Augusta Eye Center, PC v. Duplessie

• Decision Date: 03 September 1998
• Docket Number: No. A98A0973.,A98A0973.
• Parties: AUGUSTA EYE CENTER, P.C. v. DUPLESSIE.
• Court: Georgia Court of Appeals

506 S.E.2d 242

234 Ga. App. 226

AUGUSTA EYE CENTER, P.C. v. DUPLESSIE.

No. A98A0973.

Court of Appeals of Georgia.

September 3, 1998.

Certiorari Denied January 15, 1999.

Jay M. Sawilowsky, Augusta, for appellant.

Hull, Towill, Norman & Barrett, Patrick J. Rice, David E. Hudson, Augusta, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Augusta Eye Center, P.C. ("AEC") and Michael D. Duplessie, M.D., a former employee, dispute the enforceability of certain provisions in an employment contract entered between them. AEC appeals the denial of its motion for injunctive relief.

Duplessie, an ophthalmologist then residing in Florida, and AEC executed an employment agreement in May 1996.¹ Under the explicit terms of this contract, Duplessie agreed not to work in certain delineated capacities in ten specified counties, five in Georgia and five in South Carolina for a one-year post-employment period. A "NON-COMPETE AND NON-DISCLOSURE COVENANT" provides in pertinent part: "During the term of Employee's employment with AEC, and for a period of one (1) year thereafter, Employee covenants and agrees as follows: (a) Employee shall not, without the prior written consent of AEC, either directly or indirectly, on his own behalf or in the service of or on behalf of others, render medical treatment or perform surgery in the field of ophthalmology or ophthalmologic surgery as an employee, partner, officer, executive, managerial employee, director, or shareholder of any entity which competes with AEC in the field of ophthalmology or ophthalmologic surgery. This covenant not to compete shall apply to the counties of Richmond, Burke, Lincoln, McDuffie and Columbia, in the State of Georgia, and the counties of Aiken, Edgefield, Allendale, Barnwell and McCormick in the State of South Carolina (the `Area')."

According to subsection (b): "Employee agrees that during the period of twelve (12) months following termination of his employment with AEC, Employee shall not, on his own behalf or on behalf of any person [or entity] solicit, contact, call upon, communicate with or attempt to communicate with any patient of AEC or any representative of any patient or prospect to the Corporation, with the intent of providing any medical service provided by AEC during the period of two (2) years immediately preceding termination of Employee's employment with AEC. Provided that the restriction set forth in this subparagraph (b) shall only apply to patients or prospects of AEC or representative(s) of patients or prospects of AEC with which Employee had material contact during such two year period." (Emphasis supplied.) "A `Material Contact' as that term is used herein, exits [sic] between Employee and each patient or potential patient of Corporation if interaction took place between them in an effort to further a business relationship with the Corporation." (Emphasis supplied.)

Before AEC retained Duplessie, AEC had only one physician licensed to practice ophthalmology. While employed by AEC, Duplessie treated patients from each of the ten listed counties, especially patients from Richmond and Aiken counties. Notwithstanding the contractual restrictions, after Duplessie's employment with AEC ceased in August 1997, Duplessie began working for Dr. Stephen K. VanDerVliet at Carolina Eye Physicians in Aiken County, South Carolina, and at Augusta Surgery Center and America's Best Contacts & Eyeglasses in Richmond County, Georgia. Since both of these counties were among the proscribed counties, AEC sought damages, injunctive relief, and attorney fees for Duplessie's violation of the express terms of the employment contract. Finding the non-compete covenant was overbroad and unreasonable as to the scope of permissible employment and as to the affected territory, the trial court deemed it unenforceable and denied injunctive relief to AEC. Held:

AEC contends that the trial court erred in denying temporary injunctive relief. We agree.

The rule that the grant or denial of an interlocutory injunction rests in the sound legal discretion of the trial court has no application when the question, as here, is one of law. Lesesne v. Mast Property Mgmt., 251 Ga. 550, 551, 307 S.E.2d 661 (1983); Delli-Gatti v. Mansfield, 223 Ga.App. 76, 77(1), 477 S.E.2d 134 (1996) (reasonableness of restraint imposed by employment covenant is a question of law). Therefore, we owe no deference to the trial court's conclusions of law. City of McDonough v. Tusk Partners, 268 Ga. 693, 697, 492 S.E.2d 206 (1997).

In determining the legality of a restrictive covenant, a court may consider the nature and extent of the business, the situation of the parties and all other relevant circumstances. W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 465(1), 422 S.E.2d 529 (1992). A three-element test of duration, territorial coverage, and scope of prohibited activity has evolved as a useful analytical framework for examining the reasonableness of the restrictions as applied to a particular situation. Sysco Food Svcs. &c. v. Chupp, 225 Ga.App. 584, 585(1), 484 S.E.2d 323 (1997).

Applying these guidelines, we find that the one-year duration of the non-competition clause is well within the timeframe permitted by law. Smith v. HBT, Inc., 213 Ga.App. 560, 563(4), 445 S.E.2d 315 (1994). See Pittman v. Harbin Clinic Professional Assn., 210 Ga.App. 767, 769(1), 437 S.E.2d 619 (1993).

The territorial restriction was limited to ten specified counties, which were fully identified and fully disclosed to Duplessie at the time he signed the contract. Compare Osta v. Moran, 208 Ga.App. 544, 546-547(2), 430 S.E.2d 837 (1993) (geographic limitation placed upon doctor too potentially restrictive because locations of clinics were subject to change). AEC's evidence showed that it actively advertised and solicited business in each of the ten counties and that Duplessie treated patients from...