuykendall,

322 N.C. 643, 649, 370 S.E.2d 375, 380 (1988).

Whether the covenantor is a former owner or
a former employee, intimate knowledge of the
business operations or personal association
with customers provides an opportunity to
either the former employee or the former
owner to injure the business of the
 -8-
covenantee. A non-competition agreement,
therefore, is a device used by the
covenantee to prevent the covenantor from
utilizing this opportunity to do injury.

Id. (citations omitted). Accordingly, our Supreme Court has

stated that a non-competition covenant is valid and enforceable

when it is “(1) in writing; (2) reasonable as to terms, time,

and territory; (3) made a part of the employment contract; (4)

based on valuable consideration; and (5) not against public

policy.” Triangle Leasing Co. v. McMahon, 327 N.C. 224, 228, 393

S.E.2d 854, 857 (1990) (citations omitted).

[A] further consideration by [our appellate
courts], in recognizing the validity of
these covenants, is that at the time of
entering these contracts containing
covenants not to compete both parties
apparently regarded the restrictions as
reasonable and desirable. Essentially, by
enforcing the restrictions a court is only
requiring the defendants to do what they
agreed to do. While the law frowns upon
unreasonable restrictions, it favors the
enforcement of contracts intended to protect
legitimate interests. It is as much a matter
of public concern to see that valid
covenants are observed as it is to frustrate
the oppressive ones.

United Labs., Inc., 322 N.C. at 649, 370 S.E.2d at 380

(citations, internal quotation marks, and brackets omitted;

emphasis added). What constitutes a “legitimate interest” is a

question of law for the court. See Kadis v. Britt, 224 N.C. 154,
 -9-
158, 29 S.E.2d 543, 545 (1944) (“Since the determinative

question is one of public policy, the reasonableness and

validity of the contract is a question for the court and not for

the jury, to be determined from the contract itself and admitted

or proven facts relevant to the decision.”) (citation omitted).

A. Restrained Activity

Defendants aver that the restrictive covenants exceed

Plaintiffs’ legitimate business interests with regard to the

restrained activity (i.e., engaging in business competitive with

Cut N Up) because (1) section 15.01 is overbroad and (2) section

15.02 places “unrestricted and undefined” limitations on Ms.

Bennett. Alternatively, Defendants argue that summary judgment

is not proper because there is a disputed issue of material fact

as to this issue. We disagree.

i. Section 15.01

Section 15.01 of the purchase agreement provides as

follows:

The Seller expressly agrees that for a
period of five years following the execution
of this Agreement, _________ [he or she]
will not, directly or indirectly, as an
employee, agent, proprietor, partner,
stockholder, officer, director, or
otherwise, render any services to, or on
_________ [his or her] own behalf engage in
or own a part or all of any business which
is the same as, similar to, or competitive
 -10-
with the Business, which is being sold to
Buyer, anywhere within a 50 mile radius from
the current location of the Business that is
being sold without prior written consent of
the Buyer.

Defendants contend that this section exceeds Plaintiffs’

legitimate business interests due to overbreadth because it

purports to prohibit Ms. Bennett from “‘rendering any services’

to another business regardless of the form or type of such

services.” Citing Hartman v. W.H. Odell & Assocs., Inc., 117

N.C. App. 307, 450 S.E.2d 912 (1994), Defendants assert that the

“all-encompassing language [of section 15.01] restricts activity

wholly unrelated to cosmetology” and produces oppressive

results. We disagree.

“A covenant must be no wider in scope than is necessary to

protect the business of the employer. If a contract by an

employee in restraint of competition is too broad to be a

reasonable protection to the employer’s business it will not be

enforced.” Id. at 316, 450 S.E.2d at 919 (citations and internal

quotation marks omitted). In Hartman, the parties agreed that

the plaintiff was precluded “from working with any actuarial

business in North Carolina (or seven other states), even if the

business by which he was engaged did not service any customers

located in the eight states.” Id. at 316–17, 450 S.E.2d at 919.
 -11-
Importantly, “the covenant was not limited so as to prevent

[the] plaintiff’s competition for [the] defendant’s customers

only in the applicable territory.” Id. at 317, 450 S.E.2d at 919

(internal quotation marks omitted; emphasis added). In addition,

(1) the covenant could be read to prohibit the plaintiff from

working for any business that provided actuarial services, (2)

the covenant required the plaintiff to have no association

whatsoever with any business that provided actuarial services,

and (3) no legitimate business interest supported a worldwide

restriction on competition of this sort. See id. at 317, 450

S.E.2d at 919–20. Accordingly, we determined that the covenant

was overly broad and unenforceable. Id. at 317, 450 S.E.2d at

920.

