NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0619-15T3
THE DIGITAL GROUP, INC.,
Plaintiff-Appellant,
v.
SAGITEC SOLUTIONS, LLC,
Defendant-Respondent. ________________________________
Argued May 31, 2017 – Decided August 18, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-0216-13.
James P. Flynn argued the cause for appellant (Epstein Becker & Green, PC, attorneys; Mr. Flynn, of counsel and on the briefs; Alkida Kacani, on the briefs).
Ansis V. Viksnins (Lindquist & Vennum) of the Minnesota Bar, admitted pro hac vice, argued the cause for respondent (Bressler, Amery & Ross, and Mr. Viksnins, attorneys; Diana C. Manning, Angela M. Scafuri and Benjamin J. DiLorenzo, on the brief).
PER CURIAM The claims in this matter arise out of a dispute between two
information technology companies: plaintiff, The Digital Group,
Inc., and defendant, Sagitec Solutions, Inc. Digital and Sagitec
entered into an agreement and submitted a joint proposal to provide
pension and administration software services to the Fiji National
Provident Fund (FNPF), which administers the state pension system
in Fiji. FNPF rejected the joint proposal and subsequently entered
into a contract with Sagitec. In its complaint, Digital claims
Sagitec's entry into the FNPF contract violated their agreement,
and otherwise breached common law duties owed by Sagitec to Digital.
The court granted Sagitec's motion for summary judgment and
entered an order dismissing Digital's complaint. Digital appeals
the court's order. Having considered the record under the
applicable law, we affirm.
I.
In our review of the record before the trial court, we view
the facts and all reasonable inferences therefrom in the light
most favorable to Digital because it is the party against whom
summary judgment was entered. Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995). Applying that standard, the record
before the trial court established the following facts.
Digital is an information technology solutions company that
provides software and computer system integration services.
2 A-0619-15T3 Sagitec provides customized information technology products and
services in the area of employee benefits for pension and
retirement plans.
Between 2009 and 2013, FNPF issued requests for proposals to
upgrade its computer system, the "Provident Fund Management
Information System" (ProMIS system). Digital bid unsuccessfully
each time. Nevertheless, Digital developed a relationship with
FNPF through other projects and in 2011 was granted "preferred
supplier" status. As a preferred supplier, FNPF had discretion to
engage Digital for information technology services when required.
In January 2013, FNPF invited Digital to respond to a
restricted tender for a contract for the implementation of the
ProMIS system.1 Sitiveni Nabuka was a member of the FNPF committee
responsible for selecting a vendor for the ProMIS system. Nabuka
informed Digital that Sagitec had a software program, Neospin,
that satisfied FNPF's needs. Based in part upon Nabuka's
recommendation, Digital contacted Sagitec and advised that it had
a client opportunity regarding a pension administration and
management system.
On January 15, 2013, Digital and Sagitec executed a "Non-
Disclosure, Confidentiality & Non-Disintermediation Preliminary
1 The tender was deemed "restricted" because it was sent by FNPF to only selected potential vendors.
3 A-0619-15T3 Partnership Agreement" (Agreement), with the "inten[t] to enter
into a joint working agreement . . . to facilitate a proposed
business relationship and partnership between the parties." The
provisions of the Agreement pertinent to the allegations in the
complaint are: (1) the confidentiality provisions (Sections II
through VII, and IX); and (2) the non-solicitation and non-
disintermediation covenants (Section X). We detail those
provisions here.
Confidentiality Provisions
Digital and Sagitec acknowledged that to "explore common
business needs and future partnerships" they might share "certain
confidential and proprietary technical, financial, marketing and
business information including strategic plans, list[s] of clients
and projects, [and] client sensitive information." The parties
therefore agreed to "not use all or any . . . [c]onfidential
[i]nformation except in the manner set forth in [the] [A]greement."
Section IV of the Agreement defines "confidential
information" as follows:
[A]ll information, know-how, technical, financial or business information or data, product strategies, business strategies, details of the employees, software, data, methods, or processes which are proprietary of one of the parties or its clients, its licensors, its group companies or to any related entity, whether or not in writing, and confidential to the said party and not
4 A-0619-15T3 generally known to other third parties, which either of the party [sic] may obtain knowledge of or access to through delivery of such from the other party under this Agreement. Confidential [i]nformation also includes that information described above whether or not owned or developed by either of the parties.
