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1. Employer and Employee--breach of loyalty--forming rival company
The trial court correctly granted summary judgment for defendant Menius but erred by
granting summary judgment for defendant Camp on a breach of loyalty claim arising from
defendants leaving plaintiff's employment and starting a rival company. Menius's activities while
employed by plaintiff may be best described as mere preparations to compete, which is not a
breach of the duty of loyalty; however, it appears from plaintiff's forecast of the evidence that
defendant Camp went beyond merely preparing to compete.
2. Unfair Trade Practices--employee founding rival business--deceptive use of position
of confidence
The trial court erred by granting summary judgment for defendant Camp on an unfair and
deceptive trade practices claim arising from defendants leaving plaintiff's employment and starting
a rival business where plaintiff presented evidence that defendant Camp deceptively used a
position of confidence to solicit the plaintiff's customers and compete with plaintiff while still in
his employment, concealing his behavior from plaintiff. Under Sara Lee Corp. v. Carter, 351 N.C.
27, a defendant's employee status cannot shield the defendant from liability under Chapt. 75. The
solicitation and procurement of commercial contracts comprise business activities “in or affecting
commerce.”
3. Unfair Trade Practices--employee founding rival business--conduct after leaving
plaintiff's employment
The trial court correctly granted summary judgment for defendant Menius on an unfair and
deceptive trade practice claim arising from defendants leaving plaintiff's employment and starting
a rival business. Plaintiff showed that Menius formed a competing business, obtained financing
for that business, and began to solicit plaintiff's clients after she left plaintiff's employment,
conduct that does not amount to an unfair and deceptive trade practice on the facts presented.
4. Unfair Trade Practices--solicitation of rival's business--deceptive--employment
relationship not a bar
The trial court erred by awarding summary judgment to defendant Millennium
Communications Concepts, Inc. (MCC) on an unfair and deceptive practices claim arising from
defendants Camp and Menius leaving plaintiff's employment and founding MCC. According to
plaintiff's forecast of evidence, MCC acted through Camp in deceptively soliciting plaintiff's
business. In light of Sara Lee Corp. v. Carter, 351 N.C. 27, Camp's employment relationship is
no longer a bar to plaintiff's unfair and deceptive trade practice claim.
5. Appeal and Error--preservation of issues--appeal from order
Plaintiff preserved for appeal the issue of whether summary judgment was properly
granted on a claim for interference with prospective advantage arising from two of plaintiff's
employees leaving and starting a rival business where plaintiff failed to appeal from a ruling by
one judge on a motion to dismiss interference with contractual and business relations claims, but
did appeal from an order from another judge regarding the claim for interference with prospectiveadvantage.
6. Wrongful Interference--founding of rival business by employees--continuing
relationship--summary judgment
The trial court erroneously granted summary judgment for defendants on a claim for
tortious interference with prospective advantage arising from defendants leaving plaintiff's
employment and starting a rival business publishing employment magazines. Plaintiff presented a
genuine issue of material fact as to whether the continuing relationship between a customer (KFI)
and plaintiff whould have persisted and whether defendant Camp's actions induced KFI to refrain
from renewing its contract.
7. Wrongful Interference--employees founding rival business--right to compete
The trial court improperly granted summary judgment for defendant Camp but properly
granted summary judgment for defendant Menius on a claim for interference with prospective
advantage arising from defendants leaving plaintiff's employment to start a rival business. The
argument that Camp had an unqualified right to compete ignores Camp's ongoing duty to plaintiff
as general manager of plaintiff's company. Menius could freely compete because she did not act
adversely to plaintiff's interests until after she left his employment.
8. Wrongful Interference--rival business founded by employees--deceptive use of
confidential relationship by business
The trial court erred by granting summary judgment for defendant MCC on a claim for
prospective advantage in an action arising from defendants Camp and Menius leaving plaintiff's
employment and starting a rival business (MCC). Based on plaintiff's evidence, defendant MCC,
acting through Camp, used a confidential relationship deceptively to entice plaintiff's customers
away from plaintiff.
9. Conspiracy--civil--employees founding rival business
The trial court properly entered summary judgment for defendants on a civil conspiracy
claim arising from defendants Camp and Menius leaving plaintiff's employment to start a rival
business. Although there is no cause of action for civil conspiracy per se, an action does exist for
wrongful acts committed by persons pursuant to a conspiracy. Here, plaintiff did not forecast
evidence to support allegations of a common agreement and objective.
