Sterling Title Company v. Martin

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-1189

Filed: 6 August 2019

Wake County, No. 17 CVS 13631

STERLING TITLE COMPANY, Plaintiff,

v.

LAURA LOUISE MARTIN and MAGNOLIA TITLE COMPANY, LLC, Defendants.

Appeal by plaintiff from order entered 3 July 2018 by Judge Vince Rozier, Jr.

in Wake County Superior Court. Heard in the Court of Appeals 11 April 2019.

Vann Attorneys, PLLC, by Joseph A. Davies, James R. Vann, and J.D.
Hensarling, for plaintiff-appellant.

Forrest Firm, P.C., by John D. Burns, for defendants-appellees.

ZACHARY, Judge.

Plaintiff Sterling Title Company appeals from the trial court’s order granting

Defendants Laura Louise Martin and Magnolia Title Company, LLC’s motion to

dismiss Plaintiff’s claims for breach of the parties’ non-compete agreement, breach of

the implied duty of good faith and fair dealing, violation of the North Carolina Trade

Secrets Protection Act, unfair and deceptive trade practices, and conversion. We

affirm.

Background

Plaintiff is a title insurance company located in Raleigh, North Carolina.

Defendant Martin began working for Plaintiff as an underwriter in October 2007.
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Defendant Martin’s duties in that role included “underwriting title, developing and

maintaining business relationships with [Plaintiff’s] clients, serving in a

management role, and developing and selling business and maintaining accounts for

[Plaintiff’s] clients throughout the State of North Carolina.” In 2008, Defendant

Martin was licensed to practice law in North Carolina.

As part of her employment contract, Defendant Martin signed a Proprietary

Information, Inventions, Non-Competition and Non-Solicitation Agreement (“Non-

Compete Agreement” or “Agreement”). The Agreement included the following

relevant provisions at issue on appeal:

3. No Conflicts or Solicitation.

. . . . I also agree that for the period of my employment by
the Company and for one (1) year after the date of
termination of my employment with the Company I will
not, either directly or through others: . . . . (c) solicit or
attempt to solicit any customer or partner of the Company
with whom I had contact during my employment with the
Company to purchase a product or service competitive with
a product or service of the Company; . . . or (d) provide
products or services competitive with a product or service
of the Company to any customer or partner of the Company
with whom I had contact during my employment with the
Company.

On 10 May 2017, while still employed by Plaintiff, Defendant Martin formed

Magnolia Title Company, LLC, which, according to its website, “is an attorney-owned

independent title agency providing real estate practitioners with extensive

-2-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

knowledge and exceptional service for 4 national title underwriters.” Defendant

Martin resigned from her employment with Plaintiff on 31 May 2017.

According to Plaintiff, within one year of resigning from her employment,

Defendant Martin, through Defendant Magnolia Title Company,

35. . . . is and/or has solicited received, and/or has written
business for at least one Sterling Title client in New
Hanover County, North Carolina. As part of her job duties,
Defendant Martin would travel to New Hanover County
purportedly to meet with clients, to maintain accounts, and
to develop and further business for Sterling Title. . . .

36. Plaintiff has learned, upon information and belief, that
Defendants Martin and/or Magnolia Title have contacted,
marketed to, and/or solicited business from Sterling Title
clients in furtherance of their business development and
scheme. Upon information and belief, Defendants Martin
and Magnolia Title did so in direct violation of the Non-
Compete Agreement and in an effort to compete directly
with Sterling Title and/or to take clients from Sterling
Title.

37. Upon information and belief, Defendants have
contacted and/or visited with several of Sterling Title
customers with whom Defendant Martin worked while
employed by Sterling Title in an effort to obtain additional
accounts and business on behalf of Defendant Magnolia
Title.

After Defendant Martin’s resignation, Plaintiff hired digital forensics

examiner Derek Ellington to examine the company computer that Defendant Martin

used while working for Plaintiff. Ellington’s affidavit was filed contemporaneously

with Plaintiff’s complaint (“Ellington Affidavit”). According to the Ellington Affidavit,

-3-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

on 28 April 2017, “a folder called Magnolia was created within the Personal folder of

the main Dropbox folder [that Defendant Martin had installed] on the Sterling Title

Company Dell computer.” The folder was found to contain “a list of 51 names and

email addresses” in a spreadsheet entitled

“Happy_Hour_with_Carolina_Bank_Sterling_-guest_list-03-22-13(1).xlsx,” which,

according to the Ellington Affidavit, “is consistent with being a contact list for

Sterling Title Company.”

