White v. Lance H. Herndon, Inc.

• Decision Date: 11 March 1992
• Docket Number: No. A91A1940,A91A1940
• Citation: 203 Ga.App. 580,417 S.E.2d 383
• Parties: WHITE v. LANCE H. HERNDON, INC.
• Court: Georgia Court of Appeals

Page 383

417 S.E.2d 383

203 Ga.App. 580

WHITE v. LANCE H. HERNDON, INC.

No. A91A1940.

Court of Appeals of Georgia.

March 11, 1992.

Reconsideration Denied March 26, 1992.

Certiorari Denied May 21, 1992.

Mark T. Sallee, for appellant.

Bauer, Deitch & Raines, Gerald B. Kline, for appellee.

CARLEY, Presiding Judge.

Appellee-plaintiff, which does business as "Access, Inc.," provides computer programming and systems analysis services. It agreed to provide such services to the Atlanta office of National Data Corporation (NDC) and, in furtherance thereof, appellee entered into an "Independent Contractor Agreement" with appellant-defendant. In this agreement, appellant contracted to provide computer services to NDC on behalf of appellee and further covenanted that, for a four-month period after termination of his agreement with appellee, he would not perform any other computer services for NDC on his own behalf. When appellant terminated his agreement with appellee and thereafter allegedly breached his covenant by providing computer services to NDC during the applicable four-month period, appellee filed suit to recover monetary damages and attorney's fees. The case was tried before a jury and resulted in a verdict in favor of appellee. Appellant appeals from the judgment entered by the trial court on the jury's verdict.

1. The denials of appellant's motions for judgment on the pleadings and for summary judgment are moot issues. Litton Indus. Credit Corp. v. Lunceford, 175 Ga.App. 445(1), 333 S.E.2d 373 (1985); Dein v. Citizens Jewelry Co., 149 Ga.App. 340, 341(4), 254 S.E.2d 403 (1979).

2. As originally filed, the complaint denominated the plaintiff as "Access, Inc." The trial court did not err in allowing the complaint to be amended so as to denominate appellee as the plaintiff. Block v. Voyager Life Ins. Co., 251 Ga. 162(1), 303 S.E.2d 742 (1983); Wilson v. Cunningham, 185 Ga.App. 734(1), 365 S.E.2d 534 (1988). Contrary to appellant's contentions, the instant contract is enforceable against him, notwithstanding that it was executed by appellee in the name of "Access, Inc." Freeman v. C.W. Redfern Enterprises, 182 Ga.App. 205, 206(1), 355 S.E.2d 79 (1987).

3. Appellant enumerates as error the denial of his motion for a directed verdict. Our consideration of this enumeration is limited to only those grounds which were raised in the trial court. Grabowski v. Radiology Assoc., P.A., 181 Ga.App. 298, 299(2), 352 S.E.2d 185 (1986).

Appellant urged that the covenant is overly broad and unenforceable against him. By its terms, however, appellant agreed that, for a four-month period, he would not engage in the limited activity of performing computer services for only one of appellee's clients, that single client being the Atlanta office of NDC. Under these circumstances, the covenant is not overly broad and unenforceable. Compare Club Properties v. Atlanta Offices-Perimeter, 180 Ga.App. 352, 348 S.E.2d 919 (1986).

Contrary to appellant's contentions, appellee is not relegated to its equitable remedy of injunction, but it is authorized to sue for damages for the breach of the covenant. Reid v. Bryant, 208 Ga. 328(2), 66 S.E.2d 826 (1951).

4. At the close of the evidence, the trial court granted appellee's motion for directed verdict as to appellant's counterclaim. Appellant does not enumerate this ruling as error. Nevertheless, he does urge that the trial court erred in refusing to submit to the jury the issue of his entitlement to attorney's fees and expenses of litigation pursuant to OCGA § 13-6-11.

Appellant was not entitled to any recovery under OCGA § 13-6-11 based upon appellee's alleged "bad faith" in prosecution of the instant action. Attorney's fees and expenses of litigation pursuant to OCGA § 13-6-11 are " 'not available to a defendant in the absence of a "viable independent counterclaim asserting (a) claim for relief independent of the assertion of the (plaintiff's) harassment, litigiousness and bad faith in bringing ... suit." [Cit.]' " Vogtle v. Coleman, 259 Ga. 115, 117(3), 376 S.E.2d 861 (1989). Since appellant does not contend that his independent counterclaim against appellee was viable, it follows that the trial court correctly refused to submit to the jury the issue of his entitlement to a recovery under OCGA § 13-6-11.

5. At trial, appellant tendered what he denominated as the original of his contract with appellee. This document, which contained blank spaces, was excluded by the trial court on the basis that appellant had not disclosed its existence during discovery. Thereafter, appellee tendered what it denominated as a photocopy of the lost original of its contract with appellant. This document, which contained no blank spaces, was admitted by the trial court.

Appellee's document was tendered as a photocopy of the original of the contract which had been lost. Appellant did not contend that he did not execute the original, but argued only that the document tendered by appellee reflected alterations insofar as the blanks had been filled in after execution. Under these circumstances, appellee was entitled to have its document admitted pursuant to OCGA § 24-5-21 and appellant was entitled to introduce evidence to show that the document had been altered. Howard Piano Co. v. Glover, 7 Ga.App. 548, 550(2), 67 S.E. 277 (1910). It...