UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BOLLING, MCCOOL AND TWIST,
INCORPORATED,
Plaintiff-Appellant,
                                                                No. 95-3211
v.

RICHARD M. BURKE,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Cynthia D. Kinser, Magistrate Judge.
(CA-92-161-1)

Argued: July 9, 1996

Decided: August 2, 1996

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
SHEDD, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Andrew Eastridge, RICK J. BEARFIELD &
ASSOCIATES, Johnson City, Tennessee, for Appellant. Beth
Osborne Skinner, WOODWARD, MILES & FLANNAGAN, P.C.,
Bristol, Virginia, for Appellee. ON BRIEF: Rick J. Bearfield,
RICK J. BEARFIELD & ASSOCIATES, Johnson City, Tennessee,
for Appellant. Larry B. Kirksey, WOODWARD, MILES & FLAN-
NAGAN, P.C., Bristol, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Bolling, McCool & Twist, Inc. ("BMT"), appeals the
district court's grant of summary judgment in favor of appellee Burke
in BMT's suit against Burke for violation of a non-compete agree-
ment.

On February 1, 1989, Burke signed a two-year employment con-
tract with BMT, a company that engages in pharmaceutical and health
care consulting. The agreement included a non-compete clause that
reads in full:

         11. NO COMPETITION. EMPLOYER and EMPLOY-
         EE agree that EMPLOYEE shall gain confidential informa-
         tion regarding the business and customers of EMPLOYER
         during the term of this contract. The parties agree that there
         is no way to effectively compensate EMPLOYER for any
         loss EMPLOYER may suffer if EMPLOYEE uses such
         information about the EMPLOYER and its business in com-
         petition against EMPLOYER. Therefore, the parties agree
         that following the termination of this contract for any rea-
         son, EMPLOYEE shall not, as an EMPLOYEE, officer,
         director, partner or shareholder of any entity, contact any of
         the customers of the EMPLOYER, for a period of two (2)
         years following the date of such termination of this contract.
         This prohibition shall only apply to pharmaceutical and/or
         health care consulting, deal structuring, and/or any other
         such activity that directly competes with the EMPLOYER'S
         business at the time of termination of this agreement.

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J.A. at 256. Burke's employment with BMT ended on January 1,
1991, and he began work the next day for Promedica, a marketing
research company. In the two years following Burke's departure from
BMT, Burke had contact with four entities, which BMT alleges were
customers of BMT. As a result of these contacts, BMT sued Burke
for breach of the non-compete agreement.

The district court granted summary judgment to Burke. The court
held, first, that the word "customer" in the contract plainly referenced
only those entities that were customers of BMT at the time of Burke's
employment, and did not include entities that only became BMT cus-
tomers after Burke's departure. Since two of the four entities with
which Burke had contact while at Promedica had only become BMT
customers after the end of Burke's employment with BMT, the dis-
trict court held that Burke's interaction with these entities did not vio-
late the non-compete agreement. See J.A. at 264. The district court
also held that, although "BMT would have the court read the prohibi-
tion against Burke contacting any customer of BMT . . . to mean that
Burke cannot have contact with any BMT customer," the use of the
word "contact" in the agreement as a verb rather than as a noun
plainly foreclosed such an interpretation. J.A. at 263 (emphasis
added). The court reasoned that the word "contact," when used as a
verb and in the particular context of the agreement, required active
conduct on Burke's part, that is, it only forbad Burke from initiating
action that would bring him into contact with a BMT customer. See
J.A. at 263-64. Because the district court found that all contact
between Burke and the remaining two BMT customers was "the result
of the assignment of duties by [Burke's] superiors at Promedica after
a project was awarded to Promedica and not of his own initiation of
communication with customers" it concluded that Burke had not vio-
lated any of the terms of his non-compete clause. J.A. at 266.

BMT argues on appeal, as it did before the district court, that the
plain meaning of the non-compete agreement bars Burke from having
any contact with BMT customers, regardless of which party initiates
the contact. Having carefully considered the district court's opinion,
the record, the briefs, and the parties' contentions at oral argument,
we conclude that the district court correctly interpreted the plain lan-
guage of the non-compete agreement only to forbid Burke from initi-
ating contact with entities that were customers of BMT during the

                     3
time Burke was employed with the company, and therefore that the
district court's judgment should be affirmed.

AFFIRMED

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