agreement, effective October 8, 2015. (Supp. S.M.F. 9I 6.)
On September 29, 2015, plaintiff filed a verified complaint, in which plaintiff
alleges one count of breach of contract. Specifically, plaintiff alleges that defendant
breached the agreement by causing several of plaintiff's customers to cancel their
contracts with plaintiff and enter into a business relationship with defendant's
company, Wolf Technology Group. In addition to the verified complaint, plaintiff filed
a motion for a temporary restraining order. Defendant opposed the motion on October
16, 2015. On December 7, 2015, the court denied the motion, finding that plaintiff had
not demonstrated either irreparable injury or a likelihood of success on the merits.
Defendant filed an answer and counterclaim on January 28, 2016. In the
counterclaim, defendant alleges two causes of action: count I, breach of contract; and
count II, declaratory judgment. In count II, defendant seeks a declaratory judgment that
the agreement does not prohibit defendant from participating in and/ or bidding in
response to RFis and RFPs from non-profit, educational, governmental, and quasi-
governmental entities. See 5 M.R.S. §§ 1825-B, 1825-D (2015).
On February 22, 2016, defendant filed a motion for partial summary judgment on
count II of his counterclaim. Plaintiff opposed the motion on March 14, 2016. Plaintiff
filed an opposing statement of material facts that admitted all of defendant's facts and
asserted 15 additional facts. Defendant filed a reply on April 4, 2016. 1
· Defendant did not file a reply statement of material facts as required by M.R. Civ. P. 56(h)(3). Accordingly, plaintiff's additional facts, which are supported by record references, are admitted. M.R. Civ. P. 56(h)(4). Further, the court does not consider defendant's affidavit, filed with his reply memorandum but with no response to plaintiff's additional facts. Id.
2 (Supp. S.M.F. 9I 4; Ex. A 2.) Similarly, section 3(C) provides that defendant shall not
"solicit or entice, or attempt to solicit or entice, any clients or customers of [plaintiff] or
its Affiliates or potential clients or customers of [plaintiff] and its Affiliates, for purposes
of diverting their business or services from [plaintiff] and its Affiliates." (Ex. A 3. )
Under section 3(G), however, defendant may sell, service, install, and maintain premise
based systems. (Id. at 4.)
The record is unclear as to whether the RFis and RFPs at issue in count II of
defendant's counterclaim involve premise-based systems. If so, defendant's ability to
respond to these RFis and RFPs presents the same conflict that the court addressed in
its order on plaintiff's motion for a temporary restraining order. (See 12/7 /15 order 3.)
Under one interpretation, sections 3(A) and 3(C) serve as an absolute prohibition on
interfering with or soliciting plaintiff's business relationships. This interpretation is
supported by the fact that the provision in section 3(A) regarding interference is not
followed by the phrase "except to the extent modified by Section 3G," which appears
elsewhere in section 3(A). Similarly, although section 3(C) d oes refer to section 3(G),
that reference does not contain any language that would suggest that section 3(G)
modifies section 3(C). Under this interpretation, defendant could not respond to any
RFis and RFPs from plaintiff's customers, even those involving premise-based systems,
if such a response constituted intentional interference or solicitation.
Another interpretation, however, is that section 3(G) creates an exception to
sections 3(A) and 3(C) under which defendant may interfere with and solicit plaintiff's
business relationships through defendant's sale, service, installation, and maintenance
of premise-based systems. This interpretation is supported by the fact that section 3(G)
does not contain any language limiting defendant's activities with regard to premise
4 based systems. Under this interpretation, the agreement would not prohibit defendant
from responding to RFis and RFPs regarding premise-based systems.
In contrast, if the RFis and RFPs at issue in count II do not involve premise-based
systems, defendant's ability to respond to them depends only on whether his response
would constitute intentional interference or solicitation under sections 3(A) or 3(C). The
agreement does not define these terms . Black's Law Dictionary defines "interference" as
"[t]he act of meddling in another's affairs" and "intentional" as "[d]one with the aim of
carrying out the act." Black's Law Dictionary 883, 888 (9th ed. 2009). It further defines
"solicitation" as " [t]he act or an instance of requesting or seeking to obtain something"
and "entice" as "[t]o lure or induce; esp., to wrongfully solicit (a person) to do
something." Id. at 611, 1520.
The parties have presented differing yet reasonable interpretations of these terms
in the context of the present dispute. On one hand, the fact that the entities initiate the
RFis and RFPs could show that defendant's response to these requests is not aimed at
meddling in plaintiff's business relationships or luring plaintiff's customers to
defendant's company. (See Def.'s Mot. Summ. J. 2-4.) On the other hand, defendant's
response to requests from plaintiff's customers could certainly show that he is
requesting or seeking to obtain their business. (See Pl.'s Opp'n Mot. Summ. J. 2-4.)
These conflicting interpretations underline ambiguities in the agreement. See
Portland Valve, Inc. v . Rockwood Sys. Corp., 460 A.2d 1383, 1387 (Me. 1983) ("Contract
language is ambiguous when it is reasonably susceptible of different interpretations .").
