                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0619-15T3

THE DIGITAL GROUP, INC.,

        Plaintiff-Appellant,

v.

SAGITEC SOLUTIONS, LLC,

     Defendant-Respondent.
________________________________

              Argued May 31, 2017 – Decided August 18, 2017

              Before Judges Ostrer and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Middlesex County,
              Docket No. C-0216-13.

              James P. Flynn argued the cause for appellant
              (Epstein Becker & Green, PC, attorneys; Mr.
              Flynn, of counsel and on the briefs; Alkida
              Kacani, on the briefs).

              Ansis V. Viksnins (Lindquist & Vennum) of the
              Minnesota Bar, admitted pro hac vice, argued
              the cause for respondent (Bressler, Amery &
              Ross, and Mr. Viksnins, attorneys; Diana C.
              Manning, Angela M. Scafuri and Benjamin J.
              DiLorenzo, on the brief).

PER CURIAM
      The claims in this matter arise out of a dispute between two

information technology companies: plaintiff, The Digital Group,

Inc., and defendant, Sagitec Solutions, Inc. Digital and Sagitec

entered into an agreement and submitted a joint proposal to provide

pension and administration software services to the Fiji National

Provident Fund (FNPF), which administers the state pension system

in Fiji. FNPF rejected the joint proposal and subsequently entered

into a contract with Sagitec. In its complaint, Digital claims

Sagitec's entry into the FNPF contract violated their agreement,

and otherwise breached common law duties owed by Sagitec to Digital.

      The court granted Sagitec's motion for summary judgment and

entered an order dismissing Digital's complaint. Digital appeals

the   court's   order.   Having   considered     the   record   under   the

applicable law, we affirm.

                                   I.

      In our review of the record before the trial court, we view

the facts and all reasonable inferences therefrom in the light

most favorable to Digital because it is the party against whom

summary judgment was entered. Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). Applying that standard, the record

before the trial court established the following facts.

      Digital is an information technology solutions company that

provides   software   and   computer    system   integration    services.

                                    2                              A-0619-15T3
Sagitec provides customized information technology products and

services      in   the    area    of     employee    benefits       for    pension     and

retirement plans.

       Between 2009 and 2013, FNPF issued requests for proposals to

upgrade      its   computer       system,    the    "Provident       Fund      Management

Information System" (ProMIS system). Digital bid unsuccessfully

each time. Nevertheless, Digital developed a relationship with

FNPF through other projects and in 2011 was granted "preferred

supplier" status. As a preferred supplier, FNPF had discretion to

engage Digital for information technology services when required.

       In   January      2013,    FNPF    invited       Digital    to     respond    to   a

restricted tender for a contract for the implementation of the

ProMIS system.1 Sitiveni Nabuka was a member of the FNPF committee

responsible for selecting a vendor for the ProMIS system. Nabuka

informed Digital that Sagitec had a software program, Neospin,

that    satisfied        FNPF's    needs.       Based    in   part      upon    Nabuka's

recommendation, Digital contacted Sagitec and advised that it had

a   client    opportunity         regarding     a   pension       administration       and

management system.

       On January 15, 2013, Digital and Sagitec executed a "Non-

Disclosure, Confidentiality & Non-Disintermediation Preliminary


1
  The tender was deemed "restricted" because it was sent by FNPF
to only selected potential vendors.

                                            3                                     A-0619-15T3
Partnership Agreement" (Agreement), with the "inten[t] to enter

into a joint working agreement . . . to facilitate a proposed

business relationship and partnership between the parties." The

provisions of the Agreement pertinent to the allegations in the

complaint are: (1) the confidentiality provisions (Sections II

through VII, and IX); and (2) the non-solicitation and non-

disintermediation   covenants    (Section    X).   We   detail     those

provisions here.

     Confidentiality Provisions

     Digital and Sagitec acknowledged that to "explore common

business needs and future partnerships" they might share "certain

confidential and proprietary technical, financial, marketing and

business information including strategic plans, list[s] of clients

and projects, [and] client sensitive information." The parties

therefore agreed to "not use all or any . . . [c]onfidential

[i]nformation except in the manner set forth in [the] [A]greement."

