[Cit.]" Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 80 (1) ( 387 S.E.2d 34) (1989); see also Colquitt v. Network Rental, 195 Ga. App. 244 (2a) ( 393 S.E.2d 28) (1990). Accordingly, I would affirm the trial court's grant of summary judgment as to the cross-appeal.

Such calls as were made here do not constitute tortious interference. Colquitt v. Network Rental, 195 Ga. App. 244, 246 ( 393 S.E.2d 28). Further, the record plainly shows that appellants suffered no damages as a result of Nationwide's action, and indeed, their new employer has paid their legal fees in this action.

Nevertheless, the question of reasonableness remains one of law based on the wording of the covenant, and if after taking the well-pleaded allegations of the complaint as true, it appears that a covenant is void on its face such that no additional facts could save it, judgment on the pleadings in favor of the defendant is appropriate. Koger Properties v. Adams-Cates Co., 247 Ga. 68, 69 ( 274 S.E.2d 329) (1981) (territorial restriction in non-competition covenant too indefinite on its face to be enforced); compare Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 ( 287 S.E.2d 546) (1982) (factual setting sometimes necessary to determine if territorial restriction, not void on its face, is reasonable); Colquitt v. Network Rental, 195 Ga. App. 244, 246 ( 393 S.E.2d 28) (1990) (if non-competition restriction is not void on its face, reasonableness is tested in light of the factual setting). Here, the complaint attaches and incorporates by reference three lengthy employment agreements signed by McKinney which all contain virtually the same restrictive covenants.

"Because the area of non-compete clauses is one in which similar clauses beget dissimilar results and each case must be considered on its own particular facts," this court held, even in a case in which the non-compete clause on which the suit was based was unenforceable, that summary judgment was properly granted to plaintiff on defendant's claim for abusive litigation. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2a) ( 393 S.E.2d 28) (1990). We hold that no issue exists concerning whether plaintiff's complaint was "substantially frivolous, substantially groundless, or substantially vexatious."

Also, the court's denial of M M's summary judgment motion premised on the statute of limitation defense precludes the conclusion that the position taken by Burney under the discovery rule lacked merit. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2 b) ( 393 S.E.2d 28) (1990); Bouchard v. Fowler, 193 Ga. App. 697, 698 ( 388 S.E.2d 874) (1989); Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614 ( 379 S.E.2d 555) (1989). Therefore, the imposition of attorney fees and costs upon Nix and Cowart was improper and that order is vacated.

Felker v. Fenlason, 197 Ga. App. 476, 477 (2) ( 398 S.E.2d 754) (1990). In Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2a) ( 393 S.E.2d 28) (1990), we applied this rule to affirm the denial of Yost and OCGA § 9-15-14 damages even though the trial court's original denial of summary judgment had been reversed by the Supreme Court. The analysis in Colquitt is equally applicable here because, as was the case with the claim in Colquitt, the facts in each tortious interference claim are different and each case must be considered on its facts.

See generally Bulldog Trucking v. Adams, 259 Ga. 382, 384 ( 380 S.E.2d 702) (1989). Furthermore, the trial court was entitled to rely on its original ruling in favor of appellee on the merits of appellant's claim regarding the deductible as establishing "substantial justification" for appellee's actions. See Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2) (a) ( 393 S.E.2d 28) (1990). Where the issue of abusive litigation can be determined as a matter of law, summary judgment is an appropriate remedy.

Counter defendants next cite a unique case to support their motion for dismissal. Colquitt v. Network Rental, Inc., 393 S.E. 2d 28, 195 Ga. App. 244 (1990). In Colquitt, the plaintiff sued for interference with contractual relations when he quit his newly acquired job because the defendant enforced the non-competition clause through a court ordered injunction which was later reversed.

Other jurisdictions have also ruled that a judgment for a plaintiff, even if reversed on appeal, is evidence of probable cause, rebuttable only upon a showing that the first judgment was procured through fraud. See Berger v. North Am. Co. for Life Health Ins., 694 F.2d 233, 235-36 (11th Cir. 1982); Visco v. First Nat'l Bank, 415 P.2d 902, 906 (Ariz. Ct. App. 1966); Goldstein v. Sabella, 88 So.2d 910, 911-12 (Fla. 1956); Colquitt v. Network Rental, Inc., 393 S.E.2d 28, 30 (Ga. Ct. App. 1990); Keefe v. Aluminum Co. of Am., 519 N.E.2d 955, 956 (Ill. App. Ct. 1988); Laughlin v. St. Louis Union Trust Co., 50 S.W.2d 92, 93 (Mo. 1932). In the unpublished case Brannon v. Pyle, No. 03A01-9506-CV-00199, 1995 WL 571885 (Tenn.App. Sept. 29, 1995), this Court considered whether the presumption of probable cause created by an initial favorable determination should be "conclusive" or "prima facie."