ALL QUALITY CARE, INC. v. AMINA KARIM, CARMELITA HALL, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3359-04T13359-04T1

ALL QUALITY CARE, INC.,

Plaintiff-Appellant,

v.

AMINA KARIM, CARMELITA HALL,

and PAT WEEKS,

Defendants-Respondents.

 

Argued: December 14, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. SSX-L-66-03.

Kevin E. Barber argued the cause for appellant (Niedweske Barber, attorneys; Matthew Justin Vance, of counsel and on the brief).

Richard E. Honig argued the cause for respondents.

PER CURIAM

In this breach of contract action, plaintiff All Quality Care, Inc. appeals from entry of an order in the Law Division on January 31, 2005, granting summary judgment in favor of defendants Fati Amadu (incorrectly identified as Amina Karim), Carmelita Hall, and Robert Weeks (incorrectly identified as Pat Weeks), dismissing its complaint against them. Plaintiff also appeals from a second order entered on that date, denying its motion for summary judgment.

Plaintiff is engaged in the business of providing emergency and non-emergency home health services. On or about August 24, 1999, defendant Fati Amadu, under the name of Amina Karim, entered into an employee contract with plaintiff. At the time she signed that contract, Amadu was not authorized to work in the United States, so she submitted her application for employment with plaintiff by using the name and driver's license of her sister, Amina Karim. Plaintiff offered work to Amadu under her sister's name. The employee contract she signed provides, in pertinent part:

Employee agrees to work with [plaintiff] on its cases, however, in the event that an employee decides to leave the agency and/or work concurrently with another agency at any time, this employee will not be able to work any of the cases contracted with [plaintiff] for one year following the last date employee worked one of [plaintiff's] cases. . . .

This also means the [plaintiff's] employee may not solicit or market any of [plaintiff's] clients for any personal employment (meaning working the case privately themselves) for one year after being employed on the same case with [plaintiff].

Between August 1999 and December 2001, Amadu worked for plaintiff under her sister's identity. In November 2001, Amadu obtained a work authorization permit from the federal government, and she requested plaintiff to change its records to reflect her true identity. Plaintiff began paying Amadu under her correct name, but plaintiff refused Amadu's request to provide her with a W-2 wage form for 2001, having issued one under her sister's name. In March 2002, plaintiff terminated Amadu for providing false information at the time she applied for employment in 1999.

Robert Weeks is the son-in-law of Carmelita Hall. On November 29, 1999, he executed, on behalf of Hall, a service agreement with plaintiff for the provision of home health services. That agreement provides, inter alia:

By signing below, I agree that I shall not directly employ the services of any of [plaintiff's] employees without the written consent of the [plaintiff]. Violation of this covenant shall require me to fully compensate the [plaintiff] for all losses and costs associated with "taking any employee private", including legal fees, if necessary.

On or about November 29, 1999, Amadu was assigned by plaintiff to provide health care services to Hall.

At the time he executed the service agreement, Weeks did not have a power of attorney or other document authorizing him to conduct her affairs. However, Weeks had been assisting his wife and Hall's two other daughters in providing for Hall's needs, as requested by Hall.

When Amadu was fired Weeks attempted, without success, to convince plaintiff to re-hire Amadu since Hall had become attached to her and wanted Amadu to continue as her aide. When plaintiff refused, and after Amadu had been fired, Hall directly hired Amadu as her live-in health care aide. At depositions, Weeks explained that Amadu had been residing with Hall and was being paid $750 per week for essentially the same services she had provided to Hall when Amadu was working for plaintiff.

Weeks explained that when the service agreement was executed, he was there with Hall, and plaintiff's representative asked that he sign it on Hall's behalf, so, with Hall's permission, he did. Weeks stated that when Amadu stopped coming to Hall's house, he called Kathy Member of plaintiff and requested that Amadu return. Member informed him that Amadu had been terminated and could not accept employment with a client of plaintiff for a period of one year. Notwithstanding, Weeks, after consulting with Hall and other family members, retained Amadu to care for Hall.

On January 10, 2003, plaintiff filed an action for damages against defendants, alleging a breach of the employee contract by Amadu, and breach of the service agreement by Hall and Weeks. Plaintiff alleged that, by their actions, defendants had also breached an implied covenant of good faith and fair dealing, and had engaged in a civil conspiracy.

After discovery and defendants' rejection of an arbitrator's decision, plaintiff moved for summary judgment; defendants cross-moved for summary judgment. The motions were argued before Judge Karen D. Russell on January 28, 2005. On January 31, 2005, the judge issued orders denying plaintiff's motion and granting defendants' motion for summary judgment. In granting summary judgment in favor of defendants, the motion judge stated, in pertinent part:

The language of the [Service Agreement and Employee Contract] was solely under the control of plaintiff. This Court finds that the terms of the Employment Contract are to be construed to pertain only to any employee who decides to leave or otherwise voluntarily terminated his or her employment with plaintiff. In the present matter, plaintiff terminated defendant [Amadu's] employment. Furthermore, this Court finds that the language contained in the Service Agreement is to pertain only to plaintiff's current employees. At the time defendant Hall hired defendant [Amadu] directly, plaintiff no longer employed [Amadu]. Viewed in light of well-established principles of contract law, this Court may not rewrite the terms of an unambiguous contract and must enforce the terms as written by plaintiff.

