Edwards v. Davis
| Decision Date | 14 September 1981 |
| Docket Number | No. 61919,61919 |
| Parties | EDWARDS v. DAVIS. |
| Court | Georgia Court of Appeals |
Andrew R. Kirschner, Atlanta, for appellant.
George R. Neuhauser, Charles H. Ivy, R. Peter Catlin, III, Atlanta, for appellee.
The parties to this appeal, both ophthalmologists, entered into a contract, the net effect of which was to transfer Edwards' practice to Davis. Dissatisfied with the bargain, Edwards subsequently brought suit under various theories seeking to avoid the contract. This appeal is from a summary judgment granted to Davis.
1. In April of 1980, the trial court granted Davis a summary judgment on all counts of Edwards' complaint. At that time, Davis had a counterclaim pending. In June of 1980, Edwards filed an amendment to his complaint, raising a theory of recovery not included in the original complaint. Davis subsequently dismissed his counterclaim and, still later, sought to have Edwards' amendment stricken. The trial court refused but, on Davis' motion, granted another summary judgment to Davis. This appeal is from that judgment. Davis has moved to dismiss this appeal, contending that the time for appeal expired after the April judgment and that all subsequent proceedings were void. We disagree and deny the motion to dismiss.
We find the denial of appellee's motion to be mandated by the Supreme Court's holding in Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641, and by the language of Code Ann. § 81A-154(b). In Culwell, the Supreme Court held that Code Ann. § 81A-156(h), which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in Code Ann. § 81A-154(b). Under that ruling, in a case in which § 81A-154(b) applies because of multiple parties or claims, a party against whom summary judgment has been entered may appeal that judgment immediately or may wait until the entire action is concluded and then appeal. The necessary implication of that decision is that the case is still pending and that the grant of summary judgment is "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Code Ann. § 81A-154(b). Since the case was still pending and there had been no pretrial order entered pursuant to Code Ann. § 81A-116, appellant was authorized by Code Ann. § 81A-115 to amend his pleadings as a matter of right. That being so, by the time appellee dismissed his counterclaim, there was another claim pending. It follows, therefore, that appellant was not required to appeal within 30 days of the entry of the summary judgment or within 30 days of appellee's dismissal of his counterclaim. The final judgment in this case was the one from which this appeal was taken, the second grant of summary judgment to appellee.
2. When appellant amended his complaint, he advanced a new theory of recovery: he contended that a covenant not to compete contained in the contract at issue was void and thereby voided the entire contract. Based on that contention, appellant sought a judgment declaring the contract void. Appellant's first enumeration of error concerns the trial court's ruling that appellant had not presented a justiciable controversy on which a declaratory judgment could be based. We find no error in that ruling.
Appellant's suit for declaratory judgment is based on what he contends is an unreasonable (and therefore void) covenant not to compete. However, appellant has asserted no specific right he wishes to exercise and appellee has not contested the exercise of any right by appellant. Therefore, no controversy has been shown to exist. Compare Insurance Center v. Hamilton, 218 Ga. 597(1a), 129 S.E.2d 801; Watkins v. Avnet, Inc., 122 Ga.App. 474(1), 177 S.E.2d 582. Code Ann. § 110-1101(a) requires that there be an "actual controversy" before a superior court may enter a judgment declaring the rights of the parties. There being no such controversy shown in the present case, the trial court was correct in granting summary judgment to appellee on that claim. See Medlin v. Mickle, 240 Ga. 552, 242 S.E.2d 38.
3. Two other enumerations are also based on appellant's contention that the covenant not to compete is void. The trial court found it not so, and we agree.
Citing Rakestraw v. Lanier, 104 Ga. 188, 30 S.E. 735, appellant argues that the reasonableness of the covenant here must be considered under the stricter standard of review applicable to professional partnership agreements rather than the standard applicable to contracts for the sale of a business. The trial court found the contract to be one for the sale of a business we agree with that holding. Unlike the doctors in Rakestraw, the parties here did not enter into a partnership. Appellee purchased furniture and equipment, subleased office space, bought the right to use the name "Paces Ferry Eye Clinic" and agreed to treat appellant's patients. There was a provision in the contract that appellant would be available for consultation, but that provision was so hedged about with qualifications and limitations as to render appellant's participation in the practice minimal if not illusory. The provisions in the contract for the "employment" of Dr. Edwards were so minor that it would be wholly unrealistic to describe the agreement as an employment contract or as a professional partnership agreement. It also appears from the record that Dr. Edwards, because of ill health, had withdrawn from the active practice of medicine even before the...
To continue reading
Request your trial
-
Moses v. Pennebaker
...contract and fraud claims was filed in clerk's office and before a pretrial order was entered or trial commenced); Edwards v. Davis, 160 Ga.App. 122(1), 286 S.E.2d 301 (1981) (plaintiff was authorized to amend his complaint to raise a new theory of recovery—even after trial court had grante......
-
Compton v. Joseph Lepak, D.D.S., P.C.
...& Overton Clinic, 153 Tex. 363, 269 S.W.2d 798 (1954) (included as annotations within 52 ALR3d 1013, Appendix C); Edwards v. Davis, 160 Ga.App. 122, 286 S.E.2d 301 (1981) (covenant not to compete accompanying sale of physician's practice); Horne v. Radiological Health Services, P.C., 83 Mis......
-
Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc.
...appeal from any grant of summary judgment, is an exception to the finality rule expressed in [OCGA § 9-11-54.]" Edwards v. Davis, 160 Ga.App. 122(1), 286 S.E.2d 301 (1981). 2. The trial court found that only one message was sent by K & N to N.T., its "sister" company, and that K & N had no ......
-
Herndon v. Waller
...238 Ga.App. 829, 520 S.E.2d 499 (1999); Carroll v. Ralston & Assoc., 224 Ga.App. 862, 481 S.E.2d 900 (1997); Edwards v. Davis, 160 Ga.App. 122, 123(3), 286 S.E.2d 301 (1981). And the seller generally receives a part of the purchase price in compensation for his promise not to compete. Carro......