## Facts

- A medical clinic in Statesville, North Carolina employed a physician specializing in gastroenterology and internal medicine under a three-year written employment contract beginning July 1, 1984.
- The contract contained a post-termination restrictive covenant barring the physician from practicing within a defined area for three years and included a payment provision tied to competing practice revenue.
- Before the contract term ended, the employment relationship deteriorated; the physician resigned and sought to open a gastroenterology practice in Statesville within the restricted area.
- The clinic sued for breach of contract and moved for a preliminary injunction to enforce the covenant during its stated period (approximately August 1987 to August 1990).
- Evidence for the clinic asserted the remaining physician could provide prompt care, the clinic intended to hire a replacement associate, and other local physicians could handle certain emergency procedures.
- Evidence for the physician indicated that limiting Statesville to one gastroenterologist would not meet community needs, including demand, call coverage, and emergencies.
- The trial court found one gastroenterologist was insufficient for the community, concluded the covenant was likely void as against public policy due to harm to public health and welfare, and denied the preliminary injunction.
- During the preliminary-injunction proceedings, the trial judge made an ex parte telephone call to an affiant to clarify an affidavit, documented the substance of the call, and the affiant restated his prior position.

## Issues

1. Whether the order denying a preliminary injunction to enforce a time-limited noncompete affected a substantial right permitting immediate appeal.
2. Whether the trial court erred in denying a preliminary injunction by concluding the clinic was unlikely to succeed because the physician noncompete was likely void as against public policy.
3. Whether the trial judge’s ex parte clarification call to an affiant constituted prejudicial error requiring reversal.

## Decision

- The denial of the preliminary injunction was immediately appealable because delaying review would materially impair the clinic’s ability to obtain the benefit of the time-limited restriction.
- The denial of the preliminary injunction was affirmed because the clinic did not show a likelihood of success on the merits where enforcement would likely harm public health and welfare by leaving the community with only one gastroenterologist.
- The ex parte clarification call did not constitute prejudicial error where it was documented and did not change the substance of the affidavit.

## Legal Principles

- A covenant not to compete in an employment contract is enforceable only if it is in writing, supported by consideration, reasonable in time and territory, and not contrary to public policy.
- In the physician context, even a covenant that appears reasonable in duration and geography may be unenforceable if enforcement would materially restrict access to necessary medical services and harm the public.
- Enforcement is less likely where the restraint would effectively create a local monopoly in a medical specialty, with adverse effects on availability of care, emergency coverage, and fees.
- An order denying a preliminary injunction may be immediately appealable when the right asserted is time-sensitive and would be effectively lost without prompt appellate review.
- Ex parte contact related to affidavit clarification does not require reversal absent a showing of prejudice, particularly where the communication is disclosed and does not alter substantive evidence.

## Conclusion

The court affirmed the denial of a preliminary injunction enforcing a physician noncompete, holding the clinic failed to show a likelihood of success because enforcement would likely violate public policy by impairing community access to gastroenterology services, and it found no prejudicial error from a documented ex parte clarification call.


Iredell Digestive Disease Clinic, P.A. v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449 (1988)