On appeal, plaintiff contends that the employment agreement should have been enforced as reasonable in terms of time, place and scope; that the trial court's ruling on the employment agreement was erroneous as a matter of law; that reading the employment agreement to apply only to voluntary terminations violates public policy; and the service agreement prohibited the private hiring of Amadu.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Russell in her written statement of findings and conclusions appended to the January 31, 2005 order. We add the following.

An employee's post-employment restrictive covenant will be given effect only if it is "reasonable under all the circumstances of the particular case." Hogan v. Brunswig Corp., 153 N.J. Super. 37, 41 (App. Div. 1977). Such a covenant will generally be found to be reasonable if it "simply protects the legitimate interest of the employer, imposes no undue hardship on the employee and is not injurious to the public." Ibid. See also Karlin v. Weinberg, 77 N.J. 408, 417 (1978) (holding that all three prongs of the above test must be satisfied for a covenant to be considered reasonable). "The validity and enforceability of the covenant is fact-sensitive and must be determined in light of the facts of the case." Platinum Management v. Dahms, 285 N.J. Super. 274, 294 (Law Div. 1995).

The "[p]olestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Service, Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991). In order to do so, the language used must be interpreted "in accord with justice and common sense." Ibid. The Court has also noted that:

In the quest for the common intention of the parties to a contract[,] [a court] must consider the relations of the parties, the attendant circumstances, and the objects they were trying to attain. An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.

[Tessmar v. Grosner, 23 N.J. 193, 201 (1957).]

See also City of Orange Twp. v. Empire Mortg. Servs., 341 N.J. Super. 216, 224 (App. Div. 2001) (holding that "[w]here the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written").

A court has no right to rewrite the terms of the contract "merely because one might conclude that it might well have been functionally desirable to draft it differently." Id. at 224. Moreover, the court may not remake a better contract for the parties than they have seen fit to enter into, or alter it for the benefit or detriment of one of the parties. James v. Federal Ins. Co., 5 N.J. 21, 24 (1950).

"Where an ambiguity appears in a written agreement, the writing is to be strictly construed against the party preparing it." Karl's Sales, supra, 249 N.J. Super. at 493. An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations. Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2003). This rule is somewhat tempered by the principle that although the contractual provision should be construed against the drafter, the construction must also be sensible and in conformity with the expressed intent of the parties. Broadway Maintenance Corp. v. Rutgers, 90 N.J. 253, 271 (1982); Karl's Sales, supra, 249 N.J. Super. at 493. Even where the parties' intention is "doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties, should be adopted, so that neither will have an unfair or unreasonable advantage over the other." Tessmar, supra, 23 N.J. at 201. Lastly, in order to determine the meaning of the terms of an agreement "by the objective manifestations of the parties' intent, the terms of the contract must be given their 'plain and ordinary meaning.'" Schor, supra, 357 N.J. Super. at 191 (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)).

Here, the contractual term at issue should be given its plain and ordinary meaning. It clearly states that the one-year restriction on working with one of plaintiff's clients is applicable only when "an employee decides to leave the agency." Although plaintiff argues that the contract should be interpreted such that this phrase means both voluntary and involuntary termination of the position, that is not the "plain" interpretation of their contractual language. The word "decides" implies that the termination of employment with plaintiff was something that was done with a choice; when one decides to do something, the assumption must be that more than one choice is available to the person and that the person is choosing one of those options. If an employee is involuntarily terminated, as here, that employee has not made a decision to leave the agency. Additionally, there is nothing in the record to suggest that Amadu "solicited" employment with Hall following her termination by plaintiff. Indeed, it is clear from Weeks' deposition testimony that the opposite was true. Therefore, the restrictive covenant is inapplicable to these circumstances.

Moreover, plaintiff was the drafter of this employment contract. As the drafter, any possible ambiguity of the contract must be construed against it. Karl's Sales, supra, 249 N.J. Super. at 493. If plaintiff had wanted the contract to apply both to voluntary and involuntary termination of its employees, then it should have drafted the contract explicitly in that manner.

The service agreement signed by Weeks states that the signer agrees that he or she "shall not directly employ the services of any of the agency's employees." Again, this contractual provision should be given its plain meaning. The phrase specifically states that the signer agrees not to employ any of plaintiff's employees. No definition of the word "employee" is given such that the court could reasonably interpret the word to mean both current and former employees. Because the contract is not explicit in that regard, it should be interpreted such that the word "employee" is given its plain meaning someone who is currently employed. This is in accord with the basic concept that any possible ambiguity in a contract should be construed against the drafter, in this case plaintiff.

Here, Amadu was hired by Weeks to privately care for Hall only after she had been involuntarily terminated by plaintiff and was, therefore, no longer an employee of the plaintiff. Therefore, under the plain language of the restrictive clause, the trial court properly concluded there was no breach of the service agreement.

 
Affirmed.

The correct party in interest is Fati Amadu.

The correct name of "Pat Weeks" is Robert Weeks.

(continued)

(continued)

11

A-3359-04T1

December 27, 2005

 


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