Here, unlike the covenant Hartman, section 15.01 only works

to prevent competition between Ms. Bennett and Cut N Up in the

applicable territory, a fifty-mile radius of “the current

location of [Cut N Up].” By its terms, the covenant allows Ms.

Bennett to continue working as a cosmetologist anywhere, and for

any business, outside of this radius. Therefore, Hartman is not

applicable, and the covenant is not overly broad. Defendants’

argument is overruled.

ii. Section 15.02
 -12-
Section 15.02 of the purchase agreement provides as

follows:

The Seller shall not for a period of five
years immediately following the execution of
this Agreement, regardless of any reasons or
cause, either directly or indirectly:

(a) make known to any person, firm[,] or
corporation the names and addresses of any
of the customers of the Seller or Buyer or
any other information pertaining to them; or

(b) call on, solicit, or take away, or
attempt to call on, solicit, or take away
any of the customers of the Seller on whom
the Seller called or with whom _________ [he
or she] became acquainted during ownership
of this Business either for Seller or for
any other person, firm[,] or corporation.

Citing Medical Staffing Network, Inc. v. Ridgway, 194 N.C.

App. 649, 670 S.E.2d 321 (2009), Defendants contend that this

section exceeds Plaintiffs’ legitimate business interests

because (1) it does not define the term “customer” or (2) it

“would operate to prevent M[s]. Bennett from reaching out to

friends and former clients” if the term “customer” is considered

to mean “all patrons of the salon.” Defendants assert that “[n]o

legitimate business interest justifies preventing M[s]. Bennett

from soliciting or calling upon friends and clients developed

over the course of 20 years . . . ‘regardless of reason or

cause.’” We are unpersuaded.
 -13-
To be valid, the restrictions [in a
covenant not to compete] must be no wider in
scope than is necessary to protect the
business of the employer. In North Carolina,
the protection of customer relations against
misappropriation by a departing employee is
well recognized as a legitimate interest of
an employer. Additionally, a covenant is
reasonably necessary for the protection of a
legitimate business interest if the nature
of the employment is such as will bring the
employee in personal contact with patrons or
customers of the employer, or enable [her]
to acquire valuable information as to the
nature and character of the business and the
names and requirements of the patrons or
customers.

Id. at 656, 670 S.E.2d at 327 (citations, internal quotation

marks, and brackets omitted).

In Ridgway, we determined that certain restrictive

covenants were not enforceable (1) when the covenants “would

prevent [the defendant] from working in any business within a

60-mile radius of Raleigh that competes with [the plaintiff], or

any of its divisions, subsidiaries, affiliates, predecessors, or

assignees, even if [the defendant’s] employment duties for [the

plaintiff] had nothing to do with that business” and (2) when

the covenants prevented the defendant

not only from engaging in business with
current or former clients of [the plaintiff]
with whom he developed a relationship, but
also prohibit[ed] him from soliciting the
business of any [client of the plaintiff],
which as defined by the agreement,
 -14-
includ[ed] clients of any of [the
plaintiff’s] affiliates or divisions outside
the medical staffing business with whom [the
defendant] would not have had any contact.

Id. at 657, 670 S.E.2d at 328. The undefined term in that case

was the list of the plaintiff’s “affiliated companies that

engage in business distinct from the medical staffing business

in which [the defendant] had been employed.” Id. There was no

evidence that these companies engaged in the same business as

the plaintiff. Id. Therefore, we held, the plaintiff had no

legitimate business interest in preventing such solicitation,

and the covenants were not enforceable. Id.

Here, unlike Ridgway, section 15.02 limits Ms. Bennett’s

ability to solicit “customers of Seller,” i.e., customers of Ms.

Bennett, “either for Seller or for any other person, firm[,] or

corporation.” In the context of this case, the meaning of

“customer of Seller” is clear; it cannot refer to anyone other

than the individuals Ms. Bennett serviced while she owned Cut N

Up, i.e., the individuals serviced “during ownership of [the

b]usiness.” These customers, obviously, have a direct connection

to the vitality and success of the Cut N Up business. Unlike the

customers in Ridgway, these individuals are not defined broadly

to include customers of an entirely different business or set of

businesses. Indeed, section 15.02 makes no statement that Ms.
 -15-
Bennett is barred from soliciting cosmetology customers in

general or customers from some other type of business. Rather,

Ms. Bennett is barred from soliciting the customers of Cut N Up

Hair Salon “on whom [she] called or with whom [she] became

acquainted during ownership of [Cut N Up].” This limitation is

necessary to protect Cut N Up’s business.

