Bus. Commc'ns Inc v. Banks

• Decision Date: 22 February 2011
• Docket Number: NO. 2009-CA-00407-COA,2009-CA-00407-COA
• Parties: BUSINESS COMMUNICATIONS, INC. APPELLANT v. ALBERT BANKS APPELLEE
• Court: Mississippi Court of Appeals

BUSINESS COMMUNICATIONS, INC. APPELLANT

v.ALBERT BANKS APPELLEE

NO. 2009-CA-00407-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

February 22, 2011

DATE OF JUDGMENT: 03/02/2009

TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: STEPHEN J. CARMODY JOHN CURTIS HALL II

ATTORNEYS FOR APPELLEE: SILAS W. MCCHAREN BRANDI S. SHAFER

NATURE OF THE CASE: CIVIL-CONTRACT

TRIAL COURT DISPOSITION: ENTERED A JUDGMENT NOTWITHSTANDING THE VERDICT IN FAVOR OF ALBERT BANKS

DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART: 02/22/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

GRIFFIS, J., FOR THE COURT:

¶1. This appeal arises from the circuit court's grant of a judgment notwithstanding the verdict, under Mississippi Rule of Civil Procedure 50(b), which is commonly referred to as a "JNOV." The appellant, Business Communications, Inc. ("BCI"), brought several employment related claims against its former employee, Albert Banks, the appellee. After a trial, the jury awarded BCI $1,000 in damages for Banks's breach of a "Business Protection Agreement" ("BPA") due to Banks's subsequent employment with a competitor-company, GKR Systems, Inc. d/b/a Venture Technologies ("Venture"). The jury also awarded BCI $9,000 in damages for Banks's breach of the cost-reimbursement provision of the BCI employee handbook ("RCA"). The circuit court then granted Banks's motion for a JNOV and entered a final judgment in favor of Banks. It is from this judgment that BCI now appeals.

FACTS

¶2. BCI is a technological solutions company. Its business includes the design, implementation, and maintenance of the following: (1) internet protocol telephony and traditional phone systems, (2) network security, (3) wireless communications, (4) structured cabling systems, (5) data storage, (6) internet services, (7) software services, and (8) hardware maintenance.

¶3. On March 2, 2001, BCI extended a written offer of employment to Banks for a position as "Lead Consulting Engineer." Banks accepted the offer and began working for BCI on March 19, 2001.

¶4. Banks brought with him approximately twelve years of computer-technology experience: four to six years of graduate and undergraduate education in computer science and internet technology and six years of work experience in the information-systems field. Banks also had received a number of technology certifications. Of particular interest to BCI, Banks had obtained a certificates for Cisco Certified Internetwork Expert ("CCIE") and Microsoft Certified System Engineer ("MCSE").

¶5. BCI's employment offer was contingent upon Banks's signing the BPA. It includeda non-competition provision, which provides:

For a period of one (1) year after termination of Employee's employment with the Company, whether voluntarily or involuntarily terminated by either party with or without cause or notice, the Employee hereby agrees not to render services, directly or indirectly, whether as principal or agent, officer, director, employee, advisor, consultant, shareholder, or otherwise, alone or in association with any other person or entity, to or for any Competitor of the Company within a 150 mile radius of (a) the location of any office of the Company and (b) from any place where the business of the Company is being conducted, whether or not the Company established an office in such location.

¶6. Banks signed the BPA on March 8, 2001. Banks was also provided a copy of BCI's employee handbook. He signed an acknowledgment of receipt. The employee handbook expressly disclaimed any employment contract, with the following language:

I acknowledge and agree that nothing in this Employee Handbook is intended to create or constitute an employment agreement with any employee. As an employee covered by this Employee Handbook, I acknowledge and agree that my employment is for no definite period of time and may be terminated, with or without cause, at any time in accordance with the Employee Handbook, at my option or at the option of BCI.

¶7. In addition, on March 8, 2001, Banks executed a separate stand-alone agreement entitled "Reimbursement of Costs" ("2001 RCA"), which provides:

I understand that during the course of my employment, [BCI] may necessarily incur certain fees and expenses related to my employment. Therefore, I hereby agree that should I terminate my employment with [BCI] within one year of my date of hire, I will be responsible for reimbursing to [BCI] all expenses which may have been incurred by the Company with regard to my relocation, training, and/or certification of any kind. I understand and agree that a sum equal to this amount will become immediately due and payable, with or without notice, and without demand therefore, on the date of my separation from employment, and I agree to immediately reimburse to [BCI] this amount.