     Section   IV   of     the   Agreement   defines    "confidential

information" as follows:

          [A]ll   information,   know-how,    technical,
          financial or business information or data,
          product   strategies,   business   strategies,
          details of the employees, software, data,
          methods, or processes which are proprietary
          of one of the parties or its clients, its
          licensors, its group companies or to any
          related entity, whether or not in writing, and
          confidential to the said party and not

                                  4                              A-0619-15T3
            generally known to other third parties, which
            either of the party [sic] may obtain knowledge
            of or access to through delivery of such from
            the   other   party  under   this   Agreement.
            Confidential [i]nformation also includes that
            information described above whether or not
            owned or developed by either of the parties.

     Section     V    required        the       parties     "to    maintain      the

confidentiality      of   the     [c]onfidential            [i]nformation."      The

obligation to maintain confidentiality did not apply where the

confidential information:

            (i) [w]as already in their possession prior
            to disclosure and such was received without
            obligation of confidentiality;

            (ii) [w]as independently developed prior to
            this relationship by the other party . . . .

     Section VII of the Agreement provided that the "furnishing

of the [c]onfidential [i]nformation . . . shall not obligate either

party to enter into any further agreement or negotiation with the

other for any proposed business relationship," or "refrain either

of the parties from entering into an agreement with any other

party."

     Section IX of the Agreement defined the parties' obligation

to   "not   commercially        use    or       disclose     any   [c]onfidential

[i]nformation or any materials derived there from to any other

person or entity other than persons in direct employment of the

[r]eceiving    [p]arty,   who    have       a   need   to   have   access   to   and


                                        5                                   A-0619-15T3
knowledge of the [c]onfidential [i]nformation, solely for the

purpose authorized above."

     Non-solicitation and Non-disintermediation

     Section X of the Agreement, titled "non-disintermediation,"

provides:

            [F]or the agreement term [and] for a period
            of two years following the agreement term of
            this or any other working agreement or working
            relationship, any employees, contractors or
            clients (including client personnel and
            managers) of either party introduced to the
            other [] under this . . . agreement or any
            subsequent partnership agreement are not to
            be approached or solicited by the other party
            directly or indirectly for any direct or
            indirect business (non-solicitation covenant)
            or employment relationship (no-hire covenant)
            outside of the mutually agreed to partnership
            between the two parties as this would create
            disintermediation risk and associated direct
            and indirect losses for the other party.

     The Agreement's effective date was January 15, 2013, and had

a one-year term, unless it was otherwise terminated by the parties.

Either party could terminate the Agreement by providing thirty

days written notice of termination, but the parties agreed the

"confidentiality and non-disclosure covenants . . . survive[d]

indefinitely [] after [] termination."2



2
  The Agreement also provides that any dispute between the parties
is governed by "the laws of the United States," and "subject to
the jurisdiction of courts exercising competent jurisdiction and
situated in New Jersey."

                                  6                          A-0619-15T3
     The Joint Proposal and Review Period

     On February 11, 2013, Digital and Sagitec submitted a joint

proposal to FNPF for the ProMIS system contract. During the review

period that followed the submission of the proposal, Digital

maintained    communication     with    Nabuka,      who   at   various      times

provided Digital with information concerning the FNPF selection

committee's review of the proposal. In May 2013, Nabuka sent

Digital an email advising that FNPF had concerns about Digital's

reputation and might seek to contract with Sagitec only.

     During the review period, Piyush Jain, one of Sagitec's

principals, also became aware of Digital's reputational issues,

including     allegations    Digital       had   a    history    of    offering

inducements    to   information   technology         departments      to    obtain

business. Despite Sagitec's concerns with Digital's reputation and

business practices, it remained willing to work jointly with

DIGITAL on the ProMIS system opportunity with FNPF, and to enter

into a new working agreement with Digital.

     In August 2013, FNPF sent Sagitec correspondence indicating

it intended to approve Sagitec as the preferred provider for the

ProMIS system contract. However, FNPF sought to enter into a

contract    only    with   Sagitec,    and   requested     "a   '[l]etter         of

[i]ndemnity' and/or '[l]etter of [n]o [o]bjection' from DIGIT

Digital . . . with regards to the sole engagement of Sagitec."

