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COA turns to dictionary in contract dispute

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Citing Black’s Law Dictionary’s definitions of “solicit” and “induce,” the Indiana Court of Appeals has affirmed a trial court’s finding that a software company did not violate terms of its contract with another business.

In 2009, Hypersonic Technologies and Enhanced Network Solutions entered into a subcontractor agreement in which ENS would acquire certain items from Hypersonic to service its own clients. A clause in the agreement prepared by ENS stated that – unless mutually agreed to by both parties – the companies would “refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other Party in any manner that may reasonably be expected to bring about the termination.” After an employee left ENS to join Hypersonic, ENS alleged Hypersonic had violated that agreement.

The two companies never successfully bid on a contract, and Hypersonic terminated its agreement with ENS on June 21, 2010. While the contract was still in effect, Hypersonic had posted a job opening online. ENS employee Robert Dobson saw the posting and contacted Hypersonic to ask about the position. Dobson met with Hypersonic’s owner and president sometime in April 2010 to further discuss the job. But Hypersonic did not extend an offer to Dobson at that time.

The three met again about a week afterward, and Dobson explained his terms of compensation and what he was looking for in a new position. Hypersonic then extended a job offer, and Dobson began working for Hypersonic in May 2010.

Dobson, the appeals court held, initiated contact with Hypersonic. “In other words, Dobson solicited Hypersonic,” the court’s opinion stated.

ENS claimed that despite the fact that Dobson initiated the contacts with Hypersonic, Hypersonic solicited Dobson when it continued talking with him. In support, ENS referred to an out-of-state case – Scarbrough v. Liberty National Life Insurance Co., 872 So.2d 283 (Fla. Ct. App. 2004) – which stands for the premise that in appropriate circumstances, a person may solicit another’s business regardless of who initiates the meeting.

In Scarbrough, after a former client initially contacted Scarbrough, an insurance agent, Scarbrough proactively provided the client with a comparison between the benefits and premiums offered by the client’s former insurance company and the insurance company for which Scarbrough currently worked. Id. at 284-85. The Florida Court of Appeals recognized that being “proactive” was included within the term “solicit.” See id. at 285. But the Indiana COA held that because Dobson initiated all major steps that led to his employment, the Florida case doesn’t apply to Enhanced Network Solutions v. Hypersonic Technologies, No. 02A03-1011-PL-609.

The COA also held that the agreement lacked a definition of the terms “solicit” and “induce.” In finding that Hypersonic did not violate the agreement, the court turned to Black’s Law Dictionary for a literal interpretation of the terms in question, which states that solicit means: “[t]he act or an instance of requesting or seeking to obtain something; a request or petition”; and induce means: “[t]he act or process of enticing or persuading another person to take a certain course of action.”

 

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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