10. Damages--employees founding rival business--evidence not speculative
A plaintiff in an action which arose from employees beginning a rival business presented
sufficient evidence of damages to survive a motion for summary judgment where an expert
testified as to losses suffered as a result of defendant's conduct, basing her conclusion on
revenues earned prior to the conduct of defendants and on evidence of anticipated revenues from
the parties' tax returns and accounts receivable summaries. This evidence was not overly
speculative.
Murchison, Taylor & Gibson, L.L.P., by Andrew K. McVey and Moser, Schmidly, Mason & Roose, by Stephen S. Schmidly for plaintiff-appellant.
Wyatt Early Harris & Wheeler, L.L.P., by William E. Wheeler for defendant-appellees.
EAGLES, Chief Judge.
This appeal arises out of a former employer's allegations of
unfair competitive activity by employees and their new corporation.
The Supreme Court has remanded this case for reconsideration in
light of Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308
(1999). This opinion supercedes our earlier opinion reported at 135
N.C. App. 32, 519 S.E.2d 82 (1999) which is withdrawn.
Plaintiff Robert Earl Dalton d/b/a B. Dalton & Company engages
in the business of selling advertisements and publishing
employment magazines. In July of 1993, plaintiff obtained the
rights to publish the employment magazine for Klaussner Furniture
Industries, Inc.(KFI) for a three-year period. The agreement called
for Klaussner to pay all print charges of $3,575.00 per issue.
Plaintiff then hired defendant David Camp as his General Manager.
Plaintiff gave Camp full responsibility for the KFI publication.
Plaintiff later acquired rights to publish several other employeemagazines and gave full responsibility to Camp for those
publications. Camp alleges that at the time of his initial
employment, plaintiff promised that he would offer Camp an
ownership interest in the company in the near future. In December
of 1995, plaintiff hired defendant Nancy Menius. Both defendants
were at-will employees and neither had “a covenant not to compete”
with plaintiff.
In March of 1994, plaintiff published the first issue of
KFI's magazine Inside Klaussner. Plaintiff continued to produce the
magazine over the next three years. KFI officials expressed
satisfaction with the plaintiff's efforts.
On or about 15 January 1997, plaintiff and both defendant
Menius and Camp entered discussions with KFI officials about
renewing the publication agreement. Among the topics discussed was
a price reduction that KFI expected to receive from plaintiff.Plaintiff said he would “get back to” KFI. Plaintiff alleges that
the parties left this meeting with an understanding that the
current publishing relationship would continue. Immediately
following the meeting, Camp engaged in the first of a series of
discussions with KFI's representative, Mark Walker. Plaintiff
alleges that many of these discussions took place while Camp was at
KFI's place of business in connection with his duties as
plaintiff's general manager. Defendants respond that Walker
initiated each conversation and that Camp never pressured Walker to
do business with him.
In February 1997, plaintiff alleges Menius engaged in several
conversations with her fellow employee, Camp, about forming a
competing company. Defendants claim that no “serious” conversations
took place until after defendant Menius resigned on 28 February
1997. Following her resignation, both defendants prepared a
business plan for defendant Millennium Communication Concepts, Inc.
(MCC). In March 1997, defendants submitted their business plan to
a lending institution and represented Camp to be a former employee
of plaintiff. On 13 March 1997, Menius incorporated MCC with
defendants being the sole officers, directors, and shareholders.
Also in March, MCC entered into a written publishing contract with
KFI. This contract gave MCC the exclusive right to publish Inside
Klaussner for twenty months beginning in May 1997. The contract
called for KFI to pay the printing costs of $3,245.00 per month and
to pay all production costs of $1,227.00 per month. Camp signed
the contract on behalf of MCC while still employed by plaintiff. On26 March 1997, Camp resigned from plaintiff's employment and
informed plaintiff of his activities. Subsequently, MCC obtained
the business of several of plaintiff's other customers.
Plaintiff sued Camp, Menius, and MCC alleging breach of the
fiduciary duty of loyalty, conspiracy to appropriate customers,
tortious interference with contract, interference with prospective
advantage and unfair and deceptive trade practices under Chapter
75. Judge Peter M. McHugh dismissed plaintiff's claim for tortious
interference with contractual and business relations on 12
September 1997. Prior to trial on the remaining claims Judge H.W.
