BLUSKY RESTORATION CONTRACTORS, LLC v. BROWN, 2024 NCBC 49

BluSky Restoration Contractors, LLC v. Brown, 2024 NCBC 49.
STATE OF NORTH CAROLINA
GUILFORD COUNTY
BLUSKY RESTORATION
CONTRACTORS, LLC,
V.
Plaintiff/Counterclaim
Defendant,
STEVEN W. BROWN,
Defendant/Counterclaim
Plaintiff/Third-Party
Plaintiff,
and
BLUSKY HOLDCO, LLC,
Third-Party Defendant.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21CVS010032-400
ORDER AND OPINION ON CROSS-
MOTIONS FOR SUMMARY
JUDGMENT
[Public)l
1. 	THIS MATTER is before the Court on the 14 July 2023 filing of (1) BluSky
Restoration Contractors, 	LLC's and BluSky HoldCo, 	LLC's Motion for 	Summary
Judgment 	as 	to 	Steven 	W 	Brown's 	Counterclaims 	and 	Third-Party 	Complaint
("BluSky's Motion"), 	(ECF No. 	140 ["BluSky Mot."]), 	and (2) Steven 	W. 	Brown's
Motion for Partial Summary Judgment ("Brown's Motion"; together, the "Motions"),
(ECF No. 143 ["Brown Mot."]). Pursuant to Rule 56 of the North Carolina Rules of
Civil Procedure (the "Rule(s)"), the Motions seek partial summary judgment on
1 Recognizing that this Order and Opinion cites to and discusses the subject matter of
documents that the Court has allowed to remain under seal in this action, and out of an
abundance of caution, the Court filed this Opinion under seal on 24 July 2024. 	(See ECF
No. 244.) The Court thereafter permitted the parties an opportunity to propose redactions to
the public version of this document. On 7 August 2024, the parties' counsel notified the Court
by email that all parties conferred and agreed to certain redactions. The parties proposed
the redactions contained herein, and the Court finds that those redactions are narrowly and
appropriately tailored. Accordingly, the Court now files the redacted, public version of this
Order and Opinion.

BluSky Restoration Contractors, LLC and BluSky HoldCo, LLC's claims for breach
of contract and misappropriation of trade secre ts and Defendant's counterclaims for
unjust enrichment and violations of the North Carolina Wage and Hour Act. 	(See
BluSky Mot.; Brown Mot.)
2. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motions.
Akerman, LLP, by Bry an G. Scott, Adam L. Massaro, and Jasmine M.
Pitt, for Plaintiff BluSky Restoration Contractors, LLC and Third-Party
Defendant BluSky HoldCo, LLC.
Wagner Hicks, PLLC, by Sean C. Wagner, Tyler B. Peacock, Abbey M.
Krysak, Jonathon D. 	Townsend, and Meagan L . Allen for Defendant
Steven W. Brown. 2
Robinson, Judge.
I. 	INTRODUCTION
3. 	This 	action 	arises 	out 	of 	Defendant 	Steven 	W. 	Brown's 	("Brown")
employment 	at 	BluSky 	Restoration 	Contractors, 	LLC 	("BluSky 	Restoration").
BluSky Restoration is 	a 	full-service 	restoration, 	renovation, 	environmental and
roofing provider. It initiated this action contending that Brown left the company for
a competitor in violation of various restrictive covenants, taking with him trade secret
information and subsequently soli cit ing BluSky Restoration's employees to join the
competing company. Brown thereafter claimed that BluSky Restoration was unjustly
enriched by its use of Brown's licenses after he left the company and that he is entitled
2 Following the filing of Brown's Motion, Abbey M. Krysak and Tyler B. Peacock were
permitted to withdraw as counsel of record for Steven W. Brown on 5 October 2023 and
24 April 2024, respectively. (ECF Nos. 216, 238.) Jonathon D. Townsend appeared as counsel
of record for Steven W. Brown on 3 April 2024. (ECF No. 235.)

to payment of a bonus earned prior to leaving BluSky Restoration for the competing
company.
4. 	Following fulsome discovery, the Court must now consider the evidence of
record to determine what claims, if any, should proceed to trial.
II. 	FACTUAL BACKGROUND
5. 	The Court does not make findings of fact when ruling on a motion for
summary judgment . "[T]o provide context for its ruling, the court may state either
those facts that it believes are not in material dispute or those facts on which a
material dispute forecloses summary a djud ication." Ehmann v. Medflow, Inc., 2017
NCBC LEXIS 88, at *6 (N.C. Super. Ct. Sept. 26, 2017); see also Hyde Ins. Agency,
Inc . v. Dixie Leasing Corp., 26 N.C. App . 138, 142 (1975) (encouraging the trial court
to articulate a summary of the relevant evidence of record to provide context for the
claims and motion(s)).
A. 	The Parties
6. 	BluSky 	Restoration 	and 	Third-Party 	Defendant 	BluSky 	HoldCo, 	LLC
("BluSky HoldCo"; with BluSky Restoration, the "BluSky Companies") are Delaware
limited liability companies with their principal place of business in Colorado. (Second
Am. Compl. ,1,1 2-3, ECF No. 66 ["SAC"]; Brown's Answer to SAC ,1,1 2-3 , ECF No. 78
["Answer to SAC"].) 	BluSky Restoration is registered to do business in this State,
(SAC ,1 2; Answer to SAC ,1 2), and has office locations in roughly twenty-six states,
(Aff. Drew Bisping ,1 28, ECF Nos. 197.4, 202.3 ["Bisping Aff."]) .

7. 	Brown is a resident of Greensboro, North Carolina. 	(SAC ~ 4; Answer to
SAC ,r 4.) 	Brown has worked in the restoration industry for roughly twenty-nine
years. (Aff. Brown Supp. Mot. Summ. J. ,r 3, ECF No. 145 ["Brown MSJ Aff."].)
B. 	Brown's Employment with BluSky Restoration
1. 	Transition from Disaster One, Inc. to BluSky Restoration
8. 	Brown began working for Disaster One, Inc. ("Disaster One") on or about
8 August 1994. 	(Brown MSJ Aff. ,r 4.) 	Disaster One, a restoration company in
Greensboro, North Carolina, was acquired by BluSky Restoration in October 2017.
(Brown MSJ Aff. ,r,r 4, 7; Dep. Drew Bisping 67:22-25, ECF No. 197.11 ["Bisping
Dep."]; see also SAC ,r,r 20-21; Answer to SAC ,r,r 20-21.)
9. 	On or about 1 October 2017, when BluSky Restoration acquired Disaster
One, 	Brown became an employee of BluSky Restoration. 	(Brown MSJ Aff. ,r 7;
Bisping Dep. 69:1-8.) At the time, Brown led Disaster One's "large loss department,"
and 	he 	remained 	in 	that 	role 	during 	the 	"transitional 	period" 	after 	BluSky
Restoration acquired the company. (See Bisping Dep. 69:9-70:25.) Brown ultimately
transitioned into "a national leadership role for restoration," where he was primarily
responsible for "coordinating resources" to ensure that BluSky Restoration had "the
right personnel, equipment, [and] subcontractor response to [large, complex loss]
situations." 3 (Bisping Dep. 71:4-12, 74:2-22.)
3 BluSky Restoration is in the business of providing "general contracting and consulting
services in the restorat ion of multi-family, residential, commercial, industrial and religious
facilities in response to hurricanes, tornadoes, floods, ice storms, fires and water-related
emergencies, specializing in water damage, fire damage, storm damage, smoke and odor
damage, 	certified 	mold 	remediation 	and 	contents 	restoration[.]" 	(Confidentiality,
Noncompetition & Nonsolicitation Agt. 1, ECF No. 66.1.)

10. 	On 26 September 2017, Brown signed a two-page employment agreement
with 	BluSky 	Restoration, 	which 	set 	forth 	his 	compensation 	and 	benefits 	(the
"Employment 	Agre ement"). 	(ECF 	No. 	141.5 	["Empl. 	Agt."].) 	The 	Employment
Agreement provided that 	as 	National Director of Restoration, 	Brown's 	annual
compensation would be 	with an annual bonus calculated as follows:
"5% of profit over 5% of sales and additional 2.5% of the profit over 10% of sales for
LLWM department." (Empl. Agt. 1.) Further, the Employment Agreement provided
that Brown
must be employed by BluSky on the day a bonus is paid in order to
receive the bonus. 	. . . 	If BluSky terminates your employment for
reasons other than Cause (as defined in Confidentiality, Noncom petition
and Nonsolicitation Agreement dated October 2, 2017), you will vest in
your bonus. 	If BluSky terminates your employment for 	reasons of
Cause, of [sic] if you elect to sever your employment with BluSky, there
is no vesting in your bonus.
(Empl. Agt. 1.) 	The Employment Agreement does not state the annual date that
bonuses become payable. (See Empl. Agt.)
11. 	The record demonstrates that part of Brown's role at BluSky Restoration
involved serving as its "qualifying agent" in states where Brown had licenses for
general contracting, 	mold remediation, 	and 	asbestos 	abatement, 	which enabled
BluSky Restor at ion to perform that kind of work in various states. 4 	(Brown MSJ
4 In the construction and contracting business, many states require a company to associate
with an individual carrying an appropriate construction or contractor's license. 	Those
individuals are referred to as the company's "qualifier" or "qualifying agent." 	(Brown's
Answer & Countercl. ,r 19, ECF No. 22 ["Brown's Countercl."]; Answer Def.'s Countercl. &
Third-Party Countercl. ,r 19, ECF No. 53 ["HoldCo Countercl."].) And, because "[a]sbestos
work is highly regulated[,]" proper state licensing is required to perform asbestos remediation
work. (Report of Richard Driscoll 13, ECF No. 173 ["Driscoll Rep."].)

Aff. 1 8.) The BluSky Companies were required to have a qualifier with an up-to-
date license in order to perform, for example, asbestos work in any given state. (Dep.
Steven W. Brown 433:17-34:18, ECF Nos. 141.15, 181.1 ["Brown Dep."].)5 	Thus, if
the BluSky Companies did not have "a qualifier with an appropriate license" in a
state, then they could not lawfully perform regulated work in that state.6 	(Brown
Dep. 433:24-34: 18.)
12. 	The record also demonstrates that BluSky Restoration relied on Brown's
licenses while he was employed by it, including his asbestos supervisor licenses, mold
remediation licenses, building contractor licenses, and general contractor qualifying
agent licenses. (Brown Countercl. Ex. A, ECF No. 22.1; HoldCo Countercl. ,r 23 (the
"BluSky [Companies] 	admitO 	that BluSky Restoration sent Brown a list of his
licenses [it used] in late November of 2021, a copy of which is attached as Exhibit A
to the Counterclaim and Third-Party Complaint").) 	Brown held a variety of these
licenses in Alabama, Arkansas, Florida, Georgia, Hawaii, Iowa, Louisiana, Missouri,
North Carolina, South Car olin a, Tennessee, Texas, Virginia, 	and the District of
Columbia. (Brown Countercl. Ex. A, ECF No. 22.1; HoldCo Countercl. ,i 23.)
It is undisputed that "Brown served as a qualifier for certain BluSky Restoration licenses."
(HoldCo Countercl. ,r 22.)
5 Brown's deposition testimony was filed by the parties in fragments and appears at ECF
Nos. 141.15, 148, 181.1, 191.1, 197.6, and 208.1. For ease of reference, the Court does not
restate each ECF No. where the testimony cited is located, and instead cites to this testimony
throughout the Opinion as: (Brown Dep. [ ]:[ ]).
6 "[R]egulated asbestos work" is a phrase used throughout the record to refer to asbestos work
that requires a permit. (See BluSky Restoration Objs. & Resp. to ROGs and RFPs 29, ECF
No. 151 ["BluSky Resp. ROGs & RFPs"].) The same would be true ofregulated mold projects.
(See BluSky Resp. ROGs & RFPs 29-30.)

13. 	Shortly 	after 	he 	became 	an 	employee 	of 	BluSky 	Restoration, 	it 	is
undisputed 	that 	Brown 	also 	executed 	the 	Confidentiality, 	Noncompetition 	and
Nonsolicitation Agreement (the "2017 Agreement"), dated 1 October 2017. 	(ECF
No. 66.1 ["2017 Agt."]; see Answer to SAC ,r,r 21-23.)
14. 	The 2017 Agreement, between Brown, BluSky Restoration, and BluSky
Restoration 	Holdings, 	LLC, 	provides 	that, 	in 	exchange 	for 	compensation 	and
employment with BluSky Restoration, Brown agreed to be bound by the terms of the
2017 Agreement. 	(2017 Agt. 1.) The 2017 Agreement sets forth various restrictive
covenants, including Nondisclosure, Non-Competition, and Non-Solicitation terms.
(See 2017 Agt. 1-4.) The 2017 Agreement has a choice of law provision, designating
Delaware law as applicable for determination of "issues and questions concerning the
construction, validity, enforcement and interpretation of' it. (2017 Agt. 8.)
2. 	BluSky Restoration's Work in the Industry
15. 	By 	way 	of background, 	BluSky 	Restoration 	offers 	services 	for 	"both
residential and commercial property[,]" performing work "on approximately 30,000
projects" annually. (Bisping Aff. ,r,r 10-11.) Its "customer-base" includes commercial
work for multi-family, condominium and apartment communities and buildings,
universities 	and schools, 	hotels, 	and 	senior 	living communities, 	among 	others.
(Bisping Aff. ,r 12.) In 2021, it had roughly- national accounts, meaning customers
with properties or potential business in multiple states, which generated more than
in revenue. (Bisping Aff. ,r 13.) BluSky Restoration also works for
national property managers and international property damage consulting firms.