Section V required the parties "to maintain the
confidentiality of the [c]onfidential [i]nformation." The
obligation to maintain confidentiality did not apply where the
confidential information:
(i) [w]as already in their possession prior to disclosure and such was received without obligation of confidentiality;
(ii) [w]as independently developed prior to this relationship by the other party . . . .
Section VII of the Agreement provided that the "furnishing
of the [c]onfidential [i]nformation . . . shall not obligate either
party to enter into any further agreement or negotiation with the
other for any proposed business relationship," or "refrain either
of the parties from entering into an agreement with any other
party."
Section IX of the Agreement defined the parties' obligation
to "not commercially use or disclose any [c]onfidential
[i]nformation or any materials derived there from to any other
person or entity other than persons in direct employment of the
[r]eceiving [p]arty, who have a need to have access to and
5 A-0619-15T3 knowledge of the [c]onfidential [i]nformation, solely for the
purpose authorized above."
Non-solicitation and Non-disintermediation
Section X of the Agreement, titled "non-disintermediation,"
provides:
[F]or the agreement term [and] for a period of two years following the agreement term of this or any other working agreement or working relationship, any employees, contractors or clients (including client personnel and managers) of either party introduced to the other [] under this . . . agreement or any subsequent partnership agreement are not to be approached or solicited by the other party directly or indirectly for any direct or indirect business (non-solicitation covenant) or employment relationship (no-hire covenant) outside of the mutually agreed to partnership between the two parties as this would create disintermediation risk and associated direct and indirect losses for the other party.
The Agreement's effective date was January 15, 2013, and had
a one-year term, unless it was otherwise terminated by the parties.
Either party could terminate the Agreement by providing thirty
days written notice of termination, but the parties agreed the
"confidentiality and non-disclosure covenants . . . survive[d]
indefinitely [] after [] termination."2
2 The Agreement also provides that any dispute between the parties is governed by "the laws of the United States," and "subject to the jurisdiction of courts exercising competent jurisdiction and situated in New Jersey."
6 A-0619-15T3 The Joint Proposal and Review Period
On February 11, 2013, Digital and Sagitec submitted a joint
proposal to FNPF for the ProMIS system contract. During the review
period that followed the submission of the proposal, Digital
maintained communication with Nabuka, who at various times
provided Digital with information concerning the FNPF selection
committee's review of the proposal. In May 2013, Nabuka sent
Digital an email advising that FNPF had concerns about Digital's
reputation and might seek to contract with Sagitec only.
During the review period, Piyush Jain, one of Sagitec's
principals, also became aware of Digital's reputational issues,
including allegations Digital had a history of offering
inducements to information technology departments to obtain
business. Despite Sagitec's concerns with Digital's reputation and
business practices, it remained willing to work jointly with
DIGITAL on the ProMIS system opportunity with FNPF, and to enter
into a new working agreement with Digital.
In August 2013, FNPF sent Sagitec correspondence indicating
it intended to approve Sagitec as the preferred provider for the
ProMIS system contract. However, FNPF sought to enter into a
contract only with Sagitec, and requested "a '[l]etter of
[i]ndemnity' and/or '[l]etter of [n]o [o]bjection' from DIGIT
Digital . . . with regards to the sole engagement of Sagitec."
7 A-0619-15T3 Digital objected and insisted that it be a signatory to any
contract with FNPF for ProMIS system work.3 Nabuka advised Digital
that if it did not provide a "no objection letter," FNPF could
close the tender without awarding the contract.
On September 2, 2013, Digital informed Sagitec that its
inclusion as a signatory on any contract with FNPF was "non-
negotiable." On September 20, 2013, Sagitec sent Digital a notice
to terminate the Agreement, thereby ending the parties' business
relationship on October 20, 2013.
On October 9, 2013, FNPF formally rejected the joint proposal
of Sagitec and Digital, advising them "that [the joint proposal]
has been unsuccessful," and no other tenderer was successful.
Sagitec responded to the e-mail stating that the company was
"disappointed with the outcome" and thanked FNPF for its
consideration.
Four days later, on October 13, 2013, FNPF sent Sagitec
correspondence asking it to submit a proposal for pension
administration solutions. Sagitec responded to FNPF's request, a
3 After it became apparent FNPF would not enter into a contract with Digital as a signatory and sought only a contract with Sagitec, Digital sent Sagitec a proposed "master agreement" pursuant to which Digital would be Sagitec's exclusive regional partner and representative in the Asia Pacific region. The proposed master agreement became a source of disagreement between Digital and Sagitec, and Sagitec never agreed to its terms.
