Johnstone v. Tom's Amusement Co.

16 Citing cases

  1. Becham v. Synthes

    CIVIL ACTION NO. 5:11-CV-73 (MTT) (M.D. Ga. Sep. 14, 2011)   Cited 2 times   3 Legal Analyses

    An invalid non-compete or non-solicit covenant does not invalidate the non-disclosure and non-recruit covenants in the same agreement. Johnstone v. Tom's Amusement Co., Inc., 228 Ga. App. 296, 297, 491 S.E.2d 394, 397 (1997). The Non-Compete Agreement in Becham's contract prevents him from working for a competitor as an employee, consultant, contractor, agent, or representative for a period of one year after employment terminates.

  2. Holland Insurance Group, LLC v. Senior Life Insurance

    329 Ga. App. 834 (Ga. Ct. App. 2014)   Cited 12 times   1 Legal Analyses

    Capricorn Systems, Inc. v. Pednekar, 248 Ga.App. 424, 428(2)(d), 546 S.E.2d 554 (2001). Accord Johnstone v. Tom's Amusement Co., Inc., 228 Ga.App. 296, 297 –298(1), 491 S.E.2d 394 (1997). Section 9.6 of the Agreement, titled “Severability[,]” provides that “[t]he provisions of this Agreement shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision shall not affect the validity or enforceability of the remainder of this Agreement.”

  3. Russell Daniel Irrigation Company, Ltd. v. Coram

    237 Ga. App. 758 (Ga. Ct. App. 1999)   Cited 12 times

    First, the limited partnership agreement had its own restrictive covenant in addition to the restrictive covenant contained in the employment agreement, which subjects the latter covenant to strict scrutiny. See Johnstone v. Tom's Amusement Co., 228 Ga. App. 296, 298 (2) ( 491 S.E.2d 394) (1997) (physical precedent only); Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) ( 396 S.E.2d 257) (1990) (physical precedent only). Subjecting two restrictive covenants to different treatment, even though found in agreements executed as part of the same transaction, is consistent with the rationale behind the different levels of scrutiny.

  4. Lowe Elec. Supply Co. v. Rexel, Inc.

    No. 5:14-CV-335 (CAR) (M.D. Ga. Nov. 3, 2014)   Cited 2 times   1 Legal Analyses

    See, e.g., Fields v. Rainbow Intern. Carpet Dyeing and Cleaning Co., 259 Ga. 375 (1989); Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539(2)(c)(1983) (concluding that covenant providing that former employees "may not engage in the pest control, exterminating, fumigating[,] or termite control business effectively prohibit[ed] them from working for a competitor in any capacity" and therefore was void); Howard Schultz & Associates v. Broniec, 239 Ga. 181, 184 (1977); Stultz, 285 Ga. App. at 802; Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (1992) (covenant restricting former employee from, among other things, "engaging in ... any business performed by [his former employer]" was unreasonable in scope because it prohibited the employee from working for a competitor in any capacity); Johnstone v. Tom's Amusement Co., Inc., 228 Ga. App. 296, 300 (1997) (covenant restricting former employee from "carrying on or engaging in the amusement game business" implied that employee could not participate in such a business in any capacity, rendering the covenant unreasonable and void). Ken's Stereo Video Junction, Inc. v. Plotner, 253 Ga. App. 811, 812-13 (2002).

  5. BB&T Ins. Servs. v. Renno

    361 Ga. App. 415 (Ga. Ct. App. 2021)   Cited 3 times

    As a result, this situation is similar to those in which the two agreements contain different restrictive covenants rather than the same restrictive covenants—i.e. , the contracts are considered separate with strict scrutiny applied to the employment agreement.CompareHilb, Rogal & Hamilton Co. of Atlanta , 284 Ga. App. at 595-96 (1), 644 S.E.2d 862 ("This Court has consistently held that when parties execute separate contracts for the seller's sale of the business and the seller's subsequent employment and each contract contains different restrictive covenants, the restrictive covenants in the employment contract are subject to strict scrutiny."); Russell Daniel Irrigation Co. v. Coram , 237 Ga. App. 758 (1), 516 S.E.2d 804 (1999) ("[T]he limited partnership agreement had its own restrictive covenant in addition to the restrictive covenant contained in the employment agreement, which subjects the latter covenant to strict scrutiny."); Johnstone v. Tom's Amusement Co. , 228 Ga. App. 296, 298 (1), 491 S.E.2d 394 (1997) ("If, as plaintiff contends, the restrictive covenant in the employment contract should be considered part and parcel of the sales contract, why was the restrictive covenant in the sales contract necessary? The answer lies in the restrictive covenants themselves.

