Mapei Corp. v. Prosser
| Decision Date | 09 July 2014 |
| Docket Number | No. A14A0368.,A14A0368. |
| Citation | 761 S.E.2d 500,328 Ga.App. 81 |
| Court | Georgia Court of Appeals |
| Parties | MAPEI CORPORATION v. PROSSER. |
328 Ga.App. 81
761 S.E.2d 500
MAPEI CORPORATION
v.
PROSSER.
No. A14A0368.
Court of Appeals of Georgia.
July 9, 2014.
[761 S.E.2d 501]
Christopher Michael Caiaccio, Gregory John Hare, David Paul Thatcher, Atlanta, for Appellant.
R. Leslie Waycaster Jr., for Appellee.
McFADDEN, Judge.
MAPEI Corporation sued former employee Stephen Prosser for violation of a contractual non-compete covenant. Finding that the agreement containing that non-compete covenant had been superseded by a subsequent agreement which covered substantially the same subject matter, contained a superseding-agreement clause, but omitted the non-compete covenant, the trial court granted summary judgment to Prosser. MAPEI appeals, arguing that the trial court erred in finding that the agreement omitting the non-compete covenant superseded the agreement containing that covenant. Specifically MAPEI argues that the agreement containing the non-compete covenant was revived by Prosser's subsequent conduct: by his delivery to MAPEI's representative of the previously-executed agreement containing the non-compete covenant or by his acceptance of compensation. Alternatively MAPEI invokes the doctrine of mutual mistake. And it argues that, even if most of the agreement containing the non-compete covenant is superceded, the non-compete covenant itself survives. We are not persuaded. We find this case to be controlled by the fundamental principle that a contract is formed upon the parties' assent to its terms. OCGA §§ 13–3–1, 13–3–2. We agree with the trial court that Prosser's execution of the agreement omitting the non-compete covenant created a contract entirely superseding the one containing that covenant, and we therefore affirm.
“We review a ruling on a motion for summary judgment de novo, viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant.” American Control Systems v. Boyce, 303 Ga.App. 664, 665, 694 S.E.2d 141 (2010) (citation omitted).
So viewed, the record shows that Prosser, a chemist, became an employee of MAPEI when MAPEI acquired his employer in 2009. On June 7, 2011, as a condition of employment, Prosser signed the agreement containing
[761 S.E.2d 502]
the non-compete covenant. On June 14, 2011, Prosser signed a similar agreement omitting that non-compete covenant. Prosser ended his employment with MAPEI on October 26, 2011, and began working as a chemist for another company, which led to MAPEI's filing this action for breach of the agreement containing the non-compete covenant. The parties moved for summary judgment. The trial court granted Prosser's motion and denied MAPEI's, finding that the agreement omitting the non-compete covenant replaced the agreement containing the non-compete covenant in whole. MAPEI filed this appeal.
1. The terms of the agreements.(a) The June 7, 2011 agreement, containing the non-compete covenant.The second introductory paragraph of the agreement containing the non-compete covenant referred to the agreement as “this Employee Confidentiality Agreement.” The agreement provided that for five years after his employment ended, Prosser would not disclose MAPEI's confidential information, which it defined and which Prosser acknowledged was a “valuable and unique asset[ ] of [MAPEI,] ... essential to [its] success, and that ... derive[s] economic value from not being known to those outside [MAPEI].” It included a non-solicitation covenant, which provided that for a year after his employment ended, Prosser would not solicit MAPEI customers and employees. It included a non-compete covenant, which provided that Prosser would not “own, manage, operate, join, control, be employed by or with, consult with or work with a Competing Business anywhere in the United States where doing so [would] require [him] to provide a Competing Business with the same or similar services [he] provided to [MAPEI] while [he] was employed by [MAPEI].” It defined “competing business” as any entity that was “directly engaged in whole or in relevant part in any business or enterprise that is the same as, or similar as, the [b]usiness of [MAPEI], which is defined as a manufacturer of adhesives, sealants, and other chemical products for the building industry.”
The agreement required Prosser to acknowledge that all intellectual property he created while employed by MAPEI belonged to MAPEI and assigned his rights in such property to MAPEI.
It contained a superseding-agreement clause:
This Agreement, including the assignment [of rights to intellectual property] described in paragraph 7 above, shall continue after I am no longer employed by [MAPEI]. This Agreement totally replaces all prior contractual agreements or understandings between us, whether oral or written, about confidential information or any other subject matter contained herein.
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