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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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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