Zimmerman, Jr. granted defendants' motion for summary judgment on
13 July 1998. Plaintiff appeals from the order granting summary
judgment only.
Plaintiff contends that the trial court erred in granting
summary judgment, arguing that there were genuine issues of
material fact concerning defendants' actions. Summary judgment is
properly 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 and that any party is entitled to judgment as a
matter of law.” N.C.R. Civ. P. 56(c); Toole v. State Farm Mut.
Auto. Ins. Co., 127 N.C. App. 291, 294, 488 S.E.2d 833, 835 (1997).
All of the evidence is viewed in the light most favorable to the
nonmoving party. Coats v. Jones, 63 N.C. App. 151, 303 S.E.2d 655
(1983), aff'd, 309 N.C. 815, 309 S.E.2d 253 (1983). The movant
bears the burden of proving the absence of any genuine issue ofmaterial fact. Holley v. Burroughs Wellcome Co., 318 N.C. 352, 348
S.E.2d 772 (1986).
I. Breach of the Duty of Loyalty
[1]We first consider plaintiff's claims for breach of the
duty of loyalty. One may create a confidential or fiduciary
relationship with another by instilling a special confidence in
him. See Speck v. N.C. Dairy Foundation, 311 N.C. 679, 685, 319
S.E.2d 139, 143 (1984) (citing Abbitt v. Gregory, 201 N.C. 577,
598, 160 S.E. 896, 906 (1931)). The existence of such a
relationship binds the individual to act with good faith and
loyalty towards the one instilling confidence. Id; Sara Lee Corp.
v. Carter, 129 N.C. App. 464, 470, 500 S.E.2d 732, 736 (1998),
rev'd on other grounds, 351 N.C. 27, 519 S.E.2d 308 (1999). An
employee must faithfully serve his employer and perform his duties
with reasonable diligence, care, and attention. McKnight v.
Simpson's Beauty Supply, Inc., 86 N.C. App. 451, 453, 358 S.E.2d
107, 109 (1987). Where an employee deliberately acquires an
interest adverse to his employer, he is disloyal. In Re Burris, 263
N.C. 793, 795, 140 S.E.2d 408, 410 (1965).
Plaintiff claims that summary judgment is inappropriate
because there is a genuine issue of material fact as to whether
Camp breached his duty of loyalty. We agree. Plaintiff placed Camp
in the position of General Manager and gave him sole responsibility
over plaintiff's publications. The evidence shows that defendant
Camp was responsible for editing, designing, and publishing
plaintiff's magazines. Additionally, defendant Camp handled thepayroll, checkbook, and accounts dealing with the plaintiff's
publications. His responsibilities necessarily included some “one
on one” contact with customers including monthly contacts with
KFI's representatives. Plaintiff argues that by this pattern of
dealing he instilled special confidence in Camp. Accordingly,
plaintiff contends that Camp was required to be loyal to plaintiff.
Plaintiff presented evidence that defendant Camp began
discussions with Mark Walker of KFI, while still plaintiff's
employee. Those conversations all occurred while Camp was on
official business for plaintiff. In those discussions, Camp
expressed dissatisfaction with the plaintiff and raised the
possibility of forming his own company. Walker and Camp also
considered the possibility of Camp publishing KFI's magazine. The
talks culminated in the signing of an exclusive publication
agreement between Camp and KFI. This signing took place before Camp
left plaintiff's employment. Camp did not disclose to plaintiff his
adverse activities prior to resigning his employment. Menius and
Camp went to talk with another of plaintiff's customers, Acme-
McCrary, while plaintiff still employed Camp. Menius admitted that
she and Camp solicited Acme-McCrary's business.
Defendants argue that Fletcher, Barnhardt & White, Inc. v.
Matthews, 100 N.C. App. 436, 397 S.E.2d 81 (1990), disc. review
denied, 328 N.C. 89, 402 S.E.2d 411 (1991) controls here. However,
Fletcher dealt with the situation where the employee had merely
prepared to compete with his employer. Id. at 441, 397 S.E.2d at
84. This Court stated that merely forming a company is not enoughto find a breach of a fiduciary duty. Id. From plaintiff's forecast
of the evidence, it appears that Camp's actions went beyond merely
forming a company. Therefore, plaintiff has presented a genuine
issue of material fact as to whether Camp went beyond merely
preparing to compete. If Camp, while he was plaintiff's employee,
was actually competing without plaintiff's consent, then he has
breached his duty of loyalty. See Long v. Vertical Technologies,
Inc., 113 N.C. App. 598, 439 S.E.2d 797(1994); In re Burris, 263
N.C. at 795, 140 S.E.2d at 410. Therefore, summary judgment was
improper.