8 A-0619-15T3 period of contract negotiations ensued, and in May 2014, Sagitec
entered into a contract with FNPF for the provision of services
related to the ProMIS system.
Digital's Lawsuit
On November 13, 2013, Digital filed an order to show cause
seeking temporary restraints against Sagitec from doing business
with FNPF, and a complaint asserting: breach of contract; breach
of the implied covenant of good faith and fair dealing; unjust
enrichment; breach of fiduciary duty; tortious interference with
prospective economic advantage; and a claim for equitable relief
seeking a temporary restraining order preventing Sagitec from
working with FNPF or any other parties to whom Digital introduced
Sagitec.4 The request for restraints was denied.
Following the completion of discovery, the parties cross-
moved for summary judgment. After hearing argument, the court
issued an order and comprehensive written opinion granting
Sagitec's motion and dismissing the complaint.5 The court found
4 Sagitec filed an answer and a counterclaim alleging Digital tortiously interfered with Sagitec's contract with FNPF. Sagitec's counterclaim was voluntarily dismissed. 5 The court's grant of Sagitec's motion effectively denied Digital's cross-motion for summary judgment. The court, however, did not enter an order denying Digital's motion. Digital does not argue on appeal that the court erred by denying its request for summary judgment and, therefore, we do not address the court's implicit denial of Digital's cross-motion. An issue not briefed
9 A-0619-15T3 that the undisputed facts showed "the conduct that forms the basis
for Digital's breach of contract claim [does not], according to
the plain terms of the [Agreement]," constitute a breach of
contract. The court determined that Sagitec did not violate the
non-solicitation covenant because it did not bar Sagitec from
"communicating, negotiating, doing business, or contracting with
customers if the customers [] approached or solicited Sagitec,"
and Sagitec did not approach or solicit FNPF. The court also found
there was no evidence showing that "Sagitec solicited or approached
FNPF," but rather the undisputed facts established FNPF "asked
Sagitec to make a proposal independently."
The court also rejected Digital's claim that Sagitec violated
the Agreement's prohibition against the use of confidential
information. The court found that "a covenant prohibiting
disclosure of confidential information does not and cannot
preclude use of information that is no longer confidential and
likely was not confidential in the first place." Thus, the court
granted Sagitec's motion for summary judgment and dismissed
Digital's breach of contract claim.
on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
10 A-0619-15T3 The court dismissed Digital's cause of action for breach of
the covenant of good faith and fair dealing, finding there was no
evidence Sagitec took any action in bad faith to deprive Digital
of the benefits of the Agreement. The court rejected the unjust
enrichment claim because it was based on an alleged breach of the
Agreement. The court also found Digital could not sustain its
breach of fiduciary duty claim because Digital did not present
evidence establishing Sagitec owed a fiduciary duty to Digital.
Last, the court dismissed Digital's tortious interference claim
because Digital did not present evidence showing it had a
reasonable expectation of an economic benefit from FNPF or that
Sagitec acted to maliciously interfere with any alleged
prospective economic of Digital. Following entry of the order
granting summary judgment to Sagitec, Digital filed this appeal.
II.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). The "'judge's function is not . . . to weigh the evidence
and determine the truth of the matter but to determine whether
there is a genuine issue for trial' in viewing the facts in the
11 A-0619-15T3 light most favorable to the non-moving party." Henry v. N.J. Dep't
of Human Servs., 204 N.J. 320, 329 (2010) (quoting Brill, supra,
142 N.J. at 540) (alteration in original). "[W]hen the evidence
is so one-sided that one party must prevail as a matter of law,
the trial court should not hesitate to grant summary judgment."
Brill, supra, 142 N.J. at 540 (internal quotation marks and
citation omitted).
On appeal, we employ the same standard of review that governs
the trial court. Henry, supra, 201 N.J. at 330. We must first
decide whether there is an issue of material fact, and if none
exists, then decide whether the trial court's ruling on the law
was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.
Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
When reviewing the trial court's ruling on a legal issue, our
review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
We first consider Digital's contention that the court erred
by granting Sagitec's motion for summary judgment on the breach
of contract claim. Digital argues there were genuine issues of
material fact precluding the award of summary judgment and that
the court erred as a matter of law in its interpretation of the
Agreement's provisions. We are not persuaded.
