PITTMAN, Judge.
Cyndi Booth appeals from a summary judgment entered in favor of Newport Television, LLC ("Newport"), by the Mobile
In October 2008, Booth sued Newport, seeking a judgment declaring that a confidentiality, trade secrets, and noncompete agreement ("the noncompete agreement") that she had signed while employed by Clear Channel Broadcasting, Inc. ("Clear Channel"), was invalid; Newport had purchased certain assets of Clear Channel, including the television stations that Booth was then working for, and subsequently became Booth's employer. Additionally, Booth asserted a claim against Newport alleging tortious interference with business relations. Newport filed an answer denying Booth's claims and asserted a counterclaim seeking a judgment declaring the validity of the noncompete agreement and Newport's right to enforce the noncompete agreement. Booth denied the claim asserted against her by Newport.
In December 2009, Booth filed a motion for a summary judgment on her claim seeking a declaratory judgment. In January 2010, Newport responded in opposition and attached to its response the affidavit of Hamlet T. Newsom, Jr., a representative of Clear Channel.
Newport filed a motion for a summary judgment in October 2010 as to all claims (both Booth's declaratory-judgment claim and her tortious-interference-with-business-relations claim, as well as its claim seeking a declaratory judgment). Booth responded in opposition in November 2010 and filed another motion to strike Newsom's affidavit. Newport thereafter replied to Booth's response in opposition, as to which Booth filed a rebuttal in December 2010.
In January 2011, the trial court heard oral arguments for each summary-judgment motion and Booth's motions to strike Newsom's affidavit. The trial court thereafter denied Booth's motions to strike and entered a summary judgment in Newport's favor as to all claims. Booth timely appealed to the Alabama Supreme Court on January 20, 2011; the supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.
The record reveals the following facts. Booth first signed a confidentiality, trade secrets, and noncompete agreement with Clear Channel in March 2004, and, shortly thereafter, she was hired as a sales associate at a television station owned by Clear Channel.
In April 2007, Newport purchased certain assets of Clear Channel, including WPMI and WJTC, the television stations for which Booth was then working. The terms of the sale were set forth in an asset-purchase agreement ("the purchase agreement") entered into by Clear Channel and Newport. Newport contends that Booth was offered and accepted employment with Newport in April 2007. Newport also contends that, pursuant to the purchase agreement, Booth's noncompete agreements were assigned to Newport.
The record shows that Booth was employed by Newport until October 17, 2008. Newport contends that the general manager of WPMI and WJTC "urg[ed Booth] to reconsider" before eventually deciding to "accept[ her] resignation" on October 17, 2008, because Booth "would not commit to remaining employed with Newport." Booth, however, asserts that she had told representatives of Newport "that she would not resign her position pending a determination by a court as to the enforceability of the non-compete agreement" but that Newport had, ostensibly, terminated her employment.
The trial court determined as a matter of law that the purchase agreement was ambiguous because, it held, it was unclear whether, pursuant to the terms of the purchase agreement, Booth's employment contract or the noncompete agreement had been assigned to Newport, and, thus, whether Newport could enforce the noncompete agreement.
The relevant portions of the purchase agreement that identified and addressed the purchase of Clear Channel's assets, which included its contracts, are as follows:
An extensive list of contracts, including specific employment contracts identified by the respective employee's name, was set forth in Schedule 1.1(d) of the purchase agreement; neither Booth's employment contract nor the noncompete agreement was listed. Upon its review of the above-quoted sections of the purchase agreement, the trial court concluded that the purchase agreement was ambiguous. The trial court stated:
Upon determining that the purchase agreement was ambiguous, the trial court permitted Newport to submit parol evidence as to its meaning. At that time, Newport submitted Newsom's affidavit, which stated that, pursuant to Article 1.1(d) of the purchase agreement, Newport had been assigned Clear Channel's right to enforce the noncompete agreement.
On appeal, Booth contends (1) that the trial court erred in concluding, as a matter of law, that Newport had the authority to enforce the noncompete agreement and (2) that the trial court erred in entering a summary judgment in favor of Newport as to her tortious-interference claim. We address each issue in turn.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
We begin by addressing the summary judgment insofar as it declares that Newport has the authority to enforce the noncompete agreement against Booth. Booth's argument is twofold. Booth argues that the trial court erred in determining that the purchase agreement between Newport and Clear Channel was ambiguous and that it was unclear whether, pursuant to the purchase agreement, Newport has been assigned the noncompete agreement; further, Booth asserts that Newsom's affidavit, which was admitted as parol evidence to reconcile the perceived ambiguity, should have been struck from the record (as Booth had urged in her motion to strike). Additionally, Booth contends that, even if the trial court was correct in determining that the purchase agreement was ambiguous, it erred in ruling on the scope of the purchase agreement — i.e., whether the purchase agreement effected an assignment of the noncompete agreement — should have been determined by a jury. On the other hand, Newport argues that the purchase agreement was ambiguous, that the trial court therefore properly considered parol evidence as to the scope of the purchase agreement, and that, even if the purchase agreement was not ambiguous, the noncompete agreement was nonetheless assigned to Newport under the terms of the purchase agreement.
