R.K. Enterprises, LLC, d/b/a Nationwide Nurses, a Nevada Limited Liability Company, Katherine Hefley, Mary Burks, Traca Lane, and Raymond Hefley v. Pro-Comp Management, Inc., d/b/a The Right Solutions, an Arkansas Corporation, The D.L.J. Wright Industries, Inc., d/b/a The Right Solutions, an Oklahoma Corporation, and Amedistaf, LLC, d/b/a The Right Solutions, a Delaware Limited Liability Company
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SUPREME COURT OF ARKANSAS
No. 07671
R.K. ENTERPRISES, LLC, D/B/A
NATIONWIDE NURSES, A NEVADA
LIMITED LIABILITY COMPANY,
KATHERINE HEFLEY, MARY BURKS,
TRACA LANE, AND RAYMOND
HEFLEY,
APPELLANTS,
VS.
PROCOMP MANAGEMENT, INC., D/B/A
TH E R IG H T SO LU T IO NS, AN
ARKANSAS CORPORATION, THE D.L.J.
WRIGHT INDUSTRIES, INC., D/B/A THE
RIGHT SOLUTIONS, AN OKLAHOMA
CORPORATION, AND AMEDISTAF, LLC,
D/B/A THE RIGHT SOLUTIONS, A
DELAWARE LIMITED LIABILITY
COMPANY,
APPELLEES,
Opinion Delivered 12408
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT, NO. CV
018984, HONORABLE MARY ANN
GUNN , JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
R.K. Enterprises, LLC, d/b/a Nationwide Nurses, a Nevada Limited Liability
Company, and Katherine Hefley, Mary Burks, Traca Lane, and Raymond Hefley, all
individuals (collectively referred to as Nationwide), appeal from an order of the circuit court
awarding a judgment in the amount of $262,303 under the theory of unjust enrichment to
ProComp Management, Inc., d/b/a The Right Solutions, an Arkansas corporation, The
D.L.J. Wright Industries, Inc., d/b/a The Right Solutions, an Oklahoma corporation, and
Amedistaf, LLC, d/b/a The Right Solutions, a Delaware Limited Liability Company
(collectively referred to as TRS). We affirm the judgment.
This is the third appeal in this case, see R.K. Enterprises, LLC v. ProComp
Management, Inc., 356 Ark. 565, 158 S.W.3d 685 (2004) (R.K. I) and ProComp
Management, Inc. v. R.K. Enterprises, LLC, 366 Ark. 463, 237 S.W.3d 20 (2006) (R.K. II),
and the underlying facts in this case were dictated at length by this court in R.K. I. Suffice
it to say that TRS was in the business of providing nursing care services to medical care
facilities, and the lawsuit involved the theft of trade secrets by Nationwide from TRS
involving those services.
The procedural facts relevant to this appeal are as follows. Upon discovery that
Nationwide had misappropriated various trade secrets from TRS, TRS filed a complaint
against Nationwide alleging, among other things, conversion, civil conspiracy, and a
violation of the Arkansas Theft of Trade Secrets Act. Following a bench trial, the circuit
court entered an order on January 21, 2003, in which it found Nationwide liable for
conversion, civil conspiracy, and misappropriating trade secrets in violation of the Trade
Secrets Act, codified at Ark. Code Ann. §§ 475601 – 475607 (Repl. 2001). The circuit court
then allowed TRS to elect to either seek damages under the Trade Secrets Act or on the basis
of the tort claims of conversion and civil conspiracy. TRS chose recovery under the tort
claims, and the circuit court awarded TRS judgment in the amount of $262,312. Nationwide
appealed, and in R.K. I, this court held that the Trade Secrets Act preempted damages based
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on the tort claims of conversion and civil conspiracy and reversed and remanded the case for
a determination of damages under the Trade Secrets Act.
Following remand, the circuit court entered an order on January 14, 2005, in which
it concluded that Nationwide had been unjustly enriched by the misappropriation of the trade
secrets but that sufficient evidence had not been developed at trial for the court to determine
the amount of damages to be awarded under the Trade Secrets Act. The court entered
judgment in favor of Nationwide.
TRS appealed, and in R.K. II, this court affirmed the circuit court’s denial of relief
under the Trade Secrets Act but reversed and remanded the case for a determination of
damages based on unjust enrichment. In R.K. II, this court also considered Nationwide’s
crossappeal, which asserted that this court lacked jurisdiction to remand the case in R.K. I
for a determination of damages under the Trade Secrets Act because TRS did not cross
appeal on that point. This court rejected Nationwide’s jurisdictional argument in R.K.II and
held that this court had jurisdiction to remand the case.
After the second remand, the circuit court entered an order on March 20, 2007,
awarding TRS damages in the amount of $262,303 based on the theory of unjust enrichment.
Specifically, the court said:
4. The Court finds that although liability for misappropriation of trade
secrets has been proven, the evidence presented on actual loss is too
speculative to prove damages. However, the evidence presented on damages
for unjust enrichment has been clearly established.