12 A-0619-15T3 To establish its breach of contract claim, Digital was
required to prove: "first, that '[t]he parties entered into a
contract containing certain terms'; second, that '[Digital] did
what the contract required [it] to do'; third, that '[Sagitec] did
not do what the contract required [it] to do[,]' defined as a
'breach of the contract'; and fourth, that '[Sagitec's] breach,
or failure to do what the contract required, caused a loss to
[Digital].'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)
(quoting Model Jury Charge (Civil), § 4.10A "The Contract Claim –
Generally" (May 1998)).
"Well-settled contract law provides that '[c]ourts enforce
contracts based on the intent of the parties, the express terms
of the contract, surrounding circumstances and the underlying
purpose of the contract.'" Cypress Point Condo. Ass'n v. Adria
Towers, L.L.C., 226 N.J. 403, 415 (2016) (quoting Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)). "Contracts
should be read 'as a whole in a fair and common sense manner.'"
Manahawkin, supra, 217 N.J. at 118 (2014) (quoting Hardy ex rel.
Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009)).
"If the language of a contract 'is plain and capable of legal
construction, the language alone must determine the agreement's
force and effect.'" Ibid. (quoting Twp. of White v. Castle Ridge
Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011)). However,
13 A-0619-15T3 "[w]hen the provision at issue is subject to more than one
reasonable interpretation, it is ambiguous, and the 'court may
look to extrinsic evidence as an aid to interpretation.'" Cypress
Point, supra, 226 N.J. at 415-16 (quoting Templo Fuente de Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
200 (2016)).
The Alleged Violations of the Confidentiality Provisions
Digital argues the evidence showed that Sagitec breached the
confidentiality provisions of the Agreement by using confidential
information Digital provided to Sagitec during their joint effort
to obtain the award of the FNPF contract. More particularly,
Digital asserts that the confidential information Sagitec
allegedly wrongfully used consisted of FNPF's identity as a
potential customer, Digital's insights concerning FNPF and the
ProMIS system, and information concerning FNPF's pricing and other
preferences. Digital contends it provided the confidential
information to Sagitec during the preparation and submission of
their unsuccessful joint proposal to FNPF.
The court rejected Digital's arguments based on its
conclusion that "a covenant prohibiting disclosure of confidential
information does not and cannot preclude the use of information
that is no longer confidential and likely was not confidential in
the first instance." The court did not make express findings
14 A-0619-15T3 concerning Digital's claim that the information it provided
constituted confidential information under the Agreement, or
whether Sagitec used the information in violation of the Agreement.
Nevertheless, based on our de novo review of the record, we are
convinced that even assuming the information was confidential
under the Agreement, there was no evidence Sagitec used the
information in violation of the Agreement.
In considering Digital's claim that Sagitec breached the
Agreement by using confidential information, we first observe that
Section IX prohibits commercial "use or disclos[ure]" of
confidential information. Here, Digital claims only that the
purported confidential information was wrongfully used by Sagitec
in its response to FNPF's October 2013 request for a proposal for
information technology services and its subsequent contract
negotiations with FNPF to provide those services. Thus, it was
necessary for Digital to prove that Sagitec used confidential
information as defined in the Agreement in its response to FNPF's
October 2013 request and in Sagitec's subsequent entry into the
May 2014 contract with FNPF.
Digital argues the confidential information Sagitec used
included the identity of FNPF as a potential customer. The parties
debate whether the identity of FNPF constituted confidential
information under the Agreement. However, we find it unnecessary
15 A-0619-15T3 to resolve their competing contentions because even assuming the
identity of FNPF constituted confidential information under the
Agreement, there is no evidence Sagitec used FNPF's identity to
negotiate or enter into the May 2014 contract.
To the contrary, the undisputed facts establish that FNPF was
aware of Sagitec in 2012, before the parties entered into the
Agreement,6 and used its knowledge of Sagitec's identity to contact
Sagitec after it rejected the parties' joint proposal in September
2013. Thus, there is no evidence Sagitec used Digital's purported
confidential disclosure of FNPF as a potential client to obtain
the contract from FNPF.
Digital also contends it provided Sagitec with other
confidential information, including insights related to the joint
proposal such as FNPF's pricing and other preferences. We again
need not decide whether the purported confidential information,
which is only vaguely described in Digital's submissions,
constitutes confidential information as defined in the Agreement.
Digital's claim that Sagitec violated the Agreement by using the
purported confidential information is untethered to any factual
support in the record. See Cortez v. Gindhart, 435 N.J. Super.