(Bisping Aff. 11 19, 23.) 	BluSky Restoration views its business as geographically
unlimited, and its services are advertised nationally. (Bisping Aff. 11 25, 31.)
16. 	The record demonstrates that BluSky Restoration, 	at any given time,
"typically provides services in over 40 states," but it historically has not performed
work in every single state. 	(Michael Renfroe 30(b)(6) Dep. 7:13-8:2, ECF No . 150
["Renfroe 30(b)(6) Dep."].)
3. 	Brown's Access to Allegedly Confidential Information
17. 	The BluSky Companies allege that, as a BluSky Restoration employee,
Brown 	had 	access 	to 	substantial 	confidential, 	proprietary, 	and 	trade 	secret
information, 	including 	sensitive 	technical 	data, 	strategic 	information 	about
competitors, 	and 	other 	confidential 	business 	and 	financial 	information. 	(See
SAC 11 56-58.)
18. 	The record demonstrates that BluSky Restoration's general practice was to
require employees with access to this type of information to execute confidentiality
agreements. 	(Renfroe 	30(b)(6) 	Dep. 	26:3-13 ; see 	BluSky 	30(b)(6) 	Dep. 	Wyatt
Cox 142:2-43:10, ECF No. 197.1 ["Cox 30(b)(6) Dep."].)7 Since at least 2019, it also
required all employees to sign an employee handbook acknowledgment, within the
first thirty days of their employment. (Renfroe 30(b)(6) Dep. 26:14-27:18, 28:20-24.)
The employee handbook acknowledgment is a one-page document that requires an
7 The deposition testimony of Wyatt Cox, which was taken pursuant to Rule 30(b)(6), was
filed by the parties in fragments and appears at ECF Nos. 141.16, 146, 195.3, and 197.1. For
ease of reference, the Court does not restate each ECF No. where the testimony cited is
located, 	and instead cites to this testimony throughout the Opinion as: 	(Cox 30(b)(6)
Dep. []:[]).

employee 	to 	affirm 	that 	they received the 	employee 	handbook, 	which contains
"various 	company 	policies, 	procedures, 	and 	employee 	benefits[,]" 	and 	that 	the
employee 	agrees 	to 	read 	the 	employee 	handbook. 	(See 	ECF 	Nos. 	197.20-.21
(providing two examples of signed handbook acknowledgements from 2021).)
19. 	Of particular concern to the BluSky Companies' claims regarding breach of
confidentiality are two documents: the National Catastrophe Vendor List ("CAT
Vendor List"), (ECF No. 152 ["CAT List"]), and the Employee Information List, (ECF
No. 153 ["EE Info"]).
20. 	The CAT Vendor List is a compilation of national vendors that "provides
direct contact to individuals in the companies ... that are not available publicly."
(Dep. Neil Eisgruber 50:7-17, ECF No. 158 ["Eisgruber Dep."].) 8 	The CAT Vendor
List contains the direct contact information for individuals who provide services
during catastrophic events, including cell phone numbers, as well as information
regarding each vendor's forte-i.e., providing "porta-potties," portable offices, skilled
general construction labor, electricians, roofing, and more. (CAT List; see Eisgruber
Dep. 50:7-51:14; Dep. Mike Erekson 116:23-17:1, ECF No. 197.9 ["Erekson Dep."].)
The BluSky Companies' expert, Neil Eisgruber ("Eisgruber"), testified that there is
value in the companies having this information in "a single consolidated place" and
in "having a direct contact instead of calling a general line." 	(Eisgruber Dep. 51:4-
14.)
8 The deposition testimony of Neil Eisgruber was similarly filed in fragments and appears at
ECF Nos. 158, 197.14, 202.5, 211.3, 234.2. For ease of reference, the Court does not restate
each ECF No. where the testimony cited is located, and instead cites to this testimony
throughout the Opinion as: (Eisgruber Dep. [ ]:[ ]).

21. 	Brown testified that he contributed to the CAT Vendor List and that he has
"a relationship with many of the vendors listed [therein,] having personally worked
with many of them throughout his career." (Brown MSJ Aff. ,r,r 23, 26.)
22. 	The Employee Information List is a spreadsheet of BluSky Restoration
"project managers and the ratings for those project managers[,]" referencing that
employee's 	job 	performance. 	(Eisgruber 	Dep. 	119:3-10.) 	In relevant part, 	the
spreadsheet rates project supervisors on a scale of one to ten as to their performance
on twenty specific skills, with one being the worst score and ten being the best. (See
EE Info.) Brown participated in putting together this spreadsheet and testified that
the purpose of obtaining the information was to get feedback from others at BluSky
Restoration about the restoration supervisors and project managers to "identify
training needs or learning opportunities[,]" and to identify what teams of people
might 	work 	well 	together. 	(Brown 	Dep. 	135:12-36:23.) 	The 	spreadsheet 	was
designed to allow restoration supervisors and project managers to score each other
through a confidential process. (Brown Dep. 137:19-38:15.) Brown summarized the
results of each employee's scores, combining everything into one spreadsheet, which
he shared with at least two other individuals working at BluSky Restoration. (Brown
Dep. 138:22-39:25.) The record demonstrates that the information on the Employee
Information 	List 	was 	gathered 	in 	August 	2021. 	(See 	ECF 	No. 	197.18 	(email
communication from Brown on 11 August 2021 requesting that the skills assessment
be completed by 20 August 2021).)

C. 	Other Contracts at Issue: the LP Agreement and LLC Agreement
23. 	It is undisputed that BluSky Management Incentive, 	LP ("BMI"), was
formed on 26 July 2018. (HoldCo Countercl. ,r 24 ("BluSky admits that a certificate
of limited p artnership for BluSky Management Incentive, LP was filed with the
Delaware Secretary of State on July 26, 2018[.]").) BMI was allegedly formed as part
of a profit-sharing program for certain BluSky Restoration employees by which
Brown became 	a limited partner of BMI. 	(See SAC ,r,r 36, 	40, 	56; Answer to
SAC ,r,r 36, 40, 56.)
24. 	The parties agree that on 14 August 2018, 	BluSky HoldCo, 	BMI, and
various individuals entered into the Limited Partnership Agreement of BMI (the "LP
Agreement"). 	(SAC ,r 34; Answer to SAC ,r 34; see LP Agreement, ECF No. 25 ["LP
Agt."].) 	It is also undisputed that Brown did not sign the LP Agreement. 	(Cox
Dep. 19:8-16.) 	Rather, Brown signed a Joinder to it. 	(Cox 30(b)(6) Dep. 20:12-20;
see Joinder, ECF No. 66.2 ["Joinder"]; LP Agt. § 2.2(b).)
25. 	The Joinder, dated 14 September 2018, provides that Brown, as a new
partner, acknowledges receipt of the BMI "Partnership Agreement and agrees to
become a party thereto and to be bound thereby. In particular and without limitation,
the 	New 	Partner[, 	i.e. 	Brown,] 	assumes 	all of the 	rights 	and obli gations 	of a
Management Limited Partner as set forth in the Partnership Agreement." (Joinder 1;
see Cox 30(b)(6) Dep. 20: 16-22.) As a result, Brown received 153.83 Class B Units in
BMI. (Cox 30(b)(6) Dep. 57:18-21.)

26. 	The LP Agreement provides, in relevant part:
Section 12.10 Restrictive Covenants.
(a) Confidentiality. 	Each of the Limited Partners (other than BluSky
HoldCo) hereby agrees that throughout the term of this Agreement it
shall keep (and shall cause its directors, officers, general and limited
partners, 	employees, 	representatives 	and 	outside 	advisors 	and 	its
Affiliates to keep) all non-public information, including but not limited
to, business or trade secrets (under applicable trade secrets or other
law), price lists, methods, formulas, know-how, customer and supplier
lists, 	distributor lists, product costs, 	marketing plans, research and
development 	and 	financial 	information, 	received 	by 	such 	Limited
Partner solely by reason of such Limited Partner's status as a limited
partner of the Partnership (including any such information received
prior to the date hereof) confidential ....
***
(b) Non-Solicitation. During the Restricted Period, no Limited Partner
(other than BluSky HoldCo) shall directly or indirectly through another
Person (other than on behalf of the [sic] (other than BluSky HoldCo) and
its Subsidiaries) (i) induce or attempt to induce any employee, officer or
independent contractor of BluSky Hold Co or any of its Subsidiaries ...
to leave the employ of, or terminate its affiliation with, BluSky HoldCo
or 	such 	Subsidiary, 	or 	in 	any way interfere 	with the 	relationship
between BluSky Hold Co or any of its Subsidiaries and any such Person,
(ii) hire or seek any business affili ation with any Person who was an
employee, officer or independent contractor of BluSky Hold Co or any of
its Subsidiaries within one (1) year after such Person ceased to be an
employee, officer or independent contractor of BluSky Hold Co or any of
its Subsidiaries ... , or (iii) induce or attempt to induce any Person who
is . . . a customer, supplier, licensee or other business relation of BluSky
HoldCo or any of its Subsidiaries to cease doing business with BluSky
Hold Co or such Subsidiary, reduce the business tha t it does with BluSky
HoldCo or such Subsidiary or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and
BluSky HoldCo or any such Subsidiaries ....
***
(c) Non-Competition. 	During the Restricted Period, no Management
Limited Partner shall directly or indirectly, either for such Management
Limited 	Partner 	or 	for 	any 	other 	Person, 	anywhere 	within 	the
"Restricted Territory" 	(as 	defined 	below), 	(i) 	own 	any 	interest 	m,

manage, control, or participate in, or (b) in each case in a competitive
capacity, 	consult 	with, 	render 	services 	for, 	serve 	as 	an 	agent 	or
representative 	for, 	finance 	or in any other 	manner engage 	in 	any
business with, any Person ... that engages in the Business in the
Restricted Territory, or that otherwise competes with the Business in
the Restricted Territory 	For purposes of this Agreement, "Business"
means 	any the 	business of providing project 	management 	services
relating 	to 	restoration , 	renovation, 	environmental , 	and 	roofing 	to
commercial 	and 	multifamily 	properties, 	as 	engaged 	in 	by 	BluSky
HoldCo and it s Subsidiaries during any time when such Management
Limited 	Partner 	was 	employed 	by 	BluSky 	HoldCo 	or 	any 	of its
Subsidiaries[.]
(LP Agt. §§ 12.l0(a)-(c).)
27 . 	"Restricted Territory ," means the United States of America and " any state,
province or territory in any other country, in which BluSky HoldCo or any of its
Subsidiaries engages in the Business or actively plans to engage in the Business as
of the date of the challenged activity" or the date of the limited partner's term in ation.
(LP Agt. § 12. l0(c).) Further, "Restricted Period" means "a period of time from the
date hereof until the date that is two (2) years after the termination of employment
(for any reason) of such Limited Partner. " (LP Agt. Ex. B-8.)
28. 	The LP Agreement and its terms are governed by Delaware substantive
law. (LP Agt. § 12.6.)
29. 	On 14 August 2018, the same day the LP Agreement was executed , the
Amended and Restated Limited Liability Company Agreement ofBluSky HoldCo (the
"LLC 	Agreement ") was 	executed. 	(See 	ECF 	No. 	54.3 	["LLC 	Agt."].) 	The 	LLC
Agreement contains restrictive covenants that are substantially similar to those
quoted from the LP Agreement , including the Confidentiality, Non-Solicitation, and
Non-Competition covenants. 	(See LLC Agt. §§ 13. l 7(a)-(c).) 	Brown was listed as a

Member in Exhibit A to the 	LLC Agreement, 	but not a Managing Member in
Exhibit F. (See LLC Agt. Exs. A, F.) However, Brown was a limited partner in BMI,
as he held 153.83 Class B Units in it. (Cox 30(b)(6) Dep. 57:18-21.)
30. 	The evidence demonstrates that Brown did not sign the LLC Agreement or
a 	joinder 	thereto, 	but 	it 	is 	the 	BluSky 	Companies' 	position 	that 	Brown 	was
nevertheless 	bound 	by 	the 	restrictive 	covenants 	therein 	by 	virtue 	of the 	LP
Agreement, contending that "any signatory or limited partner or member of the LP
[A]greement would be bound by the LLC [A]greement." 	(Cox 30(b)(6) Dep. 38:13-
40:5; see LLC Agt. (evidencing that Brown did not sign).)
D. 	The BMI Merger & Brown's Resignation from BluSky Restoration
1. 	Brown's Offer Letter from Sasser Companies, LLC
31. 	The 	record 	demonstrates 	that 	Sasser 	Companies, 	LLC 	d/b/a 	Sasser
Restoration ("Sasser") is a 	North Carolina limited liability company engaged in
restoration work. (Brown Aff. Supp . TRO Ex . 1 at 2, ECF No. 95 ["Brown TRO Aff."];
Sasser 	30(b)(6) 	Dep. 	of Sebastian 	Williams 	& Houston 	Summers 	95:22, 	ECF
Nos. 197.15, 202.6, 234.3 ["Sasser 30(b)(6) Dep."].) It is undisputed that Sasser is a
competitor of BluSky Restoration. (Brown's Countercl. ,r 117 ("It is further admitted
that 	Sasser is 	a 	direct competitor of BluSky Contractors."); 	see Sasser 30(b)(6)
Dep. 90:7-91:7; Dep. Miguel Figueroa, III 45:20-21, ECF No. 197.13 (stating that
Sasser competes with "[a]ll the restoration companies in the nation" for business).)
32. 	On 8 July 2021, Brown received an email from Miguel A. Figueroa III
("Figueroa"), Sasser's then-COO, offering Brown employment at Sasser as its Vice

