BUSINESS SOFTWARE, INC. v. INFORMATION ASSOCIATES, 201 Ga. App. 565 (1991)

411 S.E.2d 565

BUSINESS SOFTWARE, INC. v. INFORMATION ASSOCIATES, INC.

A91A0930.Court of Appeals of Georgia.
DECIDED OCTOBER 22, 1991.

McMURRAY, Presiding Judge.

Information Associates, Inc, (plaintiff) filed a petition for declaratory judgment against Business Software, Inc. (defendant), seeking a determination of its obligation to comply with the restrictive covenant of a sales contract wherein plaintiff agreed to exclusively license

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defendant’s computer software product. The trial court entered declaratory judgment for plaintiff, finding the restrictive covenant to be unenforceable. This appeal followed. Held:

“`Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. (Cit.)’ Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368, 369 (1) (320 S.E.2d 543) (1984).” Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 S.E.2d 146). In the case sub judice, plaintiff failed to demonstrate that an actual or justiciable controversy exists between adverse parties. Plaintiff shows only that accrued contractual rights and duties exist between parties. Plaintiff must demonstrate that it was in need of direction with respect to future conduct which might increase its liability or otherwise affect its interest. Consequently, “`the trial court erroneously entered an advisory declaratory judgment which held, in effect, that, should the accrued rights and obligations at issue result in future litigation, then [plaintiff] would prevail on the merits.’ Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 S.E.2d 614) (1987).” Logan Paving Co. v. Peoples Bank Trust, 196 Ga. App. 42, 43
(395 S.E.2d 287). The trial court’s judgment must therefore be vacated as nugatory. Logan Paving Co. v. Peoples Bank Trust, 196 Ga. App. 42, 43, supra.

Judgment vacated. Sognier, C. J., and Andrews, J., concur.

DECIDED OCTOBER 22, 1991.
Action on contract. DeKalb Superior Court. Before Judge Fuller.

Bassett, Gerry, Friend Koenig, William D. Friend, Rhonda L. Klein, for appellant.

Hicks, Maloof Campbell, J. David Dantzler, Jr., for appellee.