                                       7                                   A-0619-15T3
Digital objected and insisted that it be a signatory to any

contract with FNPF for ProMIS system work.3 Nabuka advised Digital

that if it did not provide a "no objection letter," FNPF could

close the tender without awarding the contract.

     On September 2, 2013, Digital informed Sagitec that its

inclusion as a signatory on any contract with FNPF was "non-

negotiable." On September 20, 2013, Sagitec sent Digital a notice

to terminate the Agreement, thereby ending the parties' business

relationship on October 20, 2013.

     On October 9, 2013, FNPF formally rejected the joint proposal

of Sagitec and Digital, advising them "that [the joint proposal]

has been unsuccessful," and no other tenderer was successful.

Sagitec responded to the e-mail stating that the company was

"disappointed    with   the    outcome"   and       thanked   FNPF    for   its

consideration.

     Four days later, on October 13, 2013, FNPF sent Sagitec

correspondence   asking   it    to   submit     a    proposal   for    pension

administration solutions. Sagitec responded to FNPF's request, a



3
  After it became apparent FNPF would not enter into a contract
with Digital as a signatory and sought only a contract with Sagitec,
Digital sent Sagitec a proposed "master agreement" pursuant to
which Digital would be Sagitec's exclusive regional partner and
representative in the Asia Pacific region. The proposed master
agreement became a source of disagreement between Digital and
Sagitec, and Sagitec never agreed to its terms.

                                     8                                 A-0619-15T3
period of contract negotiations ensued, and in May 2014, Sagitec

entered into a contract with FNPF for the provision of services

related to the ProMIS system.

     Digital's Lawsuit

     On November 13, 2013, Digital filed an order to show cause

seeking temporary restraints against Sagitec from doing business

with FNPF, and a complaint asserting: breach of contract; breach

of the implied covenant of good faith and fair dealing; unjust

enrichment; breach of fiduciary duty; tortious interference with

prospective economic advantage; and a claim for equitable relief

seeking a temporary restraining order preventing Sagitec from

working with FNPF or any other parties to whom Digital introduced

Sagitec.4 The request for restraints was denied.

     Following the completion of discovery, the parties cross-

moved for summary judgment. After hearing argument, the court

issued   an   order   and   comprehensive   written   opinion   granting

Sagitec's motion and dismissing the complaint.5 The court found


4
  Sagitec filed an answer and a counterclaim alleging Digital
tortiously interfered with Sagitec's contract with FNPF. Sagitec's
counterclaim was voluntarily dismissed.
5
  The court's grant of Sagitec's motion effectively denied
Digital's cross-motion for summary judgment. The court, however,
did not enter an order denying Digital's motion. Digital does not
argue on appeal that the court erred by denying its request for
summary judgment and, therefore, we do not address the court's
implicit denial of Digital's cross-motion. An issue not briefed

                                    9                            A-0619-15T3
that the undisputed facts showed "the conduct that forms the basis

for Digital's breach of contract claim [does not], according to

the plain terms of the [Agreement]," constitute a breach of

contract. The court determined that Sagitec did not violate the

non-solicitation covenant because it did not bar Sagitec from

"communicating, negotiating, doing business, or contracting with

customers if the customers [] approached or solicited Sagitec,"

and Sagitec did not approach or solicit FNPF. The court also found

there was no evidence showing that "Sagitec solicited or approached

FNPF," but rather the undisputed facts established FNPF "asked

Sagitec to make a proposal independently."

      The court also rejected Digital's claim that Sagitec violated

the   Agreement's       prohibition   against        the    use   of    confidential

information.      The    court    found       that   "a    covenant      prohibiting

disclosure   of     confidential      information          does   not    and    cannot

preclude use of information that is no longer confidential and

likely was not confidential in the first place." Thus, the court

granted   Sagitec's      motion    for    summary     judgment         and   dismissed

Digital's breach of contract claim.




on appeal is deemed waived. Jefferson Loan Co. v. Session, 397
N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340
N.J. Super. 94, 103 (App. Div. 2001).