On 7 November 2017, Plaintiff filed a complaint against Defendant Martin

asserting claims for breach of the Non-Compete Agreement and breach of the implied

duty of good faith and fair dealing. Plaintiff also asserted claims against both

Defendants for violation of the North Carolina Trade Secrets Protection Act, unfair

and deceptive trade practices, and conversion. On 10 January 2018, Defendants filed

a motion to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure on the grounds that “the Restrictive Covenants at

issue are unenforceable as a matter of law,” and that the allegations in the complaint

otherwise failed to state a claim upon which relief could be granted. By order entered

3 July 2018, the trial court dismissed Plaintiff’s complaint with prejudice, concluding

that the Non-Compete Agreement was “unenforceable against the Defendants under

North Carolina law,” and that the complaint otherwise failed to state a claim for

which relief could be granted. Plaintiff timely appealed.

-4-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

On appeal, Plaintiff argues that the trial court erred in granting Defendants’

motion to dismiss because (1) the Non-Compete Agreement is a valid and enforceable

contract, and (2) the complaint otherwise states cognizable claims for relief as to each

of Plaintiff’s asserted causes of actions.

Discussion

I. Standard of Review

“In reviewing a trial court’s Rule 12(b)(6) dismissal, the appellate court must

inquire whether, as a matter of law, the allegations of the complaint, treated as true,

are sufficient to state a claim upon which relief may be granted under some legal

theory.” Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618

S.E.2d 201, 203 (2005) (quotation marks omitted). Under this standard,

[d]ismissal is proper . . . when one of the following three
conditions is satisfied: (1) the complaint on its face reveals
that no law supports the plaintiff’s claim; (2) the complaint
on its face reveals the absence of facts sufficient to make a
good claim; or (3) the complaint discloses some fact that
necessarily defeats the plaintiff’s claim.

Id. at 784, 618 S.E.2d at 204 (quotation marks omitted).

II. Covenant Not to Compete

It is well established that “[a] covenant in an employment agreement providing

that an employee will not compete with his former employer is not viewed favorably

in modern law.” Hartman v. Odell and Assocs., Inc., 117 N.C. App. 307, 311, 450

S.E.2d 912, 916 (1994) (quotation marks omitted), disc. review denied, 339 N.C. 612,

-5-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

454 S.E.2d 251 (1995). In order to be enforceable, an otherwise procedurally valid

covenant not to compete must be both (1) “reasonable as to time and territory,” and

(2) “designed to protect a legitimate business interest of the employer.” Id. “The

reasonableness of a non-compete agreement is a matter of law for the court to decide.”

Farr Assocs. v. Baskin, 138 N.C. App. 276, 279, 530 S.E.2d 878, 881 (2000). “In

evaluating reasonableness as to time and territory restrictions, we must consider

each element in tandem . . . . Although either the time or the territory restriction,

standing alone, may be reasonable, the combined effect of the two may be

unreasonable.” Id. at 280, 530 S.E.2d at 881 (citation omitted).

In the instant case, there is no question but that the Non-Compete Agreement

is designed to protect Plaintiff’s legitimate business interest, i.e., maintaining

customer relationships. See United Labs., Inc. v. Kuykendall, 322 N.C. 643, 651, 370

S.E.2d 375, 381 (1988) (“[P]rotection of customer relationships and goodwill against

misappropriation by departing employees is well recognized as a legitimate

protectable interest of the employer.”); Farr, 138 N.C. App. at 280, 530 S.E.2d at 881

(“[An employer’s] desire to keep its client base intact when its employees depart is a

legitimate business interest.”). Nevertheless, “[i]f a contract . . . in restraint of

competition is too broad to be a reasonable protection to the employer’s business it

will not be enforced.” Whittaker General Medical Corp. v. Daniel, 324 N.C. 523, 528,

-6-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

379 S.E.2d 824, 828, reh’g denied, 325 N.C. 231, 381 S.E.2d 792, reh’g denied, 325

N.C. 277, 384 S.E.2d 531 (1989).

We therefore must consider the scope of the temporal and territorial

restrictions in the Non-Compete Agreement in order to determine whether the

Agreement is enforceable as a matter of law. “If not, then the trial court properly

granted” Defendants’ motion to dismiss Plaintiff’s breach of contract claim. Farr, 138

N.C. App. at 279, 530 S.E.2d at 880.

a. Reasonableness as to Territory

This Court has identified the following factors as relevant to the determination

of whether the geographic scope of a non-compete agreement is reasonable:

(1) the area, or scope, of the restriction; (2) the area
assigned to the employee; (3) the area where the employee
actually worked or was subject to work; (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.