Furthermore, we note that, despite Defendants’ contention

to the contrary, section 15.02 does not prevent Ms. Bennett from

“reaching out to friends and former clients” in a noncommercial

capacity. The language of the covenant is that the Seller, Ms.

Bennett, may not — regardless of any reasons or cause — “call

on,” “solicit,” or attempt to call on, solicit, or “take away

any of the customers of the Seller” for herself or some other

entity. The straightforward implication from these words, “for

herself,” is that Ms. Bennett is barred from contacting

customers for some commercial purpose, not that she is barred

from “reaching out.” Accordingly, we conclude that section 15.02

is not wider in scope than necessary to protect the legitimate

business interests of Cut N Up. Ridgway is unavailing, and

Defendants’ argument is overruled.

B. Geographic Scope
 -16-
Defendants next contend that the covenants are

unenforceable pursuant to our opinion in Beasley v. Banks, 90

N.C. App. 458, 368 S.E.2d 885 (1988), because the fifty-mile

restriction on competition is more extensive in geographic scope

than is reasonably necessary to protect Plaintiffs’ business

interests. For support, Defendants point out that (1) the

restriction was drafted pursuant to a generic form and (2) Lewis

had previously offered to reduce the restriction, in the context

of her settlement offer to amend the agreement and avoid

litigation, to twenty miles. We are unpersuaded.

“The territory excluded from competition by an agreement

such as this one must be no greater than is reasonably necessary

to protect the covenantee’s business interest, and if it is

unreasonably extensive the entire covenant fails since equity

will neither enforce nor reform an overreaching and unreasonable

agreement.” Id. at 460, 368 S.E.2d at 886 (citations omitted).

Generally speaking, a restriction as to territory is reasonable

when the plaintiff is engaged in business within that area.

Safety Equip. Sales & Serv., Inc. v. Williams, 22 N.C. App. 410,

414, 206 S.E.2d 745, 748 (1974) (concluding that the 150-mile-

radius contained in the parties’ restrictive covenant was

enforceable as not unreasonable when the plaintiff was “engaged
 -17-
in business in an area encompassing a 175[-]mile radius of

Wilmington”). This Court has also identified the following six

factors to consider when determining the reasonableness of the

geographic scope of a covenant not to compete:

(1) the area or scope of the restriction;
(2) the area assigned to the employee;
(3) the area where the employee actually
worked; (4) the area in which the employer
operated; (5) the nature of the business
involved; and (6) the nature of the
employee’s duty and his knowledge of the
employer’s business operation.

Farr Assocs., Inc. v. Baskin, 138 N.C. App. 276, 281, 530 S.E.2d

878, 882 (2000) (citation omitted).

In Beasley, a restrictive covenant prevented the defendant

optometrist from dispensing eyeglasses within a radius of thirty

miles of the town of Havelock for five years after he vacated

the plaintiff optician’s premises. 90 N.C. App. at 459, 368

S.E.2d at 886. The defendant violated that provision, and the

plaintiff brought suit. Id. On appeal, we held that the thirty-

mile restriction was not reasonable because the parties’

affidavits showed that

(1) the area excluded from competition by
the covenant includes Jacksonville, Atlantic
Beach, Atlantic, Oriental, Emerald Isle,
Harker’s Island, Vanceboro, Ocracoke,
Aurora, Arapahoe, Marshallberg, and Cove
City, and (2) [the] plaintiff has no
established pool of customers in any of
 -18-
those places. For [the p]laintiff’s
affidavit states that during the three years
the parties occupied adjoining offices he
referred to [the] defendant all his
customers who needed to have their eyes
tested and glasses prescribed; and [the]
defendant’s affidavit states that of the
hundreds of customers [the] plaintiff
referred to him not one resided in any of
the places named above, all of which are in
the area excluded from competition by the
covenant and several of which are quite
populous. These forecasts of proof, standing
alone, are sufficient to establish that
[the] plaintiff had no pool of customers in
any of the places listed that he had a legal
right to protect and that obligating [the]
defendant not to sell eyeglasses in those
places was unnecessary for the protection of
[the] plaintiff’s business.

