Marcoin, Inc. v. Waldron

• Decision Date: 07 September 1979
• Docket Number: 35037,Nos. 34981,s. 34981
• Citation: 244 Ga. 169,259 S.E.2d 433
• Parties: MARCOIN, INC. v. WALDRON. WALDRON v. MARCOIN, INC.
• Court: Georgia Supreme Court

Page 433

259 S.E.2d 433

244 Ga. 169

MARCOIN, INC. v. WALDRON.

WALDRON v. MARCOIN, INC.

Nos. 34981, 35037.

Supreme Court of Georgia.

Argued June 12, 1979.

Decided Sept. 7, 1979.

William R. Bassett, Harvey M. Koenig, Atlanta, for appellant.

Alston, Miller & Gaines, W. T. Walsh, John C. Weitnauer, Atlanta, for appellee.

BOWLES, Justice.

In this case, we again consider the validity of a restrictive covenant in an employment agreement. Marcoin, Inc., the employer, provides counseling and general business services to small businesses, primarily gasoline service stations. Waldron was employed by Marcoin in its Atlanta office as a business counselor and serviced approximately fifty clients. Included in Waldron's employment agreement was the following restrictive covenant:

"1. Employee agrees that he will not, in any way directly or indirectly, at any time while in the employ of Employer or within two (2) years after the termination of his employment, whether such termination be voluntary or involuntary, solicit, divert, take away or attempt to solicit, divert or take away from Employer, any of the customers of Employer that were served by Employee during the term of his employment, or whose names and/or addresses become known to Employee in any manner during the term of his employment, providing that Employer or any person deriving title to the business of Employer carries on a similar business in the aforesaid territory. Employee further agrees that he will not, during his employment or within (2) years thereafter, attempt to seek to cause any of the customers of Employer to refrain from patronizing Employer and will not assist any other person or persons to do so."

Waldron left his employment, became self-employed and within a month was providing services to at least 18 of the 50 clients he had serviced as Marcoin's employee. Marcoin sought an injunction and Waldron answered (a) denying the violation of the covenant and (b) alleging that the restrictive covenant was void and unenforceable.

The trial court denied the injunction finding as a fact that Waldron had taken no Affirmative action to take these clients away from Marcoin and concluding as a matter of law that affirmative action was required for a violation of the covenant. Marcoin contends that the fact that the clients are being serviced by Waldron constitutes a violation. The trial court also concluded as a matter of law that the restrictive covenant was enforceable, being limited in time, territory and not otherwise unreasonable.

Marcoin appeals alleging the trial court erred in denying the injunction. Waldron cross-appeals alleging the trial court erred in holding the restrictive covenant enforceable.

We affirm both holdings.

1. We agree with the trial court that the words "solicit," "divert" and "take away" require affirmative action on the part of an employee before a restrictive covenant prohibiting such conduct is violated. If an employer wishes to prevent a former employee from Accepting business from former clients of the employer such language can be made part of the covenant. See Coffee System of...