Hartman, 117 N.C. App. at 312, 450 S.E.2d at 917.

Generally, “[w]here the alleged primary concern is the employee’s knowledge

of the customers, the territory should only be limited to areas in which the employee

made contacts during the period of his employment.” Id. at 313, 450 S.E.2d at 917

(quotation marks omitted). Indeed, our courts have also recognized “the validity of

geographic restrictions that are limited not by area, but by a client-based restriction.”

Farr, 138 N.C. App. at 281, 530 S.E.2d at 882 (citation omitted).

-7-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

The Non-Compete Agreement in the present case does not prevent Defendant

Martin from operating within any particular locale. Instead, it prevents Defendant

Martin from soliciting or providing a competitive product or service to any “customer

or partner of [Plaintiff] with whom [she] had contact during [her] employment with

[Plaintiff].” This client-based restriction is, on its face, very broad. It prohibits

Defendant Martin from soliciting or providing competitive services to all of Plaintiff’s

current or former clients with whom Defendant Martin had any form of “contact”

during her employment, regardless of the client’s location, the extent of the client’s

“contact” with Defendant Martin during her employment,1 or the amount of time that

has passed since the client ceased doing business with Plaintiff. The expansiveness

of this restriction suggests that the Non-Compete Agreement is unreasonable. See id.

at 282, 530 S.E.2d at 882 (“Although [the employer] had a legitimate reason for

wanting to prevent departing employees from misappropriating clients, the number

of clients embraced by the covenant, as compared to the number of clients serviced

by [the employee], is unreasonable.”).

b. Reasonableness as to Time

1 As in Farr, the Non-Compete Agreement in this case does not define “customer or partner,”
and thus the restriction would “extend to clients’ offices that never contacted” either Plaintiff or
Defendant Martin. Farr, 138 N.C. App. at 282, 530 S.E.2d at 882 (“If [the employer] worked for a client
in one city, but that client has offices in other cities, the non-compete agreement ostensibly prevents
[the employee] from working for that client in any of its offices, not merely the office with which [the
employer] once worked. [This] factor[ ] work[s] to expand the reach of the covenant.”).

-8-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Although we conclude that the client-based restriction in the instant case tends

to indicate that the Non-Compete Agreement is unreasonable, we next consider the

temporal restriction in order to determine whether “the combined effect of the two”

nevertheless renders the Non-Compete Agreement enforceable. Id. at 280, 530 S.E.2d

at 881 (“A longer period of time is acceptable where the geographic restriction is

relatively small, and vice versa.”).

“[T]ime restrictions of a certain length are presumed unreasonable absent a

showing of special circumstances. A five-year time restriction is the outer boundary

which our courts have considered reasonable . . . .” Id. Even so, “only ‘extreme

conditions’ will support a five-year covenant.” Hartman, 117 N.C. App. at 315, 450

S.E.2d at 918.

Moreover, the time period identified in a non-compete agreement will not

always be controlling as the operative time restriction in each case. “[W]hen a non-

compete agreement reaches back to include clients of the employer during some

period in the past, the look-back period must be added to the restrictive period to

determine the real scope of the time limitation.” Farr, 138 N.C. App. at 280, 530

S.E.2d at 881.

In the instant case, although the applicable time restriction in the Non-

Compete Agreement is stated as “the period of [Defendant Martin’s] employment . . .

and for one (1) year after the date of termination,” the Agreement also restricts

-9-
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Defendant Martin from soliciting or providing competitive services to any of

Plaintiff’s customers with whom she had contact during her employment, a period of

roughly ten years. Thus, “[o]n an operative level,” the Agreement is in essence an 11-

year restriction. Professional Liab. Consultants v. Todd, 122 N.C. App. 212, 219, 468

S.E.2d 578, 582 (Smith, J., dissenting), rev’d for the reasons stated in the dissent, 345

N.C. 176, 478 S.E.2d 201 (1996). That is, the Agreement prevents Defendant Martin,

for a period of one year, from doing business with Plaintiff’s former or current clients

with whom Defendant Martin had any contact during the past ten years, even if the

customer ceased doing business with Plaintiff nine years and 11 months ago. Such a

restriction is “patently unreasonable.” Id. at 219, 468 S.E.2d at 583.

