Valdez v. Power Industry Consultants, Inc.

• Decision Date: 17 November 1994
• Docket Number: No. A94A1637,A94A1637
• Citation: 451 S.E.2d 87,215 Ga.App. 444
• Parties: VALDEZ v. POWER INDUSTRY CONSULTANTS, INC.
• Court: Georgia Court of Appeals

Page 87

451 S.E.2d 87

215 Ga.App. 444

VALDEZ v. POWER INDUSTRY CONSULTANTS, INC.

No. A94A1637.

Court of Appeals of Georgia.

Nov. 17, 1994.

Reconsideration Denied Dec. 5, 1994.

Certiorari Denied March 10, 1995.

Charles M. Goetz, Jr., Philippa V. Tibbs, Atlanta, for appellant.

Freeman & Hawkins, Warner S. Fox, Atlanta, for appellees.

SMITH, Judge.

Freddy Valdez filed this action seeking damages from Power Industry Consultants, Inc. ("PIC") and its president, James Flandreau, for tortious interference with business relations. A jury returned a verdict in favor of PIC, and Valdez appeals, contending the trial court erred in giving two erroneous jury charges and in failing to give two jury charges requested by Valdez. We agree that the jury instructions were erroneous and remand for a new trial.

In reviewing a jury instruction, we must determine if any evidence was presented at trial to support it. Feathers v. Wilson, 157 Ga.App. 753(1), 278 S.E.2d 434 (1981). There was evidence presented at trial that Valdez is a technical consultant working primarily in the electrical power generating industry. PIC is a placement firm supplying consultants to the industry on a project-by-project basis. It charges its customers on an hourly basis for the consultants' services, and keeps a percentage of that hourly rate for its profit.

In 1988, Valdez contacted Flandreau seeking international employment, which enhances a consultant's marketability. Valdez signed an agreement with PIC for a specific job in Santo Domingo for General Electric ("GE"). The agreement was styled "International Defined Term Employment Agreement" and provided that Valdez would not seek work with PIC's client for one year after termination of the agreement. It also stated that the employment was for a particular service and terminated after completion of the agreement. The Santo Domingo job was cancelled at the last moment. Valdez never went to Santo Domingo, never performed any services, and never received any compensation under the agreement. However, Flandreau contended at trial that despite its language, the Santo Domingo contract was intended as a "master" agreement that remains in effect and is applicable to any subsequent placements by PIC whether domestic or foreign.

PIC also had a "master contract" with GE providing: "GE and Contractor [PIC] agree that neither will solicit any of the employees of the other for employment or hire, so long as this Contract is in effect and for one (1) year following termination, unless prior written consent to do so is obtained." Valdez was not a party to this agreement.

After several other attempts to place Valdez on several short-term jobs which were domestic rather than international, Valdez testified he obtained a full-time job in the United States without the assistance of PIC. He continued to seek international work independently of PIC, and approached GE with regard to one of several positions in China. In early 1990, he successfully negotiated with GE for a technical position on one of its projects in China; they reached a verbal agreement with the understanding that a written contract would be delivered by overnight express to Valdez's home in New Mexico.

Flandreau acknowledged Valdez was not an employee of PIC at the time he sought the China job, and that Valdez approached GE rather than GE soliciting Valdez. However, when Flandreau heard that Valdez was being hired by GE, he intervened in the contract negotiations between GE and Valdez. He telephoned the GE employee involved in the hiring process and told him that GE was violating its master contract with PIC and engaging in illegal, wrongful, and unethical conduct. He also told the employee that GE was paying Valdez at too high a rate. Flandreau also faxed a copy of the Santo Domingo agreement to the same employee, adding a handwritten note that Valdez was bound by the agreement because Valdez had worked within the year for several weeks with GE in Oklahoma. As a result of this conversation and fax, GE broke off its negotiations with Valdez, and he did not obtain the China position.

1. Valdez contends the trial court erred in charging the jury on the "competition privilege" established in Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 242 S.E.2d 135 (1978). This privilege constitutes a defense to a claim of interference with contractual relations where (a) the relation concerns a matter involved in the competition between the actor and the competitor; (b) the actor does not employ improper means; (c) the actor does not intend thereby to create or continue an illegal restraint of competition; and (d) the actor's purpose is at least in part to advance its interests in its competition with the other. 240 Ga. at 666, 242 S.E.2d 135. The Orkin court, however, applied this privilege as between two pest control companies engaged in the same business, performing the same activities for their customers, and competing for the same customers or employees. Cases relying upon Orkin have limited the scope of the privilege in the same fashion. See American Bldgs. Co. v Pascoe Bldg. Systems, 260 Ga. 346, 348-349(2), 392 S.E.2d 860 (1990) (two prefabricated building manufacturers competing for same employees); Contractors' Bldg. Supply v. Gwinnett Sash & Door, Inc., 199 Ga.App. 38, 40(2), 403 S.E.2d 844 (1991) (two competing building supply companies); Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga.App. 678, 680-681(1), 359 S.E.2d 737 (1987) (two competing advertising agencies.) PIC urges the application of Local 472 etc. v. Ga. Power Co., 684 F.2d 721 (11th Cir.1982), which cites Orkin. Because it is factually and legally distinguishable, we decline to consider it. It involved a dispute between a labor union and an employer, applying federal common law and the Labor Management Relations Act, 29 USC §§ 185, 186(a), and has no application here.

The trial court's charge of the competition privilege was inapplicable to the facts of this case. Valdez is not a "competitor" of PIC. He is not in the job placement or personnel business. He is seeking personal employment in his field of expertise. The irrelevance of the competition privilege here is supported by the language of Orkin itself, which notes the strong public interest in "the free movement of employees in the marketplace as opportunity, experience and competition permits." Orkin at 667, 242 S.E.2d 135. Interpretation of the privilege as PIC suggests would run directly counter to the stated public interest and reverse the intended effect, turning the shield of the competition privilege into a sword for driving former employees from their chosen field. An employee cannot be prevented from employing the skills and knowledge obtained in the course of employment; a properly drafted and limited non-competition or non-disclosure agreement, not the Orkin privilege, is the appropriate method for protecting the business interests of PIC. American Bldgs. Co., supra, 260 Ga. at 350(3), 392 S.E.2d 860.

A charge unauthorized by the evidence, which injects into the case issues not made by the pleadings or evidence, is presumed to be harmful to the losing party, and such a charge is grounds for new trial unless it is apparent that the jury could not have been misled by it. Petrolane Gas Svc. v. Eusery, 193 Ga.App. 860, 862(2), 389 S.E.2d 355 (1989). In the present case, the charge could have confused and misled the jury by giving PIC and Flandreau a defense to which th...