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5. The Court now makes the determination that the correct measure of
damages on the issue of unjust enrichment is the fair market value of the trade
secrets. This value represents the benefit that Nationwide has received by
avoiding the payment of this value in order to obtain this information.
In the instant appeal, Nationwide again maintains as its first point that this court
lacked jurisdiction to remand the case in R.K. I for a determination of damages under the
Trade Secrets Act. Nationwide recognizes that it made this same argument during a cross
appeal in R.K. II but urges that although this court rejected Nationwide’s arguments in R.K.
II regarding waiver and election of remedies, it failed to address directly the issue of subject
matter jurisdiction. It argues once more that in the circuit court’s January 21, 2003 order,
the circuit court did not award any damages under the Trade Secrets Act, and TRS did not
file a crossappeal from that decision. Nationwide points out that, as a result, TRS was
granted affirmative relief not asked for by crossappeal. Thus, Nationwide insists, neither
this court nor the circuit court had jurisdiction in R.K.I to award TRS damages under the
Trade Secrets Act or for unjust enrichment, and the circuit court’s subsequent orders are all
void ab initio.
We begin by discussing the lawofthecase doctrine, which “prohibits
a court from reconsidering issues of law and fact that have already been decided in a prior
appeal.” Byme, Inc. v. Ivy, 367 Ark. 451, 457, __ S.W.3d __, __ (2006). This court has
explained that “[o]n second appeal, . . . the decision of the first appeal becomes the law of
the case, and is conclusive of every question of law or fact decided in the former appeal, and
also of those which might have been, but were not, presented.” Vandiver v. Banks, 331 Ark.
386, 391, 962 S.W.2d 349, 352 (1998) (quoting Mercantile First Nat’l Bank v. Lee, 31 Ark.
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App. 169, 173, 790 S.W.2d 916, 919 (1990)). Stated differently, “[t]he doctrine of the law
of the case . . . prevents an issue raised in a prior appeal from being raised in a subsequent
appeal unless the evidence materially varies between the two appeals.” Vandiver, 331 Ark.
at 39192, 962 S.W.2d at 352.
In R.K. II, the second appeal in this case, Nationwide raised the issue of this court’s
subjectmatter jurisdiction on crossappeal. As already stated, Nationwide argued that this
court lacked jurisdiction to remand the case in R.K. I for a determination of damages under
the Trade Secrets Act because the circuit court did not award damages under the Trade
Secrets Act at trial and TRS did not crossappeal from that ruling. This is the same argument
that Nationwide now makes in the current appeal.
In R.K. II, this court rejected Nationwide’s argument and confirmed its decision by
continuing to assume jurisdiction in this matter and by remanding the case a second time for
further rulings by the circuit court. Our decision on Nationwide’s jurisdictional point was
clear. Because of this, we hold that the lawofthecase doctrine bars Nationwide from now
making the same argument which this court has previously rejected. Nationwide posits that
subjectmatter jurisdiction can be raised more than once. We disagree. Once that issue has
been decided by this court, it cannot be raised again. Were this not the case regarding issues
raised about subjectmatter jurisdiction, this court could be called upon to decide the same
issue multiple times. This we will not do.
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Nationwide contends, as its second point, that the circuit court erred in awarding TRS
damages in the amount of $262,303 for unjust enrichment. Nationwide maintains that the
circuit court simply awarded the same damages to TRS for unjust enrichment that it
previously had awarded for conversion and that to use the same measure of damages, which
was fair market value, was error. Nationwide adds that the fair market value of the
misappropriated items is not the appropriate measure for unjust enrichment as there was no
evidentiary correlation between the market value of the misappropriated items and the value
of the benefit gained or retained by Nationwide. Nationwide insists that the circuit court
resorted to speculation and conjecture to reach the amount awarded as there was no evidence
presented at trial regarding the actual benefit. Specifically, Nationwide contests the absence
of proof about the extent of time it used the items and the inclusion of the “costs” of these
items into the damages calculation.
Our standard of review for bench trials has been established by this court:
In bench trials, the standard of review on appeal is not whether there is
substantial evidence to support the finding of the circuit court, but whether the
judge’s findings were clearly erroneous or clearly against the preponderance
of the evidence. Omni Holding and Developing Corp. v. C.A. G. Investments,
Inc., __ Ark. __, __ S.W.3d __ (June 7, 2007). A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the
entire evidence is left with a firm conviction that an error has been committed.
Id. Facts in dispute and determinations of credibility are within the province
of the factfinder. Id.
El Paso Prod. Co. v. Blanchard, __ Ark. __, __, __ S.W.3d __, __ (Dec. 6, 2007).
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In R.K. II, this court held that the circuit court may look to the general law of unjust
enrichment when determining damages for unjust enrichment under the Trade Secrets Act.