The existence of these ambiguities precludes entry of summary judgment. See, ~
Devine v. Roche Biomedical Labs., 637 A.2d 441, 445 (Me. 1994) ("The proper
interpretation of the ambiguous language is to be determined by the trier of fact on the
basis of evidence presented to it at the time of trial."); Tondreau, 638 A.2d at 730
5 ("When there is an ambiguity in a written contract, and the record does not completely
eliminate the possibility of an issue of material fact concerning the intent of the parties,
summary judgment is inappropriate."); Town of Lisbon v. Thayer Corp., 675 A.2d 514,
517 (Me. 1996) ("Because the agreement is ambiguous, its meaning should not have
been determined at the summary judgment stage.") .
Defendant's argument that the court should construe the agreement strictly
against plaintiff is equally unpersuasive. (Def.'s Mot. Summ. J. 4.) Non-competition
agreements between an employer and its employee are "contrary to public policy and
will be enforced only to the extent that they are reasonable and sweep no wider than
necessary to protect the business interests in issue." Chapman & Drake v. Harrington,
545 A.2d 645, 646-47 (Me . 1988) (citation omitted); Saga Commc'ns of New England, Inc.
v. Crocker, 1995 Me. Super. LEXIS 403, at *1-3 (Nov. 9, 1995). The agreement in this case
was not between an employer and employee. Because the agreement was instead made
as part of the purchase of a business, its interpretation is not subject to the rule that
ambiguities are construed against the employer. Cianbro Cos. v. Uremovich, No. 00330
DBH, 2013 U.S. Dist. LEXIS 29754, at *17 (D. Me. Jan. 28, 2013).
b. Agent Agreement
Defendant further argues that the agreement does not prohibit him from
responding to RFis and RFPs because plaintiff's termination of the agent agreement
rendered "the non-competition" void, (Def.'s Mot. Summ. J. 1-2; Def.'s Reply 1-2.)
Section 3(G) provides: "If such agency agreement or arrangement is terminated or
w ithdrawn by [plaintiff] before the end of term of the non-competition as to
[defendant], then the non-competition shall be voiland of no further force and effect as
to [defendant]." (Ex. A 4.) Plaintiff terminated the agent agreement on September 8,
2015. (Supp. S.M.F. err 6.) The meaning of "the non-competition" is unclear. (See
6 12/7 / 15 order 4.) For example, it could refer to the prohibition on interference under
section 3(A), the prohibition on solicitation under section 3(C), or a prohibition on a
type of competition unique to section 3(G). This ambiguity prevents the court from
entering summary judgment on this ground. See Tondreau, 638 A.2d at 730.
CONCLUSION
The relationship among sections 3(A), 3(C), and 3(G) is ambiguous, as is the
meaning of "intentional interference" and "solicitation." Further, the effect of plaintiff's
termination of the agent agreement is unclear. Accordingly, this case is not appropriate
for a partial summary judgment on count II of the counterclaim.
The issues for trial with regard to count II of defendant's counterclaim are
(1) if the RFis and RFPs at issue in count II involve premise-based systems,
whether section 3(G) creates an exception to the prohibitions on intentional interference
and solicitation under sections 3(A) and 3(C);
(2) if the RFis and RFPs at issue in count II do not involve premise-based systems
or if section 3(G) does not create an exception, whether defendant's act of responding to
RFis and RFPs from plaintiff's customers constitutes intentional interference in
violation of section 3(A) or solicitation in violation of section 3(C); and
(3) whether plaintiff's termination of the agent agreement voided defendant's
obligations under sections 3(A), 3(C), or 3(G).
The entry is
Defendant's Motion for Partial Summary Judgment on Count II of the Counterclaim is D NIED.
Dated: June 1, 2016
7 ( (
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CMLACTION Docket No. CV-15-440 / DSCI, LLC,
Plaintiff ORDER ON MOTION FOR TEMPORARY v. RESTRAINING ORDER
Before the court is plaintiff's motion for a temporary restraining order with
notice. In the verified complaint filed on 9 I 29 I 15, plaintiff seeks damages and
injunctive relief. Plaintiff alleges that defendant violated a non-competition and non
solicitation agreement between the parties by causing several of plaintiff's customers to
cancel their contracts with plaintiff and enter into a business relationship with
defendant's company. Defendant opposed the motion on 10116115.
DISCUSSION
A. Standard of Review
A party seeking a temporary restraining order has the burden of demonstrating
that: "(1) it will suffer irreparable injury if the injunction is not granted; (2) such injury
outweighs any harm which granting the injunctive relief would inflict on the other
party; (3) it has a likelihood of success on the merits (at most, a probability; at least, a
substantial possibility); and (4) the public interest will not be adversely affected by
granting the injunction." Bangor Historic Track, Inc. v. Dep't of Agric., Food & Rural
Res., 2003 ME 140,
fails to demonstrate any one of these criteria. Id.