                                         10                                    A-0619-15T3
     The court dismissed Digital's cause of action for breach of

the covenant of good faith and fair dealing, finding there was no

evidence Sagitec took any action in bad faith to deprive Digital

of the benefits of the Agreement. The court rejected the unjust

enrichment claim because it was based on an alleged breach of the

Agreement. The court also found Digital could not sustain its

breach of fiduciary duty claim because Digital did not present

evidence establishing Sagitec owed a fiduciary duty to Digital.

Last, the court dismissed Digital's tortious interference claim

because   Digital   did    not   present    evidence    showing    it    had    a

reasonable expectation of an economic benefit from FNPF or that

Sagitec   acted     to    maliciously      interfere    with   any      alleged

prospective economic of Digital. Following entry of the order

granting summary judgment to Sagitec, Digital filed this appeal.

                                    II.

     Summary   judgment      must   be     granted     if   "the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The "'judge's function is not . . . to weigh the evidence

and determine the truth of the matter but to determine whether

there is a genuine issue for trial' in viewing the facts in the

                                    11                                  A-0619-15T3
light most favorable to the non-moving party." Henry v. N.J. Dep't

of Human Servs., 204 N.J. 320, 329 (2010) (quoting Brill, supra,

142 N.J. at 540) (alteration in original). "[W]hen the evidence

is so one-sided that one party must prevail as a matter of law,

the trial court should not hesitate to grant summary judgment."

Brill, supra, 142 N.J. at 540 (internal quotation marks and

citation omitted).

     On appeal, we employ the same standard of review that governs

the trial court. Henry, supra, 201 N.J. at 330. We must first

decide whether there is an issue of material fact, and if none

exists, then decide whether the trial court's ruling on the law

was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.

Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

When reviewing the trial court's ruling on a legal issue, our

review   is   de   novo.   Manalapan    Realty,   L.P.   v.   Twp.   Comm.   of

Manalapan, 140 N.J. 366, 378 (1995).

     We first consider Digital's contention that the court erred

by granting Sagitec's motion for summary judgment on the breach

of contract claim. Digital argues there were genuine issues of

material fact precluding the award of summary judgment and that

the court erred as a matter of law in its interpretation of the

Agreement's provisions. We are not persuaded.



                                       12                             A-0619-15T3
     To   establish    its   breach   of   contract   claim,   Digital   was

required to prove: "first, that '[t]he parties entered into a

contract containing certain terms'; second, that '[Digital] did

what the contract required [it] to do'; third, that '[Sagitec] did

not do what the contract required [it] to do[,]' defined as a

'breach of the contract'; and fourth, that '[Sagitec's] breach,

or failure to do what the contract required, caused a loss to

[Digital].'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)

(quoting Model Jury Charge (Civil), § 4.10A "The Contract Claim –

Generally" (May 1998)).

     "Well-settled contract law provides that '[c]ourts enforce

contracts based on the intent of the parties, the express terms

of the contract, surrounding circumstances and the underlying

purpose of the contract.'" Cypress Point Condo. Ass'n v. Adria

Towers,   L.L.C.,     226 N.J. 403,    415   (2016)   (quoting Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)). "Contracts

should be read 'as a whole in a fair and common sense manner.'"

Manahawkin, supra, 217 N.J. at 118 (2014) (quoting Hardy ex rel.

Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009)).

     "If the language of a contract 'is plain and capable of legal

construction, the language alone must determine the agreement's

force and effect.'" Ibid. (quoting Twp. of White v. Castle Ridge

Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011)). However,

                                      13                            A-0619-15T3
"[w]hen    the   provision at     issue     is   subject    to   more    than    one

reasonable interpretation, it is ambiguous, and the 'court may

look to extrinsic evidence as an aid to interpretation.'" Cypress

Point, supra, 226 N.J. at 415-16 (quoting Templo Fuente de Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

200 (2016)).

     The Alleged Violations of the Confidentiality Provisions

     Digital argues the evidence showed that Sagitec breached the

confidentiality provisions of the Agreement by using confidential

information Digital provided to Sagitec during their joint effort

to obtain the award of the FNPF contract. More particularly,

Digital     asserts    that    the     confidential     information       Sagitec

allegedly    wrongfully    used      consisted    of   FNPF's    identity       as   a

potential customer, Digital's insights concerning FNPF and the

ProMIS system, and information concerning FNPF's pricing and other

preferences.     Digital      contends      it   provided    the   confidential

information to Sagitec during the preparation and submission of

their unsuccessful joint proposal to FNPF.

