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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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