President of Operations. (Ex. 24, ECF Nos. 197.24, 202.9 ["Sasser Offer Ltr."].) The
offer letter provided several terms, including that Brown's gross annual salary would
be 	, with certain equity opportunities, and that Brown would receive
equipment, including a vehicle, vehicle insurance, a gas card, an expense card, a
cellphone, computer, and an iPad. (See Sasser Offer Ltr.)
33. 	The record demonstrates that Brown signed and returned the Sasser offer
letter on 15 July 2021. (Brown MSJ Aff. il 15; see Sasser Offer Ltr.)
2. 	The Merger and Brown's Surrender of his BMI Units
34. 	On 2 September 2021, BluSky HoldCo entered into the Agreement and Plan
of 	Merger 	(the 	"Merger 	Agreement") 	with 	KPSky 	Acquisition, 	Inc. 	("KPSky
Acquisition") and certain other parties, pursuant to which, 	among other things,
KPSky Acquisition was to merge with and into BluSky HoldCo, with BluSky HoldCo
continuing as the surviving entity (the "Merger). 	(See Agt. & Merger 15-182, ECF
No. 36 ["Merger Agt."].) The Merger effectuated, in relevant part, the surrender of
all outstanding membership units in BMI. (Letter of Transmittal 1-15, ECF No. 36
["LOT"]; Cert. Merger, ECF No. 22.7.)
35. 	Following the Merger, a Certificate of Cancellation of BMI, the limited
partnership, was filed on 19 October 2021. 	(ECF No. 22.8; see also Cox 30(b)(6)
Dep. 22:4-23:2.) BluSky Restoration remained a subsidiary of BluSky Hold Co.
36. 	To surrender his membership units in BMI, the record demonstrates that
Brown executed the Letter of Transmittal and returned the document to BluSky
Restoration by email on 15 October 2021. 	(ECF No. 149 (email communications

evidencing Brown's return of the transmittal document); see also Brown Dep. 336:1 5-
37:17.) 	Brown received a 	payment in exchange for the surrender of his
units. 	(BluSky's Resp. Brown's First ROGs 7, ECF No. 154; Brown Dep. 76:1-3,
149:22-24.)
37. 	Following the Merger, the LLC Agreement of BluSky Hold Co was amended
and restated, 	effective 	20 October 2021 (the "Amended LLC Agreement"). 	(Cox
30(b)(6) Dep. 52:1-22; see Am. Restated LLC Agt., ECF No. 79.2 ["Am. LLC Agt."].)
The Amended 	LLC Agreement provides 	that it 	amends 	and 	restates 	the 	LLC
Agreement "in its entirety on the terms and subject to the conditions set forth
herein[.]" 	(Am. 	LLC 	Agt. 	1.) 	The Amended 	LLC Agreement 	does 	not 	contain
restrictive covenants and Brown was not a signatory to it. (See Am. LLC Agt.)
3. 	Brown's Resignation from BluSky Restoration
38. 	On 25 October 2021, Brown submitted his resignation letter to BluSky
Restoration. 	(Brown 	MSJ 	Aff. 	,r,r 	10, 	29.) 	He 	continued 	to 	work 	at 	BluSky
Restoration until 19 November 2021. (Brown MSJ Aff. ,i 12.)
39. 	The record indicates that prior to Brown's last day but after he submitted
his resignation letter, Brown was negotiating post-resignation continued part-time
employment 	with 	BluSky 	Restoration. 	(See 	Cox 	30(b)(6) 	Dep. 	95:5-12; 	ECF
No. 141.10 ["Negot'n Email"] (draft terms for part-time employment from Wyatt Cox
to Brown).)

1. 	November 2021 Conversations with Figueroa
40. 	Brown was also in conversation with Figueroa as early as 5 November 2021.
(ECF Nos. 197.22, 202.7 ["BluSky Ex. 22"] (providing Brown's text messages with
Figueroa between 5 November to 25 December 2021).) In fact, on 5 November 2021,
the pair communicated about Brown's first day at Sasser being 15 November 2021
and adding Brown as a qualifier for it. (BluSky Ex. 22 at 1-4.)
41. 	On 10 November 2021, Figueroa texted Brown, "Ps we may need Paul
sooner than expected ... ! Do you think he could possibly do it? I can give you more
info tomorrow afternoon." (BluSky Ex. 22 at 6 (ellipsis in original).) Brown responded
"Yes[.]" (BluSky Ex. 22 at 7.) That same day, Brown texted Figueroa, stating: "Also
heard from Paul via Russell [Wise] that Hedrick is spreading the word that I'm
coming[,]" and "Russ and Paul are two I trust completely[.]" (BluSky Ex. 22 at 8-10.)
Figueroa stated, "I will speak to both of them tomorrow." 	(BluSky Ex. 22 at 10.)
Brown also texted Figueroa, "Regardless word will spread quickly as soon as I'm In
the building .... we just need to be prepared for that[.] 	Let's chat tomorrow about
another distraction I'm planning[.]" (BluSky Ex. 22 at 11 (ellipsis in original).)
42. 	On 16 November 2021, Brown and Figueroa again communicated by text
message. It appears that Brown sent Figueroa a document of some kind by email, to
which Figueroa stated: "Wow, definitely sending this to our Attorney .... If you are ok
with that. I think you are holding some cards!!!" (BluSky Ex. 22 at 18-20 (ellipsis in
original).) Brown stated "Sure[,]" and "Can I call you later[?]" (BluSky Ex. 22 at 20.)
Figueroa wrote: "Yes sir . Whatever you do don 't sign the agreement. We have some

additional information for you that we can talk about tomorrow. The attorney said
he can give you some help to understand in [sic] the proper response." (BluSky Ex. 22
at 21.)
43. 	The 	next day, 	the pair communicated agam, 	with Figueroa inquiring,
"[a]nything 	on 	the 	Employment 	agreement?" 	(BluSky 	Ex. 	22 	at 	25.) 	Brown
responded, "Kimberly said she would send." (BluSky Ex. 22 at 25.)
ii. 	Brown's Last Day and Document Transfers
44. 	Brown's last day at BluSky Restoration was 19 November 2021. 	(Brown
MSJ Aff. ,i 12.) 	In connection with his resignation, BluSky Restoration provided
Brown with 	a 	Separation from 	BluSky Letter 	(the 	"Separation Letter"), 	dated
19 November 2021, which set forth specific steps for Brown to take or otherwise
comply with in concluding his employment. (ECF No. 141.9 ["Separation Ltr."].) The
Separation Letter had an Acknowledgement of Receipt of Company Property (the
"Separation Acknowledgement") attached, which required Brown to certify that he
did not have in his possession and had returned all company or client materials or
property and any confidential information, "documents which evidence, refer or relate
to Confidential Information or Trade Secrets[.]" (Separation Ltr. 1-2.) Brown signed
the Separation Acknowledgement the same day. (Separation Ltr. 4.)
45. 	According to a forensic analysis of Brown's BluSky Restoration computer,
Brown 	connected 	three 	USB 	mass 	storage 	devices 	to 	his 	computer 	on
19 November 2021. (Aff. Robert B. Fried 2-3, ECF No. 197.5 ["Fried Rep."].) Brown's
internet search history from that day demonstrates that "Brown performed various

Internet searches on how to back up the email client, Microsoft Outlook, or the
contents of the Brown BluSky Computer or Brown BluSky Phone." 	(Fried Rep. 3.)
The searches included: "Total Backup of Your Entire Computer - Zinstall Fullback";
and "how to back up outlook." (Fried Rep. 5-6.)
46. 	Between 6:39 AM and 6:57 AM on 19 November, approximately 2,593 files
were copied onto a USE device from the Brown BluSky Computer. (Fried Rep. 7.)
Further, at "3:33 PM, approximately 1,862 files were deleted from the Brown BluSky
Computer." (Fried Rep. 7.)
111. 	Continued Negotiations on Part-Time Employment
47. 	Brown 	testified 	that 	he 	signed 	a 	second 	offer 	letter 	from 	Sasser 	m
November 2021, but that he considered both the July 2021 and November 2021 offer
letters to be non-binding. (Brown MSJ Aff. ,rn 15-17; see also BluSky Ex. 22 at 43.)
The 	second 	Sasser 	offer 	letter 	appears 	to 	temporally 	overlap 	with 	Brown's
negotiations for part-time employment with BluSky Restoration.
48. 	Following Brown's last day at BluSky Restoration, the record demonstrates
that Brown continued to negotiate part-time employment with Wyatt Cox ("Cox"), the
company's attorney. 	(Negot'n Email; ECF Nos. 141.11-.13 (providing Brown and
Cox's email communication between 20 November and 24 November 2021).)
49. 	The negotiations included discussions regarding whether Brown (1) would
permit BluSky Restoration's continued use of his various licenses while it completed
a "licensing transition," and (2) would complete his work as an expert for BluSky
Restoration in ongoing litigation. 	(Negot'n Email; Cox 30(b)(6) Dep. 93:17-94:14

(discussing why BluSky Restoration wanted Brown to stay on part-time).) In return,
BluSky Restoration would consider Brown's "annual bonus earned and payable[,]"
meaning "the full bonus would be paid some time in February [2022] when bonuses
are paid company-wide." 	(Negot'n Email; see also Brown Dep. 185:8-86:3.) 	Brown
would also receive - 	per week in compensation for BluSky Restoration's use
of his licenses, as well as - 	per hour for his expert consultation work. (Negot'n
Email; Brown Dep. 182:10-83:3, 184:20-85:7.)
50. 	The record demonstrates that the parties never reached an agreement,
despite their negotiations. 	(Brown Dep. 182:7-9, 186:2-3; Cox 30(b)(6) Dep. 108:2-
10 	(agreeing 	that 	by 	6 	December 	2021, 	BluSky 	Restoration 	informed 	Brown's
attorney "that BluSky was no longer interested in rehiring" Brown).) Brown testified
that, after 19 November 2021, he did not authorize BluSky Restoration to use any of
his licenses or qualifier statuses, including related to mold and asbestos remediation
projects. (Brown MSJ Aff. ,r 14.)
E.
51.
Brown's Employment at Sasser & Developments During Litigation
Brown testified that his first day at Sasser was 6 December 2021, the same
day that BluSky Restoration informed him that they were no longer interested in
continuing negotiations for part-time employment. (Brown MSJ Aff. ,r,r 13, 18.)
52. 	The forensic review of Brown's USB devices, discussed above, demonstrated
that on Brown's first day at Sasser he connected two USB Drives to his Sasser
computer, each of which contained files copied from his BluSky Restoration computer.
(Fried Rep. 7.) 	The forensic review also demonstrated that "[t]hose files include the

BluSky 'National Project Manager Skills,' 'National Supervisors Skills,' 'Copy of Final
2021 Merit Increase,' 'National Revenue,' and 'CAT Vendor list 5.19.20_Update not
complete' .... " (Fried Rep. 7.)
1. 	Paul Miller's Resignation from BluSky Restoration
53. 	On 22 November 2021, Figueroa texted Brown, "QQ .... Where was Paul
with Salary?" 	(BluSky Ex. 	22 at 35 (ellipsis in original).) 	Brown wrote back,
"Like ■ .... they offered him - 	plus bonus[.] 	But he stupid chance to make
- 	in bonus if he stayed pm[.]" 	(BluSky Ex. 22 at 35 (ellipsis in original).) 	On
30 November 2021, Figueroa asked Brown, "[w]hat's Paul [sic] current title?" to which
Brown responded, "National Restoration Project Manager[.]" (BluSky Ex. 22 at 43.)
Figueroa asked, "[w]hat do you think is a good title for him? Same?" (BluSky Ex. 22
at 44.) 	Brown responded, "Senior Project Manager[.] 	Hopefully we can transition
him to a higher role and title[.]" (BluSky Ex. 22 at 44.) When Figueroa asked what
that higher title could be, Brown wrote: "director of restoration[.]" 	(BluSky Ex. 22
at 44-45.)
54. 	The BluSky Companies allege that Brown and Figueroa's text message
references to "Paul" are discussions to solicit Paul Miller ("Miller") to leave BluSky
Restoration for Sasser. 	(HoldCo Countercl. ,r,r 97-99; SAC ,r,r 90-91.) 	The record
demonstrates that Miller worked as a national restoration project manager at BluSky
Restoration. (Renfroe Dep. 67:11-16; see EE Info.) Further, Miller testified that his
nickname is "The General," and that he has had that nickname since a project at

Camp Lejeune in 2020 or 2021. 	(Dep. Paul Miller 54:5-22, ECF No. 197.8 ["Miller
Dep."].)
55. 	Brown concedes that he and Figueroa were discussing Miller but denies
that the conversations "amounted to any improper solicitation of Miller." 	(Brown's
Answer to HoldCo Countercl . ,r 98, ECF No. 67.)
56. 	On 30 November 2021, Brown wrote to Figueroa, "you made an offer to the
general yet[?]" 	(BluSky Ex. 22 at 39.) Figueroa wrote back, "[t]omorrow afternoon,
what's up?" and Brown responded, "[n]othing ... just curious[.]" (BluSky Ex. 22 at 40
(ellipsis in original).) It appears from Brown and Figueroa's messages that Sasser
sent an offer letter to Miller on or about 1 December 2021, around the same time that
BluSky Restoration was negotiating with Miller. 9 (See BluSky Ex . 22 at 46-47.)
57. 	Brown testified that (1) at no time prior to 25 October 2021 did he tell Miller
that he intended to resign from BluSky Restoration, and (2) at no time prior to
6 December 2021 did he tell Miller that he planned to join Sasser. 	(Brown MSJ
Aff. ,r,r 30-31.) Brown also testified that he "never attempted to influence Mr. Miller
to leave his employment" with BluSky Restoration. 	(Brown MSJ Aff. ,r 32.) 	On
2 December 2021, Brown sent a text message to Miller stating: "Well how was that
other offer," to which Miller responded, "[v]ery good. 	I start 1/3[.]" 	(BluSky Ex. 23
at 6-7, ECF Nos. 197.23, 202.8.)
9 The record demonstrates that Miller was negotiating with Sasser and BluSky Restoration
around the same time but does not indicate why Miller was negotiating with BluSky
Restoration at the time. (See Miller Dep. 127:1-22.)