Plaintiff argues that he has presented a genuine issue of
material fact as to whether Menius breached her duty of loyalty. We
disagree. At the most, plaintiff has shown that Menius discussed
forming a new company with Camp while plaintiff employed her. There
was no showing that Menius talked with Walker one on one prior to
her leaving plaintiff's employment nor any showing that she was
bound by a covenant not to compete. Plaintiff acknowledges that
Menius engaged in most of her questioned conduct after she left
plaintiff's employment. Menius's activities while employed by
plaintiff may be best described as mere preparations to compete.
Merely preparing to compete is not a breach of the duty of loyalty.
See Fletcher, 100 N.C. App. at 441-42, 397 S.E.2d at 84. Therefore,
summary judgment was proper as to Menius.
II. Chapter 75 Unfair and Deceptive Trade Practices
[2]Plaintiff argues that he has presented a genuine question
of material fact as to defendants' unfair and deceptive tradepractices. We agree. Chapter 75 of the North Carolina General
Statutes establishes a cause of action for unfair methods of
competition or unfair or deceptive acts in or affecting commerce.
N.C.G.S. § 75-1.1 (1999). Chapter 75 protects businesses as well as
consumers. McDonald v. Scarboro, 91 N.C. App. 13, 18, 370 S.E.2d
680, 683, disc. review denied, 323 N.C. 476, 373 S.E.2d 864 (1988).
Until recently, our Courts have held that the Unfair and Deceptive
Trade Practices Act did not cover claims arising out of employer-
employee relations. However, our Supreme Court has now dispelled
that notion. Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308
(1999).
The defendant in Sara Lee worked as a “Information Center
Service Administrator” in Sara Lee's products division. Sara Lee
Corp., 351 N.C. at 29, 519 S.E.2d at 309. Defendant's job entailed
the development and maintenance of vendor relationships to provide
Sara Lee with the best pricing, availability and hardware support.
Id. While employed, defendant developed four separate businesses
through which he engaged in self-dealing by supplying Sara Lee with
computer parts at an excessive cost. Id. Sara Lee brought suit
alleging unfair and deceptive trade practices. Id. at 30, 519
S.E.2d at 310.
On appeal this Court held that the plaintiff could not hold
the defendant liable for unfair and deceptive trade practices
because the claim arose out of an employment relationship. Sara Lee
Corp. v. Carter, 129 N.C. App. 464, 500 S.E.2d 732 (1998), rev'd on
other grounds, Sara Lee Corp. v. Carter, 351 N.C. 27, 508 S.E.2d308 (1999). The Supreme Court reversed, reasoning that a
defendant's employee status cannot shield the defendant from
liability under Chapter 75. Sara Lee Corp., 351 N.C. at 34, 519
S.E.2d at 312. In contrast to previous Court of Appeals decisions,
the Supreme Court stated that a defendant may be liable under
Chapter 75 despite his employment relationship with the plaintiff.
Id. So long as the defendant has engaged in unfair and deceptive
conduct, in or affecting commerce, to the plaintiff's detriment,
the parties' employment relationship is irrelevant.
In Dalton I, we held that Chapter 75 does not cover claims
that arise out of employer-employee relationships. Accordingly, we
upheld the trial court's grant of summary judgment for defendant
Camp. Dalton, 132 N.C. App. at 39, 519 S.E.2d at 87. We reasoned
that the plaintiff's potential Chapter 75 action arose out of the
parties' employment relationship. Id. In light of Sara Lee, we must
reconsider whether the plaintiff has presented a genuine issue of
material fact as to his Chapter 75 claim.
