Fleury v. AFAB, Inc., A92A1887

• Decision Date: 29 September 1992
• Docket Number: No. A92A1887,A92A1887
• Citation: 205 Ga.App. 642,423 S.E.2d 49
• Parties: , 1992-2 Trade Cases P 70,062 FLEURY v. AFAB, INC.
• Court: Georgia Court of Appeals

Page 49

423 S.E.2d 49

205 Ga.App. 642, 1992-2 Trade Cases P 70,062

FLEURY v. AFAB, INC.

No. A92A1887.

Court of Appeals of Georgia.

Sept. 29, 1992.

Patricia B. Ball, Norcross, for appellant.

Mark Weber, Mark A. Baker, Atlanta, for appellee.

McMURRAY, Presiding Judge.

AFAB, Inc. d/b/a Fugi's Hair Designers ("Fugi") filed a complaint and a motion for a temporary restraining order against Melanie Fleury seeking to enjoin her from performing hairstyling services within two miles of Fugi's barber shop located at Buckhead Plaza in Atlanta, Georgia. Fugi alleged that Fleury is performing hairstyling services in violation of a covenant not to compete prohibiting her from competing with Fugi within one year after her termination of employment.

After a hearing on Fugi's motion for a temporary restraining order, the superior court enjoined Fleury from competing with Fugi "for a period of one (1) year from February 20, 1992, the date of termination of employment and within a two (2) mile radius from [Fugi's] place of employment located at Buckhead Plaza, Atlanta, Georgia, which injunction shall become effective after April 9, 1992." Fleury later filed a motion to dissolve the temporary restraining order and Fugi filed a motion to have Fleury held in contempt for performing hairstyling services in violation of the temporary restraining order. Fleury then filed an answer and a counterclaim, seeking damages for abusive litigation. Fleury also filed a motion to dismiss, arguing that the covenant not to compete is unenforceable because the activity restrictions are unreasonable and indefinite.

The superior court subsequently entered an order finding that Fleury began cutting and styling hair for Fugi after the parties entered into an employment agreement on October 4, 1989, and that the employment agreement included the following covenant not to compete: " 'To induce the Employer to enter into this Employment Agreement and as a condition precedent to this Contract, the Employee agrees that upon termination or expiration of Employee's employment with the Employer, Employee shall not, for a period [of] one (1) year and within a radius of two (2) miles from the Employee's place of employment ... enter into or engage in any duty or responsibility for which Employee performed for Employers, or any business performed by Employer, either as an employee of an existing or new business or on his/her own account, either as a proprietor, partner, joint venturer, or controlling stockholder of a corporation. This agreement shall not be construed to prohibit Employee from having an ownership interest in an industry related business so long as Employee is not employed by that business to perform the duties which Employee is performing for Employer hereunder.' "

The superior court also found that the employment relationship between Fleury and Fugi terminated on February 20, 1992, and that Fleury began performing hairstyling services less than two miles from Fugi's Buckhead based barber shop before the anniversary of Fleury's termination of employment. The...