dissenting.
I must respectfully dissent because of the procedural implications of the majority opinion, particularly with regard to the function of partial summary judgment and the trial court’s discretion to govern discovery under OCGA § 9-11-56 (f).
First, it is beyond question that all parties treated the appellees’ motion as one for partial summary judgment. Although the style of the motion itself is unusual, “[w]e have long ago departed that realm of law where runes and sigils supplant reason and substance.” Tuggle v. Tuggle, 251 Ga. 845 (310 SE2d 224) (1984). Appellees filed a statement of material facts “in support of their Motion for Summary Judgment” as required by Uniform Superior Court Rule 6.5 and relied upon OCGA § 9-11-56. EDS acknowledged in its briefs that the motion was one for summary judgment and filed the appropriate responses. EDS and appellees repeatedly referred to summary judgment before and at the hearing. While EDS contended a motion for partial summary judgment was inappropriate, it cannot contend it was unaware of the nature of the motion until the time of the hearing. As the majority opinion acknowledges, EDS is incorrect in its assertion because partial summary judgment can be appropriate in a declaratory judgment action.
The majority opinion places great reliance on a typographical error of one word in the proposed order presented after the hearing. The motions and briefs, however, clearly recognize the relief sought and granted. By correcting an obvious typographical error, the trial court did not grant relief other than that sought by the parties. Moreover, it is clear from the transcript that both parties understood that this was a mere correction of a scrivener’s error. Appellant did not object at the time and raised none of the arguments made in the majority opinion with respect to this minor error, either at the hearing or in its brief on appeal.
Contrary to the majority’s assertion, this limited ruling does not dispose of the entire case. It reserves ruling on many other allegations made by EDS. It appears that the trial court confined its ruling to three limited, simple issues appropriate for partial summary judgment: 1. Did the noncompetition agreements executed by appellees with their previous employer, EMA, contemplate or include the development of a capital asset tracking (“CAT”) system? 2. Was the Pelling noncompetition agreement void? and 3. Did EDS present any evidence that its proprietary software was used in appellees’ CAT system?
It appears from the record that the contents and scope of CAT systems are governed strictly by federal regulation. Whether data *822available to appellees during their time at EDS could be used in a CAT system is irrelevant to whether the CAT software itself was contemplated by the noncompetition agreement, or whether EDS’s software was used by appellees. The officer who negotiated and signed the noncompetition agreement on behalf of EMA testified unequivocally that the agreement did not contemplate including a CAT system. The affidavit of an attorney who did not testify that he drafted these particular agreements is merely a legal opinion as to the meaning of the language and cannot contradict the testimony of the parties to the agreement. It also appears that neither EMA nor EDS had a CAT system at that time.
Moreover, the determination that EDS had failed to bring forward evidence of its claim that appellees used its proprietary software is within the trial court’s exercise of its discretion to limit the evidence presented under OCGA § 9-11-56 (f). In my view, this is crucial to the analysis of the trial court’s actions governing discovery on this issue. Because EDS was the original plaintiff and initiated this action, it should have had some evidence before filing in order to proceed in good faith. Yet the uncontradicted evidence is that EDS repeatedly refused opportunities to examine the software to see if it used EDS material or data, refused to mediate the dispute, failed to conduct discovery that would have resolved this issue, and failed to hire an expert in a timely manner to examine the software. These actions or refusals to act began shortly after appellees formed their company and before suit was filed. The grant or denial of a continuance under OCGA § 9-11-56 (f) is a matter within the discretion of the trial judge, and this court will not interfere with the exercise of that discretion unless clearly abused. Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 101-102 (3) (406 SE2d 807) (1991).
If the trial court’s discretion is limited in the manner suggested by the majority opinion, it is possible that a party could avoid the application of OCGA § 9-11-56 (f) by refusing to conduct discovery and then contending that partial summary judgment cannot be granted because there is a dispute as to some easily settled fact. The wholly conclusory affidavit of EDS’s president demonstrates this as he speculates on matters that could have been easily determined by an early examination of the allegedly offending software. This issue amounts to a discovery dispute and is clearly a matter for exercise of the trial court’s discretion under OCGA § 9-11-56 (f).
It also appears that the trial court did not err in its ruling on the Pelling noncompetition agreement. The agreement forbids working within a 25-mile radius of 12 cities throughout the United States, although Pelling never worked in most of those cities. It also forbids the provision of services which Pelling never performed and solicitation of 100 listed customers, many of them individuals for whom Pel*823ling never performed work. While the agreement appears at first glance to be limited to “the services that Employee performs for Company (as set forth in Section 6.1 (a)),” an examination of Section 6.1 (a) shows that it defines those services in a circular fashion as “any of the products and services that the Company provides to its Customers.” Several leading cases have made clear that such agreements must be analyzed in terms of work the particular employee has done for the employer, not the scope of the employer’s business. Agreements forbidding more are void for overbreadth. See, e.g., Wiley v. Royal Cup, 258 Ga. 357, 358-359 (1) (370 SE2d 744) (1988) (overbreadth of territorial list); Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 377 (1) (297 SE2d 473) (1982) (overbreadth of client list).
Decided July 13, 1995. King & Croft, F. Carlton King, Jr., Terrence L. Croft, Thomas A. Croft, for appellant. Smith, Gambrell & Russell, Thomas W. Rhodes, William W. Maycock, Robert P. Brown, Jason S. Bell, for appellees.In virtually every lawsuit, the parties disagree on the speed with which it should be resolved. This conflict is as old as the litigation process itself, and trial courts must have some means available to resolve it. This is particularly true when the party seeking to delay resolution is the party that initiated the action. The trial court has discretion to narrow issues for trial and to regulate discovery to move the case forward, and we should not lightly interfere in sucia matters. For these reasons, I respectfully dissent.
I am authorized to state that Chief Judge Beasley and Judge Ruffin join in this dissent.