58. 	The record demonstrates that Miller resigned from the BluSky Companies
effective 17 December 2021. (Aff. Kimberly Cleveland 1 18, Ex. F, ECF Nos. 197.3,
202.2 	["Cleveland 	Aff."].) 	Miller 	signed 	his 	Employee 	Acknowledgement 	of
Separation that same day. (Cleveland Aff. Ex. Fat 2; see Miller Dep. 52:7-16.) This
document contained substantially similar language to that in Brown 's Separation
Letter.1° (Compare Cleveland Aff. Ex. F, with Separation Ltr.)
59. 	The 	evidence 	demonstrates 	that 	Miller 	now 	works 	at 	Sasser. 	(See
Eisgruber Dep. 142:18-23; Miller Dep. 127:7-22 .) The record does not appear to
contain Miller's Sasser start date or the terms of his employment there.
2. 	BluSky Restoration's use of Brown's Qualifier Status
60. 	As discussed, Brown served as a qualifier for BluSky Restoration, which
allowed BluSky Restoration to perform regulated work in various 	states. 	(See
supra 11 11-12 .)
61. 	Brown testified tha t in "late-2021 and early-2022," he "undertook efforts to
notify various state agencies of [his] separation from BluSky Contractors and request
that the agencies remove [his] name from any licenses or qualifier materials affiliated
10 	The 	record 	demonstrates 	that, 	like 	Brown, 	Miller had 	access 	to 	some 	of BluSky
Restoration's confidential information. 	For example, Miller testified that he assisted in
creating the Employee Information List by preparing a ranking of supervisors, which the
BluSky Companies contend is trade secret information. (Miller Dep. 42:24-43: 18.)
The BluSky Companies were unable to locate a nondisclosure agreement, employee handbook
acknowledgment , or 	confidentiality 	agreement 	executed 	by 	Miller . 	(Renfroe 	30(b)(6)
Dep. 	30:23-31:10.) 	However, 	Miller testified that he 	did sign an employee 	handbook
acknowledgment, or at least recalls likely doing so. 	(Miller Dep. 143: 1-9.) Miller did not
recall signing any kind of confidentiality agreement or nondisclosure agreement. 	(Miller
Dep. 143: 10-18.)

with 	BluSky 	Contractors." 	(Brown 	TRO 	Aff. 	,r 5.) 	This 	included 	the
22 December 2021 submission of a "notarized letter to the Florida Department of
Business and Professional Regulation[,]" whereby Brown indicated that he no longer
worked at BluSky Restoration and requested his name be removed "from any licenses
or qualifier materials affiliated with BluSky" Restoration. (Brown TRO Aff. ,r 6.)
1. 	Florida
62. 	During the pendency of this litigation, in or around October 2022, Brown
became aware that he was still listed as BluSky Restoration's "Asbestos Financial
Officer" and "Asbestos Contractor" in the State of Florida. 	(Brown TRO Aff. ,r,r 8-
10.) Around November or December 2022, Brown discovered that BluSky Restoration
was performing asbestos-related work in Florida using his license numbers without
his consent. (Brown TRO Aff. ,r,r 20-21, 44; see also Dep. Agustin Rodriguez 105:1-
17, ECF No. 160 ["Rodriquez Dep."].)
63. 	There 	are 	four 	asbestos-related 	projects 	where 	BluSky 	Restoration
allegedly relied on Brown's license to self-perform regulated asbestos work in Florida:
(1) Mirador at Woodside Apartments in Kissimmee, Florida for asbestos removal and
renovation from 	28 October to 31 December 2022 (the "Mirador Project"), 	(ECF
No. 162); (2) Valencia on the Gulf in Venice, Florida for drywall ceiling removal from
3 November to 2 December 2024 (the "Valencia Project"), (ECF No. 161); (3) Volusia
Fire Station 12 in Port Orange, Florida for asbestos removal and renovation from
7 November to 10 November 2022 (the "Volusia Project ") , (Brown TRO Aff. ,r 24,
Ex. 9; see ECF No. 167); and (4) Helios Apartments in Miami Beach, Florida for

asbestos removal from 9 August to 18 August 2022 (the "Helios Project"), (ECF
No. 165).
64. 	Brown's Florida Asbestos Contractor license number CJC1154389, 	and
Asbestos Financial Officer license number FO351, (see Brown TRO Aff. ,r,r 7, 10, Ex. 3
at 3-4), do not appear on the Notice of Demolition or Asbestos Renovation forms that
BluSky Restoration submitted to the State of Florida, (see ECF Nos. 161-62, 165;
Brown TRO Aff. Ex. 9).
65. 	BluSky Restoration, through its Vice President of Environmental Services
Agustin Rodriguez ("Rodriguez"), admits that it "self-performed regulated asbestos
abatement 	work" 	on 	the 	above-described 	four 	projects 	m 	Florida 	from
19 November 2021 to 8 December 2022. 11 	(Deel. Agustin Rodriguez ,r,r 4-5, ECF
No. 102.1 ["Rodriguez Deel."].) Rodriguez testified that "any asbestos-related work
by BluSky employees was performed in conjunction with properly credentialed,
independent Florida Asbestos Consultants (i.e. industrial hygienists) retained by the
owners." (Rodriguez Deel. ,r 9 (italics in original).)
66 . 	On 6 December 2022, Bl uS ky Restoration issued and implemented a stop
work order on all regulated asbestos work in Florida, impacting the Mirador Project
and Valencia Project which were ongoing at the time. (Rodriguez Deel. ,r,r 6, 11-12,
Ex.A.)
11 Rodriguez also testified that each of these projects "was initially bid and contracted under
BluSky's General Contractor license, and none were originally bid or begun as asbestos-
related work." (Rodriguez Deel. ,r 7.) Rather, "onsite testing by third-party testing companies
(after contracting) revealed the presence of asbestos-containing materials at the project site."
(Rodriguez Deel. ,r 7.)

67. 	On 3 February 2023, Brown and his counsel called an investigator at the
Florida Department of Business and Professional Regulation (the "FDBPR"), who
informed them that BluSky Restoration "was licensed to perform asbestos work
within Florida based on license number CJC1154389," and that BluSky Restoration
"would not have been licensed to perform asbestos work" in the state absent Brown's
license. 	(Aff. Steven W. Brown Opp'n BluSky Mot. ,, 2, 4, ECF No. 195.1 ["Brown
Opp'n Aff."].)
n. 	Louisiana
68. 	Brown also 	alleges that BluSky Restoration was 	usmg his license 	to
perform asbestos work in the State of Louisiana on five asbestos-related projects:
(1) Ridgefield 	Apartments 	in 	Marrero, 	Louisiana 	from 	13 	October 	2021 	to
9 March 2022 (the "Ridgefield Apartments Project"), (ECF No. 168); (2) Arbor Place
Apartments in Terrytown, Louisiana from 15 November 2021 to 9 March 2022, (ECF
No. 169); (3) Metairie Towers in Metairie, Louisiana from 13 December 2021 to
30 May 2022 (the "Metairie Towers Project"), (ECF No. 170); (4) Belmont Village
Apartments in Gretna, Louisiana from 3 November 2021 to 9 March 2022, (ECF
No. 171); and (5) Lapalco Apartments in Harvey, Louisiana from 29 November 2021
to 9 March 2022, (ECF No. 172).
69. 	Brown's Louisiana Asbestos Contractor license number 224418 appears on
the Notification of Demolition and Renovation and Asbestos Contaminated Debris
Activity Forms 	(the 	"Louisiana 	Notice 	Form(s)") 	for 	the 	Ridgefield Apartments
Project and Metairie Towers Project. 	(ECF Nos. 168, 170.) 	The Louisiana Notice

Form 	for 	the 	Ridgefield 	Apartments 	Project 	shows 	that 	work 	began 	on
13 October 2021 with the form being submitted 8 October 2021, each of which are
dates preceding Brown's last day. (ECF No. 168.) The Louisiana Notice Form for the
Metairie Towers Project shows that the form was submitted on 11 November 2021,
which preceded Brown's last day, but shows that work was scheduled to begin 	on
13 December 2021. (ECF No. 170.)
70. 	BluSky 	Restoration, 	through 	its 	Licensing 	Specialist 	Cynthia 	Nignan
("Nignan"), testified that Brown was the company's qualifier for mold and asbestos in
Louisiana before he resigned. 	(Aff. Cynthia Nignan Supp. BluSky Mot. ,r 4, ECF
No. 141.14 ["Nignan Aff."].) 	Without providing a date, Nignan states that BluSky
Restoration notified Louisiana that Brown was no longer employed by it and that it
would provide replacement qualifiers. 	(Nignan Aff. ,r 5.) In a 25 March 2022 letter
from Louisiana's State Licensing Board for Contractors, BluSky Restoration was
informed that it did not have a qualifier for asbestos removal and abatement, or a
licensed mold remediation contractor and directed it to designate a qualifying party
by 26 May 2022. (Nignan Aff. ,r 6; Louisiana Ltr., ECF No. 141.4 ["La. Ltr."].) BluSky
Restoration, through Nignan, affirms that it had a replacement qualifier before the
26 May 2022 deadline. (See Nignan Aff. ,r,r 6-7.)
3. 	BluSky Restoration's Bonuses for the 2021 Calendar Year
71. 	Brown alleges that a bonus of $50,000.00 became due and payable from
BluSky Restoration in February 2022, as described in the Employment Agreement.
(Brown 	Countercl. 	,r,r 89-91, 	93-94, 	ECF 	No. 	22 	["Brown 	Countercl."]; 	Brown

Dep. 	189:15-90: 19.) 	Brown 	testified 	that, 	following 	his 	last 	day 	at 	BluSky
Restoration, he believed that he was going to receive a $50,000.00 bonus. 	(Brown
Dep. 172:23-25 .)
72. 	The record demonstrates that BluSky Restoration pays certain employees
a discretionary bonus, and the Employment Agreement Brown signed states that he
"must be employed by BluSky on the day a bonus is paid in order to receive the
bonus 	[I]f you elect to sever your employment with BluSky, there is no vesting
in your bonus." 	(See Empl. Agt . 1.)
73. 	During the negotiations for Brown 's contin ued part-time employment at
BluSky 	Restoration, 	but 	following 	his 	resignation 	from 	the 	company, 	a 	draft
agreement was circulated between Cox and Brown. 	(ECF Nos. 141.10-.11 ("Bonus:
Would agree to consider your annual bonus earned and payable. If you come on part-
time, the full bonus would be paid some time in February when bonuses are paid
company-wide.").) 	Brown 	testified, 	based 	on 	the 	representations 	during 	those
negotiations, 	that 	he 	believed 	he 	was 	entitle d 	to 	the 	bonus 	described 	in 	the
Employment Agreement. (Brown Dep. 190:20-93:4.) Brown also testified that, while
the Employment Agreement describes an annual bonus calculated by a 	specific
formula, his bonus was "never" paid based on that formula. (Brown Opp'n Aff. ,i,r 11-
12.) Brown affirmed that BluSky Restoration paid him "an alternative performance
bonus each year," between 2018 to 2020 and that he was not aware what the
conditions were for receiving this bonus. 12 (Brown Opp'n Aff. ,r,r 13-14.)
12 Brown testified that his bonuses ranged fr orr.11111111 to --(Brown Dep. 175:3-
10.)

