Essex Grp. v Express Wire Serv., et al, (04-613) 03/15/2005

Appeal by defendants from judgment entered 17 December 2003 by Judge Timothy S. Kincaid in the Superior Court in Mecklenburg County. Heard in the Court of Appeals 26 January 2005.

Ellis & Winters L.L.P., by Jonathan D. Sasser and Stephen C. Keadey, for plaintiff.

Troy & Watson, P.A., by Christian R. Troy, for defendants.

    HUDSON, Judge.

    On 25 July 2001, plaintiff filed a complaint alleging breach of fiduciary duty, unfair and deceptive trade practices, conversion, misappropriation of trade secrets, civil conspiracy, interference with prospective business advantage, and breach of contract. Due to defendants' misconduct during discovery, the trial court struck their answers and entered default on all claims. On appeal by defendants, this Court upheld that order and remanded for trial on damages. Essex Group, Inc. v. Express Wire Servs., 157 N.C. App. 360, 578 S.E.2d 705 (2003). On 8 December 2003, the case for damages came on for trial. The following day, the court dictated judgment in open court, and entered a written judgment 17December 2003. Defendants appeal. For the reasons discussed below, we affirm.
    Plaintiff Essex Group manufactures and sells electrical wire products, including emergency magnet wire. Plaintiff employed defendant Scott Ramsey as a senior account executive at plaintiff's emergency magnet wire business in Charlotte. In this position, Ramsey had extensive contact with customers. After seeking unsuccessfully to buy plaintiff's business, Ramsey incorporated defendant Express Wire Services (“EWS”) and resigned from his position with plaintiff. EWS began to compete with plaintiff, and all of plaintiff's emergency magnet wire employees went to work for EWS. Plaintiff's business dropped after EWS began operations, due to an economic downturn as well as competition from EWS. Eventually, plaintiff filed for bankruptcy. At trial, plaintiff contended it lost profits of $1,617,481 as a result of defendants' actions.
    Defendants argue that the trial court erred in entering judgment against them because the amount of lost profits were not established with reasonable certainty. We disagree.
    Defendants first contend that the evidence does not support finding twenty-nine, which states:
        29. As a result of Defendants' actions as stated in the complaint, which are admitted, but not entirely due to those actions, Plaintiff's sales as reflected on a list of some 50 customers dropped from $703,178 in 2000, to $210,806 in 2001, to [$]72,026 in 2002.
    “When a trial court sits as the trier of fact, the court's findings and judgment will not be disturbed on the theory that the evidence does not support the findings of fact if there is any evidence to support the judgment, even though there may be evidence to the contrary.” Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 599, 516 S.E.2d 169, 173 (1999). Finding twenty-nine is based primarily on testimony from Michael Sattison, defendant Searcy's replacement at Essex Group. In his testimony, Sattison referred to a list of fifty customers whose business with plaintiff dropped the most between 2000 and 2002. During cross-examination, Sattison admitted that he could not state with certainty that all of these losses were due to defendants' actions, rather than partly due to the actions of other competitors. Finding twenty-nine reflects Sattison's testimony that some, though perhaps not all, of the losses were a result of defendants' actions. Because there is evidence to support finding twenty-nine, we overrule this assignment of error.
    Defendants next argue that the court erred in entering judgment against them because the court was not able to calculate the amount of damages with reasonable certainty.
    Because defendants were defaulted, they were unable to contest the facts alleged in the complaint. Plaintiff's complaint alleged it suffered damages “in excess of $10,000.00” and prayed for an entry of judgment “in an amount to be proven at trial.” “It is a well-established principle of law that proof of damages must be made with reasonable certainty.” Olivetti Corp. v. Ames BusinessSystems, Inc., 319 N.C. 534, 546, 356 S.E.2d 578, 585, reh'ing denied, 320 N.C. 639, 360 S.E.2d 92 (1987). However, though lost profits cannot be awarded based upon pure speculation or conjecture, absolute certainty is not required. Mosley & Mosley Builders v. Landin Ltd., 87 N.C. App. 438, 446, 361 S.E.2d 608, 613 (1987), cert. denied, 322 N.C. 607, 370 S.E.2d 416 (1988). Here, the court did not rely on pure speculation or conjecture, but rather used its discretion to determine the extent to which the damages were caused by defendants' actions. The evidence may not have been perfect, but we agree that it was reasonably certain, and thus sufficient to support the findings.
    In addition, the trial court had broader discretion to award damages here where defendants had engaged in unfair or deceptive trade practices. In cases under Chapter 75 this court has said that “[t]he measure of damages used should further the purpose of awarding damages, which is to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money.” Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 233, 314 S.E.2d 582, 585, disc. review denied, 311 N.C. 751, 321 S.E.2d 126 (1984) (internal quotation marks omitted). Here, defendants do not assign error to the court's findings or conclusion that they engaged in unfair and deceptive trade practices, and the court awarded damages appropriately.
    Affirmed.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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