6 The evidence showed that FNPF requested information from Sagitec's marketing department in 2012, and that Digital first learned about Sagitec from Nabuka in January 2013.
16 A-0619-15T3 589, 605 (App. Div. 2014) (observing that competent opposition
requires competent evidential material beyond mere speculation and
fanciful arguments), certif. denied, 220 N.J. 269 (2015). The
record is devoid of any evidence that Sagitec used any of the
purported confidential information in its interactions with FNPF
leading to the entry of the May 2014 contract. For that reason,
the court correctly dismissed Digital's claim that Sagitec
breached the Agreement's confidentiality requirements.
The Alleged Violations of the Non-Solicitation Covenant
Digital also claims Sagitec violated the Agreement's
prohibition against soliciting its clients. Section X of the
Agreement prohibited Sagitec from "approach[ing] or solicit[ing]"
any of Digital's clients for "any direct or indirect business"
during the term of the Agreement and the two years following its
termination. The court dismissed the claim, finding the undisputed
facts established that Sagitec did not solicit FNPF, that FNPF
solicited Sagitec to enter into the negotiations leading to the
May 2014 contract, and that the Agreement did not prohibit Sagitec
from communicating, negotiating, doing business, or contracting
with FNPF. We agree.
In our interpretation of a contract, the agreement's terms
"are to be given their plain and ordinary meaning." M.J. Paquet
v. N.J. DOT, 171 N.J. 378, 396 (2002); Roach v. BM Motoring, LLC,
17 A-0619-15T3 228 N.J. 163, 174 (2017). "On the other hand, when in the context
of the document itself and the transaction to which it pertains
the terminology employed, despite a facile simplicity, actually
is not free from doubt as to its meaning," a court may consider
extrinsic evidence of the circumstances "bearing on the alleged
proper interpretation of the language used." Schor v. FMS Financial
Corp., 357 N.J. Super. 185, 192 (App. Div. 2002).
The trial court observed that the term "solicit" is ordinarily
defined as follows: "to entreat, urge or petition persistently."7
When the parties entered the Agreement in 2013, 8 Black's Law
Dictionary similarly defined "solicitation" as "[t]he act or an
instance of requesting or seeking to obtain something; a request
or petition" or "[a]n attempt or effort to gain business." Black's
Law Dictionary 1194 (9th ed. 2009). 9 Courts have consistently
7 The court relied on the definition of "solicit" found in Webster's II New College Dictionary 1050 (1999). 8 We note the definition from a dictionary published closest to the year the parties entered the Agreement in an effort to adhere to one of our functions in contract interpretation: "to consider what is written in the context of the circumstances at the time of drafting." Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). 9 The trial court also relied on the definition of "solicit" contained in the sixth edition of Black's Law Dictionary. Black's Law Dictionary 1392 (6th ed. 1990). The ninth edition, which was published in 2009, and available at the time the parties entered the Agreement, does not include a definition of "solicit," and instead defines "solicitation." Black's Law Dictionary 1194 (9th ed. 2009). It also defines "solicitor" as "[a] person who seeks
18 A-0619-15T3 interpreted the term "solicit" with an analogous meaning. See,
e.g., Meyer-Chatfield v. Century Bus. Servicing, Inc., 732 F.
Supp. 2d 514, 520 (E.D. Pa. 2010) (defining "solicit" as including
conduct such as appealing, applying, asking or personally
petitioning another individual to obtain something from them, as
set forth in Black's Law Dictionary 1392 (6th ed. 1990)); Akron
Pest Control v. Radar Exterminating Co., Inc., 455 S.E. 2d 601,
602-03 (Ga. Ct. App. 1995) (relying upon the definition of
"solicit" as set forth in Black's Law Dictionary 1392 (6th ed.
1990)).
The trial court therefore properly found that the plain and
ordinary meaning of the term "solicit" requires an affirmative act
taken by one party – a solicitor – to obtain something from another
party. By extension, solicitation requires more than the mere
acceptance of, or response to, an offer. See Meyer-Chatfield,
supra, 732 F. Supp. at 520 (finding that solicitation requires an
"affirmative action on the part of the solicitor," and not "merely
accepting business"); Wachovia Ins. Servs. v. Fallon, 682 S.E. 2d,
662 (Ga. Ct. App. 2009) (rejecting a claimed violation of a non-
solicitation agreement because the defendant "did not solicit or
business or contributions from others." Ibid. The definitions of "solicitation" and "solicitor" remain unchanged in the more current, 2014 publication. Black's Law Dictionary 1607-08 (10th ed. 2014).