     The    court     rejected    Digital's       arguments      based    on     its

conclusion that "a covenant prohibiting disclosure of confidential

information does not and cannot preclude the use of information

that is no longer confidential and likely was not confidential in

the first instance." The court did not make express findings

                                       14                                  A-0619-15T3
concerning      Digital's    claim     that    the   information        it   provided

constituted     confidential     information         under      the   Agreement,     or

whether Sagitec used the information in violation of the Agreement.

Nevertheless, based on our de novo review of the record, we are

convinced that even assuming the information was confidential

under the Agreement, there was no evidence Sagitec used the

information in violation of the Agreement.

     In considering Digital's claim that Sagitec breached the

Agreement by using confidential information, we first observe that

Section    IX    prohibits     commercial       "use       or    disclos[ure]"       of

confidential     information.     Here,       Digital   claims        only   that   the

purported confidential information was wrongfully used by Sagitec

in its response to FNPF's October 2013 request for a proposal for

information      technology    services       and    its     subsequent      contract

negotiations with FNPF to provide those services. Thus, it was

necessary for Digital to prove that Sagitec used confidential

information as defined in the Agreement in its response to FNPF's

October 2013 request and in Sagitec's subsequent entry into the

May 2014 contract with FNPF.

     Digital argues the confidential information Sagitec used

included the identity of FNPF as a potential customer. The parties

debate    whether   the     identity    of    FNPF   constituted        confidential

information under the Agreement. However, we find it unnecessary

                                        15                                    A-0619-15T3
to resolve their competing contentions because even assuming the

identity of FNPF constituted confidential information under the

Agreement, there is no evidence Sagitec used FNPF's identity to

negotiate or enter into the May 2014 contract.

     To the contrary, the undisputed facts establish that FNPF was

aware of Sagitec in 2012, before the parties entered into the

Agreement,6 and used its knowledge of Sagitec's identity to contact

Sagitec after it rejected the parties' joint proposal in September

2013. Thus, there is no evidence Sagitec used Digital's purported

confidential disclosure of FNPF as a potential client to obtain

the contract from FNPF.

     Digital   also   contends   it    provided   Sagitec   with     other

confidential information, including insights related to the joint

proposal such as FNPF's pricing and other preferences. We again

need not decide whether the purported confidential information,

which   is   only   vaguely   described   in   Digital's    submissions,

constitutes confidential information as defined in the Agreement.

Digital's claim that Sagitec violated the Agreement by using the

purported confidential information is untethered to any factual

support in the record. See Cortez v. Gindhart, 435 N.J. Super.



6
  The evidence showed that FNPF requested information from
Sagitec's marketing department in 2012, and that Digital first
learned about Sagitec from Nabuka in January 2013.

                                  16                               A-0619-15T3
589, 605 (App. Div. 2014) (observing that competent opposition

requires competent evidential material beyond mere speculation and

fanciful arguments), certif. denied, 220 N.J. 269 (2015). The

record is devoid of any evidence that Sagitec used any of the

purported confidential information in its interactions with FNPF

leading to the entry of the May 2014 contract. For that reason,

the   court   correctly   dismissed    Digital's   claim    that   Sagitec

breached the Agreement's confidentiality requirements.

      The Alleged Violations of the Non-Solicitation Covenant

      Digital   also   claims   Sagitec    violated   the    Agreement's

prohibition against soliciting its clients. Section X of the

Agreement prohibited Sagitec from "approach[ing] or solicit[ing]"

any of Digital's clients for "any direct or indirect business"

during the term of the Agreement and the two years following its

termination. The court dismissed the claim, finding the undisputed

facts established that Sagitec did not solicit FNPF, that FNPF

solicited Sagitec to enter into the negotiations leading to the

May 2014 contract, and that the Agreement did not prohibit Sagitec

from communicating, negotiating, doing business, or contracting

with FNPF. We agree.