Id. at 460, 368 S.E.2d at 886 (emphasis added). The Court also

noted that, on summary judgment, the plaintiff’s mere statement

that “his customers [were] resid[ing] throughout the

thirty[-]mile radius area and beyond,” without specific facts to

support that statement, was insufficient to establish the

reasonableness of the geographic area proscribed by the

covenant. Id. at 460–61, 368 S.E.2d at 887 (internal quotation

marks omitted). Accordingly, we vacated the trial court’s order

granting summary judgment in favor of the plaintiff and remanded

the case to the trial court for entry of judgment dismissing the

action. Id. at 461, 368 S.E.2d at 887.
 -19-
Cut N Up is located at 913 North Lake Park Boulevard in

Carolina Beach, North Carolina. During Lewis’s deposition, she

testified as follows regarding the basis for the fifty-mile

restriction:

Q. Do you know where the town of Delco is
located?

A. No.

Q. Never been to Delco?

A. No.

Q. All right. Have you ever heard of Delco?

A. No.

Q. . . . [I]f I tell you that Delco is
within 50 miles of Carolina Beach, do you
believe that Ms. Bennett opening a competing
salon in Delco would tend to impact your
business?

A. Yes.

Q. Okay. And why do you say that?

A. Because I know from the clients that we
have, there are people that drive to the
salon that are 20, 30, 40, 50 miles from
there and they come to our salon, they’ve
been coming to our salon for 10, 15 years.

. . .

Q. And tell me why this 50-mile figure is
the significant number. Why . . . did you
chose 50 miles? Why is that the number that
defines your business interest?
 -20-
A. It seemed to me to be, for a period of
five years while I established base with my
clients, the best buffer zone for [Ms.
Bennett] not to compete with me.

Ms. Bennett did not discuss where the Cut N Up customers

lived in relation to the fifty-mile restriction. She referenced

a customer address book on a number of occasions, but later

stated that the book did not actually include the customers’

addresses. This statement is consistent with the copy of

“Stephanie’s Client List,” submitted by Plaintiffs with their

motion for partial summary judgment, which includes only names

and phone numbers for Ms. Bennett’s customers, not addresses.

Unlike the defendant in Beasley, Ms. Bennett offered no evidence

that the Cut N Up customer base was, in its entirety, within an

area smaller than the fifty-mile radius proscribed by section

15.01.

Therefore, unlike Beasley, we are presented in this case

with a forecast of evidence in which Plaintiffs attest that

“there are people that drive to the salon that are 20, 30, 40,

50 miles from there and . . . , they’ve been coming to our salon

for 10, 15 years.” Defendants, on the contrary, offer no

evidence on that issue. In Beasley, the plaintiff’s general

statement that he had a pool of customers in the entire area

covered by the covenants was insufficient to support summary
 -21-
judgment because the defendant had offered evidence to the

contrary. 90 N.C. App. at 460–61, 368 S.E.2d at 886. Here,

however, Defendants offer no evidence that Cut N Up’s customer

base fails to include the entire area encompassed by the fifty-

mile restriction. Therefore, the undisputed evidence is that Cut

N Up’s customer base covered the full area described in the

restrictive covenants. As a result, the parties’ forecast of

evidence indicates that Cut N Up was engaged in business in the

area proscribed by the restrictive covenants. The geographic

limitation is, therefore, reasonable, and Defendants’ argument

is overruled. See Williams, 22 N.C. App. at 414, 206 S.E.2d at

745.

IV. Genuine Issue of Material Fact

Alternatively, Defendants argue that partial summary

judgment is not proper because the facts of this case present a

genuine issue of material fact. Again, we disagree.

Defendants present no evidence that there is an issue of

material fact. Instead, Defendants contend that the parties

share differing views of the meaning of certain terms in the

agreement and attempt to characterize those differences as an

issue of fact. This is incorrect. The meaning of the terms of a
 -22-
contract is an issue of law, not fact. See, e.g., Harris v. Ray

Johnson Constr. Co., 139 N.C. App. 827, 829, 534 S.E.2d 653, 654

(2000) (“Here, the issue is a matter of contract interpretation,

and hence, a question of law.”). Accordingly, Defendants’

argument is overruled, and the trial court’s order granting

partial summary judgment is affirmed.1

AFFIRMED.

Judges STROUD and MCCULLOUGH concur.

Report per Rule 30(e).

1
Because we affirm the trial court’s order granting partial
summary judgment, we need not address Plaintiffs’ alternative
argument that Defendants are estopped from asserting that the
restrictive covenants are unenforceable.