Robinwood, Inc. v. Baker

• Decision Date: 06 November 1992
• Docket Number: No. A92A1196,A92A1196
• Citation: 206 Ga.App. 202,425 S.E.2d 353
• Parties: ROBINWOOD, INC. v. BAKER.
• Court: Georgia Court of Appeals

Page 353

425 S.E.2d 353

206 Ga.App. 202

ROBINWOOD, INC. v. BAKER.

No. A92A1196.

Court of Appeals of Georgia.

Nov. 6, 1992.

Paul S. Liston, Fayetteville, for appellant.

John B. Degonia, Covington, for appellee.

BEASLEY, Judge.

Robinwood, Inc. and Baker entered into a contract for labor, which was terminated several years later. Robinwood sought temporary and permanent injunctions and unspecified damages; Baker counterclaimed. The court on its own motion directed a verdict for defendant Baker as to Robinwood's damage claim and in favor of Baker on her counterclaim in the amount of $86.50. Robinwood seeks reversal as to its claim.

1. Citing Heuer Industrials v. Crum, 202 Ga.App. 675, 415 S.E.2d 307 (1992), and OCGA § 5-6-35(a)(6), appellee has filed a motion to dismiss the appeal. The motion is denied.

An application is required under OCGA § 5-6-35(a)(6) whenever an appeal is taken from a judgment of $10,000 or some lesser sum. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457, 339 S.E.2d 590 (1986). OCGA § 5-6-35(a)(6) sets out the correct method of appeal from monetary judgments ranging from one cent to $10,000. City of Brunswick v. Todd, 255 Ga. 448, 339 S.E.2d 589 (1986). As a general rule, the provisions of OCGA § 5-6-35(a)(6) do not apply to an appeal from a judgment in favor of a defendant. Motor Fin. Co. v. Davis, 188 Ga.App. 291, 372 S.E.2d 674 (1988).

Robinwood's notice of appeal is from that part of the judgment entered against "the Plaintiff" and in favor of "the Defendant"; however, the judgment also awards $86.50 in favor of plaintiff-in-counterclaim against defendant-in-counterclaim. In determining whether an appeal falls within the ambit of the discretionary appeals procedure, the final judgment is considered in its entirety (cf. City of Brunswick, supra), and not merely in its various parts. See Alexander v. Steining, 197 Ga.App. 328(1), 398 S.E.2d 390 (1990). It includes an award for defendant as to plaintiff Robinwood's claim or, in effect, a "zero" award for appellant as to its claim, as well as a small award on the counterclaim.

If this case involved solely the appeal of a "zero" award, there would be a right of direct appeal. See Bales v. Shelton, 260 Ga. 335, 391 S.E.2d 394 (1990); City of Brunswick, supra; Rich v. McDonald Car etc., Leasing, 180 Ga.App. 613, 349 S.E.2d 832 (1986), overruled on other grounds to the extent contrary, Honester v. Tinsley, 183 Ga.App. 146, 147(1), 358 S.E.2d 295 (1987). In Boatner v. Kandul, 180 Ga.App. 234, 348 S.E.2d 753 (1986), judgment was entered on the jury verdict awarding plaintiff/appellee $450 on her claim and "0" to defendant/appellant on his counterclaim. We assumed jurisdiction over the direct appeal filed by appellant, holding: "Although none of appellant's enumerations specifically addresses the counterclaim, they generally contend error in the judgment rendered by the trial court, which includes the zero verdict on appellant's counterclaim. Therefore, under City of Brunswick v. Todd, [supra], we must address this appeal." Id. at 234(2); compare Williams v. Opriciu, 198 Ga.App. 663, 402 S.E.2d 744 (1991); Honester, supra; Williams v. Charter Credit Co., 179 Ga.App. 721, 347 S.E.2d 635 (1986).

We do not construe OCGA § 5-6-35(a)(6) as requiring an application for discretionary appeal when the "zero" award is on the main claim and the award on the counterclaim is under $10,000, but allowing direct appeal when the "zero" award is on the counterclaim and the award on the main claim is under $10,000. A statute must be construed to avoid an absurd result. See generally Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104 (1991). Accordingly, appellant/plaintiff was authorized to file a direct appeal as to the "zero" award on the main claim. OCGA § 5-6-34(a); see Boatner, supra. The portion of the judgment pertaining to the counterclaim would be reviewable on direct appeal (to the extent any issues were not otherwise abandoned) pursuant to OCGA § 5-6-34(d). See Williams v. Opriciu, supra.