       In our interpretation of a contract, the agreement's terms

"are to be given their plain and ordinary meaning." M.J. Paquet

v. N.J. DOT, 171 N.J. 378, 396 (2002);      Roach v. BM Motoring, LLC,

                                  17                               A-0619-15T3
228 N.J. 163, 174 (2017). "On the other hand, when in the context

of the document itself and the transaction to which it pertains

the terminology employed, despite a facile simplicity, actually

is not free from doubt as to its meaning," a court may consider

extrinsic evidence of the circumstances "bearing on the alleged

proper interpretation of the language used." Schor v. FMS Financial

Corp., 357 N.J. Super. 185, 192 (App. Div. 2002).

     The trial court observed that the term "solicit" is ordinarily

defined as follows: "to entreat, urge or petition persistently."7

When the parties entered the Agreement in 2013, 8 Black's Law

Dictionary similarly defined "solicitation" as "[t]he act or an

instance of requesting or seeking to obtain something; a request

or petition" or "[a]n attempt or effort to gain business." Black's

Law Dictionary 1194 (9th ed. 2009). 9 Courts have consistently


7
  The court relied on the definition of "solicit"        found     in
Webster's II New College Dictionary 1050 (1999).
8
  We note the definition from a dictionary published closest to
the year the parties entered the Agreement in an effort to adhere
to one of our functions in contract interpretation: "to consider
what is written in the context of the circumstances at the time
of drafting." Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
9
  The trial court also relied on the definition of "solicit"
contained in the sixth edition of Black's Law Dictionary. Black's
Law Dictionary 1392 (6th ed. 1990). The ninth edition, which was
published in 2009, and available at the time the parties entered
the Agreement, does not include a definition of "solicit," and
instead defines "solicitation." Black's Law Dictionary 1194 (9th
ed. 2009). It also defines "solicitor" as "[a] person who seeks

                               18                           A-0619-15T3
interpreted the term "solicit" with an analogous meaning. See,

e.g., Meyer-Chatfield v. Century Bus. Servicing, Inc., 732 F.

Supp. 2d 514, 520 (E.D. Pa. 2010) (defining "solicit" as including

conduct    such    as    appealing,    applying,     asking     or   personally

petitioning another individual to obtain something from them, as

set forth in Black's Law Dictionary 1392 (6th ed. 1990)); Akron

Pest Control v. Radar Exterminating Co., Inc., 455 S.E. 2d 601,

602-03    (Ga.    Ct.   App.   1995)   (relying    upon   the   definition     of

"solicit" as set forth in Black's Law Dictionary 1392 (6th ed.

1990)).

     The trial court therefore properly found that the plain and

ordinary meaning of the term "solicit" requires an affirmative act

taken by one party – a solicitor – to obtain something from another

party. By extension, solicitation requires more than the mere

acceptance of, or response to, an offer. See Meyer-Chatfield,

supra, 732 F. Supp. at 520 (finding that solicitation requires an

"affirmative action on the part of the solicitor," and not "merely

accepting business"); Wachovia Ins. Servs. v. Fallon, 682 S.E. 2d,

662 (Ga. Ct. App. 2009) (rejecting a claimed violation of a non-

solicitation agreement because the defendant "did not solicit or


business or contributions from others." Ibid. The definitions of
"solicitation" and "solicitor" remain unchanged in the more
current, 2014 publication. Black's Law Dictionary 1607-08 (10th
ed. 2014).

                                       19                               A-0619-15T3
induce the employees; instead, they approached him"); Akron Pest

Control, supra, 455 S.E. 2d. at 603 (finding no violation of a

non-solicitation agreement based on the defendants' acceptance of

business they did not seek out, but which was offered without any

affirmative request).

     In dismissing Digital's breach of contract claim, the court

correctly applied the ordinary meaning of the term "solicit." The

undisputed facts showed that Sagitec never petitioned or requested

business    from    FNPF   following    FNPF's    rejection   of   the     joint

proposal,     but   rather   FNPF   unilaterally    contacted      Sagitec      in

October 2013 seeking a potential contract partner for the provision

of information technology services. There is no evidence in the

record to the contrary.

