Business Software, Inc. v. Information Associates, Inc.

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 [566] defendant’s computer software product. The trial court entered declaratory judgment for plaintiff, finding the restrictive covenant to be unenforceable. This appeal followed. Held: Decided October 22, 1991. Bassett, Gerry, Friend & Koenig, William D. Friend, Rhonda L. Klein, for appellant. Hicks, Maloof & Campbell, J. David Dantzler, Jr., for appellee. “ ‘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 SE2d 543) (1984).” Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 SE2d 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 SE2d 614) (1987).” Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 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.