1 ( (
1. Irreparable Injury
Plaintiff has not demonstrated irreparable injury with respect to its alleged loss
of future revenue. An irreparable injury is one for which there is no adequate remedy at
law. Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980). Plaintiff
alleges that it has lost approximately $300,000 in anticipated future revenue. (Compl. <]I
21.) The fact that plaintiff is able to calculate approximate damages indicates that this
alleged harm is not without an adequate remedy at law. See Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68, 74 (D. Me. 1993) (holding that
availability of money damages cuts heavily against a finding of irreparable harm).
Plaintiff also has not demonstrated irreparable injury with respect to its alleged
loss of good will. See Everett I. Prescott, Inc. v. Ross, 383 F. Supp. 2d 180, 191-92 (D. Me.
2005). Speculative claims of loss of good will do not constitute irreparable injury.
Bishop, 839 F. Supp. at 75. The record reveals only that defendant allegedly interfered
with plaintiff's relationships with four companies. (Compl. <]I<]I 15-20.) In his affidavit,
defendant states that he did not sell a phone system to one of these companies, (Wolf
Aff. 'II 19), and he has produced affidavits from the three other companies that provide
that defendant did not solicit their business. (Skolnekovich Aff. <]I 7; Janvrin Aff. <]I 6;
Wilson Aff. <]I 6.) Plaintiff, in the 9/10/15letter to defendant, addresses only damages,
not loss of good will. (Pl.'s Ex. B.) Any allegation of loss of good will is speculative on
this record.
2. Likelihood of Success
Plaintiff also has not demonstrated a likelihood of success on the merits. To
prevail on a breach of contract claim, plaintiff must establish breach of a material
contract term, causation, and damages. Me. Energy Recovery Co. v. United Steel
Structures, Inc., 1999 ME 31, 91 7, 724 A.2d 1248. Plaintiff argues that: (1) defendant
2 (
breached the agreement by interfering with plaintiff's business relationships, and (2)
defendant's obligation not to interfere with plaintiff's business relationships is not
affected by any termination of the parties' agency agreement.
a. Interference
Section 3(A) of the agreement prohibits defendant from interfering with
plaintiff's business relationships. (Pl.'s Ex. A 2.) Section 3(G) allows defendant to sell,
service, install, and maintain premise-based systems. (Pl.'s Ex. A 4.) Plaintiff alleges that
defendant sold premise-based systems to plaintiff's customers in violation of section
3(A). (Compl. <][<][ 15-20.) Plaintiff argues that allowing defendant to sell premise-based
systems under section 3(G) did not dispense with his obligation under section 3(A).
(Pl.'s Reply 1-2.) The relationship between section 3(G) and section 3(A) is unclear.
Section 3(A) establishes a general prohibition on defendant's interference with
plaintiff's business relationships. (See Pl.'s Ex. A 2 (prohibiting defendant from
interfering in any material respect with plaintiff's current and future business
relationships).) But the plain language of section 3(G) does not impose any limits on
defendant's ability to sell premise-based systems. If plaintiff was concerned that
defendant's sale of premise-based systems could interfere with its business
relationships, the parties could have specified restrictions in the agreement. Because
they did not, it is unclear whether defendant violated the agreement. As a result,
plaintiff has not demonstrated a likelihood of success on the merits.
b. Agency agreement
Section 3(G) requires the parties to enter an agency agreement and provides that
termination of the agency agreement renders "the non-competition" void as to
defendant. (Pl.'s Ex. A 4.) Plaintiff revoked the agency agreement by letter dated
9/8/15. (Def.'s Ex. D to Wolf A££.) Defendant argues that plaintiff's revocation of the
3 ( \
agency agreement terminated the entire agreement. (Def.'s Opp'n 8.) Plaintiff counters
that the revocation terminated only defendant's obligation not to compete, and not his
obligation not to interfere with plaintiff's business relationships. (Pl.'s Reply 2 n.l.) If
the parties intended the term "non-competition" to refer to the entire agreement, they
likely would have used the term "Agreement," as they did elsewhere. It is unlikely that
the revocation of the agency agreement rendered the entire agreement void.
Plaintiff's argument that the revocation terminated only defendant's obligation
not to compete is equally unpersuasive because the meaning of "non-competition" is
unclear. The language of section 3(G) does suggest that the "non-competition" refers to
defendant's obligation not to compete because the phrase "non-competition as so
defined" immediately follows a description of defendant's prohibited business
activities. (Pl.'s Ex. A 4.) Even if the revocation did terminate only defendant's
obligation not to compete, plaintiff has not demonstrated a likelihood of success in
establishing that defendant violated his obligation not to interfere with plaintiff's
business relationships, as discussed above. As a result, plaintiff has not demonstrated a
likelihood of success on the merits.
Plaintiff's Motion for a Temporary Restraining Order is DENIED.
Dated: December 6, 2015 Nancy Mills Justice, Superior Court