Accordingly, in light of its overarching temporal and territorial restrictions, we

conclude that the Non-Compete Agreement is “unreasonably broad and therefore

unenforceable.” Farr, 138 N.C. App. at 283, 530 S.E.2d at 883. Accordingly, the trial

court properly granted Defendants’ motion to dismiss Plaintiff’s claims for breach of

contract.

c. Sufficiency of the Allegations

The trial court’s dismissal of Plaintiff’s breach of contract claim was also proper

in that Plaintiff’s complaint fails to allege facts sufficient to establish a breach of the

Non-Compete Agreement, even assuming it were enforceable. Plaintiff argues that

“Paragraphs 35-37 of the Complaint allege facts sufficient to establish a breach of the

- 10 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

contract, particularly at the 12(b)(6) stage.” Paragraphs 36 and 37, however, set forth

nothing more than Plaintiff’s “belief” that Defendant Martin has “contacted and/or

visited with several of [Plaintiff’s] customers,” wholly failing to identify any such

customer that she is alleged to have solicited in breach of the Agreement. (Emphasis

added). See Feltman v. City of Wilson, 238 N.C. App. 246, 252, 767 S.E.2d 615, 620

(2014) (“Under notice pleading, a statement of claim is adequate if it gives sufficient

notice of the claim asserted to enable the adverse party to answer and prepare for

trial . . . .”). Moreover, while paragraph 35 of the complaint alleges that Defendant

Martin “is and/or has solicited received, and/or has written business for at least one

[of Plaintiff’s clients] in New Hanover County, North Carolina,” the complaint fails

to allege that this unnamed New Hanover County client was, in fact, one “with whom

[Defendant Martin] had contact during [her] employment.” Accordingly, even

assuming the Non-Compete Agreement to be enforceable, Plaintiff has not pleaded

sufficient facts to establish a breach of the Agreement.

III. Trade Secrets Protection Act Claim

Plaintiff’s third cause of action is against both Defendants for violation of the

North Carolina Trade Secrets Protection Act.

Chapter 66, Article 24, section 153 of the North Carolina General Statutes

provides that an “owner of a trade secret shall have remedy by civil action for

- 11 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

misappropriation of his trade secret.” N.C. Gen. Stat. § 66-153 (2017). For purposes

of the Act, a “trade secret” means

[b]usiness or technical information, including but not
limited to a formula, pattern, program, device, compilation
of information, method, technique, or process that:

a. Derives independent actual or potential commercial
value from not being generally known or readily
ascertainable through independent development or reverse
engineering by persons who can obtain economic value
from its disclosure or use; and

b. Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

Id. § 66-152(3).

Under North Carolina law, “[t]o plead misappropriation of trade secrets, a

plaintiff must identify a trade secret with sufficient particularity so as to enable a

defendant to delineate that which he is accused of misappropriating.” VisionAIR, Inc.

v. James, 167 N.C. App. 504, 510, 606 S.E.2d 359, 364 (2004) (quotation marks

omitted). In determining whether the information identified in a complaint

constitutes a “trade secret” for purposes of the Act, relevant factors include:

(1) the extent to which information is known outside the
business; (2) the extent to which it is known to employees
and others involved in the business; (3) the extent of
measures taken to guard secrecy of the information; (4) the
value of information to business and its competitors; (5) the
amount of effort or money expended in developing the
information; and (6) the ease or difficulty with which the
information could properly be acquired or duplicated by
others.

- 12 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 525, 586 S.E.2d

507, 511 (2003). Information will not merit trade secret protection where the

information is “either generally known in the industry . . . or [is] readily ascertainable

by reverse engineering.” Analog Devices, Inc. v. Michalski, 157 N.C. App. 462, 470,

579 S.E.2d 449, 454 (2003).

In the instant case, Plaintiff alleges that Defendants misappropriated its trade

secrets, to wit: “Plaintiff’s customer identity and customer account information.” In

particular, the Ellington Affidavit attached to Plaintiff’s complaint states that

Defendant Martin saved to her personal Dropbox folder a document titled

“Happy_Hour_with_Carolina_Bank_Sterling_-guest_list-03-22-12(1).xlsx,” which is

purportedly “a list of 51 names and email addresses and is consistent with being a

contact list for Sterling Title Company.” Plaintiff maintains that “[b]ecause the

Complaint clearly identifies a specific document which was misappropriated,” i.e., the

contact list, Plaintiff “has sufficiently pled misappropriation of trade secrets.”