2. Robinwood asserts the trial court failed to employ recognized rules of contract construction in concluding that the phrase "not less than two years" is definite, clear, and unambiguous, and by failing to submit the issue of the parties' contractual intent on this matter to the jury.

The employment contract provided: "Contractor [appellee Peggy Baker] further agrees that she shall not establish or purchase another personal care home in either DeKalb, Rockdale, or Newton County for a period not less than 2 years following the termination of this contract." The contract was prepared in final form by a local lawyer at the direction of Robinwood's president after the parties negotiated its terms.

The trial court held that the questioned phrase was plain, had "no cap" on the time it was to run, and that, as the words were not ambiguous, parol evidence of the party's intent would not be admissible to show ambiguity. ¹ It directed a verdict on the ground that the questioned phrase in the clause was unenforceable as it was of indefinite duration, and that the remaining restrictive covenant in the contract also was unenforceable under the precedent of Ward v. Process Control Corp., 247 Ga. 583, 584, 277 S.E.2d 671 (1981).

Robinwood had alleged in its complaint that in the agreement, which was attached as an exhibit, "Defendant ... agreed that she would neither purchase nor establish a personal care home in Newton County for a two year period from the date the agreement between the parties terminated. The agreement was terminated January 25, 1991." The complaint was filed February 26. Peggy Baker admitted these allegations in her answer. She also admitted that her husband had purchased a dwelling in Newton County but denied that she had announced her intention for them to use it as an elderly care home.

A month before trial, plaintiff amended its complaint and added Peggy's husband Terry as a defendant. It alleged again that Peggy Baker agreed in the attached agreement "that she would neither purchase nor establish a personal care home in Newton County for a two-year period from the date the Agreement between the parties terminated. The agreement was terminated on January 25, 1991." Defendants in their answer admitted these allegations and that Terry Baker purchased a dwelling in Newton County but they denied opening the dwelling as an elderly care home on or about February 25.

In this manner the meaning of the time period during which the restriction was to run was established as fact by the parties, conclusively. OCGA § 9-11-8(d); Martin v. Pierce, 140 Ga.App. 897(1), 232 S.E.2d 170 (1977). The case was tried on the pleadings, without any pretrial order.

It was clear to the parties, as demonstrated by the pleadings, and it is clear as stated on the face of the document, Peggy Baker "agree[d] that she shall not establish or purchase another personal care home in either DeKalb, Rockdale, or Newton Counties for a period of not less than two years following the termination of this Contract."

The two points fixed for the restricted period were the date of termination and two years thereafter. The restriction was for two years, period. That meant that at any time after two years from the determinable date of termination, Peggy Baker could establish or purchase another personal care home or homes in the three-county territory. When it is the latter of two points in time, as here, "not less than two years" means two years. "Not less than" as used in the sentence merely emphasizes that the restricted period is two years and not a day less. It is the employer saying, "You have agreed not to compete for two years, and when the time comes to measure it, I will not accept anything less than two years."

This common vernacular method of focusing on a particular highlights the fact that it is a deliberately chosen one. When used at the ending point, "not less than" means that particular number, and no other "maximum" is stated because there is none. It would not make sense for the wording to be that Baker promises she will not open a home for a period of not less than two years after her termination nor more than, say, three years. That would be a very roundabout way of saying she would not open a home for three years after termination. "Not less than two years" would have no meaning, as it would not measure any operative event.

Nor can it logically be construed to mean that the restrictive period does not begin at the end of two years and run to some undefined future date. It is illogical to conclude that the restriction only began at the end of two years and allowed her to open a competing establishment at any time within the first two years after ending her employment. Not only is it illogical, but such a construction ignores the contract's words "from the date of termination." As stated in the contract, the period is measured from the date of termination; it begins then and ends at the expiration of two years. It begins at termination and ends at two years.

When used together with a "not more than" clause, a "not less than" clause prescribes a minimum beginning point of reference. An example is that a robber "shall be punished by imprisonment for not less than one nor more than 20 years." OCGA § 16-8-40(b). An example of the law's use of a phrase comparable to "not less than" as the ultimate operative point is found in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991): A defendant may win summary judgment by showing "that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." More is of no significance, just as in the Robinwood-Baker contract, more than two years is of no significance.

The application of the appropriate rules of contract construction leads to the conclusion that the trial court erred in directing a verdict on the ground that the phrase had an unambiguous opposite meaning. The...