In order for plaintiff to prevail on a claim for unfair and
deceptive trade practices, plaintiff must demonstrate the existence
of three factors: "(1) an unfair or deceptive act or practice, or
unfair method of competition, (2) in or affecting commerce, and (3)
which proximately caused actual injury to the plaintiff or his
business." Murray v. Nationwide Mutual Ins. Co., 123 N.C. App. 1,
9, 472 S.E.2d 358, 362 (1996), disc. review denied, 345 N.C. 344,
483 S.E.2d 173 (1997) (citation omitted). Viewing the evidence in
the light most favorable to the nonmoving party, the plaintiff hasdemonstrated a genuine issue of material fact as to its Chapter 75
claim.
A practice is unfair when “it is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers.”
Edwards v. West, 128 N.C. App. 570, 574, 495 S.E.2d 920, 924
(1998)(citation omitted). A trade practice is deceptive if it “has
the capacity or tendency to deceive.” Id. However, the plaintiff
does not have to show deliberate acts of deceit or bad faith. Id.
Here, plaintiff has presented evidence that defendant Camp
deceptively used a position of confidence to solicit the
plaintiff's customers and compete with the plaintiff while still in
his employment. Further, defendant Camp concealed his behavior from
the plaintiff. If proved, these acts would amount to unfair and
deceptive trade practices.
Next we must decide whether defendant Camp's activities were
“in or affecting commerce.” N.C.G.S. § 75-1.1(b) provides that “for
purposes of this section, commerce includes all business activities
however denominated.” See Sara Lee Corp., 351 N.C. at 32, 519
S.E.2d at 311. Further, our Supreme Court has explained that
“business activities is a term that connotes the manner in which
businesses conduct their regular, day-to-day activities, or affairs
such as the purchase and sale of goods or whatever other activities
the business regularly engages in and for which it is organized.”
HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 594, 403
S.E.2d 483, 493 (1991). Here, the plaintiff's evidence shows that
defendant Camp solicited plaintiff's customers and obtained theirbusiness. Camp conducted these transactions while on official
business for the plaintiff. The solicitation and procurement of
commercial contracts comprise business activities within the
statutory definition. Based on this evidence, we hold that the
conduct in question was “in or affecting commerce” and thus falls
within the scope of Chapter 75.
Additionally, defendants claim that the plaintiff has not
presented a genuine issue as to plaintiff's actual injury. In
Section V of this opinion, we address the defendants' claim that
plaintiff has failed to show any damages. We now adopt that
reasoning here and hold that the plaintiff has presented a genuine
issue of material fact as to his “actual injury” here. Accordingly,
the trial court's grant of summary judgment for defendant Camp was
error and we now reverse that ruling.
[3]We next consider the unfair and deceptive trade practice
claim as to Menius. Here, we conclude that summary judgment was
proper as to Menius. Whether a practice is unfair or deceptive
depends on the facts of each case and the impact on the
marketplace. Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397,
403 (1981). Here, plaintiff has shown that Menius formed a
competing business, obtained financing for that business, and began
to solicit plaintiff's clients after she left plaintiff's
employment. We hold that this conduct does not amount to unfair and
deceptive trade practices on the facts presented.
[4]Next, we must consider whether Sara Lee alters our holding
as to defendant MCC. In Dalton I, we held that “MCC acted solelythrough Menius and Camp. Because the actions of Menius and Camp
may
not constitute an unfair and deceptive trade practice under the
laws of this state, we conclude that MCC was also not liable.” In
light of Sara Lee, we modify that decision. Under Sara lee, a claim
for unfair and deceptive trade practices now lies even though the
claim arose out of an employer/employee relationship. As discussed
above, defendant Camp's employment relationship is no longer a bar
to the plaintiff's unfair and deceptive trade practice claim. Since
the Supreme Court has removed that limitation, plaintiff now has a
claim against defendant MCC for unfair and deceptive trade
practices. According to the plaintiff's forecast of evidence,
defendant MCC acted through its agent defendant Camp in deceptively
soliciting away the plaintiff's business. By using Camp in this
fashion, defendant MCC may now be found liable to the plaintiff
under Chapter 75. Thus, the trial court also erred in awarding
summary judgment to defendant MCC on plaintiff's Chapter 75 claim.
