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Tort/Negligence – Breach of Contract with Fraud – Civil Practice – Election of Remedies

By: S.C. Lawyers Weekly staff//December 1, 2021

Tort/Negligence – Breach of Contract with Fraud – Civil Practice – Election of Remedies

By: S.C. Lawyers Weekly staff//December 1, 2021

In this case arising from an employee’s development of a competing business while he was working for the plaintiff-employer and using plaintiff’s money, personnel and other resources, it is possible that the jury used plaintiff’s evidence of different categories of damages to make the jury’s apparently corresponding awards on multiple claims; however, this would be mere speculation. We have no way of knowing that the jury’s award of nearly $1.5 million in damages for breach of contract with a fraudulent act does not encompass the damages the jury awarded for breach of fiduciary duty, misappropriation of trade secrets and breach of contract.

Moreover, it is evident that the damages available for these four claims completely overlap, plaintiff asserted the same facts in support of these claims, and nothing from the jury indicated that it intended the awards to be added together. Consequently, plaintiff was required to elect just one remedy from among the jury’s awards for these four claims.

We reverse the circuit court’s ruling that plaintiff was required to elect only between the breach of contract and trade secret claims.

The circuit court was not required to discount its award of attorneys’ fees to plaintiff simply because some of plaintiff’s causes of action permitted such an award and others did not. Though it could have reduced the award, it was within the court’s discretion to not do so.

In a consolidated case, defendant Clear Touch Interactive, Inc., claimed plaintiff used confidential data it had acquired from Clear Touch while the companies were working together to unfairly compete with Clear Touch after the relationship between the companies fell apart. However, Clear Touch conceded its claims could have been litigated in the primary case. Furthermore, Clear Touch used the same factual basis—alleged unfair competition by plaintiff—as a defense to plaintiff’s motion for restitution. Once Clear Touch raised unfair competition, it was obligated to raise all claims related to that unfair competition. The circuit court correctly ruled that Clear Touch’s separate action was barred by res judicata.

Finally, plaintiff argues that the circuit court should have required Clear Touch to pay roughly $5.5 million in restitution. We agree with the circuit court that plaintiff had an adequate remedy at law: it successfully brought claims for trade secret violations, breach of contract with fraud, tortious interference, and others. On many of these claims, plaintiff asked the jury to award Clear Touch’s full value, $5.5 million, in damages. The jury could have done so but declined to do so. We defer to that decision and decline to order equitable relief.

Affirmed in part, reversed in part and remanded.

Encore Technology Group, LLC v. Trask (Lawyers Weekly No. 011-089-21, 15 pp.) (Blake Hewitt, J.) Appealed from Greenville County Circuit Court (Lawton McIntosh, J.) Joseph Owen Smith and Joshua Jennings Hudson for defendants; Gregory Jacobs English and Rita Bolt Barker for plaintiff. S.C. App.

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