Primary Investments, LLC v. Wee Tender Care Iii, Inc

323 Ga. App. 196 (2013)

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Nature of the Case

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Facts

Martin G. Nixon and Stephenie L. Nixon (Ps) approached the O'Briens (Ds) expressing an interest in purchasing Primary, LLC (D). After negotiations and multiple contract drafts, an asset purchase agreement (APA) was executed between Primary, LLC (D), as seller, and N & N Holdings, LLC (P), as buyer, for the sale and purchase of the assets of the childcare business. Ds executed the APA on behalf of the seller and Ps each executed on behalf of N & N Holdings, LLC. A noncompete clause holds Ds to a three-year period of time where neither Ds nor their agents may solicit any person employed by seller as of the closing date and directly contact any parent who within one year prior to closing had a child enrolled at D for the purpose of soliciting or selling products or services that compete with Ps nor to open any child care facility within a ten-mile radius of any Business Locations being sold. The O'Briens (Ds) signed the APA on behalf of Primary (D); the O’Briens (Ds) were not individually named in the APA and did not individually execute the APA. In January 2010, the O'Briens (Ds) decided to open a new childcare facility and formed East Cobb an LLC. East Cobb opened its new childcare facility, which was located within a ten-mile radius of P. Ps sued Ds to enforce the APA's noncompetition clause. The trial court granted partial summary judgment to Ps. Ds appealed.