7 4. 	However, 	during 	negotiations 	with 	Sasser 	in 	July 	2021, 	Brown
acknowledged that resigning from BluSky Restoration mid-year would result in
forfeiture of his eligibility for a year-end bonus. 	(ECF No. 141.6 (July 2021 emails
between Brown and Figueroa, where Brown wrote "I will be giving up 2021 annual
bonus leaving current position with BluSky") .) Ultimately, the record demonstrates
that BluSky did not pay Brown a bonus for 2021. (Brown Dep. 189:15-93:4.)
III. 	PROCEDURAL BACKGROUND
75. 	The Court sets forth here only those portions of the procedural history
relevant to its d ete rmination of the Motions.
76. 	BluSky Restoration initiated this action on 22 December 2021 with the
filing of its Complaint, (ECF No. 3), and thereafter filed its Amended Complaint as of
right on 21 January 2022, (ECF No. 8).
77. 	Brown filed his Answer to the Amended Complaint on 21 February 2022.
(See Brown Countercl.) 	Brown's answer included a Counterclaim and Third-Party
Complaint ("Brown's Counterclaims"), alleging three claims for relief against BluSky
Restoration and BluSky HoldCo. (See Brown Countercl.)
78. 	BluSky 	Restoration 	and 	BluSky 	HoldCo 	jointly 	answered 	Brown's
Counterclaims on 22 April 2022. 	(See HoldCo Countercl.) 	In the same pleading,
BluSky HoldCo, as third-party defendant, asserted three third-party counterclaims
against Brown ("BluSky HoldCo's Counterclaims"). (See HoldCo Countercl.)
79. 	Brown answered BluSky HoldCo's Counterclaims on 23 May 2022. (See
Answer to HoldCo Countercl.) 	That same day, BluSky Restoration filed the Second

Amended Complaint, after obtaining leave from the Court to do so. (See SAC; Order,
ECF No. 65 .)
80. 	On 8 July 2022, Brown, through counsel, sought judgment on the pleadings
pursuant to Rule 12(c). (See ECF No. 79.) Following full briefing and a hearing on
that motion, the Court granted in part the motion as to BluSky Restoration's stand-
alone claim for punitive damages and otherwise denied the motion. 	See BluSky
Restoration Contrs., LLC v. Brown, 2022 NCBC LEXIS 124 (N.C. Super. Ct. Oct. 20,
2022).
81. 	The following claims remain pending in this action:
a. 	The BluSky Companies' claims against Brown for (1) breach of the
LP Agreement ("Claim One"), (2) breach of the LLC Agreement (" C laim
Two"), 	and 	(3) injunctive 	relief, 	(see SAC 	,r,r 	117-42, 	153-70; 	HoldCo
Countercl. ,r,r 109-50);
b. 	BluSky Restoration's claims against Brown for (1) breach of the 2017
Agreement 	("Claim 	Three") 	and 	(2) 	misappropriation 	of trade 	secrets
("Claim Four"), (see SAC ,r,r 106-16, 143-52); and
c. 	Brown's 	counterclaims for 	(1) 	declaratory judgment 	against 	the
BluSky Companies, 	(2) 	unjust enrichment against BluSky Restoration
("Counterclaim Two"), and (3) violations of the North Carolina Wage and
Hour Act 	against the 	BluSky Companies 	("Counterclaim Three"), 	(see
Brown's Countercl. ,r,r 105-27).

82. 	Now, the BluSky Companies seek summary judgment in their favor on
Brown's Counterclaims Two and Three, (see Bl uSky Mot.), and Brown seeks summary
judgment in his favor on Claims One, Two, Three, and Four , as well as affirmative
summary judgment on his Counterclaim Two, (see Brown Mot.). The Court notes that
no party seeks summary judgment on the claims for injunctive relief or declaratory
judgment.
83. 	Following full briefing, the Court held a hearing on the Motions on 15-
16 November 2023 (the "Hearing") at which all parties were present and represented
through counsel. The Motions are ripe for resolution.
IV. 	LEGAL STANDARD
84. 	Summary judgment is appropriate "if the pleadings , depositions, answers
to interrogatories, and admissions on file, together with the affidavits , if any, show
that there is no genuine issue as to any material fact and that any part y is entitled
to a judgment as a matter of law ." N.C.G.S. § lA-1, Rule 56(c). "A 'genuine issue ' is
one that can be maintained by substantial evidence." Dobson v. Harris, 352 N.C. 77,
83 (2000) (citation omitted) . " 'Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequat e to support a conclusion' and means ' more
than a scintilla or a permissible inference.' " Head v. Gould Killian CPA Grp., P.A.,
371 N.C. 2, 8 (2018) (quoting Ussery v. Branch Banking & Tr. Co ., 368 N . C. 325, 335
(2015)).
85. 	The moving party bears the burden of showing that there is no genuine
issue of material fact, and that the movant is entitled to judgment as a matter of law .

Hensley v. Nat'l Freight Transp., Inc., 193 N.C. App. 561, 563 (2008). 	The movant
may make the required showing by proving that "an essential element of the opposing
party's claim does not exist, cannot be proven at trial, or would be barred by an
affirmative defense, or by showing through discovery that the opposing party cannot
produce evidence to support an essential element of her claim." 	Dobson, 352 N.C.
at 83 (citations omitted).
86. 	"Once the party seeking summary judgment makes the required showing,
the 	burden 	shifts 	to 	the 	nonmoving 	party 	to 	produce 	a 	forecast 	of evidence
demonstrating specific facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial." Gaunt v. Pittaway, 139 N.C. App. 778, 784-85
(2000) 	(citation omitted). 	The 	Court must view the evidence in the 	light most
favorable to the nonmovant. Dobson, 352 N.C. at 83 (citation omitted) . However, the
nonmovant(s)
may not rest upon the mere allegations or denials of [their] pleading,
but [their] response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial. 	If [the nonmovant] does not so respond, summary judgment, if
appropriate, shall be entered against [the nonmovant].
N.C.G.S. § lA-1, Rule 56(e).
87. 	" For affirmative summary judgment on a party's own claim, the burden is
heightened." Futures Grp. v. Brosnan, 2023 NCBC LEXIS 7, at **4 (N.C. Super . Ct.
Jan. 19, 2023); see Brooks v. Mount Airy Rainbow Farms Ctr., Inc., 48 N.C. App. 726,
728 (1980) . The movant "must show that there are no genuine issues of fact, that
there are no gaps in his proof, that no inferences inconsistent with his recovery arise

from the evidence, and that there is no standard that must be applied to the facts by
the jury." Parks Chevrolet, Inc. v. Watkins, 7 4 N.C. App. 719, 721 (1985) ; accord Kidd
v. 	Early, 	289 N.C. 	343, 	370 (1976). 	Consequently, "rarely is it proper to enter
summary judgment in favor of the party having the burden of proof." Blackwell v.
Massey, 69 N.C. App. 240, 243 (1984).
V. 	ANALYSIS
88. 	The Court first addresses Brown's Counterclaim Two, as to which both
Motions request summary judgment. 	The Court then considers the remainder of
Brown's Motion, addressing Claims One, Two, Three, and Four, concluding with the
remainder of BluSky's Motion, addressing Brown's Counterclaim Three against the
BluSky Companies.
A.
89.
Counterclaim Two: Unjust Enrichment
Brown 	alleges 	that 	BluSky 	Restoration 	was 	unjustly 	enriched 	by 	its
"continued operations using Brown as their 'qualifying agent' in various states where
[it] was actively engaged in work after the date of Brown's resignation[.]" 	(Brown's
Countercl. 	~ 111.) 	In Brown's view, 	BluSky Restoration was 	able 	to 	continue
(1) remediation and construction projects in states that it did not have a substitute
qualifier, and (2) performing on contracts that required it to be appropriately licensed
without breaching those contracts. (Brown's Countercl. ~ 112.)
90. 	" 'The general rule of unjust enrichment is that where services are rendered
and expenditures made by one party to or for the benefit of another, without an
express contract to pay, the law will imply a promise to pay a fair compensation

therefor.'" Krawiec v. Manly, 370 N.C. 602, 615 (2018) (quoting Atlantic C. L. R. Co.
v. State Highway Comm'n, 268 N.C. 92, 95-96 (1966) (citations omitted)). "A claim
for unjust enrichment 'is neither in tort nor contract but is described as a claim in
quasi contract or a contract implied in law .'" Cty. of Wake PDF Elec. & Supply Co.,
LLC v. Jacobsen, 2020 NCBC LEXIS 103, at *28 (N.C. Super. Ct. Sept. 9, 2020)
(quoting Booe v. Shadrick, 322 N.C. 567, 570 (1988)). "The claim is not based on a
promise but is imposed by law to prevent an unjust enrichment. If there is a contract
between the parties[, then] the contract governs the claim and the law will not imply
a contract." Booe, 322 N.C. at 570 (cit at ion omitted).
91. 	To recover on a claim of unjust enrichment , Brown must prove that (1) he
conferred a benefit upon BluSky Restoration; (2) the benefit was not "conferred
officiously, that is it must not be conferred by an interference in the affairs of the
other party in a manner that is not justified in the circumstances;" (3) the benefit was
not gratuitous; (4) the benefit is measurable; and (5) BluSky Restoration consciously
accepted the benefit. Foxx v. Davis, 289 N.C. App. 473, 485 (2023) (quoting JPMorgan
Chase Bank, N.A. v. Browning, 230 N. C. App. 537, 541-42 (2013) (cleaned up)).
92. 	Brown argues that BluSky Restoration performed work while relying on his
licenses, without paying him for that use, and that affirmative summary judgment in
his favor as to liability is appropriate. (Am. Mem. Supp. Brown Mot. 29, ECF No. 179
["Br. Supp. Brown Mot.''].) 	However, BluSky Restoration argues in support of its
motion that Brown did not confer a 	measurable benefit on BluSky Restoration
because Brown cannot prove "that BluSky actually used his licenses in any of the

states such that it conferred a benefit on BluSky." (BluSky Cos .' Br. Supp. BluSky
Mot. 18-19, ECF No. 17 7 ["Br. Supp. BluSky Mot."].)
93. 	Brown contends that BluSky Restoration used his asbestos-related licenses
in Florida and Louisiana after his resignation from BluSky Restoration, and that it
did so without his knowledge until December 2022. (Br. Supp. Brown Mot. 29.) This
appears to be the benefit Brown contends was conferred.
94. 	In Krawiec v. Manly, the Supreme Court of North Carolina considered
whether plaintiffs sufficiently stated a claim of unjust enrichment at the Rule 12(b)(6)
stage. 370 N.C. at 604. There , plaintiffs owned a dance studio and certain defendants
were employed by plaintiffs as dance instructors and performers pursuant to a
nonimmigrant work visa. Id. at 604-05. Plaintiffs contracted with those defendants,
referred to as the "dancer defendants," whereby plaintiffs obtained work visas for the
dancer defendants "in exchange for each dancer 's express promise to work exclusively
for plaintiffs as a dance instructor and performer." Id. at 605. The dancer defendants ,
after obtaining their visas, began working as dance instructors for the "Metropolitan
defendants," a different business, in violation of their employment agreement with
plaintiffs. Id. Plaintiffs thereafter brought a claim for unjust enrichment against the
Metropolitan defendants. Id.
95. 	Our Supreme Court was asked to consider whether allegations that the
Metropolitan defendants "accepted the benefit of employing the dancers without
obtaining new visas[,]" was sufficient to allege that plaintiffs conferred a benefit upon
the Metropolitan defendants. 	Id. at 615. The Court held that it was not . While the