     The non-solicitation covenant also barred Digital and Sagitec

from "approach[ing]" each other's clients "directly or indirectly

for any direct or indirect business . . . outside of the mutually

agreed   to   partnership."     Although    the    trial   court   found      the

undisputed facts showed "Sagitec did not solicit or approach FNPF

for business," the court did not directly address Digital's claim

that Sagitec approached FNPF in violation of the non-solicitation

covenant. However, based on our de novo review, we nevertheless

conclude that the undisputed facts also establish that Sagitec did

not approach FNPF in violation of the non-solicitation covenant.

                                       20                                A-0619-15T3
See Cumberland Farms, Inc. v. New Jersey Dep't of Envtl. Prot.,

447 N.J. Super. 423, 438 (App. Div. 2016) ("The interpretation and

construction of a contract is a matter of law . . . subject to de

novo review on appeal."), certif. denied, 229 N.J. 149 (2017).

     Relying upon an internet dictionary, Digital argues the term

"approach" has multiple definitions, two of which are applicable

to the Agreement's non-solicitation covenant.10 Digital does not

dispute that the first definition of "approach," "to present,

offer or make a proposal or request to," is consistent with the

term "solicit." As such, that definition does not support Digital's

contention that Sagitec violated the non-solicitation covenant.

As noted, the record establishes that Sagitec's entry into the May

2014 contract was the result of a request made by FNPF to Sagitec.



10
   Digital suggests that what it denominates as the primary
definition of "approach," "to come near or nearer to," required a
denial of Sagitec's motion because under that definition Sagitec
could not "sidle up to" FNPF. In the dictionary relied upon by
Digital, sidled means "to move sideways or obliquely" or "to edge
along       furtively."     See       Sidle,      Dictionary.com,
http://www.dictionary.com/browse/approach?s=t (last visited Aug.
4, 2017). The record, however, is bereft of any evidence that
Sagitec sidled up to FNPF. Digital does not argue that any of
following definitions of the term "approach" apply in the context
of the non-solicitation provision: "to come near to in quality,
character, time, or condition; to come within range for
comparison," "to make advances to; address," and "to bring near
to       something."     See       Approach,      Dictionary.com,
http://www.dictionary.com/browse/approach?s=t (last visited Aug.
4, 2017).


                               21                           A-0619-15T3
      Digital relies on another definition of "approach" listed in

the internet dictionary: "to begin work on; set about." See

Approach, supra.11 Digital argues this definition requires that we

interpret the non-solicitation covenant to mean that FNPF was "not

to even begin being worked on" by Sagitec. Digital contends

application of this definition creates an ambiguity in the language

of the non-solicitation covenant that should have been resolved

in   its   favor   because   if    "approach"        had   the   same   meaning    as

"solicitation," there would have been no need for the parties to

prohibit both forms of conduct.

      "An ambiguity in a contract exists" only if the terms are

"susceptible       to   at        least        two    reasonable        alternative

interpretations." Schor, supra, 357 N.J. Super. at 191 (emphasis

added) (quoting Nester v. O'Donnell, 301 N.J. Super. 198, 210

(App.      Div.    1997)).    "The        parties'         differing    subjective

interpretations, however, will not rise to the level of ambiguity

if the contract is otherwise clear." Hess Corp. v. ENI Petroleum

US, LLC, 435 N.J. Super. 39, 46-47 (App. Div. 2014).



11
  The online definition Digital relies upon is consistent with
other publications recognizing similar, multiple meanings of the
word "approach." See, e.g., Oxford Am. Dictionary & Thesaurus, 36
(3d ed. 2010) ("come near to," "go to someone with a proposal or
request," "deal with something in a certain way," "a way of dealing
with something," "a proposal or request," "the action of
approaching, and "a way leading to a place").

                                          22                                A-0619-15T3
     We find Digital's proffered interpretation of "approach," as

used in the non-solicitation covenant, to mean that Sagitec could

not "begin work on" or "set about" FNPF to be illogical. Digital's

argument constitutes a strained attempt to create an ambiguity or

otherwise expand the scope of the contract. Our task is not to

"torture the language of [a contract] to create ambiguity." Schor,

supra, 357 N.J. Super. at 191 (quoting Nester, supra, 301 N.J.