III. Interference With Prospective Advantage
[5]Defendants argue that plaintiff has failed to preserve
this issue for appeal. This argument has no merit. On 12 September
1997, Judge Peter McHugh dismissed plaintiff's claim that sought
damages for interference with contractual and business relations
with KFI. However, Judge McHugh denied defendants' motion to
dismiss as to the plaintiff's claim for interference with
prospective advantage as to KFI. Judge H.W. Zimmerman, Jr. later
granted defendants' motion for summary judgment which included
plaintiff's claim for prospective advantage. While plaintiff failedto appeal from Judge McHugh's ruling on the motion to dismiss the
interference with contractual and business relations claim,
plaintiff did appeal from Judge Zimmerman's order regarding his
claim for interference with prospective advantage. Accordingly, we
hold that plaintiff has preserved this issue.
[6]In order to maintain an action for tortious interference
with prospective advantage, plaintiff must show that defendants
induced KFI to refrain from entering into a contract with plaintiff
without justification. Additionally, plaintiff must show that the
contract would have ensued but for defendants' interference.
Cameron v. New Hanover Memorial Hospital, 58 N.C. App. 414, 440,
293 S.E.2d 901, 917, disc. review denied, 307 N.C. 127, 297 S.E.2d
399 (1982). Defendants must not be acting in the legitimate
exercise of their own right, “but with a design to injure the
plaintiff or gain some advantage at his expense.” Owens v. Pepsi
Cola Bottling Co. of Hickory, N.C., Inc., 330 N.C. 666, 680, 412
S.E.2d 636, 644 (1992).
Here the depositions and pleadings have shown that KFI had a
positive reaction to plaintiff's efforts with KFI's magazine. In
his deposition, Walker testified that KFI had no complaints or
problems with either the publication, quality, or distribution of
Inside Klaussner during the time that plaintiff produced it.
Plaintiff has presented evidence showing that all parties left the
15 January 1998 meeting with the understanding that plaintiff would
continue with the production of KFI's magazine. Additionally, there
is no question that plaintiff continued to produce KFI's magazinebeyond the terms of the original contract. Clearly, plaintiff has
presented a genuine issue of material fact as to whether the
continuing relationship between KFI and plaintiff would have
persisted and whether Camp's actions induced KFI to refrain from
renewing its contract.
[7]The final issue is whether the defendants were justified
in their actions as a matter of law. Defendants allege that Camp
had an unqualified right to compete and therefore he could solicit
business away from plaintiff. This argument impermissibly ignores
Camp's ongoing duty to plaintiff as the general manager of
plaintiff's company. See McKnight, 86 N.C. App. at 453, 358 S.E.2d
at 109; Sara Lee Corp., 129 N.C. App. at 470, 500 S.E.2d at 736.
For an employee in a confidential relationship to compete with
an employer without consent constitutes a breach of the duty of
loyalty. See Long, 113 N.C. App. at 604, 439 S.E.2d at 802. When
one deliberately acquires an interest adverse to his employer, he
has breached his duty of loyalty as well. Id. If, as plaintiff
alleges, Camp competed while still employed by plaintiff, then Camp
was not acting in the legitimate exercise of his own rights. See
Owens, 330 N.C. at 680, 412 S.E.2d at 644. Rather, Camp acted to
gain an advantage for himself at the plaintiff's expense. Id. We
have already ruled that there is a genuine issue as to whether Camp
was competing or merely preparing to compete against plaintiff.
Therefore, summary judgment was improper as to plaintiffs
interference with prospective advantage claim against Camp as well. As to Menius, we hold that the trial court prope
rly granted
summary judgment. Plaintiff has presented no evidence that Menius
solicited any of plaintiff's business while plaintiff employed her.
Additionally, there is no evidence that a covenant not to compete
covered Menius. At most, plaintiff showed that Menius prepared to
compete prior to leaving plaintiff's employment. See Fletcher,
Barnhardt & White, Inc. v. Matthews, 100 N.C. App. 436, 397 S.E.2d
81 (1990). Since Menius did not act adversely to plaintiff's
interests until after she left his employment, she could freely
compete with him. See Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C.
216, 222-23, 367 S.E.2d 647, 652 (1988); Childress v. Ableles, 240
N.C. 667, 84 S.E.2d 176 (1954). Therefore, summary judgment was
proper.