Metropolitan defendants did not pay for new work visas for the dancer defendants,
approval of the dancer defendants' worker visas applied only to the employment
outlined in the petition submitted by plaintiffs, and any changes in their employment
required 	the 	filing 	of a 	distinct 	visa 	petition. 	Id. 	Thus, 	"if the 	Metropolitan
defendants employed the dancer defendants without filing new petitions , no benefit
was conferred on the Metropolitan defendants by plaintiffs because their petitions
did not authorize the dancers' employment with the Metropolitan defendants." 	Id.
at 616.
96. 	The facts outlined in Krawiec are helpful to consider here, where the parties
agree that a separate , affirmative act was required of Brown and BluSky Restoration
when a change in qualifier status has occurred in a state.
97. 	Brown testified that he "undertook efforts to notify various state agencies
of [his] separation from BluSky Contractors and request[ed] that the agencies remove
[his] 	name 	from 	any 	licenses 	or 	qualifier 	materials 	affiliated 	with 	BluSky "
Restoration. (Brown TRO Aff. ,r 5.) Brown also testified that his efforts included "the
submission 	of 	a 	notarized 	letter 	to 	the 	Florida 	Department 	of Business 	and
Professional Regulation on or about December 22, 2021," indicating that he no longer
worked at BluSky Restoration and requesting that the agency remove his name from
"any licenses or qualifier materials affiliate with BluSky" Re storation. (Brown TRO
Aff. ,r 6, Ex. 1.)
98. 	Brown's submission of notice to the Florida state agency means that Brown
did not authorize BluSky Restoration 's use of his license on any further project post-

dating his resignation from the company, and that he expected the State of Florida
to disassociate him from BluSky Restoration.1 3 This appears to be consistent with
Rodriguez's testimony that (1) BluSky Restoration "self-performed regulated asbestos
abatement work" on the four Florida projects, and (2) "any asbestos-related work by
BluSky 	employees 	was 	performed 	in 	conjunction 	with 	properly 	credentialed,
independent Florida Asbestos Consultants (i.e. industrial hygienists) retained by the
owners." (Rodriguez Deel. ,r,r 5, 9.)
99. 	As to Louisiana, the evidence of record demonstrates that the BluSky
Companies notified the state that Brown was no longer an employee of BluSky
Restoration and that it would provide a replacement qualifier. 14 (Nignan Aff. ,r 5; see
also La. Ltr.) The record also demonstrates that on 25 March 2022, Louisiana sent
BluSky Restoration a letter directing it to appoint replacement mold and asbestos
13 The parties each cite to Fla. Stat. § 469.006, which provides that,
[i]f any qualifying agent ceases to be affiliated with such business organization,
the agent shall so inform the department. In addition, if such qualifying agent
is the only licensed individual affiliated with the business organization, the
business organization shall notify the department of the termination of the
qualifying agent and shall have 60 days from the termination of the qualifying
agent's affiliation with the business organization in which to employ another
qualifying agent.
Fla. Stat. § 469.006(3).
14 The parties each cite to the Louisiana Administrative Code, which provides in relevant
part that,
[i]f a qualifying party for a particular trade terminates employment ... , the
licensee's license remains valid with the following restrictions. The licensee
may continue 	existing work or bid on 	new work in the 	licensed trade
classification but may not begin such work until the qualifying party is
replaced.
La. Admin. Code tit. 46:XXIX, § 109(D); see also La. R.S . § 37:2156.l(D)(l) ("When the
qualifying party terminates employment with the licensee, the board shall be notified in
writing within thirty days of the disassociation and another qualifying party shall qualify
within sixty days.").

qualifiers by 26 May 2022. (Br. Supp. BluSky Mot. 5 (citing Nignan Aff. ,r 8).) BluSky
Restoration appointed a replacement qualifier before the 26 May 2022 deadline. (See
Nignan Aff. ,r,r 6-7.)
100. 	While it appears to be true that BluSky Restoration did not have an
alternate asbestos qualifier in Florida or Louisiana after Brown left, (see Rodriguez
Deel.; Nignan Aff.; La. Ltr.), much like the dancer defendants in Krawiec seemingly
did not have appropriate work visas when they went to work for the Metropolitan
defendants, the evidence demonstrates that Brown and BluSky Restoration each
notified the relevant agencies that Brown was no longer affiliated with BluSky
Restoration. That BluSky Restoration went forward with projects in those states does
not mean that it was unjustly enriched through purported use of Brown's licenses.
Rather, it appears that no benefit was conferred by Brown upon BluSky Restoration,
as the evidence demonstrates Brown's requested disassociation should have been
effective.
101. 	Brown performed no services and suffered no expenditures that benefitted
the BluSky Companies in this context, and as a result, his claim fails because he
conferred no benefit on the BluSky Companies. 	See Am . Cirs., Inc. v. Bayatronics,
LLC, 2023 NCBC LEXIS 165, at **39-40 (N.C. Super. Ct. Dec. 8, 2023) (deciding that
p la intiff did not "voluntarily confer a benefit on" defendants). 	BluSky Restoration
has 	met 	its 	burden 	by 	demonstrating 	that 	an 	essential 	element 	of 	Brown's
Counterclaim Two fails, and Brown has not come forth with evidence that would
create a genuine issue of material fact on the first element of this claim.

102. 	Therefore, 	BluSky's 	Motion 	is 	GRANTED 	in 	part 	and 	Brown's
Counterclaim Two for unjust enrichment is DISMISSED. 	As a result, Brown's
Motion 	seeking 	affirmative 	summary 	judgment 	is 	DENIED 	in 	part 	as 	to
Counterclaim Two.
B. 	Claims One, Two, and Three: The Breach of Contract Claims
103. 	Brown requests summary judgment in his favor on all three of the BluSky
Companies' breach of contract claims.
104. 	Each of the three agreements at issue in this case have choice of law
provisions stating that Delaware law applies. 	(See LP Agt. § 12.6; LLC Agt . § 13.7;
2017 Agt. § ll(a).) 	Our Supreme Court has held that "where parties to a contract
have 	agreed 	that 	a 	given 	jurisdiction's 	substantive 	law 	shall 	govern 	the
interpretation of the contract, such a contractual provision will be given effect."
Tanglewood Land Co. v. Byrd, 299 N.C. 260, 262 (1980). Therefore, for the contract
claims at issue here, this Court applies North Carolina law for procedural issues and
Delaware law as to substantive issues of law.
1. 	The 2017 Agreement
105. 	In its Claim Three, BluSky Restoration alleges that the 2017 Agreement's
Section 2(a) contains valid and enforceable restrictive covenants between it and
Brown. (SAC ,r 107 .) Specifically, it alleges that the 2017 Agreement contains vali d
and enforceable Nondisclosure and Non-Solicitation provisions. 	(SAC ,r 109; 2017
Agt. §§ 2(a)-(b) .) BluSky Restoration contends that Brown breached those provisions
by (1) downloading and retaining documents after the conclusion of his employment,

and (2) soliciting or otherwise contacting BluSky Restoration employees, including
Paul 	Miller, 	and 	encouraging 	them 	to 	leave 	BluSky 	Restoration 	for 	Sasser.
(SAC ,r,r 112, 114.)
106. 	Brow n's primary argument with respect to the 2017 Agreement is that the
BluSky Companies do not have actual damages resulting from any alleged breach.
(Br. Supp. Brown Mot. 1-2, 24-25 (citing LaPoint v. AmerisourceBergen Corp., 2007
Del. Ch. LEXIS 131 (Del. Ch. Sept. 4, 2007), aff'd, 956 A.2d 642 (Del. 2008)).) Brown
argues that there is no evidence of "actual damages arising from any of the restrictive
covenants contained in any of the Agreements at issue in this litigation." (Br. Supp.
Brown Mot. 25.)
107. 	"Under North Carolina law, proof of damages is not an element of a claim
for breach of contract." Crescent Univ. City Venture, LLC v. AP Atl., Inc., 2019 NCBC
LEXIS 46, at *127 (N.C. Super. Ct. Aug . 8, 2019) (citing Becker v. Graber Builders,
Inc., 	149 	N.C. 	App. 	787, 	792 	(2002)). 	Under 	Delaware 	law, 	however, 	BluSky
Restoration must show "by a preponderance of the evidence" that (1) a contract
existed, (2) Brown breached that contract, 	and (3) the breach of contract led to
damages suffered by it. LaPoint , 2007 Del. Ch. LEXIS 131, at *30 (citing VLIWTech.,
LLC v. Hewlett-Packard Co., 840 A.2d 606 (Del. 2003)). To satisfy the third element,
BluSky 	Restoration 	"must 	show 	both 	the 	existence 	of damages 	provable 	to 	a
reasonable certainty, and that these damages flowed from [the alleged breach]." Id.
(citations omitted).

108. 	At this juncture, the injuries cannot be "speculative or uncertain," and the
Court should be able to "make a reasonable estimate as to an amount of damages."
Id. (citation omitted). 	A presentation of "credible evidence to support a claim for
damages" is sufficient for the breach of contract claim to proceed to trial. Active Day
OH, Inc. 	v. 	Wehr, 2024 Del. Super. LEXIS 479, at *13 (Del. Ch. June 27, 2024).
Summary judgment may be denied even despite potential "defects" in a calculation of
damages so long as credible evidence is available to support a damages award. 	Id.
at *16.
109. 	Here, Brown contends that BluSky Restoration (1) has suffered no loss of
work, 	(2) 	does 	not 	contend that 	Brown 	so li ci ted its 	customers, 	subcontractors ,
vendors, or suppliers, and (3) suffered no loss due to Brown having the CAT Vendor
List or Employee Information List because Brown has not used or benefitted from
those documents. (Br. Supp. Brown Mot . 7-8, 28.) While Brown acknowledges that
BluSky 	Restoration's 	expert, 	Neil Eisgruber 	("Eisgruber"), 	provided 	a 	damages
estimate for the cost to replace Miller when he left the company for Sasser, Brown
appears to contend that the calculation is too speculative or uncertain. 	(Br. Supp.
Brown Mot . 8, 25-26.)
110. 	BluSky Restoration directs the Court to consider the costs it incurred to
replace Miller after he joined Sasser, arguing that its actual damages must at least
include the cost of incurring an extra recruitment fee. (BluSky Cos.' Br. Opp'n Brown
Mot. 17, ECF No. 199 ["Br. Opp. Brown Mot."].) BluSky Restoration also directs the
Court to consider Brown 's conduct between July 2021 through his last day at BluSky

Restoration, contending that it i ncurr ed actual damages in the form of wages that
would not have been paid to Brown had BluSky Restoration known of his ongoing
conduct. (Br. Opp. Brown Mot. 18.) Finally, BluSky Restoration notes that nominal
damages are permitted under Delaware law, which should allow the claim to progress
to trial. (Br. Opp. Brown Mot. 19 (citing SinoMab Bioscience Ltd. v. Immunomedics,
Inc ., 2009 Del. Ch. LEXIS 106, at *3 (Del. Ch. June 16, 2009)).)
111. 	The 	record 	includes 	Eisgruber's 	testimony 	that 	BluSky 	Restoration
incurred the cost of hiring a project manager after Miller resigned, which resulted in
a 	headhunter 	or 	recruiting 	fee 	of 	roughly 	$- 	to 	$-. 	(Eisgruber
Dep. 125:21-26:14; see also Br. Supp. Brown Mot. 7.) This number is derived from
BluSky Restoration's median project manager salary of $93,137.00, multiplied by the
fifteen to thirty percent headhunter fee typically charged for recruiting services.
(Eisgruber 	Dep. 	126:15-19.) 	Eisgruber 	also 	testified 	that 	even 	when 	BluSky
Restoration does not use headhunter services, the average cost of recruiting a new
employee is$- . 	(Eisgruber Dep. 134:9-18.) 	Thus, at the very least there is
record evidence that BluSky Restoration incurred some damages as a 	result of
Brown's alleged solicitation of Miller because it hired a replacement for Miller either
with or without using a headhunter or recruiting service.
112. 	As to the confidential documents at issue, Brown's expert, Richard Driscoll
("Driscoll"), filed a report in this matter where he opined that the CAT Vendor List
and Employee Information List are " not commercially valuable." (Driscoll Rep. 7, 10-
12.) 	Eisgruber's testimony differed, where he opined that (1) it would have taken

Brown between 42 to 120 hours to create the CAT Vendor List, and (2) Brown's
misappropriation of the 	document would 	result in "opportunity cost" 	damages,
meaning 	Brown's 	saved 	time 	and 	cost 	to 	develop 	or 	recreate 	this 	document.
(Eisgruber Dep. 61:16-62:8, 62:20-23, 64:16-66:11.) At the time of his deposition,
Eisgruber was not aware of damages resulting from the alleged misappropriation of
the Employee Information List but estimated unjust enrichment damages in the
amount of $106,958.00. (Ei sgruber Dep. 116:25-17:11, 121:11-23:6.)
113. 	Without determining whether BluSky Restoration has proved its breach of
contract claim, as that issue is not before the Court at this juncture, the Court agrees
that BluSky Restoration may be awarded nominal damages if it ultimately proves
that Brown breached the 2017 Agreement. 	See Medlink Health Sols., LLC v. JL
Kaya, Inc., 2024 Del. Super. LEXIS 209, at *14-15 (Del. Super. Ct. Mar. 20, 2024);
Ivize of Milwaukee, LLC v. Compex Litig. Support, LLC, 2009 Del. Ch . LEXIS 55,
at *40-41 (Del. Ch. Ct. Apr. 27, 2009) ("Even if compensatory damages cannot be or
have not been demonstrated, the breach of a contractual obligation often warrants an
award of nominal damages.").
114. 	It appears that BluSky Restoration has provided at least a minimally
reasonable estimate as to an amount of damages for Claim Three , and in any event
that it may be entitled to nominal damages. Therefore, the Court DENIES in part
Brown's 	Motion 	as 	to 	the 	request 	for 	partial 	summary 	judgment 	on 	BluSky
Restoration's Claim Three for breach of the 2017 Agreement.