19 A-0619-15T3 induce the employees; instead, they approached him"); Akron Pest
Control, supra, 455 S.E. 2d. at 603 (finding no violation of a
non-solicitation agreement based on the defendants' acceptance of
business they did not seek out, but which was offered without any
affirmative request).
In dismissing Digital's breach of contract claim, the court
correctly applied the ordinary meaning of the term "solicit." The
undisputed facts showed that Sagitec never petitioned or requested
business from FNPF following FNPF's rejection of the joint
proposal, but rather FNPF unilaterally contacted Sagitec in
October 2013 seeking a potential contract partner for the provision
of information technology services. There is no evidence in the
record to the contrary.
The non-solicitation covenant also barred Digital and Sagitec
from "approach[ing]" each other's clients "directly or indirectly
for any direct or indirect business . . . outside of the mutually
agreed to partnership." Although the trial court found the
undisputed facts showed "Sagitec did not solicit or approach FNPF
for business," the court did not directly address Digital's claim
that Sagitec approached FNPF in violation of the non-solicitation
covenant. However, based on our de novo review, we nevertheless
conclude that the undisputed facts also establish that Sagitec did
not approach FNPF in violation of the non-solicitation covenant.
20 A-0619-15T3 See Cumberland Farms, Inc. v. New Jersey Dep't of Envtl. Prot.,
447 N.J. Super. 423, 438 (App. Div. 2016) ("The interpretation and
construction of a contract is a matter of law . . . subject to de
novo review on appeal."), certif. denied, 229 N.J. 149 (2017).
Relying upon an internet dictionary, Digital argues the term
"approach" has multiple definitions, two of which are applicable
to the Agreement's non-solicitation covenant.10 Digital does not
dispute that the first definition of "approach," "to present,
offer or make a proposal or request to," is consistent with the
term "solicit." As such, that definition does not support Digital's
contention that Sagitec violated the non-solicitation covenant.
As noted, the record establishes that Sagitec's entry into the May
2014 contract was the result of a request made by FNPF to Sagitec.
10 Digital suggests that what it denominates as the primary definition of "approach," "to come near or nearer to," required a denial of Sagitec's motion because under that definition Sagitec could not "sidle up to" FNPF. In the dictionary relied upon by Digital, sidled means "to move sideways or obliquely" or "to edge along furtively." See Sidle, Dictionary.com, http://www.dictionary.com/browse/approach?s=t (last visited Aug. 4, 2017). The record, however, is bereft of any evidence that Sagitec sidled up to FNPF. Digital does not argue that any of following definitions of the term "approach" apply in the context of the non-solicitation provision: "to come near to in quality, character, time, or condition; to come within range for comparison," "to make advances to; address," and "to bring near to something." See Approach, Dictionary.com, http://www.dictionary.com/browse/approach?s=t (last visited Aug. 4, 2017).
21 A-0619-15T3 Digital relies on another definition of "approach" listed in
the internet dictionary: "to begin work on; set about." See
Approach, supra.11 Digital argues this definition requires that we
interpret the non-solicitation covenant to mean that FNPF was "not
to even begin being worked on" by Sagitec. Digital contends
application of this definition creates an ambiguity in the language
of the non-solicitation covenant that should have been resolved
in its favor because if "approach" had the same meaning as
"solicitation," there would have been no need for the parties to
prohibit both forms of conduct.
"An ambiguity in a contract exists" only if the terms are
"susceptible to at least two reasonable alternative
interpretations." Schor, supra, 357 N.J. Super. at 191 (emphasis
added) (quoting Nester v. O'Donnell, 301 N.J. Super. 198, 210
(App. Div. 1997)). "The parties' differing subjective
interpretations, however, will not rise to the level of ambiguity
if the contract is otherwise clear." Hess Corp. v. ENI Petroleum
US, LLC, 435 N.J. Super. 39, 46-47 (App. Div. 2014).
11 The online definition Digital relies upon is consistent with other publications recognizing similar, multiple meanings of the word "approach." See, e.g., Oxford Am. Dictionary & Thesaurus, 36 (3d ed. 2010) ("come near to," "go to someone with a proposal or request," "deal with something in a certain way," "a way of dealing with something," "a proposal or request," "the action of approaching, and "a way leading to a place").