[8]We also take this opportunity to reconsider our holding as
to plaintiff's claim against defendant MCC. In Dalton I, we held
that the trial court correctly granted summary judgment as to
defendant MCC. Id. at 41, 519 S.E.2d at 87-88. We reasoned that
defendant MCC “was never more than a competitor of plaintiff” and
could freely solicit plaintiff's customers without penalty. Id. As
long as a competitor solicits legally and does not gain an unfair
advantage at the other's expense, it may seek to induce another
party not to renew or enter a contract. Owens, 330 N.C. at 680, 412
S.E.2d at 644. Based on the plaintiff's evidence, defendant MCC
acting through defendant Camp used a confidential relationship
deceptively to entice plaintiff's customers away from the
plaintiff. Defendant MCC sought to negotiate a contract withplaintiff's customers with the active participation of plaintiff's
own employees. All the while, plaintiff had no knowledge of its
employee Camp's actions. This deceptive conduct allowed MCC to gain
an unfair advantage at the plaintiff's expense. Accordingly, we now
reverse the trial court's grant of summary judgment as to defendant
MCC and reinstate plaintiff's claim for prospective advantage
against MCC.
IV. Conspiracy
[9]Plaintiff next alleges that he has presented sufficient
evidence to overcome the motion for summary judgment as to his
conspiracy claim. We disagree as to all three defendants.
There is no cause of action for civil conspiracy per se.
Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981);
Henderson v. LeBauer, 101 N.C. App. 255, 260-61, 399 S.E.2d 142,
145, disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991).
However, an action does exist for wrongful acts committed by
persons pursuant to a conspiracy. Id. This claim requires the
showing of an agreement between two or more persons to do an
unlawful act or to do a lawful act in an unlawful way that results
in damages to the claimant. Id. Additionally, the claimant must
present evidence of an “overt act” committed by at least one
conspirator committed in furtherance of the conspiracy. Dickens,
302 N.C. at 456, 276 S.E.2d at 337. If a party makes this showing,
all of the conspirators are jointly and severally liable for the
act of any one of them done in furtherance of the agreement. Fox v.
Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987). A party may prove an action for civil conspiracy by
circumstantial evidence; however, sufficient evidence of the
agreement must exist "to create more than a suspicion or conjecture
in order to justify submission of the issue to a jury." Dickens,
302 N.C. at 456, 276 S.E.2d at 337. After careful examination of
the record before us, we conclude that plaintiff has not forecast
sufficient evidence to present a genuine question of material fact
as to conspiracy. Here plaintiff relies on mere conjecture and has
shown no facts sufficient to support their allegations of a common
agreement and objective. At his deposition, plaintiff testified
that he had no evidence that Menius and Camp conspired with one
another. He stated that he had nothing more than “suspicion.”
Accordingly, the trial court properly entered summary judgment for
the defendants.
V. Damages
[10]Defendants argue that plaintiff has not forecast evidence
of a genuine issue as to his damages. In order to recover,
plaintiff must show that the amount of damages is based upon a
standard that will allow the finder of fact to calculate the
damages with a reasonable certainty. Olivetti Corp. v. Ames
Business Systems, Inc., 319 N.C. 534, 546, 356 S.E.2d 578, 586,
reh'g denied, 320 N.C. 639, 360 S.E.2d 92 (1987). Where a party
has alleged business losses caused by intentional tortious conduct,
the appropriate inquiry is whether the consequences were the
natural and probable result of the defendants' conduct and not
whether the consequences were within the parties' legalcontemplation. Steffan v. Meiselman, 223 N.C. 154, 159, 25 S.E.2d
626, 629 (1943). As long as the evidence is not remote or
speculative, evidence of anticipated profits is admissible to aid
the jury in estimating the extent of the injury sustained and not
as the measure of damages. See id. at 159, 25 S.E.2d at 629-30.
Parties may show damages by proving the usual profits of a
regularly established business prior to the tortious conduct. Id.
Taking all inferences in favor of the nonmoving party, we
conclude that the plaintiff has presented sufficient evidence of
damages to survive a motion for summary judgment. Plaintiff's
expert witness testified that plaintiff had suffered from eighty
five to ninety thousand dollars in losses as the result of
defendants' conduct. She based this conclusion on revenues earned
by plaintiff prior to the conduct of defendants and on evidence of
anticipated revenues from the parties' tax returns and accounts
receivable summaries. We conclude that this evidence is not overly
speculative and is sufficient to withstand a motion for summary
judgment. See id.
We now withdraw our earlier opinion in this action found at
Dalton v. Camp, 135 N.C. App. 32, 519 S.E.2d 82 (1999).
Affirmed in part, reversed in part and remanded for trial.
Judges WALKER and McGEE concur.
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