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Blair v. Pantera Enterprises, Inc.

Court of Appeals of Georgia, Third Division

March 5, 2019

BLAIR
v.
PANTERA ENTERPRISES, INC.

          GOBEIL, COOMER AND HODGES, JJ.

          COOMER, JUDGE.

         Pantera Enterprises, Inc. ("Pantera") sued Stephen Blair seeking injunctive relief due to his alleged violation of a non-compete agreement. The trial court granted injunctive relief to Pantera. On appeal, Blair contends that the trial court erred (1) by granting injunctive relief to Pantera and (2) by holding that the non-compete agreement at issue is enforceable against him based on its conclusion that he is a "key employee" as defined in Georgia's Restrictive Covenants Act, OCGA § 13-8-50, et seq. (the "Act"). For the following reasons, we reverse.

         "We apply an abuse of discretion standard in reviewing a trial court's grant of a permanent injunction, unless the question to be decided by the trial court is one of law." Black Island Homeowners Ass'n v. Marra, 274 Ga.App. 265, 266 (1) (617 S.E.2d 148) (2005) (footnotes and punctuation omitted). Where the issue to be decided is one of law, the de novo standard of review applies. Id. See generally Jordan v. State, 322 Ga.App. 252, 255-256 (4) (a) (744 S.E.2d 447) (2013).

         The record shows that Pantera bought J. T. Industrial Contractor ("J. T. Industrial") in 1999 and continues to do business under that name. J. T. Industrial provides track-maintenance services to businesses that have railroad tracks on their property ("industry customers"). While Blair was employed there, J. T. Industrial also provided track-maintenance services to railroad companies, including Norfolk Southern Railway Company ("Norfolk Southern"). The track-maintenance services for Norfolk Southern typically consisted of providing a backhoe, a backhoe operator, a dump truck, and a dump truck driver.

         Blair began working for J. T. Industrial in 1993 as a laborer supporting a backhoe operator. Blair wanted to learn to operate a backhoe, so whenever the backhoe operator he supported was not using the backhoe, Blair would get on the backhoe and "play" with it. He would get on the backhoe every time he had a chance. Blair did not necessarily need to be on the railroad track to learn to operate the backhoe. He could also be off the track picking up railroad ties or practicing other tasks. There were times when he used the backhoe to practice without his supervisor being present. As Blair began to be able to operate the backhoe, the experienced backhoe operator allowed him to do some work including putting in railroad ties. Until he was designated as a backhoe operator by J. T. Industrial, however, Blair was not allowed to operate a backhoe for J. T. Industrial's railroad customers except under the supervision and direction of an experienced backhoe operator. Blair left J. T. Industrial in 2002 and returned in 2007.

         When Blair returned in 2007, he was assigned to a crew working for industry customers for a brief period so that J. T. Industrial could observe his work and make sure that his skills as a backhoe operator had not eroded. Blair was then reassigned to railroad work. From 2007 to 2017, Blair was primarily assigned to perform backhoe services for Norfolk Southern in its Gordon Territory, which includes the Norfolk Southern railroad lines that run from Gordon to Eatonton, from Macon to Shady Dale, from Macon to Tennille, and from Tennille to Dublin. As a backhoe operator, Blair supervised the truck driver assigned to him.

         Blair's only jobs at J. T. Industrial were being a backhoe operator or a laborer. Blair did not have the authority to hire or fire people. He did not regularly direct the work of anyone other than his truck driver. Blair was never asked to make sales to Norfolk Southern or any other customer. He was never given a customer list. Blair never made a sales pitch to Norfolk Southern about who it should use in the Gordon Territory. He never negotiated with Norfolk Southern about who was going to work in any particular territory. Blair was not involved in negotiating contracts with Norfolk Southern.

         In 2012, Pantera required Blair to sign a non-compete agreement in order to continue being assigned to Norfolk Southern. Under the terms of the non-compete agreement, Blair agreed that he would not operate a backhoe on railways owned or leased by Norfolk Southern in its Georgia Operating Division for any entity or person for a two-year period after ending his employment with Pantera.

         In 2017, Blair was being paid $13 per hour. He had asked J. T. Industrial's general manager for a raise, but the general manager told him that "obviously operating a backhoe for the railroad was going to limit his ability to move forward with the company" and that he would need to take on more responsibility to get a raise.

         In April of 2017, Blair notified Pantera that he would be leaving the company. Blair began working for Southern Design Materials, Inc. ("SDM") for $20 per hour. As a result, Norfolk Southern redirected its track-maintenance business for the Gordon Territory from Pantera to SDM. Pantera assured Norfolk Southern that it had another backhoe operator available and that it could continue to provide a backhoe operator and a truck driver. However, Norfolk Southern's track supervisor for the Gordon Territory, who supervised backhoe operators, did not believe that Pantera had a good replacement for Blair. The track supervisor considered Blair a good backhoe operator who was reliable and came to work everyday. He wanted to use Blair because he was effective, safe, and reliable. The track supervisor testified that there are few good backhoe operators who have good attitudes and are reliable. Pantera has not done any work for Norfolk Southern in the Gordon Territory since April of 2017.

         Pantera filed a complaint on May 26, 2017, seeking to enjoin Blair from operating a backhoe for Norfolk Southern in the Gordon Territory for the two-year period provided in the non-compete agreement. The trial court granted Pantera the requested injunctive relief, and this appeal followed.

         Both of Blair's enumerations of error are based on his argument that the trial court erred in holding that Blair was a "key employee" as defined in the Act.

         The trial court held that Blair "by virtue of his reputation and the period of time within which he obtained his training and skill should be considered a 'key employee.'" Blair argues that the trial court applied the definition of "key employee" in OCGA § 13-8-51 (8) in an overly expansive manner, and that the trial court erred in holding that Blair, a backhoe operator who learned to operate a backhoe while on the job and who earned $13 per hour, was a key employee. We agree. To interpret OCGA § 13-8-51 (8) to include Blair as a key employee would ...


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