22 A-0619-15T3 We find Digital's proffered interpretation of "approach," as
used in the non-solicitation covenant, to mean that Sagitec could
not "begin work on" or "set about" FNPF to be illogical. Digital's
argument constitutes a strained attempt to create an ambiguity or
otherwise expand the scope of the contract. Our task is not to
"torture the language of [a contract] to create ambiguity." Schor,
supra, 357 N.J. Super. at 191 (quoting Nester, supra, 301 N.J.
Super. at 210). Rather, we look to the plain terms of the contract
and declare the meaning of what is already written, not what, in
hindsight, may have been written. See Zacarias v. Allstate Ins.
Co., 168 N.J. 590, 595 (2001) (explaining that a court's task is
not to rewrite a contract for the parties better than or different
from the one they wrote for themselves).
"A basic principle of contract interpretation is to read the
document as a whole in a fair and common sense manner." Hardy,
supra, 198 N.J. at 103 (emphasis added). Here, common sense
dictates our conclusion that the plain language of the non-
solicitation covenant prohibited Sagitec from taking affirmative
steps to solicit FNPF's business or approach FNPF to obtain its
business. Had Digital intended the non-solicitation covenant to
also bar Sagitec from accepting any unsolicited opportunity to
work with Digital's clients, it could have expressed such an
intention in an obvious manner, with words commonly used to
23 A-0619-15T3 articulate broader restrictions such as those observed, for
example, in the context of non-compete agreements. See, e.g.,
Lamorte Burns & Co. v. Walters, 167 N.J. 285, 292 (2001)
(interpreting a restrictive covenant that prohibited employees
from "solicit[ing] or accept[ing]" any business relationship with
former employer's clients).
The plain and ordinary meaning of the terms in the non-
solicitation covenant are unaccompanied by any qualifying terms
expanding the scope of prohibited conduct beyond an affirmative
act to solicit or approach initiated by one of the parties. It is
not our place, as Digital would have it, to "remake a better
contract for the parties than they themselves have seen fit to
enter into, or to alter it for the benefit of one party and to the
detriment of the other." Karl's Sales & Serv., Inc. v. Gimbel
Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied,
127 N.J. 548 (1991).12
Applying the ordinary meanings of the terms in the logical
context of the Agreement, we find no ambiguity. Of course, even
if we accepted Digital's position that the term "approach," as
used in the non-solicitation covenant was ambiguous, such
12 We further note that in any event, even if we adopted Digital's expanded reading of the non-solicitation covenant, there is no evidence Sagitec "worked on" or "set about" FNPF to obtain its request for Sagitec to provide the services.
24 A-0619-15T3 ambiguity would be resolved against Digital because it drafted the
non-solicitation covenant. Roach, supra, 228 N.J. at 174 (quoting
Kieffer v. Best Buy, 205 N.J. 213, 223 (2011)).
Against this backdrop, the trial court correctly observed
that the undisputed facts in the record showed Sagitec neither
solicited nor approached FNPF following the rejection of the
parties' joint proposal. On October 9, 2013, FNPF emailed the
parties with an attached correspondence advising them "that [the
joint proposal] has been unsuccessful," and no other tenderer was
successful. Sagitec's only subsequent affirmative communication
to FNPF in the record is a responding email from Piyush Jain of
Sagitec, simply stating the company was "disappointed with the
outcome" and thanking FNPF for its consideration.
Four days later, on October 13, 2013, Sagitec received
unsolicited correspondence from FNPF concerning a separate
potential contract to provide services. The undisputed facts show
that Sagitec merely responded to FNPF's request, which was neither
solicited by Sagitec nor the result of any approach made by
Sagitec. The court correctly determined that Digital failed to
produce any evidence to the contrary, and properly dismissed
Digital's claim that Sagitec violated the non-solicitation
provision.
25 A-0619-15T3 III.
Digital also claims the court erred by granting Sagitec's
motion for summary judgment and dismissing Digital's claims for
breach of the covenant of good faith and fair dealing, unjust
enrichment, breach of fiduciary duty, tortious interference with
prospective economic advantage and for equitable relief. We have
carefully considered Digital's arguments, find they are without
sufficient merit to warrant discussion in a written opinion, R.
2:10-11(3)(E)(3), and affirm substantially for the reasons set
forth in the motion court's comprehensive and well-reasoned
written decision.
Affirmed.
26 A-0619-15T3