Super. at 210). Rather, we look to the plain terms of the contract

and declare the meaning of what is already written, not what, in

hindsight, may have been written. See Zacarias v. Allstate Ins.

Co., 168 N.J. 590, 595 (2001) (explaining that a court's task is

not to rewrite a contract for the parties better than or different

from the one they wrote for themselves).

     "A basic principle of contract interpretation is to read the

document as a whole in a fair and common sense manner." Hardy,

supra, 198 N.J.   at 103 (emphasis added). Here, common sense

dictates our conclusion that the plain language of the non-

solicitation covenant prohibited Sagitec from taking affirmative

steps to solicit FNPF's business or approach FNPF to obtain its

business. Had Digital intended the non-solicitation covenant to

also bar Sagitec from accepting any unsolicited opportunity to

work with Digital's clients, it could have expressed such an

intention in an   obvious manner, with words commonly used to

                               23                          A-0619-15T3
articulate     broader     restrictions      such    as   those   observed,       for

example, in the context of non-compete agreements. See, e.g.,

Lamorte      Burns   &   Co.   v.   Walters,   167     N.J.     285,   292    (2001)

(interpreting a restrictive covenant that prohibited employees

from "solicit[ing] or accept[ing]" any business relationship with

former employer's clients).

       The plain and ordinary meaning of the terms in the non-

solicitation covenant are unaccompanied by any qualifying terms

expanding the scope of prohibited conduct beyond an affirmative

act to solicit or approach initiated by one of the parties. It is

not our place, as Digital would have it, to "remake a better

contract for the parties than they themselves have seen fit to

enter into, or to alter it for the benefit of one party and to the

detriment of the other." Karl's Sales & Serv., Inc. v. Gimbel

Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied,

127 N.J. 548 (1991).12

       Applying the ordinary meanings of the terms in the logical

context of the Agreement, we find no ambiguity. Of course, even

if we accepted Digital's position that the term "approach," as

used    in    the    non-solicitation       covenant      was   ambiguous,       such


12
  We further note that in any event, even if we adopted Digital's
expanded reading of the non-solicitation covenant, there is no
evidence Sagitec "worked on" or "set about" FNPF to obtain its
request for Sagitec to provide the services.

                                       24                                    A-0619-15T3
ambiguity would be resolved against Digital because it drafted the

non-solicitation covenant. Roach, supra, 228 N.J. at 174 (quoting

Kieffer v. Best Buy, 205 N.J. 213, 223 (2011)).

     Against this backdrop, the trial court correctly observed

that the undisputed facts in the record showed Sagitec neither

solicited nor approached FNPF following the rejection of the

parties' joint proposal. On October 9, 2013, FNPF emailed the

parties with an attached correspondence advising them "that [the

joint proposal] has been unsuccessful," and no other tenderer was

successful. Sagitec's only subsequent affirmative communication

to FNPF in the record is a responding email from Piyush Jain of

Sagitec, simply stating the company was "disappointed with the

outcome" and thanking FNPF for its consideration.

     Four    days     later,   on   October    13,   2013,   Sagitec   received

unsolicited     correspondence       from     FNPF   concerning   a    separate

potential contract to provide services. The undisputed facts show

that Sagitec merely responded to FNPF's request, which was neither

solicited by Sagitec nor the result of any approach made by

Sagitec. The court correctly determined that Digital failed to

produce any evidence to the contrary, and properly dismissed

Digital's     claim    that    Sagitec      violated   the   non-solicitation

provision.



                                       25                               A-0619-15T3
                                      III.

    Digital also claims the court erred by granting Sagitec's

motion for summary judgment and dismissing Digital's claims for

breach of the covenant of good faith and fair dealing, unjust

enrichment, breach of fiduciary duty, tortious interference with

prospective economic advantage and for equitable relief. We have

carefully considered Digital's arguments, find they are without

sufficient merit to warrant discussion in a written opinion, R.

2:10-11(3)(E)(3), and affirm substantially for the reasons set

forth   in   the   motion   court's    comprehensive   and   well-reasoned

written decision.

    Affirmed.




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