MAY v. HSIEH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs (collectively, May) appeal from a judgment entered in the defendants' (collectively, Hsieh) favor following cross motions for summary judgment. May claims that the motion judge improperly relied on disputed material facts and parol evidence when granting Hsieh's motion for summary judgment. We affirm.

1. Motion for summary judgment. May's underlying claim is that Hsieh violated § 4(d) of a 2009 settlement agreement between the parties that precluded Hsieh from using the name “Techsource” or “Techsource International” to “(i) actively operate a business in the United States or (ii) to solicit new customers.” May claims that § 4(d) is unambiguous, and the judge impermissibly relied on disputed facts -- namely, whether Nidec was a preexisting customer of Techsource International to the settlement agreement -- when finding Hsieh did not “actively operate” Techsource International in its e-mail correspondences with Nidec. May also claims that the motion judge, in construing § 4(d), impermissibly relied on parol evidence to determine the parties' intent. We disagree.

A motion for summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ ” (citation omitted). Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018).

In addition, contract interpretation, including the determination of ambiguity, is a question of law in Massachusetts, and we review the motion judge's interpretation de novo. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017). A contract provision is ambiguous where “the phraseology can support reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.” Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008), quoting President & Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888, 896 (2003).

May claims that the e-mail correspondences between Techsource International and Nidec are unequivocal proof that Hsieh was “actively” operating a business in the United States. Conversely, Hsieh construes § 4(d) to allow Hsieh to use the name “Techsource International” to communicate with preexisting customers to the settlement agreement, like Nidec. Given this, § 4(d) of the settlement agreement might be deemed ambiguous.

However, May's reading of § 4(d) would effectively eliminate any permissible use of the names “Techsource” or “Techsource International” in the United States by Hsieh. But that is contrary to canons of contract construction; the settlement agreement does not entirely proscribe the use of the names, or it would have been drafted as such.⁴ See Computer Sys. of Am., Inc. v. Western Reserve Life Assur. Co. of Ohio, 19 Mass. App. Ct. 430, 437 (1985) (“every word and phrase of a contract should, if possible, be given meaning, and ․ none should be treated as surplusage if any other construction is rationally possible”). Thus, we must determine the limitations of § 4(d). See Balles, 476 Mass. at 571. Contrary to May's assertion, a few e-mail correspondences are not “active operation” in violation of § 4(d). Techsource International had no brick and mortar facility, no telephone service, and no Internet presence.⁵ In fact, it is evident that the only way Nidec could correspond with Techsource International was if the two companies had a relationship that preceded the settlement agreement such that Nidec was privy to Techsource International's contact information.

Furthermore, the judge did not improperly employ parol evidence to construe § 4(d).⁶ For summary judgment purposes, May cannot dispute that Nidec was a preexisting customer of Techsource through an unsupported assertion in his affidavit.⁷ “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

May had nearly two and one-half years to perform discovery to establish a genuine issue of material fact with respect to Hsieh's relationship with Nidec, or any other material issue. He did not. Relying solely on affidavits and the e-mail correspondences, May has failed to “allege specific facts which would establish the existence of a genuine issue of material fact.” Pederson v. Time, Inc., 404 Mass 14, 17 (1989). Summary judgment was properly granted to Hsieh.

Judgment affirmed.

FOOTNOTES

4.   In fact, May is entirely proscribed from using the name “Techsource International” under § 4(d).

5.   Indeed, Techsource International's website, www.techsourceintl.com, redirects to Antou's website at www.antou.com.

6.   As the motion judge determined, to the degree there was any ambiguity in the provision, Hsieh explained away that ambiguity in his affidavit and May failed to assert any specific facts to create a genuine issue of dispute. In fact, May asserted facts that demonstrate that Hsieh, under the name Techsource International, was not actively operating a business in the United States.

7.   Moreover, May did not allege that Nidec is a newly solicited customer in the complaint. Nor do the e-mail correspondences suggest a “passive referral” of a new customer due to May's failure to establish a genuine issue as to Nidec's customer status.