Akron Pest Control v. Radar Exterminating Co., Inc.

• Decision Date: 06 March 1995
• Docket Number: No. A94A2801,A94A2801
• Citation: 455 S.E.2d 601,216 Ga.App. 495
• Parties: AKRON PEST CONTROL et al. v. RADAR EXTERMINATING COMPANY, INC.
• Court: Georgia Court of Appeals

Page 601

455 S.E.2d 601

216 Ga.App. 495

AKRON PEST CONTROL et al. v. RADAR EXTERMINATING COMPANY, INC.

No. A94A2801.

Court of Appeals of Georgia.

March 6, 1995.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Atlanta, for appellants.

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, Atlanta, for appellee.

SMITH, Judge.

We granted appellants' application for interlocutory review to address the question of whether an agreement "not to solicit, either directly or indirectly, any current or past customers" of appellee may possibly be construed as requiring appellants to turn away clearly unsolicited business.

The underlying facts are not in material dispute. In December 1990 appellant Donald Sellers redeemed his 3,300 shares of common stock in Active Pest Control, Inc., pursuant to a Stock Redemption Agreement. Nonparty Donald Lackey then became sole shareholder of Active, which has since merged into appellee Radar Exterminating Company, Inc. ("Radar"). As part of the transaction, Sellers also entered into a nondisclosure/nonsolicitation agreement in which he agreed "not to solicit, either directly or indirectly any current or past customers or current employees of Buyer, (or in the event of a merger, Radar Exterminating Company, Incorporated) whether as a proprietor, partner, joint venture, employer, agent, consultant, officer, or beneficial or record owner for the purpose of providing pest control services of the kind which Buyer provides as its business." The restrictions were to last "for a period of two years from the closing date."

Sellers soon thereafter established corporate appellant Akron Pest Control, Inc. ("Akron"). It is undisputed that Akron did business with former customers of Active (now Radar) within the two-year period covered by the nondisclosure/nonsolicitation agreement. All of the evidence presented shows, however, that Sellers in no way sought out the former Active customers who subsequently did business with him through Akron.

Radar brought suit against Sellers and Akron for breach of contract, tortious interference with contractual relations, and an alleged violation of the Uniform Deceptive Trade Practices Act. Sellers and Akron counterclaimed against Radar for sums due under two promissory notes executed by Active prior to its merger with Radar. Sellers and Akron moved for summary judgment on all counts of the complaint and counterclaim, which was denied. The trial court certified the order for immediate review, and Sellers and Akron petitioned this court seeking interlocutory review. The application was granted, and this appeal followed.

1. Sellers contends he in no way solicited former clients and the trial court erred in finding a jury question remaining on this issue. Radar does not dispute the state of the evidence presented on this issue, but instead takes the position that the nondisclosure language "could be understood by the parties to mean that Appellant Sellers would refuse and, in fact, turn away pest control business if contacted by any customers on Exhibit 'B' of the Verified Complaint and refuse to hire and, in fact, turn away employees of Active/Radar as of the date of the stock sale if they came to him looking for employment." (Emphasis supplied.) We disagree.

"The cardinal rule in the construction of contracts is to ascertain the intention of the parties. The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement. The question remaining is whether the language of the contract creates an ambiguity which may be explained by parol. A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one. Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances. Where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance. If the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. Dictionaries supply the plain, ordinary and popular sense." (Citations, punctuation and emphasis omitted.) Race, Inc. v. Wade Leasing, 201 Ga.App. 340, 341(1), 411 S.E.2d 56 (1991).

"Webster's New Intl. Dictionary, 2d ed., defines 'solicit' as 'to entreat, importune ... to endeavor to obtain by asking or pleading ... to urge....' " Mgmt. Compensation Group/Southeast v. United Security Employee Programs, 194 Ga.App. 99, 102(2), 389 S.E.2d 525 (1989). The word has been otherwise defined as: "To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain; and though the word implies a serious request, it requires no particular degree of importunity, entreaty, imploration, or supplication. [Cit.] To awake or incite to action by acts or conduct intended to and calculated to incite the act of giving. [Cit.] The term implies personal petition and importunity addressed to a particular individual to do some particular thing." Black's Law Dictionary, p. 1392 (6th ed. 1990).

The phrase "not to solicit ... indirectly," though undisputedly a broad statement of the parties' intent with respect to the activity in which Sellers agreed not to engage, is not ambiguous. See Citadel Corp. v. Sun Chemical Corp., 212 Ga.App. 875, 876(2), 443 S.E.2d 489 (1994); Manderson & Assoc. v. Gore, 193 Ga.App. 723, 730(5), 389 S.E.2d 251 (1989). For Sellers to violate the...