  6. Cox v. Altus Healthcare & Hospice, Inc.

    308 Ga. App. 28 (Ga. Ct. App. 2011)   Cited 18 times   2 Legal Analyses
    Holding that, because the confidentiality agreement that was enforced against the appellant was illegal, then the restraint imposed by the agreement was wrongful, and he could recover any damages he suffered during the period of the injunction's enforcement

    (c) The nonsolicitation provisions in the agreement are unenforceable on their face because (i) they contain no time limitation and (ii) they contain neither a limitation to those personnel with whom Cox had a business relationship during the term of the agreement nor a geographical limitation. Johnstone v. Tom's Amusement Co., 228 Ga. App. 296 ( 491 SE2d 394) (1997) (nonsolicitation clause without time limitation was unenforceable); Trujillo v. Great Southern Equip. Sales, 289 Ga. App. 474, 476 ( 657 SE2d 581) (2008) (nonsolicitation clause containing neither a personnel limitation nor a geographic limitation was unenforceable). (d) The nonrecruitment provision is likewise invalid on its face because it bars Cox from even unsolicited contact with Altus employees or affiliates.

  7. Stultz v. Safety

    285 Ga. App. 799 (Ga. Ct. App. 2007)   Cited 10 times
    Finding a description of one aspect of the business was not a proper limitation, but "merely being illustrative of one type of activity that is prohibited"

    ctively prohibit [ed] them from working for a competitor in any capacity" and therefore was void) (citations and punctuation omitted); McNease v. Nat. Motor Club of America, 238 Ga. 53, 56 (2) ( 231 SE2d 58) (1976) (covenant restricting former employee "from engaging in the motor club or automobile association business without restricting the employee as to the kind and character of activity [of] which he could not engage" was overly broad and unreasonable because it "in effect prohibited [him] from working in any capacity for a competitor," even in positions unrelated to his prior position); Russell Daniel Irrigation Co. v. Coram, 237 Ga. App. 758, 760-761 (2) (a) ( 516 SE2d 804) (1999) (covenant restricting former employee from "engaging] in any activity which is directly competitive with any activity engaged in by [former employer]" was "unenforceable because it purports to prevent [the employee] from obtaining employment with any competitor in any capacity" and is too indefinite); Johnstone v. Tom's Amusement Co., 228 Ga. App. 296, 300 (4) ( 491 SE2d 394) (1997) (covenant restricting former employee from "carrying on or engaging in the amusement game business" implied that employee could not participate in such a business in any capacity, rendering the covenant unreasonable and void) (citation and punctuation omitted); Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 ( 423 SE2d 49) (1992) (covenant restricting former employee from, among other things, "engaging in . . . any business performed by [his former employer]" was unreasonable in scope because it prohibited the employee from working for a competitor in any capacity) (punctuation omitted). In light of this case law, we conclude that "the [noncompetition agreement] imposes a greater limitation upon [Burgess] than is necessary for the protection of [S C] and therefore is unenforceable."

  8. Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley

    284 Ga. App. 591 (Ga. Ct. App. 2007)   Cited 12 times   1 Legal Analyses
    Finding issue of fact regarding misappropriation because former employee admitted using trade secret information after his resignation

    Id.; Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) ( 396 SE2d 257) (1990) (physical precedent only). See also Russell Daniel Irrigation Co. v. Coram, 237 Ga. App. 758(1) ( 516 SE2d 804) (1999); Johnstone v. Tom's Amusement Co., 228 Ga. App. 296, 297 (1) ( 491 SE2d 394) (1997); MacGinnitie v. Hobbs Group, 420 F3d 1234, 1242 (11th Cir.2005). 195 Ga. App. 27, 30 (2) ( 392 SE2d 717) (1990).

  9. New Atlanta Ear, Nose & Throat Associates v. Pratt

    253 Ga. App. 681 (Ga. Ct. App. 2002)   Cited 21 times
    Noting that territorial restrictions that change and expand during the course of an agreement are subject to invalidation

    The context and consideration of the two restrictive covenants being different, they are subject to different levels of scrutiny. Id.; see Johnstone v. Tom's Amusement Co., 228 Ga. App. 296, 298(2) ( 491 S.E.2d 394) (1997) (physical precedent only); Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419(2) ( 396 S.E.2d 257) (1990) (physical precedent only). Here there are the following additional factors differentiating the restrictive covenants in the employment contracts from those in the shareholder agreement: (i) at the time they entered into the employment agreements, the defendants were not shareholders of the new or old medical group, as they received no stock until the closing two months later; (ii) the employment agreements all specified that their restrictive covenants "shall be deemed, and shall be construed as separate and independent agreements"; and (iii) the restrictive covenant in the shareholder agreement indicated that it was in addition to the employment restrictive covenants in that it in no way relieved the shareholders of those separate employment obligations.

  10. Swartz Investments, LLC v. Vion Pharmaceuticals, Inc.

    252 Ga. App. 365 (Ga. Ct. App. 2001)   Cited 19 times
    Discussing the factual inquiry required to classify an agreement

    This Court generally has applied the highest level of scrutiny where the parties have equal bargaining power, but where there is no consideration for the covenant at issue. See Northside Hospital, 245 Ga. App. at 248-249 (3); Herndon, 241 Ga. App. at 495; Johnstone v. Tom's Amusement Co., 228 Ga. App. 296, 300 (3) ( 491 S.E.2d 394) (1991) (physical precedent only). See also Eden Hannon co. v. Sumitomo Trust Banking Co., 914 F.2d 556 (4th Cir. 1990) (finding non-circumvention clause protecting proprietary information analogous to employment contract).