KENNETH MORRIS & a.
Argued: April 12, 2018
Hinckley, Allen & Snyder, LLP, of Manchester (Christopher
H.M. Carter and Kimberly M.R. Sullivan on the brief, and Mr.
Carter orally), for the plaintiff.
Devine, Millimet & Branch, P.A., of Manchester (Jonathan
M. Shirley on the joint brief and orally), for defendant
Scott Electronics, Inc.
R. Tenczar, of Tyngsborough, Massachusetts, on the joint
brief, and Law Office of Brian W. Leahey, P.C., of
Tyngsborough, Massachusetts (Brian W. Leahey on the joint
brief and orally), for defendant Kenneth Morris.
plaintiff, Atronix, Inc., which brought this action for,
among other things, breach of contract against defendant
Kenneth Morris and tortious interference with contractual
relations against defendant Scott Electronics, Inc. (Scott),
appeals a decision of the Superior Court (Wageling,
J.) dismissing its action for lack of standing. We reverse
following facts were recited in the trial court's orders.
Morris started working at Atronix Sales, Inc. (Old Atronix)
in 1982. He was promoted several times over the course of his
employment, eventually becoming program manager in the sales
department. That position entailed responsibility for the
largest and most important of Old Atronix's accounts.
Accordingly, in 1997, Morris was required to sign a
non-compete and non-solicitation agreement (the non-compete
agreement), and a non-disclosure agreement (collectively, the
2011, Old Atronix merged with Atronix, Inc. (the Company). In
2014, the Company entered into an Asset purchase agreement
(the APA) with Consolidated Cable Assembly Holdings, Inc.
(CCAH). Pursuant to the APA, the Company sold its assets,
including the tradename "Atronix, Inc.," to a
subsidiary of CCAH. The subsidiary, doing business under the
name Atronix, Inc., is the plaintiff here.
2016, Morris left his job with the plaintiff and was hired as
a general manager by Scott, a competitor of the plaintiff.
Thereafter, the plaintiff filed the instant suit, alleging
breach of contract, tortious interference with contract, and
violation of the New Hampshire Consumer Protection Act,
see RSA ch. 358-A (2009 & Supp. 2017), and
seeking a declaratory judgment and injunctive relief. The
defendants moved to dismiss, asserting that the plaintiff
lacked standing to enforce the Agreements. The trial court
granted the motion, and denied the plaintiff's subsequent
motion for reconsideration.
appeal, the plaintiff argues that: (1) the trial court's
decision conflicts with the APA's plain terms; (2) the
trial court's decision "also conflicts with the
well-established rule that when a business is sold as a going
concern under an asset purchase, restrictive covenants are
assigned to the buyer along with goodwill and other assets
necessary to the continued operation of that business";
(3) the trial court "conflated the issue of whether the
non-compete agreement was assigned under the APA, with the
wholly separate issue of whether Morris consented to the
assignment"; and (4) consent by Morris was not required
in any event.
the underlying facts relevant to this appeal are undisputed,
we review the trial court's ruling that the plaintiff
lacks standing to enforce the non-compete agreement de
novo. See In the Matter of P.B. & T.W., 167
N.H. 627, 629 (2015). The trial court's decision on that
issue was based, in its words, on "[w]hether the terms
of the APA transferred the right to enforce the
Agreements." We note that the trial court's order,
by using the term "Agreements" - which it defined
to refer collectively to the non-compete agreement and
non-disclosure agreement - broadly rules that neither
agreement was transferred under the APA. The plaintiff,
however, challenges only the court's ruling with respect
to the non-compete agreement. Accordingly, we decide only the
narrow issue of whether the non-compete agreement was
transferred to the plaintiff under the APA.
what the APA conveyed requires us to interpret that
agreement. We note that although the APA provides that it is
to be governed by Delaware law, Delaware's law regarding
contract interpretation does not differ materially from our
own. Compare Signal Aviation Servs. v. City of
Lebanon, 169 N.H. 162, 166 (2016), with Exelon
Generation Acquis. v. Deere & Co., 176 A.3d 1262,
1266-67 (Del. 2017), and GMG Capital Inv. v. Athenian
Venture, 36 A.3d 776, 779, 783-84 (Del. 2012).
It is axiomatic that we give an agreement the meaning
intended by the parties when they wrote it. When interpreting
a written agreement, we give the language used by the parties
its reasonable meaning, considering the circumstances and
context in which the agreement was negotiated, when reading
the document as a whole. Absent ambiguity, the parties'
intent will be determined from the plain meaning of the
language used. Only when the parties reasonably disagree as
to its meaning will the agreement's language be deemed
ambiguous. If the agreement's language is ambiguous, it
must be determined what the parties, under an objective
standard, mutually understood the ambiguous language to mean.
Signal Aviation Servs., 169 N.H. at 166 (quotation
omitted); see also Exelon Generation Acquis., 176
A.3d at 1266-67; GMG Capital Inv., 36 ...