Restrictive covenant. Whitfield Superior Court. Before Judge Partain.
Ogletree, Deakins, Nash, Smoak & Stewart, David P. Thatcher, Christopher M. Caiaccio, Gregory J. Hare, for appellant.
R. Leslie Waycaster, Jr., for appellee.
MCFADDEN, Judge. Andrews, P. J., and Ray, J., concur.
MAPEI Corporation sued former employee Stephen Prosser for violation of a contractual noncompete covenant. Finding that the agreement containing that noncompete covenant had been superseded by a subsequent agreement which covered substantially the same subject matter, contained a superseding-agreement clause, but omitted the noncompete covenant, the trial court granted summary judgment to Prosser. MAPEI appeals, arguing that the trial court [328 Ga.App. 82] erred in finding that the agreement omitting
the noncompete covenant superseded the agreement containing that covenant. Specifically MAPEI argues that the agreement containing the noncompete covenant was revived by Prosser's subsequent conduct: by his delivery to MAPEI's representative of the previously-executed agreement containing the noncompete covenant or by his acceptance of compensation. Alternatively MAPEI invokes the doctrine of mutual mistake. And it argues that, even if most of the agreement containing the noncompete covenant is superseded, the noncompete covenant itself survives. We are not persuaded. We find this case to be controlled by the fundamental principle that a contract is formed upon the parties' assent to its terms. OCGA § § 13-3-1, 13-3-2. We agree with the trial court that Prosser's execution of the agreement omitting the noncompete covenant created a contract entirely superseding the one containing that covenant, and we therefore affirm.
" We review a ruling on a motion for summary judgment de novo, viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant." American Control Systems v. Boyce, 303 Ga.App. 664, 665 (694 S.E.2d 141) (2010) (citation omitted).
So viewed, the record shows that Prosser, a chemist, became an employee of MAPEI when MAPEI acquired his employer in 2009. On June 7, 2011, as a condition of employment, Prosser signed the agreement containing the noncompete covenant. On June 14, 2011, Prosser signed a similar agreement omitting that noncompete covenant. Prosser ended his employment with MAPEI on October 26, 2011, and began working as a chemist for another company, which led to MAPEI's filing this action for breach of the agreement containing the noncompete covenant. The parties moved for summary judgment. The trial court granted Prosser's motion and denied MAPEI's, finding that the agreement omitting the noncompete covenant replaced the agreement containing the noncompete covenant in whole. MAPEI filed this appeal.
1. The terms of the agreements.
(a) The June 7, 2011 agreement, containing the noncompete covenant.
The second introductory paragraph of the agreement containing the noncompete covenant referred to the agreement as " this Employee Confidentiality Agreement." The agreement provided that for five years after his employment ended, Prosser would not disclose MAPEI's confidential information, which it defined and which Prosser acknowledged was a " valuable and unique asset[ ] of [MAPEI,] ... essential to [its] success, and that ... derive[s] economic value from not being known to those outside [MAPEI]." It included a nonsolicitation [328 Ga.App. 83] covenant, which provided that for a year after his employment ...