In interpreting a contract, a trial court must heed the following principles:
Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000).
In this case, the trial court reasoned that the purchase agreement was ambiguous because the purpose of Article 1.1(d)(ii) was unclear in light of Article 1.1(d)(I) and Article 2.8. We disagree. The plain language of Article 1.1(d) provides that the contracts intended to be assigned to Newport are the contracts listed in Schedule 1.1(d) and "all other contracts... that relate exclusively to the operation of the stations, or the ownership of the Station Assets, including ... those made between the date hereof and the Closing...." (Emphasis added.) The use of the word "other" to modify the term "contracts" in subsection (ii) of Article 1.1(d) implies that the category of contracts to which the subsection refers (which includes those "that relate exclusively to the operation of the Stations") falls under the same category of contracts as those identified in subsection (I); the use of the word "other" indicates that the contracts listed on Schedule 1.1(d) are also contracts "that relate exclusively to the operation of the Stations...."
But for the use of the word "other" modifying the term "contracts" in subsection (ii), Article 1.1(d) could be interpreted broadly as identifying two categories of station contracts, if the subsections are read in isolation: those contracts listed in Schedule 1.1(d) and those contracts considered to "relate exclusively to the operation of the Stations, or the ownership of Station Assets." However, the provisions of a contract are to be interpreted in context; specific provisions are not read in isolation. See Certain Underwriters at Lloyd's, London v. Kirkland, 69 So.3d 98, 101 (Ala. 2011).
In this case, Article 2 of the purchase agreement, in which Clear Channel sets forth its representations and warranties to Newport, prevents interpretation of Article 1.1(d) as identifying such separate categories of contracts; further, to ignore Article 2 would defeat the purpose of that entire article. Article 2.8 represents and warrants to Newport that Schedule 1.1(d) is a "complete list of all contracts ... that relate exclusively to the operation of the Stations or the ownership of the Station Assets...." Critically, not only does Article 2.8 reiterate that the contracts to be assigned are listed in Schedule 1.1(d), but it identifies the category of assigned contracts using language identical to that used in Article 1.1(d)(ii). Put simply, Article 1 of the purchase agreement outlines the categories of assets (including contracts) to be transferred to Newport, and Article 2 explains the substance of each category. Specifically, with regard to contracts, Article 1.1(d) provides that those contracts listed in Schedule 1.1(d) and "all other contracts... that relate exclusively to the operation of the Stations...." are to be assigned to Newport; Article 2.8 merely explains what is encompassed in the category of contracts "that relate exclusively to the operation of the Stations...."
In concluding that Article 1.1(d)(ii) served an unclear purpose and thereby rendered the purchase agreement ambiguous, the trial court overlooked significant
Although we have determined that the purchase agreement was not ambiguous, we reject Newport's contention that Article 1.1(d)(ii) "clearly" contemplates that the noncompete agreement would be assigned to Newport. As we have explained, subsection (ii) of Article 1.1(d) refers to the contracts that "relate exclusively to the operation of the Stations...." that are identified in Article 2.8. Article 2.8 does not provide that those contracts are the ones listed in Schedule 1.1(d) and contracts that "relate exclusively to the operation of the Stations...."; rather, it plainly states that the purchase agreement assigns those contracts listed in Schedule 1.1(d) and identifies the category of contracts that are listed on the schedule. It is evident that Article 2.8 was intended to provide Newport with a broad categorical overview of the types of contracts included in Schedule 1.1(d).
Not only is it undisputed that Booth's employment contract and noncompete agreement were entered into before Newport purchased Clear Channel's assets, the fact that Booth's employment contract is not included among the numerous employment contracts listed in Schedule 1.1(d) is telling.
Because one would have to ignore the plain language of the purchase agreement in order to conclude that it is ambiguous, thereby warranting the admission of parol evidence, we conclude that the trial court erred (a) in determining that the purchase agreement was ambiguous, (b) in admitting and considering parol evidence, and (c) in ultimately concluding that, as a matter of law, Newport had been assigned the noncompete agreement and thus had the authority to enforce that agreement.
