GOBEIL, COOMER AND HODGES, JJ.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...