Kights Medical Corp. v Pickett, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-954 NORTH CAROLINA COURT OF APPEALS Filed: 6 March 2012 KIGHT S MEDICAL CORP., Plaintiff/Counterclaim Defendant, v. Wake County No. 08 CVS 12075 GINGER KIGHT PICKETT, Defendant/Counterclaim Plaintiff, and KIGHT S MEDICAL OF VIRGINIA, INC. d/b/a ATLANTIC HOME MEDICAL, Defendant/Third Party Complaint Plaintiff, v. JOHN A. KIGHT, Third Party Complaint Defendant Appeal by defendant from order entered 8 February 2011 by Judge Shannon R. Joseph in Wake County Superior Court. Heard in the Court of Appeals 8 February 2012. Kevin W. Benedict of Williams defendant Ginger Kight Pickett. Mullen, PC, attorney for -2K. Edward Greene, Tobias Hampson, Paul Puryear, and Michael Dean DeFrank, of Wyrick Robbins Yates & Ponton LLP, attorneys for plaintiff Kight s Medical Corp., et al. ELMORE, Judge. Ginger denying her Kight Pickett motion for (defendant) judgment appeals from notwithstanding an the order verdict stemming from a damage award in favor of Kight s Medical Corp. (plaintiff). In After careful consideration, we affirm. January 1994, John A. Kight formed Kight s Medical Corporation (KMC), a company that engaged in the business of supplying durable medical equipment. In late 2005, defendant, Kight s sister, expressed interest in owning a KMC franchise in Chesapeake, Virginia. area. manager, Kight agreed to open a KMC branch in that In January 2006, Kight hired defendant as the branch with the intent that she would later purchase the branch as a franchise. As a condition of her employment, defendant signed a noncompete agreement and a confidentiality agreement. The non- compete agreement stated that defendant would not compete in any way including but not limited to working for a competitor within 75 miles of any office of Kight s Medical Corp., including it s (sic) satellite offices, either during employment -3or for a period confidentiality hav[e] of 2 agreement contact with years stated Kight s after that separation. defendant Medical Corp s .The would or not affiliated company s patients or customers for the purpose of soliciting their business away from Kight s Medical or an affiliate company. In February confidential Chesapeake defendant. will letter branch to of defendant and intent regarding ultimately become Kight their a executed plan franchise a for the owned by That letter stated that in due course [defendant] purchase Corp.[.] 2006, the CHESAPEAKE Branch from Kight s Medical Also, [t]his letter is intended to set forth our understanding of the principal terms and conditions under which [defendant] . . . will acquire the business and assets of the Chesapeake Branch[.] In the letter the parties agreed that [w]ithin [six] months after the CHESAPEAKE Branch opens and commences operations, or such other time as [the parties] agree, [defendant] will purchase from the Corporation all of the assets and business of the CHESAPEAKE Branch[.] However, the branch was not purchased by defendant within six months. Instead, defendant continued to work for KMC as a branch manager for several years. During that time, defendant -4and Kight had numerous disagreements regarding how the branch was being operated. As a result, the relationship between the parties began to deteriorate. Despite these troubles, defendant and Kight continued to work towards turning the branch into a franchise. In 2007, defendant created a corporation named Kight s Medical of Virginia, Inc. (KMV), with the purpose of it serving as the name of her eventual franchise. At that time, the KMC branch in Chesapeake began operating under the name KMV, but it remained a branch of KMC and not a franchise. Subsequently, further disagreements arose between defendant and Kight regarding billing and payment. As a result, Kight terminated defendant s employment on 3 June 2008. At that time, Kight intended to continue operating the branch without defendant. However, defendant informed Kight that she intended to operate her own durable medical supply business from the existing office. She agreed to transfer all of KMC s equipment to the branch in Raleigh and to put all of KMC s inventory in a warehouse near the Chesapeake branch. As a result, Kight had to relocate the Chesapeake branch to a new office in the area. Meanwhile, defendant continued to supply durable medical equipment under the KMV name. After some time, she began -5conducting business under the name Atlantic Home Medical. On 28 August 2008, defendant sent letters to healthcare providers who had contracts with KMC informing them of this change. She wrote, I have been privileged to serve the continuous care needs of your patients since 2006. . . . Recently, certain changes have occurred in my business that may have created some confusion further Medical in the healthcare affiliation Corp. . . or . I community. business began . . . I relationship doing business ceased with under any Kight s the name Atlantic Home Medical. . . . I look forward to a continuing relationship with you and thank you in advance for your continuing loyalty to my business. On 11 July 2008, KMC filed suit against defendant for 1) breach of the confidentiality non-compete agreement, agreement, 3) 2) breach constructive of the fraud, 4) interference with business relations, 5) unfair and deceptive trade practices, 6) conversion, 7) unjust enrichment, misappropriation of funds, and 9) punitive damages. 2010, a jury rendered a verdict in favor of KMC. 8) On 4 May On 13 June 2010, defendant filed a motion for judgment notwithstanding the verdict (JNOV). On 9 June 2010 the trial court entered a final judgment against defendant. In that judgment the trial court, -6among other things, awarded plaintiff $1,066,244.00 based on the conversion claim and trebled the jury s unfair and deceptive trade practices award, resulting in $3,984,000.00 relating to that claim. trial court entered an order JNOV. denying a total award of On 8 February 2011, the defendant s motion for Defendant now appeals. On appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000) (citation omitted). Arguments I. Conversion award Defendant first argues that plaintiff 1) failed to identify the specific property that was converted produce evidence at trial of its value. and 2) failed to Thus, defendant argues that the conversion award is unsupported by the evidence and should be set aside as a matter of law. We disagree. The measure of damages for conversion is the fair market