2. 	The LP Agreement and LLC Agreement
115. 	In Claims One and Two, the BluSky Companies allege that Brown was
bound by the LP Agreement and LLC Agreement, and that each agreement contains
a Confidentiality, Non-Competition, and Non-Solicitation provision. 	(SAC ,r,r 118,
121, 131, 134; HoldCo Countercl. ,r,r 110, 112, 122, 124.) The BluSky Companies each
allege that Brown breached those provisions by (1) soliciting or otherwise contacting
BluSky Restoration employees, including Paul Miller, to leave BluSky Restoration
for Sasser, (2) becoming "an officer and qualifier for Sasser, a direct competitor of
BluSky 	Re storation , 	less 	than 	one 	month 	after 	his 	employment 	with 	BluSky
Restoration concluded," and (3) downloading and otherwise retaining the BluSky
Companies' confidential or proprietary information for his 	and Sasser's benefit.
(SAC ,r,r 123, 125-26, 128, 136-37, 139, 141; HoldCo Countercl. ,r,r 114, 117, 119,
126-27, 129, 131.)
116. 	Brown argues, in relevant part, that the res trictive covenants in the LP
Agreement and LLC Agreement are overbroad and unenforceable. (Br. Supp. Brown
Mot. 15-19.)
117. 	"Delaware courts review noncompete and nonsolicit agreements subject to
Delaware law to ensure that they are (i) reasonable in geographic scope and temporal
duration, (ii) advance legitimate economic interests of the party seeking enforcement,
and (iii) survive a balancing of the equities." Cantor Fitzgerald, L.P. v. Ainslie, 312
A.3d 67 4, 684 n.65 (2024) (citing FP UC Holdings, LLC v. Hamilton, 2020 Del. Ch.
LEXIS 110, at *14 (Del. Ch. Mar. 27, 2020) (citations omitted)). Delaware courts will

not "mechanically" enforce restrictive covenants. 	FP UC Holdings, 2020 Del. Ch.
LEXIS 110, at *14.
When assessing 'reasonableness,' 	the 	court focuses 	on whether the
[covenant] is essential for the protection of the employer's economic
interests. The court then balances the employer's interests against the
employee's interests. 	Ultimately, a court of equity will not enforce a
[restrictive covenant] if, on balance, to do so would impose an unusual
hardship on a former employee.
FP UC Holdings, 2020 Del. Ch. LEXIS 110, at *14 (cleaned up). "The reasonableness
of a covenant's scope is not determined by reference to physical distances, but by
reference to the area in which a covenantee has an interest the covenants are
designed to protect." Kodiak Bldg. Partners, LLC v. Adams, 2022 Del. Ch. LEXIS
288, 	at 	*21 	(Del. 	Ch. 	Oct. 	6, 	2022) 	(cleaned up). 	However, 	"[i]f the 	employer
overreaches 	by 	imposing 	an 	obviously 	overbroad 	geographic 	restriction 	on 	its
employee's ability to seek employment after separation, this court will readily decline
to enforce the 	restriction." 	FP UC Holdings, 	2020 Del. 	Ch. LEXIS 	110, a t *15
(citations omitted).
118. 	A consideration of various 	restrictions 	and what 	has 	been consid ered
acceptable or unacceptable is informative here. In All Pro Maids, Inc. v. Layton, the
covenant at issue was "limited to one year and an area defined by specific zip codes"
where the majority of the employer's clients were located. 2004 Del. Ch. LEXIS 116,
at *17 (Del. Ch. Aug. 9, 2004), aff'd 880 A.2d 1047 (Del. 2005). There, the Chancery
Court wrote that "[n]oncompete agreements covering limited areas for two or fewer
years generally have been held to be reasonable." 	Id. at *18 n.23 (emphasis added)

(citations 	omitted). 	In 	that 	case, 	the 	parties 	conceded 	that 	the 	covenant 	was
reasonable as to time and geographic scope. Id. at *18.
119. 	In Norton v. Cameron, the covenant at issue was for a three-year term and
barred the former employee from working "in any manner with any business in
competition with or similar to the type of business conducted by" the former employer
within a hundred-mile radius of the company's headquarters. 	1998 Del. Ch. LEXIS
32, at *6-7 (Del. Ch . March 5, 1998). 	There, the Chancery Court wrote that "[s]uch
a broad, vague and unwieldy restriction given the nature of the industry would work
an undue hardship to Defendant[.]" Id. at *11. At the permanent injunction stage,
the Court restricted the former employee to only a twenty-mile radius and prohibited
that person from selling the plaintiffs products to the forty-four customers at issue
for three years. 	Id. 	at *13-16. 	Thus, the Court did not enforce the covenant as
written because to do so would impose unusual hardship, but instead upheld the
three-year time restriction by enforcing a limited geographic scope and narrowly
outlining the prohibited conduct.
120. 	With these two cases in mind , it is no surprise that in Sunder Energy, LLC
v. Jackson, the Chancery Court determined that a two-year noncompete that covered
"the entire door-to-door sales industry," regardless of whether plaintiff sold the same
or similar products, in at least forty-six states was overbroad and unenforceable. 305
A.3d 723, 755-56 (2023). 	There, the Court wrote that "[a] covenant that restricts
employment in a similar industry for two years might be reasonable if it only applies
wi thin a single town or county, and vice versa." Id. at 753. Ultimately, the restriction

at issue was determined to be overbroad and the Court declined to enforce it because
it was "unreasonable on its face[.]" Id. at 758.
121. 	Here, 	the 	Non-Competition 	and 	Non-Solicitation prov1s10ns 	m 	the 	LP
Agreement 	and 	LLC 	Agreement 	are 	unenforceable 	because 	they 	(1) 	are 	not
reasonable in geographic scope and temporal duration, and (2) do not advance the
legitimate economic interests of the BluSky Companies.
1. 	The Non-Solicitation Provisions
122. 	Here, the LP Agreement and LLC Agreement's Non-Solicitation provisions
provide that, for two years after the conclusion of Brown's employment, he shall not:
(1) 	directly or indirectly induce 	or attempt to induce 	any employee, 	officer, 	or
independent contractor of the BluSky Companies to leave their employment; (2) hire
or 	"seek 	any 	business 	affiliation" 	with 	any 	employee, 	officer, 	or 	independent
contractor of the BluSky Companies within one year after that person ceases to be an
employee, officer, or independent contractor; and (3) induce or attempt to induce any
"customer, supplier, licensee or other business relation" of the BluSky Companies to
"cease doing business" with the companies or reduce the business of the companies ,
"or in any way interfere with the relationship between any such customer, supplier,
licensee or business relation" and the BluSky Companies. (LP Agt. § 12.l0(b); LLC
Agt. § 13.17(b) (emphasis added).)
123. 	The Non-Solicitation provisions prohibit this conduct within the United
States of America and any location where the BluSky Companies engage "in the
Business or actively plans to engage in the Business as of the date of the challenged

activity[.]" 	(LP 	Agt. 	§ 	12.l0(c); 	LLC 	Agt. 	§ 	13.17(c) 	(emphasis 	added).) 	The
"Business" 	means 	anyone 	providing 	project 	management 	services 	relating 	to
restoration, renovation, environmental, and roofing to commercial and multifamily
properties. (LP Agt. § 12.l0(c); LLC Agt. § 13.17(c).)
124. 	As written, the Non-Solicitation provisions in the LP Agreement and LLC
Agreement would prohibit Brown from contacting any "business relation" of the
BluSky Companies that would reduce the business of the BluSky Companies or in
any way "interfere" with their relationship. 	In other words, for a two-year period
after 	employment, 	Brown 	is 	prohibited 	from 	contacting 	BluSky 	Restoration's
business contacts that may be engaged in similar restoration services, whether
known to Brown or not, anywhere in the United States or any country that the
BluSky Companies may be planning to engage in business sometime in the future.
125. 	The 	geographic 	scope 	of 	the 	Non-Solicitation 	provisions 	are 	facially
unreasonable because they arguably cover the entire globe. 	BluSky Restoration's
"business is not geographically limited[,]" and its business and services are advertised
nationally. 	(See 	Bisping Aff. 	,r,r 	19, 	23, 	25, 	31.) 	Further, 	the 	Non -Solicitation
prov1s10ns 	wholly 	fail 	to 	advance 	the 	BluSky 	Companies' 	legitimate 	economic
interests. 	While 	the 	BluSky 	Companies 	argue 	that 	preserving 	"customer
relationships" is a legitimate economic interest, (Br. Opp. Brown Mot. 13-14), the
provisions at issue here have gone too far. The BluSky Companies certainly have an
interest in protecting customer and other legitimate business relationships, but they

do not have an interest in protecting prospective business relationships that Brown
has no know ledge of.
126. 	Therefore, the Non-Solicitation provision in both the LP Agreement and
LLC Agreement is overbroad and unenforceable because the geographic scope of the
provisions is unreasonable, particularly in light of the two-year time restriction.
ii. 	The Non-Competition Provisions
127. 	The Non-Competition provisions in the LP Agreement and LLC Agreement
restrict Brown for two-years post-employment, within the same geographic scope, and
prohibit 	Brown 	from: 	(1) 	owning 	an 	interest 	in, 	managing, 	controlling, 	or
participating in any business that engages in "the Business," as defined above; and
(2) in a competitive capacity, 15 consulting, rendering services for, serving as an agent
or representative for, or financing any business engaged in "the Business," as defined.
(LP Agt. § 12.l0(c); LLC Agt. § 13.17(c).)
128. 	As discussed, 	the 	geographic restrictions here, 	when coupled with the
temporal restrictions, are facially overbroad. The Non-Competition provisions do not
serve to protect the 	legitimate locations where 	the 	BluSky Companies conduct
business. 	Rather, the covenants go beyond to include locations where the BluSky
Companies actively plan to, but do not currently, conduct business. 	As Delaware
courts do, this Court will decline to enforce such a restriction. See FP UC Holdings,
2020 Del. Ch . LEXIS 110, at *15 n.42 (citing in part Norton, 1998 Del. Ch. LEXIS 32).
15 The Court notes that neither the LP Agreement nor the LLC Agreement define what type
of conduct is included in the phrase "in a competitive capacity[,]" and thus it is unclear to the
Court how broadly or narrowly to interpret that phrase.

129. 	Additionally, as Brown argues, the Non-Competition provisions in the LP
Agreement and the LLC Agreement would prohibit Brown from working anywhere
in the restoration industry for two years after the conclusion of his employment in at
least the forty states where BluSky Restoration does business. If read as broadly as
the 	Non-Competition 	provisions 	could 	be, 	Brown 	is 	prohibited 	from 	providing
financing 	for 	project 	management 	services 	relating 	to 	restoration, 	renovation,
environmental, and roofing projects anywhere in the United States and perhaps also
abroad. 	The Non-Competition provisions, therefore, could be read as prohibiting
Brown from financing renovations on his own home, if that could be considered
financing "in a competitive capacity." Such a restriction does not serve a legitimate
economic interest here.
130. 	Ultimately, 	as 	the 	movmg 	party, 	Brown 	has 	met 	his 	burden 	of
demonstrating that the restrictive covenants at issue here are not appropriately
tailored 	to 	protect 	the 	BluSky 	Companies' 	legitimate 	interests. 	Rather, 	the
restrictions are overly broad and the Court "will not enforce a covenant that is more
restrictive than the compan[ies'] legitimate interests justify[.]" Sunder Energy, 305
A.3d at 758 (quoting Norton, 	1998 Del. 	Ch. 	LEXIS 	32, 	at *9). 	And, 	"[w]hen a
restrictive covenant is overbroad, a Delaware court will resist 'blue-penciling' the
provision to make it reasonable." Id. at 753. This Court will do the same.
131. 	Therefore, Brown's Motion is GRANTED in part as to Claim One and
Claim Two for breach of the LP Agreement and LLC Agreement. As a result, those
claims are hereby DISMISSED.

C. 	Claim Four: Misappropriation of Trade Secrets
132. 	Next, Brown seeks summary judgment on BluSky Restoration's Claim Four
for 	misappropriation 	of trade 	secrets 	under 	the 	North 	Carolina 	Trade 	Secret
Protection Act, N.C.G.S. § 66-152 et seq. ("TSPA"). (See Brown Mot. 2.)
133. 	"A 	threshold 	question 	m 	any 	action 	involving 	allegations 	of
misappropriation of trade secrets is whether the information in question constitutes
a trade secret under the [TSPA]." Koch Measurement Devices, Inc. v. Armke, 2015
NCBC LEXIS 45, at *10 (N.C. Super. Ct. May 1, 2015) (citation omitted).
134. 	The TSPA defines a trade secret as:
[B] us in ess 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.
N.C.G.S. § 66-152(3). 	Here, BluSky Restoration contends that its CAT Vendor List
and Employee Information List constitute trade secrets under North Carolina law.
135. 	In response, Brown fir st argues that the CAT Vendor List does not derive
any independent value from not being generally known. (Br. Supp. Brown Mot. 21-
22.) 	BluSky Restoration contends that compilations of this type are entitled to
protection if it would encounter "difficulty assembling public components into a secret
compilation." 	(Br. Opp. Brown Mot. 22 (citing SCR-Tech LLC v. Evonik Energy

Servs., LLC, 2011 NCBC LEXIS 27, at **41-42 (N.C. Super. Ct. July 22, 2011)).)
BluSky Restoration argues that the CAT Vendor List meets this requirement. 	(See
Br. Opp . Brown Mot. 23.)
136. 	This 	Court 	has 	held 	that, 	"compilations 	comprised 	solely 	of publicly
available information are generally not recognized as trade secrets. A compilation of
publicly available information may, however, receive trade secret protection where
the 	claimant 	encountered 	some 	difficulty 	in 	assembling 	each 	of 	the 	public
components." Safety Test & Equip. Co. v. Am. Safety Util. Corp., 2015 NCBC LEXIS
40, at *26 (N.C. Super. Ct. Apr. 23, 2015) (internal citations omitted). This inquiry
"must be as to specific facts" which varies on a case-by-case basis . Id. at *27.
137. 	Here, the CAT Vendor List is somewhat similar in form to the customer
lists that our courts have determined may constitute a trade secret in the right
circumstances. See Found. Bldg. Materials, LLC v. Conking & Calabrese, Co., 2023
NCBC LEXIS 87, at **23-24 (N.C. Super. Ct. July 7, 2023) (collecting comparable
cases). 	Rather 	than 	compiling 	customer 	information, 	BluSky 	Restoration 	is
compiling its specific vendor information.
138. 	The evidence of record is that the CAT Vendor List is a collection of national
restoration 	vendors, 	containing 	the 	contact 	information 	for 	individuals 	in 	the
compames, including direct lines and cellphone numbers rather than a publicly
available general phone line. (See Eisgruber Dep. 50:7-51:14; Erekson Dep. 116:23-
17:1.)