¶8. In his first year of employment, Banks was promoted to "Vice-President of Emerging Technologies." During his employment with BCI, Banks was primarily responsible for the installation and support of the local and wide-area network Cisco equipment sold to BCI's customers. Banks also often assisted BCI's sales personnel with prospective customers to help explain the technology and how it might be implemented to best meet the customer's needs. As a salaried employee, Banks did not receive a commission for any of the goods and services BCI sold. Except for a brief period when Banks voluntarily took a cut in pay, Banks's salary remained the same throughout his employment with BCI.

¶9. In January 2005, Banks placed his resume on the employment web site "Monster.com." As a result, in November 2005, Venture made contact with Banks about potential employment. In response, Banks told Venture's representative that he had signed a non-compete agreement with BCI and that he could not work for Venture because the company was a competitor of BCI.

¶10. On March 31, 2005, BCI issued a new employee handbook and distributed it to its employees via e-mail. The new employment handbook contained, on page thirty-five, a new RCA ("2005 RCA"). Banks did not sign an acknowledgment of receipt of the 2005 handbook or the 2005 RCA. The 2005 RCA, essentially, was identical in form to the 2001 RCA, in that it contained a space for the employee's signature, the employee's printed name, the date, and a witness's signature. It provided different terms than the 2001 RCA, stating:

I understand that during the course of my employment, [BCI] may necessarily incur certain fees and expenses related to my employment. Therefore, I hereby agree that should I terminate my employment with [BCI], I will be responsible for reimbursing [BCI] all expenses which may have been incurred by [BCI] with regard to my relocation, training, and/orcertification of any kind within the previous twelve months. In addition, I agree to returned [sic] or reimburse [BCI] for any outstanding advances, per diems, travel, tools or equipment that have been issued to me. I understand and agree that a sum equal to this amount will become immediately due and payable, with or without notice, and without demand therefore, on the date of my separation from employment, and I agree to immediately reimburse to [BCI] this amount.

(Emphasis added).

¶11. In January 2006, a representative of Venture again contacted Banks. Venture formally extended Banks an offer of employment on February 7, 2006. Banks accepted. He formally tendered his resignation to BCI on February 15, 2006.

¶12. The same day, Tony Bailey, BCI's owner, called Banks into his office and asked Banks where he was going. Banks declined to tell him. Bailey reminded Banks that he had signed a BPA, and he said to Banks, "Do you understand that if you go to work for a competitor, I will come after you to the nth degree?"

¶13. Banks left BCI on February 28, 2006. Shortly thereafter, BCI learned that Banks had gone to work for Venture.

¶14. In March 2006, BCI filed a lawsuit in the Madison County Chancery Court against Banks and Venture. The complaint alleged two causes of action against Banks: (1) breach of the BPA, and (2) misappropriation of trade secrets and confidential/proprietary information in violation of the BPA and Mississippi law. The complaint alleged three causes of action against Venture: (1) tortious interference with contract, (2) intentional interference with business relations and prospective business advantage, and (3) misappropriation of trade secrets and confidential/proprietary information in violation of the BPA and Mississippi law.

Banks and Venture timely answered the complaint and denied all claims.

¶15. Along with the complaint, BCI filed a motion for temporary injunction and a restraining order. BCI sought to restrain or enjoin Banks from working at Venture. Banks and Venture responded, and Venture offered the following two documentary exhibits:

(1) an agreement entered into between Banks and Venture (on February 13, 2006) wherein Banks's employment with Venture would be restricted so as to prevent Banks from unfairly competing with BCI by using his knowledge of BCI confidential information or trade secrets, if any, and that would prevent Banks from soliciting/servicing former BCI customers; and

(2) an affidavit from Venture's President, Gerard Gilbert, swearing under oath that Venture and Banks had both adhered to their agreements to prevent any unfair competition by Banks against BCI.

¶16. The chancery court transferred the case to the Madison County Circuit Court. In August 2006, the circuit court entered an agreed order on BCI's motion for injunctive relief. The order permitted Banks to continue his employment at Venture, and it enjoined Banks from disclosing any of BCI's confidential information and soliciting or servicing any of BCI's customers. The parties were required to pay their own costs and attorney's fees incurred with the temporary restraining order and preliminary injunction.

¶17. In ...