value of the chattel at the time and place of conversion, plus interest. a basis A plaintiff must present evidence that will furnish for determination of damages; however, it is not -7necessary to prove damages with absolute certainty. Marina Food Assoc., Inc. v. Marina Restaurant, Inc., 100 N.C. App. 82, 94, 394 S.E.2d 824, 831 (1990) (citations omitted). In determining the value of converted property, the opinion of a property owner is competent evidence as to the value of such property. Compton v. Kirby, 157 N.C. App. 1, 18, 577 S.E.2d 905, 916 (2003). Furthermore, [e]vidence of the price paid for property . . . is probative of value[.] Esteel Co. v. Goodman, 82 N.C. App. 692, 699, 348 S.E.2d 153, 158 (1986). Here, plaintiff argues that defendant Chesapeake branch in its entirety. a spreadsheet (exhibit 43) that converted the KMC At trial, plaintiff offered illustrated the expenses it incurred in establishing the Chesapeake branch from 2006 through the time it was converted by defendant in June 2008. testified that exhibit 43 showed the total expenses Kight that Kight s Medical has spent on . . . developing [the Chesapeake] branch and that exhibit 43 included money spent on all of the equipment and supplies that were purchased for that particular branch[.] We conclude that this evidence was sufficient to furnish a basis for the jury to determine the fair market value of the Chesapeake branch. II. Award for wrongful competition -8Defendant next argues 1) that the proper measure of damages in unfair trade practice claims alleging wrongful competition is lost profits evidence at and 2) trial that that plaintiff it suffered failed lost to present profits. As any such, defendant argues that the jury s award for wrongful competition is unsupported by evidence. We disagree. [U]nfair competition claims are neither wholly tortious nor wholly contractual in nature and the measure of damages is broader than common law actions. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 61, 620 S.E.2d 222, 231 (2005). competition] The should measure further of the damages purpose used of [for wrongful 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 Sales, Inc., in 68 money. N.C. Bernard App. 228, v. Central 233, 314 Carolina S.E.2d Truck 582, 585 (1984)(quotations and citations omitted). Here, Kight testified that plaintiff sustained significant losses associated with having to start the Chesapeake branch back up[.] Some of these losses were again illustrated by exhibit 43. Kight explained that exhibit 43 showed what it cost Medical Kight s to rebuild that branch after it was -9converted by defendant in June 2008. In addition, he testified that [w]e [also] had to go out and build new referral sources for the business which was part of the cost . . . [we] had to incur due to [defendant s] actions[.] into evidence Referencing its exhibit profit/loss 49, Kight Plaintiff also admitted statements testified (exhibit that the 49). Chesapeake branch turned a profit of approximately 1) $35,000.00 in January 2008, 2) $24,500 in February 2008, 3) $8,800 in April 2008, and 4) $21,599.00 in May 2008, but after June 2008 [t]he trends were all losses[.] provided the jury We conclude that the sum of this evidence with a sufficient basis to determine the damages plaintiff suffered as a result of defendant s wrongful competition. Defendant further argues that the jury s verdicts represent disparate reconciled. compensatory damages Specifically, findings defendant argues that cannot that the be jury s verdicts are inconsistent because the jury awarded plaintiff $1 for wrongful competition under issue 1 of the verdict sheet, but they awarded plaintiff $1,328,000.00 for wrongful competition under issue 12 of the verdict sheet. As such, defendant asks this Court to issue a writ of certiorari to review the question -10of whether the jury s verdicts present a fatal inconsistency. We decline. Rule 21 of our appellate rules provides that a writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals[.] App. 510, citations 515, 632 omitted). Rauch v. Urgent Care Pharm., Inc., 178 N.C. S.E.2d 211, However, 216 [o]ur (2006) rules (quotations specify and that a petition for writ of certiorari to this Court must be filed with the clerk of the Court of Appeals, and the petition must contain the following: [1] a statement of the facts necessary to an understanding of the issues presented by the application; [2] a statement of the reasons why the writ should issue; and [3] certified copies of the judgment, order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. Here, defendant did not file Id. a certiorari with the clerk of this Court. request in her brief. petition for writ of Instead, she made the This Court has declined to grant requests for the issuance of a writ of certiorari in a brief that fails to comply with the requirements of Rule 21. See Id. (Holding that Plaintiff s sole statement in her brief fails to comply -11with the requirements of Rule 21 ). Thus, we decline to issue a writ of certiorari, and we will not review defendant s argument with regards to this issue. III. Binding agreement Lastly, defendant argues that after the parties signed the letter of intent, their subsequent communications established a binding agreement and that plaintiff breached the agreement first. We disagree. There is no contract unless the parties assent to the same thing in the same sense. A contract is the agreement of two minds -- the coming together of two minds on a thing done or to be done. A contract, express or implied, executed or executory, results from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is not what either thinks, but what both agree. Williams v. Jones, 322 N.C. 42, 49, 366 S.E.2d 433, 438 (1988) (quotations and citations omitted). Here, it is clear from the record that the parties agreed on very little, if anything, concerning the eventual purchase of the branch as a franchise by defendant. In defendant s own statement of the facts she indicates that the parties were never -12able to agree on 1) the date to complete their deal, 2) a definite purchase price, 3) the amount of the down payment, or 4) the amount of the franchise fee. Thus, it is obvious that the parties most certainly never reached an agreement of two minds. Therefore, we conclude that no binding agreement ever existed between the parties. Affirmed. Judges CALABRIA and ERVIN concur. Report per Rule 30(e).
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