Dunn v. Frank Miller Assocs., Inc., 227 S.E.2d 243 (Ga. 1976). · Go Syfert
Dunn v. Frank Miller Assocs., Inc., 227 S.E.2d 243 (Ga. 1976). Cases Citing This Book View Copy Cite
36 citation events (4 in the last 25 years) across 6 distinct courts.
Strongest positive: Smith v. HBT, INC. (gactapp, 1994-06-03)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 7 distinct citers.
discussed Cited as authority (rule) Smith v. HBT, INC.
Ga. Ct. App. · 1994 · confidence medium
Although this court has held that a restriction of employment in a business “in any capacity” is overbroad and unreasonable, Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 ( 227 SE2d 243 ) (1976), this is not an “in any capacity” case.
discussed Cited as authority (rule) Firearms Training Systems, Inc. v. Sharp
Ga. Ct. App. · 1994 · confidence medium
In the case sub judice, the covenant prohibits Sharp from working in any capacity in the world in the business of developing or selling electronic firearm systems for the three-year period following his termination. “[A]n employment contract which prohibits the employee, upon leaving such employment, from obtaining employment with a competitor in any capacity is unreasonable. . . . [Such a covenant] impostes] greater limitations on the employee than [are] necessary for the protection of the employer. [Cit.]” Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 ( 227 SE2d 243 ) (1976).
discussed Cited as authority (rule) National Settlement Associates of Georgia, Inc. v. Creel
Ga. · 1986 · confidence medium
This court has held that “an employment contract which prohibits the employee, upon leaving such employment, from obtaining employment with a competitor in any capacity is unreasonable.” Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 ( 227 SE2d 243 ) (1976); Hudgins & Co. v. Cole, 247 Ga. 182 ( 274 SE2d 462 ) (1981).
cited Cited as authority (rule) HUDGINS & COMPANY, INC. v. Cole
Ga. · 1981 · confidence medium
Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 185 ( 236 SE2d 265 ) (1977); Dunn v. Frank Miller Associates, 237 Ga. 266, 268 ( 227 SE2d 243 ) (1976).
discussed Cited "see" Drumheller v. Drumheller Bag & Supply, Inc. (2×)
Ga. Ct. App. · 1992 · signal: see · confidence high
See Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 ( 227 SE2d 243 ).
discussed Cited "see" Shandor v. Wells National Service Corp. (2×)
N.D. Ga. · 1979 · signal: see · confidence high
See Dunn v. Frank Miller Assoc., 237 Ga. 266 , 227 S.E.2d 243 ; Britt v. Davis, 239 Ga. 747 , 238 S.E.2d 881 ; McNease v. National Motor Club, 238 Ga. 53 , 231 S.E.2d 58 .
discussed Cited "see" Sheppard v. COLUMBUS PACKAGING COMPANY, INC. (2×)
Ga. Ct. App. · 1978 · signal: see · confidence high
See Dunn v. Frank Miller Assoc., 237 Ga. 266 ( 227 SE2d 243 ); Britt v. Davis, 239 Ga. 747 ( 238 SE2d 881 ); McNease v. National Motor Club, 238 Ga. 53 ( 231 SE2d 58 ).
Dunn
v.
Frank Miller Associates, Inc.
31146.
Supreme Court of Georgia.
Jun 30, 1976.
227 S.E.2d 243
Michael J. Gannam, for appellant., David H. Fritts, for appellee.
Gunter, Nichols, Jordan.
Cited by 18 opinions  |  Published

Lead Opinion

Per curiam.

Frank Miller Associates, Inc., t/a Snelling and Snelling, brought a complaint against Mary C. Dunn alleging that: the plaintiff operates an employment agency; the defendant signed a contract with the plaintiff at the time she was employed; she has violated this contract by accepting employment with another employment agency within one year of the date of the termination of her employment with the plaintiff. The plaintiff prayed that the defendant be temporarily restrained and permanently enjoined from violating her contract.

The trial judge granted a temporary restraining order. The defendant filed an answer and counterclaim for damages, seeking commissions alleged to be due and[*267] alleging that the filing of the injunction action and the obtaining of the restraining order caused her to leave the employment she had obtained, and to be unable to obtain other employment.

At the conclusion of a trial before a jury the trial judge directed the jury to return a verdict in favor of the plaintiff for a permanent injunction against the defendant, and against the defendant on her counterclaim. Judgment was entered accordingly. The defendant appeals from this judgment, enumerating as error the denial of her motion for directed verdict, and the direction of a verdict for permanent injunction against her.

The appellant (defendant) was employed by the appellee (plaintiff) on August 1,1972, as an employment counselor. Her employment was terminated on October 15, 1974, by the appellee. Immediately thereafter she obtained a position with another employment agency as an employment counselor within a radius of 25 miles of the office of the appellee.

In the contract signed by the appellant she was employed as an employment placement counselor. It provided that the employment relationship between the parties may be terminated at any time by either party with or without notice. It contained a covenant against competition wherein the appellant agreed that she would not "within a period of one year following termination of employment for any cause whatsoever, directly or indirectly, engage in the employment agency business for himself in association in any capacity with any other person or firm engaged in a similar business to first party’s, within a radius of 25 miles of first party’s office...”

Covenants against competition in employment contracts are considered in partial restraint of trade and are to be tolerated only if reasonably limited as to time and territory and otherwise reasonable. The question of reasonableness of the contract is for the court.

In the present contract the time limit of one year, and the territorial limit of a radius of 25 miles of the appellee’s office, were reasonable for the type of employment for which the appellant was engaged. Mike Bajalia, Inc. v. Pike, 226 Ga. 131 (172 SE2d 676) (1970).

[*268] Argued May 11, 1976 Decided June 30, 1976 Rehearing denied July 15, 1976. Michael J. Gannam, for appellant. David H. Fritts, for appellee.

This court has held that an employment contract which prohibits the employee, upon leaving such employment, from obtaining employment with a competitor in any capacity is unreasonable. Dixie Bearings, Inc. v. Walker, 19 Ga. 353 (133 SE2d 338) (1963); Federated Mut. Ins. Co. v. Whitaker, 232 Ga. 811, 814 (209 SE2d 161) (1974). The contract in the present case prohibits the employee from being employed "in any capacity” by a competitor. It would prohibit appellant from being employed as a bookkeeper, secretary or filing clerk by a competitor. The contract, therefore, is unreasonable as imposing greater limitations on the employee than were necessary for the protection of the employer. Federated Mut. Ins. Co. v. Whitaker, supra.

The trial court erred in overruling appellant’s motion for directed verdict based on the ground that the restrictive covenant was unenforceable and erred in directing a verdict in favor of the appellee and entering a permanent injunction against appellant.

Judgment reversed.

All the Justices concur, except Gunter, J., who concurs specially, and Nichols, C. J., and Jordan, J., who dissent.

Dissent

Jordan, Justice,

dissenting.

It is my opinion that the contract in the present case does not prohibit the appellant from being employed in any capacity by a competitor. She agreed that she would not "engage in the employment agency business ... in association in any capacity” with a competitor. (Emphasis supplied.) This means that she will not perform services directly connected with the employment agency business in any capacity, that is, as a partner, consultant, employee, etc. The contract, therefore, is not unreasonable as imposing greater limitations on the appellant than were necessary for the protection of the[*269] appellee. Coffee System of Atlanta v. Fox, 226 Ga. 593, 596 (176 SE2d 71) (1970).

I am authorized to state that Chief Justice Nichols joins in this dissent.