Next, we consider whether the trial court erred in entering a summary judgment in favor of Newport on Booth's claim that Newport had tortiously interfered with her business relationship with the competing station. Booth contends that Newport failed to demonstrate that there was no genuine issues of material fact as to whether it was justified in contacting the competing station and warning it that Booth had signed a noncompete agreement and that, if it hired Booth, it would be named (along with Booth) in a lawsuit to enforce the noncompete agreement against Booth.
In its summary-judgment motion, Newport asserted that it had been justified in contacting the competing station and that it had not wrongfully interfered with Booth's relationship with the competing station. On appeal, Newport contends that the trial court's entry of a summary judgment in its favor on Booth's tortious-interference claim was proper because, it argues, the noncompete agreement had been assigned to it and the station with which Booth had been planning to work was its competitor. Thus, Newport maintains there was no unlawful restraint of trade and that any interference by Newport had been merely to advance its interests by enforcing the noncompete agreement against Booth.
The following elements must be shown "by substantial evidence" to establish a prima facie case of tortious interference with business relations: "(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage." White Sands Group, L.L.C. v. PRS II, L.L.C., 32 So.3d 5, 14 (Ala.2009). Both parties concede that Booth presented evidence as to each element sufficient to meet her burden of demonstrating a prima facie case of tortious inference. At issue is whether the trial court properly determined that no genuine issue of material fact existed as to whether Newport's interference was justified and that, therefore, Newport was entitled to a judgment as a matter of law.
Newport first argues that evidence indicating that Newport wrongfully enforced the noncompete agreement against Booth is not enough, by itself, to sufficiently establish that Newport wrongfully interfered with her relationship with the competing station. Newport states that Booth's failure to demonstrate that Newport had engaged in fraud, misrepresentation, physical violence, threats of illegal conduct, or similar conduct proves fatal to her claim because evidence of such conduct is a proper factor to be considered in determining whether Newport's actions were justified. In support of that position, Newport relies on White Sands. We reject Newport's argument. Newport had the burden to show that its actions were justified; Booth
The supreme court has explained the following regarding whether a defendant is justified in interfering with business relations:
White Sands, 32 So.3d at 12-13.
In White Sands, our supreme court held that "[j]ustification is generally a jury question," unless a defendant presents evidence, such as affidavits and depositions, that is not controverted. White Sands, 32 So.3d at 18 (citing Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403, 408 (Ala.1990)).
In the trial court, Newport's argument that its interference was justified was based on its assertion that it had been assigned the noncompete agreement and therefore had the authority to enforce that agreement. Concluding that the noncompete agreement had been assigned to Newport, the trial court, therefore, determined that Newport's actions had been justified. Because we are reversing the trial court's decision as to whether Newport had been assigned the noncompete agreement and therefore had the authority to enforce that agreement, it is necessary to engage in a factual inquiry to determine whether Newport's interference with Booth's relationship with the competing station was justified. In determining whether a genuine issue of material fact exists, we are required to construe the
Based on the foregoing reasons, we reverse the judgment of the trial court, and we remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.
MOORE, J., concurs in part and concurs in the result, with writing.
MOORE, Judge, concurring in part and concurring in the result.
I conclude that Newport Television, LLC ("Newport"), failed to establish its right to enforce the noncompete agreement against Cyndi Booth. See Clark Substations, L.L.C. v. Ware, 838 So.2d 360 (Ala.2002) (requiring evidence of a valid assignment of a noncompete agreement before a successor corporation is entitled to enforce that agreement); and Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d 90, 93 (Ala.1981) ("There must be an affirmative showing of an intent to assign. Strickland & Co. v. Lesesne & Ladd, 160 Ala. 213, 49 So. 233 (1909). `The owner must do or say something which would indicate a transfer of his claim or right to another.' 160 Ala. at 217, 49 So. 233"). Absent such affirmative evidence, there can be no assignment.
In Clark Substations, supra, our supreme court stated:
838 So.2d at 365. Because Clear Channel Broadcasting, Inc., did not merge into Newport, we must determine if Clear Channel made a valid assignment of Booth's noncompete agreement to Newport.
A detailed review of the language of the Asset Purchase Agreement ("the APA") fails to affirmatively establish that Clear Channel intended to assign Booth's noncompete agreement to Newport. In the APA, Clear Channel and Newport specifically identified numerous employment contracts that were to be assigned to Newport as a result of the asset purchase; however, Booth's contract with Clear Channel was not listed in the APA. Additionally, in light of Alabama's policy disfavoring agreements in restraint of trade, see Ala. Code 1975, § 8-1-1, I cannot conclude that the affidavit of Hamlet T. Newsom, Jr., which was offered only after this dispute had arisen as an attempt to establish the necessary "`affirmative showing of an intent to assign'" Booth's noncompete agreement to Newport, is sufficient to meet Newport's burden of proof on this issue. Russell, 408 So.2d at 93.