In order to find unjust enrichment, “a party must have received something of value, to which
he or she is not entitled and which he or she must restore.” El Paso Prod. Co., __ Ark. at
__, __ S.W.3d at __. Furthermore, this court has explained that “an action based on unjust
enrichment is maintainable where a person has received money or its equivalent under such
circumstances that, in equity and good conscience, he or she ought not to retain.” Id. In
R.K. II, this court described unjust enrichment as follows:
Unjust enrichment is an equitable doctrine. First Nat’l Bank of
DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). It is the principle that
one person should not be permitted unjustly to enrich himself at the expense
of another, but should be required to make restitution of or for property or
benefits received, retained, or appropriated, where it is just and equitable that
such restitution be made, and where such action involves no violation or
frustration of law or opposition to public policy, either directly or indirectly.
366 Ark. at 469, 237 S.W.3d at 24 (quoting Servewell Plumbing, LLC v. Summit
Contractors, Inc., 362 Ark. 598, 612, 210 S.W.3d 101, 112 (2005)).
In its March 20, 2007 order, the circuit court ruled that the correct measure of
damages for unjust enrichment was the fair market value of the misappropriated trade secrets.
Now, Nationwide attacks that order for three reasons: (1) that market value of the trade
secrets is not an appropriate measure of unjust enrichment; (2) that certain items included
in the unjust enrichment calculation either were not trade secrets or Nationwide did not
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benefit from having them; and (3) that Nationwide could not have had the benefit of the full
market value of the trade secrets because Nationwide retained the trade secrets for only one
month. We disagree with each of Nationwide’s points.
Nationwide first asserts that the fair market value of the trade secrets is not a proper
measure of unjust enrichment. The circuit court, however, ruled that the fair market value
of the items misappropriated represented the benefit that Nationwide received because
Nationwide was able to use the trade secrets without paying for them. The circuit court had
found, in its original order, that Nationwide benefitted from the use of the misappropriated
trade secrets by generating substantial profits in a very short period of time. Nationwide also
contends that several of the items included in the calculation for unjust enrichment damages
are either not trade secrets at all or that Nationwide never gained a benefit from
misappropriating the items. Nationwide particularly disputes the inclusion of the cost of the
Staff Pro computer software, the cost of nursing lists purchased from the State Boards of
Nursing, the cost of labor for converting certain databases, and other historical development
costs.
We note initially on this point that the circuit court found in its original order that
these items were trade secrets. The circuit court said “that the Staff Pro computer program
and the various lists, including the nurse list and the facility list, were developed for the
exclusive use for TRS and were trade secrets in accordance with Arkansas law.” This
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finding was then affirmed by this court in R.K. I, and the lawofthecase doctrine precludes
Nationwide from now asserting that these items were not trade secrets.
Secondly, the circuit court found that these trade secrets benefitted Nationwide, as the
circuit court attributed Nationwide’s firstyear’s profits to its use of the misappropriated
trade secrets. Nationwide contends, in particular, that it received no benefit from its theft
of the computer program, Staff Pro. It maintains that the program was only in its possession
for four business days and that it was never installed to be used on any of Nationwide’s
computers. Despite this contention, the circuit court found in its first order that the computer
program was “a comprehensive computer program” that contained “contact information for
all the TRS nurses, information regarding facilities that TRS had contracts with, various
accounting features, methods of tracing workers’ compensation claims, and all other
information necessary for the day to day operation of TRS.” Even if Nationwide did not
install the program on its computers for actual use, we cannot say that the circuit court
clearly erred in ruling that Nationwide benefitted from having the program, if only for four
business days, because the program contained information that was highly beneficial and
highly accessible to Nationwide.
We further hold, regarding the development and labor costs for the various lists and
databases, that the circuit court did not err by including these costs in its calculation for
unjustenrichment damages. These costs are clearly part of the fair market value of the trade
secrets, and Nationwide gained a benefit by using these trade secrets without paying for their
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development. Because of this, Nationwide was unjustly enriched by its use of the various
lists and databases without having to contribute to the time, effort, and cost of their
development. Therefore, the development and labor costs of the trade secrets were properly
included in the award of damages for unjust enrichment.
As a final point, Nationwide insists that it could not have gained the benefit of the full
market value of the misappropriated trade secrets because they were only in Nationwide’s
possession for approximately one month. Nevertheless, as discussed above, the circuit court
attributed Nationwide’s firstyear’s profits to its use of TRS’s trade secrets. The circuit court
clearly did not believe that the positive effects that the trade secrets had on Nationwide’s
business lasted for only one month but rather extended throughout the early life of
Nationwide’s operations. We disagree that Nationwide did not have the benefit of the full
market value of the trade secrets simply because they were only in Nationwide’s physical
possession for one month.
In sum, we hold that the circuit court did not clearly err in ruling that the fair market
value of the misappropriated trade secrets was an appropriate measure of unjust enrichment
and in awarding damages in the amount of $262,303.
Affirmed.
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