139. 	BluSky Restoration's Chief Operations Officer, Mike Erekson ("Erekson"),
testified that the CAT Vendor List has been revised over several years and would
take years to recreate. (Erek son Dep. 115:2-16:4.) In BluSky Restoration's view, the
CAT Vendor List is a compilation of "the best vendors[.]" 	(Br. Opp. Brown Mot. 23
(citing Erekson Dep. 115:2-20:4).) While Brown's expert, Driscoll, opined that the
list is not commercially valuable, this creates a factual issue for the jury at worst.
140. 	The Court notes that the facts of this case are distinct from those present
in Building Center, Inc. v. Carter Lumber, where the customer lists at issue consisted
only of the names, phone numbers, and email addresses of customers, which was
information largely already publicly available. 	2017 NCBC LEXIS 85, at *19-20
(N.C. Super. Ct. Sept. 21, 2017). 	The CAT Vendor List is not a list of all vendors
BluSky Restoration uses, but rather appears to comprise only the cultivated and
dependable few. 	The list is organized by service needed, like asbestos testing , and
then denotes the best contact person, phone number, email address, and what the
vendor's specialty is. (See CAT List 1.) By way of further example, the CAT Vendor
List has four storage container vendors listed, one of which only provides services in
Arizona, 	California, and Colorado, 	and one that also provides dumpsters, porta-
potties, and portable offices. 	(CAT List 1.) 	This kind of collection has potential
commercial value from not being generally known, as BluSky Restoration has a direct
personal contact to, in its view, the best storage container or portable office supplier
in the event of a disaster that requires a prompt response.

141. 	Therefore, BluSky Restoration has demonstrated that the CAT Vendor List
contains more than just publicly av ailable information. As a result, it has met its
burden of demonstrating that a genuine issue of material fact remains for a jury
regarding the CAT Vendor List's commercial value.
142. 	Next, Brown contends that BluSky Restoration cannot demonstrate that its
alleged trade secrets were subject to reasonable measures to maintain their secrecy.
(See Br. Supp. Brown Mot. 22-24.)
143. 	BluSky Restoration has provided evidence that it requires "each employee
to password-protect their devices, return all company devices upon departure, and
sign 	a 	separation 	letter 	certifying 	they 	have 	returned 	all 	trade 	secrets 	and
confidential information." 	(Br. Opp. Brown Mot. 24-25 (citing in part Cleveland
Aff. 11 5-22; Erekson Dep. 46:18-47:18).) Erekson testified that the only individuals
at BluSky Restoration who have unrestricted access to the company's SharePoint are
the "CEO, 	CFO 	.. 	. and CIO." 	(Erekson Dep. 	48:9-19.) 	Further, the evidence
demonstrates that Brown and Miller each certified that they returned all trade secret
information in their respective separation letters. (Cleveland Aff. Exs. E-F; see also
Miller Dep. 52:7-16; Separation Ltr.)
144. 	BluSky 	Restoration 	also 	has 	an 	employee 	handbook 	discussing 	the
importance of maintaining secrecy, and argues that "its practice is to have each new
hire review and acknowledge the handbook and existing employees do the same each
year." 	(Br. 	Opp. 	Brown Mot. 	25 (citing Cleveland Aff. 	11 8-12 (concerning the
practice of updating the employee handbook and requiring employees to review and

sign an acknowledgment)); see also Cleveland Aff. 	Ex. 	C (providing the BluSky
Restoration handbooks for 2019, 2020, and 2021).) The evidence also demonstrates
that Brown was aware of the employee handbook, as he emailed the 2020 employee
handbook for dissemination, writing that "everyone needs to sign/date and return the
employee 	handbook signature 	page[.]" 	(ECF Nos. 	197.20-.21.) 	Brown's counsel
questions this policy by noting that no handbook acknowledgement appears in the
record for Brown and Miller. (Br. Supp. Brown Mot. 6; Reply Supp. Brown Mot. 14-
15, ECF No. 212.)
145. 	Finally, 	BluSky 	Restoration's 	practices 	include 	having 	higher-ranking
employees 	sign restrictive 	covenants 	and confidentiality agreements. 	(Br. 	Opp.
Brown 	Mot. 	26; 	see 	also 	Cox 	30(b)(6) 	Dep. 	142:23-43:25 , 	144:14-50:4; 	2017
Agt. 	§ 2(a)(ii) 	(setting 	out 	a 	confidentiality 	provision 	in 	Brown's 	employment
agreement with BluSky Restoration, effective 1 October 2017).)
146. 	Here, Brown has not demonstrated that BluSky Restoration's efforts to
protect its trade secrets were unreasonable as a matter oflaw. Rather, the measures
are at least sufficient to create a genuine issue of material fact for a jury on this issue.
See, e.g., Roundpoint Mortg. Co. v. Florez, 2016 NCBC LEXIS 18, at **36-38 (N.C.
Super. Ct. Feb. 18, 2016) (holding confidentiality provision in handbook, password-
protected computer systems, and employee confidentiality agreements crea ted issue
of material fact as to reasonable measures even where defendants "produced evidence
that could lead a jury to doubt the adequacy" of plaintiffs policies); Encompass Servs.,
PLLC v. Maser Consulting P.A., 2021 NCBC LEXIS 59, at **32 (N.C. Super. Ct. June

28, 2021) (determining that, while the jury could be troubled by plaintiffs failures to
"implement or enforce" confidentiality policies, the claim nevertheless survived).
BluSky Restoration's efforts may have been suboptimal, but they are adequate to
create a genuine issue of fact such that a jury may determine reasonablene ss. 	See
SiteLink Software, LLC v. Red Nova Labs, Inc., 2018 NCBC LEXIS 90, at *31 (N.C.
Super. Ct. Aug. 20, 2018).
147. 	Therefore, the Court DENIES Brown's Motion as to BluSky Restoration's
Claim Four for violations of the TSP A.
D. 	Counterclaim Three: Violation of the North Carolina Wage and
Hour Act
148. 	The BluSky Companies request summary judgment in their favor on
Brown's Counterclaim Three for violations of the North Carolina Wage and Hour Act,
N.C.G.S. § 95-25.1 et seq. (the "WHA"). 	(BluSky Mot. 2.)
149. 	The WHA provides, in relevant part, that
[e]mployees whose employment is discontinued for any reason shall be
paid all wages due on or before the next regular payday either through
the 	re gular pay channels or by trackable mail if requested by the
employee in writing. 	Wages based on bonuses, commissions or other
forms of calculation shall be paid on the first regular payday after the
amount becomes calculable when a separation occurs. Such wages may
not be forfeited unless the employee has been notified in accordance with
[N.C.]G.S. [§ ]95-25.13 of the employer's policy or practice which results
in forfeiture. 	Employees not so notified are not subject to such loss or
forfeiture.
N.C.G.S. § 95-25.7. Under the WHA, "a bonus will be subject to forfeiture only if the
employer 'has notified the employee of the conditions for loss or forfeiture in advance
of the time when the pay is earned.'" Mancinelli v. Momentum Research, Inc., 2012

NCBC LEXIS 4, at **22-23 (N.C. Super. Ct. Jan 12, 2012) (quoting Narron v Hardee's
Food Sys., Inc., 75 N.C. App. 570, 583 (1985)). "A notification that causes forfeiture
of bonus is not sufficient if it does not specify the conditions for loss or forfeiture." Id.
at **23 (cleaned up).
150. 	Here, the BluSky Companies argue that Brown's purported bonus for 2021
was not earned and owing because he voluntarily resigned before the day the bonus
was paid, an express condition of receiving a bonus as set forth in the Employment
Agreemen t. (Br. Supp. BluSky Mot. 26-27; see Empl. Agt.)
151. 	Brown argues that the Employment Agreement does not provide the basis
for the bonus that he contends he is entitled to. 	(Brown's Mem . Opp'n BluSky
Mot. 16, ECF No. 196 ["Br. Opp. BluSky Mot."].) Rather, Brown argues that BluSky
Restoration "never paid Brown any bonus based upon th[e] formula" set forth in the
Employment Agreement. 	(Br. Opp. BluSky Mot. 17.) Instead, Brown contends that
the BluSky Companies paid him an alternative bonus each year without advising him
of the conditions for receiving or forfeiting that bonus . (Br. Opp. BluSky Mot. 17.)
152. 	While Brown contends that the Employment Agreement does not provide
the basis for Brown's annual bonus, the Court is unable to find any evidence of
another agreement, be it oral or written, that supports a contention that the BluSky
Companies owe Brown a "recurring annual bonus of $50,000.00" for 2021. (Br. Opp.
BluSky Mot. 17 .) In support of his contention, Brown cites to two pieces of evidence
other than to the Employment Agreement. (See Br. Opp. BluSky Mot. 16-17 (citing
Brown Opp'n Aff; Cox 30(b)(6) Dep.).)

153. 	First, Brown cites his own testimony that the formula described in the
Employment Agreement was not how BluSky Restoration actually paid his bonus.
(Brown Opp'n Aff. ,r,r 11-12.) 	Rather, he testifies that his annual bonus was "an
alternative performance bonus" and that BluSky Restoration never informed him of
the conditions for receiving this bonus. (Brown Opp'n Aff. ,r,r 13-14.) This testimony
does not negate that the Employment Agreement provides the right to Brown's
annual bonus, particularly because Brown does not contend that he received two
bonuses each year that arose out of different policies or practices.
154. 	Second, Brown cites to Cox's deposition testimony. (See Cox 30(b)(6) Dep.)
In the testimony cited, Cox is discussing the Employment Agreement in relation to
BluSky Restoration's negotiations with Brown for continued part-time employment.
In particular, Brown's counsel reads a portion of an email sent by Cox to Brown,
describing that the bonus provided for in the Employment Agreement, which would
be $50,000.00 to be paid in February 2022, would be considered earned and payable
if Brown continued to work for BluSky Restoration on a part time basis as negotiated.
(Cox 30(b)(6) Dep. 96:3-20; see Negot'n Email.)
155. 	Both 	pieces 	of evidence 	cited 	by 	Brown 	tend 	to 	support 	the 	BluSky
Companies' contention that the Employment Agreement provided for the annual
bonus that Brown contends he is entitled to.
156. 	The Employment Agreement clearly states that Brown "must be employed
by BluSky on the day a bonus is paid in order to receive the bonus." 	(Empl. Agt. 1.)

It also provides, "if you elect to sever your employment with BluSky, there is no
vesting in your bonus." (Empl. Agt. 1.)
157. 	It is undisputed that Brown elected to sever his employment with BluSky
Restoration on 	19 	November 	2021. 	It is 	also 	undisputed 	that Brown was 	not
employed by BluSky Restoration in February 2022 when bonuses were paid by the
company. 	Finally, it is undisputed that Brown did not reach an agreement with
BluSky Restoration for continued part-time employment, as negotiations ceased on
6 	December 	2021. 	Thus, 	the 	parties 	never 	agreed 	to 	the 	terms 	of part-time
employment such that the terms of the Employment Agreement would be modified
by Cox's email to Brown on 20 November 2021. (See ECF Nos. 141.10-.11.)
158. 	The BluSky Companies have 	successfully demonstrated that a 	crucial
element of Brown's Counterclaim Three fails because Brown was notified of the
conditions of forfeiture of his bonus: electing to sever employment with BluSky
Restoration because the employee must be employed by BluSky Restoration on the
day the bonus is paid in order to receive the bonus. Brown has come forth with no
evidence to rebut this , or to demonstrate that a genuine issue of material fact remains
for a jury on this issue . Therefore, the Court GRANTS in part BluSky's Motion and
Counterclaim Three is hereby DISMISSED.

VI. 	CONCLUSION
159. 	THEREFORE, for the foregoing reasons, the Court hereby GRANTS in
part and DENIES in part the Motions as follows:
a. 	BluSky's Motion is GRANTED in part as to Brown's Counterclaims
Two and Three, and those claims are DISMISSED;
b. 	Brown's Motion is GRANTED in part as to the BluSky Companies'
Claims One and Two for breach of the LP Agreement and LLC Agreement,
and those claims are DISMIS SE D; and
c. 	Except as expressly granted, the Motions are otherwise DENIED.
160. 	As a result of this ruling, BluSky Restoration's Claim Three for breach of
the 2017 Agreement and Claim Four for misappropriation of trade 	secrets will
proceed to trial. Also remaining for determination at trial are the BluSky Companies'
claims for injunctive relief and Brown's counterclaim for declaratory judgment.
IT IS SO ORDERED, this the 7th day of August, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases