Thompson v. Gjivoje, No. 354

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore OAKES, Chief Judge, TIMBERS and CARDAMONE; CARDAMONE
Citation896 F.2d 716
PartiesDavid T. THOMPSON and Thompson Communications Companies, Inc., Plaintiffs-Appellants, v. Davor G. GJIVOJE, Defendant-Appellee. ocket 89-7579.
Docket NumberNo. 354,D
Decision Date20 February 1990

Page 716

896 F.2d 716
David T. THOMPSON and Thompson Communications Companies,
Inc., Plaintiffs-Appellants,
v.
Davor G. GJIVOJE, Defendant-Appellee.
No. 354, Docket 89-7579.
United States Court of Appeals,
Second Circuit.
Argued Nov. 22, 1989.
Decided Feb. 20, 1990.

Page 717

Virginia A. LoPreto, New York City (Edmonds & Beier, New York City, of counsel), for plaintiffs-appellants.

Ann V. Kramer, New York City (R. Mark Keenan, Anderson Kill Olick & Oshinsky, New York City, of counsel), for defendant-appellee.

Before OAKES, Chief Judge, TIMBERS and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

A portion of this appeal turns on the use of the abbreviated Latin phrase "i.e." These letters, generally translated as "that is to say," are like a parenthetical phrase that defines or explains more precisely the words preceding them. Little words sometimes constitute a trap for an unwary draftsman causing a contract to be strictly construed according to its written terms, as we construe it in this case, not broadly construed as the draftsman now claims it should be.

This appeal in a diversity suit involves a dispute over a contract under which plaintiffs, David Thompson (Thompson) and his wholly-owned company, Thompson Communications Companies, Inc. (Thompson Communications or the Company), sold the Company's Networld subdivision to the Company's former president--the defendant, Davor Gjivoje. Thompson Communications provides management and marketing consulting services to the travel industry. Networld was organized to market travel related services of foreign "ground suppliers" to travel agents in the United States. Such suppliers furnish, for example, hotels and tours. Davor Gjivoje was hired by Thompson in December, 1980 to be president of Thompson Communications. When in the first quarter of 1983 the Company experienced financial troubles, Gjivoje approached Thompson saying that although he planned to resign, he was interested in purchasing Networld.

After this conversation the parties entered into two contracts--to be described in a moment--that are the subject of this appeal. After a series of unsuccessful proposals

Page 718

and counterproposals, Thompson and Gjivoje and their lawyers met on April 27, 1983 and--working from a type-written document drafted by Gjivoje prior to the meeting--forged a mutually acceptable contract for the sale of Networld (the 1983 contract).

A. The 1983 Contract

The three-page document drafted and signed on April 27 was divided into four major parts entitled: I. NETWORLD, II. DGG [initials for Davor G. Gjivoje] CONSULTING, III. INVESTMENT and IV. MISCELLANEOUS. This appeal implicates only parts I and II.

Most of the terms for Networld's purchase were set forth in part I. The disputed provision is paragraph five, which reads:

Networld to pay DTT [initials for David T. Thompson] 1/5th of Networld's annual pre-tax profits (until $300,000 is paid) in exchange for DTT's regular consulting services as will be agreed upon between DGG, on behalf of the new Networld company, and DTT.

As of the filing of this appeal, Gjivoje had paid Thompson $7,000 under this provision for his consulting services. Thompson concedes that Networld has not shown any recorded profits since 1983, but contends that this failure is in part the result of a fraudulent transfer of business from Networld to Networld Communications (NetCom)--a separate company that Gjivoje formed to provide a different service (consulting) than that provided by Networld (marketing services of foreign ground suppliers).

Part II of the 1983 contract, headed DGG CONSULTING, provides the terms for the continuing consulting relationship between Networld and Thompson Communications. This part states insofar as is pertinent:

DGG [Gjivoje] to continue consulting services for TCC [Thompson Communications] in the Business Development area. DGG and Networld will support all existing TCC business and will not for a period of 6 months from the termination date of this contract pursuant to paragraph 8, solicit or accept business from existing TCC clients (not including Networld clients) except on behalf of TCC, provided however, that if TCC fails to make any payment to DGG within 15 days of the due date hereunder then DGG will be relieved of this non-complete agreement if he, for his part, agrees to pay commissions to TCC for any business obtained by Networld from companies who are clients of TCC on the date this agreement is signed in the same amounts and on the same schedule as TCC would have paid DGG under this agreement, such commissions payable to TCC to be reduced by all commissions payable to DGG from TCC.

There follows a subsection, entitled "COMMISSIONS", that lists a schedule of commission percentages for various services.