Nevertheless, even assuming that Plaintiff’s identification of this document is

sufficient to allege the existence of a trade secret, we conclude as a matter of law that

such a document does not merit trade secret protection under the Act.

The guest list is identified as containing the “names and email addresses” of

Plaintiff’s “contact[s].” Although “information regarding customer lists . . . can qualify

as a trade secret under [the Act],” Krawiec v. Manly, 370 N.C. 602, 610, 811 S.E.2d

- 13 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

542, 548 (2018), such is the case only to the extent that the information is not

“generally known or readily ascertainable through independent development or

reverse engineering.” N.C. Gen. Stat. § 66-152(3)(a); Krawiec, 370 N.C. at 610, 811

S.E.2d at 548. Assuming that the 51 “contacts” are, in fact, Plaintiff’s customers,

Plaintiff fails to allege—and there is nothing in the pleadings to support—“that the

lists contained any information that would not be readily accessible” to Defendant

Martin but for her employment with Plaintiff. 2 Krawiec, 370 N.C. at 611, 811 S.E.2d

at 549. Thus, because the complaint fails to identify Plaintiff’s “customer identity and

customer account information” as consisting of anything other than the e-mail

addresses of 51 “contacts,” Plaintiff has failed to allege a trade secret deserving of

protection under the Act. See id. at 610, 811 S.E.2d at 548 (“[I]n light of the

requirements of subsection 66-152(3), a customer database [does] not constitute a

trade secret when the record show[s] that defendants could have compiled a similar

database through public listings such as trade show and seminar attendance lists.”

(quotation marks omitted)).

Accordingly, the trial court properly dismissed Plaintiff’s claim for violation of

the North Carolina Trade Secrets Protection Act.

IV. Remaining Claims

2 In fact, as Defendants argued at the hearing on their motion to dismiss, the business at issue
in this case “is the provision of title insurance. Your customers are real estate attorneys licensed in
the state . . . you’re selling title insurance in. It’s no secret who the potential customers of these
companies are. You can go to the state bar and look up the real estate lawyers in your town.”

- 14 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Plaintiff’s second cause of action is against Defendant Martin for breach of the

implied duty of good faith and fair dealing under the Non-Compete Agreement. The

trial court’s dismissal of this claim was proper in light of our holding that the Non-

Compete Agreement is unenforceable. Because Plaintiff cannot establish the

existence of an enforceable contract, Plaintiff cannot state a claim that Defendant

Martin “somehow breached implied terms” of that contract. Suntrust Bank v.

Bryant/Sutphin Props., LLC, 222 N.C. App. 821, 833, 732 S.E.2d 594, 603, disc.

review denied, 366 N.C. 417, 735 S.E.2d 180 (2012).

Plaintiff next challenges the trial court’s dismissal of its claim against

Defendants for unfair and deceptive trade practices pursuant to N.C. Gen. Stat. § 75-

1.1. In doing so, however, Plaintiff only argues that, because its complaint properly

stated a claim for violation of the Trade Secrets Protection Act, the complaint

therefore also sufficiently stated a claim for unfair and deceptive trade practices. See

Drouillard v. Keister Williams Newspaper Servs., Inc., 108 N.C. App. 169, 172, 423

S.E.2d 324, 326 (1992) (“If the violation of the Trade Secrets Protection Act satisfies

[the] three prong test [to maintain a cause of action for unfair trade practices], it

would be a violation of N.C. Gen. Stat. § 75-1.1.”), cert. dismissed and disc. review

denied, 333 N.C. 344, 427 S.E.2d 617 (1993). Because we conclude that Plaintiff’s

complaint fails to state a claim for violation of the Trade Secrets Protection Act, the

trial court’s order cannot be disturbed on this ground.

- 15 -
 STERLING TITLE CO. V. MARTIN

Opinion of the Court

Lastly, Plaintiff does not challenge the trial court’s dismissal of its conversion

claim, nor does it challenge the trial court’s dismissal of its breach of contract claim

except as it relates to the non-compete and non-solicitation restrictions. Accordingly,

Plaintiff has abandoned any such challenges not presented. See N.C.R. App. P. 28(a)

(“Issues not presented and discussed in a party’s brief are deemed abandoned.”).

Conclusion

For the reasons contained herein, we affirm the trial court’s order granting

Defendants’ motion to dismiss.

AFFIRMED.

Judges DIETZ and MURPHY concur.

- 16 -