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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. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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