Plaintiffs claim that the above section requires that Gjivoje and Networld pay commissions to the Company for any business that Networld received from the Company's clients, regardless of the manner in which Gjivoje was "released" from the non-compete clause of Part II. In particular, plaintiffs claim that Gjivoje and Networld owe the Company commissions for business it received from a Thompson Communications client, MasterCard, through a separate agreement between them that allowed Networld to assume the MasterCard deal from the Company.

At the time the April 27, 1983 contract was executed, MasterCard was a Company client. Hence, the noncompete clause in the contract would have barred Gjivoje from doing business with MasterCard unless: 1) Gjivoje or Networld had worked as a consultant to the Company on MasterCard business, and 2) the Company had then been delinquent in its payment of commissions to Networld for these services, and 3) Networld decided to take on MasterCard as a direct client, thereby agreeing to pay the Company an equivalent commission to that which Networld would have received had it remained only a consultant. In fact, prior to the transfer of the MasterCard account to Networld, Gjivoje did provide consulting services to the Company

Page 719

for MasterCard pursuant to the "DGG CONSULTATION" section of the 1983 contract. But because Thompson Communications did not default in its commissions payments to Gjivoje for his services, the exception to the non-compete clause could not properly have been invoked.

B. The MasterCard Agreement

In order to avoid a possible conflict of interest between MasterCard and some of the Company's other clients, Thompson and Gjivoje agreed to transfer the MasterCard project to Networld. On March 2, 1984 (subsequent to Gjivoje's 1983 purchase of Networld), Gjivoje drafted a letter agreement to be signed by himself and Thompson (the MasterCard Agreement). This written agreement stated:

This is to confirm that contrary to our agreement of April 1983, you have specifically asked, in the presence of Marion Haller, that I (i.e. Networld ) take on the Universal voucher project directly with MasterCard and sign with them an agreement to that effect. Under terms which have to be agreed upon separately, TCC is willing to provide the necessary support resources to myself, (i.e. Networld ) on an as needed basis and upon my request. (emphasis supplied).

Both parties signed this agreement and, thereafter, Gjivoje contracted with MasterCard directly to perform a feasibility study for the Universal voucher proposal. Gjivoje then formed a new company--the earlier referred to NetCom--to handle the MasterCard business, as well as other consulting work. Gjivoje and NetCom consulted on the MasterCard project until it ended in March, 1987.

The parties dispute what effect the MasterCard Agreement language--"contrary to our agreement of April 1983"--has on any obligation Gjivoje may have had to pay Thompson Communications commissions for the MasterCard project. Plaintiffs claim that the language merely released Gjivoje from the non-compete clause of the 1983 contract, but did not release him from an obligation arising under that contract to pay commissions to the Company for any business that Gjivoje received under any circumstances from one of...

To continue reading

Request your trial
359 practice notes
  • Crum v. Dodrill, No. 9:06-CV-586.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 4, 2008
    ...S.Ct. 2505, 91 L.Ed.2d 202 (1986). 19. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) [citation 20. Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provi......
  • United Technologies Corp. v. American Home Assur., No. 292 cv 00267 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 1997
    ...dispute and "[a]ll reasonable inferences and any ambiguities are drawn in favor of the non-moving party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Once the moving party has met its burden, "the non-moving party, in order to defeat summary judgment, must come forw......
  • U.S. v. Blue Ribbon Smoked Fish, Inc., No. CV-01-3887 (CPS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 19, 2001
    ...resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). While the court views the evidence in the light most favorable to the nonmoving party, see O'Brien v. National Gypsum Co.,......
  • Sadhu Singh Hamdad Trust v. Ajit Newspaper Adv., No. 04 CV 3503(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2007
    ...Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990), and the. Court should not grant summary judgment unless "it appears beyond doubt that the plaintiff can. prove no set......
  • Request a trial to view additional results
359 cases
  • Crum v. Dodrill, No. 9:06-CV-586.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 4, 2008
    ...S.Ct. 2505, 91 L.Ed.2d 202 (1986). 19. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) [citation 20. Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provi......
  • United Technologies Corp. v. American Home Assur., No. 292 cv 00267 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 1997
    ...dispute and "[a]ll reasonable inferences and any ambiguities are drawn in favor of the non-moving party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Once the moving party has met its burden, "the non-moving party, in order to defeat summary judgment, must come forw......
  • U.S. v. Blue Ribbon Smoked Fish, Inc., No. CV-01-3887 (CPS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 19, 2001
    ...resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). While the court views the evidence in the light most favorable to the nonmoving party, see O'Brien v. National Gypsum Co.,......
  • Sadhu Singh Hamdad Trust v. Ajit Newspaper Adv., No. 04 CV 3503(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2007
    ...Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990), and the. Court should not grant summary judgment unless "it appears beyond doubt that the plaintiff can. prove no set......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT