              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-849

                                 Filed: 1 August 2017

Sampson County, No. 15 CVS 688

VAN-GO TRANSPORTATION, INC., Plaintiff,

             v.

SAMPSON COUNTY, SAMPSON COUNTY BOARD OF COMMISSIONERS and
ENROUTE TRANSPORTATION SERVICES, INC., Defendants.


      Appeal by plaintiff from order entered 12 May 2016 by Judge Gale M. Adams

in Sampson County Superior Court. Heard in the Court of Appeals 9 February 2017.


      The Charleston Group, by R. Jonathan Charleston, Jose A. Coker, and Quintin
      D. Byrd, for plaintiff-appellant.

      Daughtry Woodard Lawrence & Starling, by W. Joel Starling, Jr., for
      defendant-appellee Sampson County.

      Crossley McIntosh Collier Hanley & Edes, PLLC, by Norwood P. Blanchard,
      III, for defendant-appellee EnRoute Transportation Services, Inc.


      DAVIS, Judge.


      This appeal requires us to once again examine the issue of when a defendant

is entitled to recover on an injunction bond previously posted by the plaintiff after the

plaintiff voluntarily dismisses the lawsuit. Plaintiff Van-Go Transportation, Inc.

(“Van-Go”) appeals from the trial court’s order awarding damages to Sampson County

(the “County”) and EnRoute Transportation Services, Inc. (“EnRoute”) (collectively

“Defendants”). Because we conclude that the trial court properly ruled that Van-Go’s
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voluntary dismissal was equivalent to an admission that it wrongfully enjoined

Defendants, we affirm.

                      Factual and Procedural Background

      From 1997 until 2013, the County contracted with EnRoute for the

transportation of area Medicaid patients to and from appointments for medical

services. During the period from July 2013 to June 2015, the County contracted with

Van-Go to provide these transportation services. In February 2015, the County

issued a Request for Proposals (“RFP”) seeking bids from vendors to provide these

services for the period between July 2015 and June 2017.

      Among other requirements, the RFP instructed each bidder to (1) identify its

insurer and show that it possessed a certain amount of insurance coverage; and (2)

state the fixed cost per mile that it would charge the County for provision of the

transportation services. Van-Go and EnRoute each submitted proposals that the

County deemed timely and responsive to the RFP.

      Van-Go’s bid identified its insurer and level of coverage and stated that its

fixed cost per mile of service was $1.74. EnRoute’s proposal did not identify its

insurance carrier but stated that it would obtain the required insurance coverage if

awarded the contract. In addition, it stated that its cost per mile of service was $1.54

“[p]lus a fuel surcharge of $.01 per mile for each $.05 increase over $3.95 per gallon

(based on average daily price at Go Gas-Clinton).” On 6 April 2015, the Sampson



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County Board of Commissioners voted to award the Medicaid transportation services

contract (the “Contract”) to EnRoute based upon the terms specified in its bid.

      On 29 June 2015, Van-Go filed its initial complaint against Defendants in

which it requested monetary damages and injunctive relief for alleged violations of

N.C. Gen. Stat. § 143-129 (which governs the procedure for awarding public

contracts); 5 C.F.R. §§ 2635.101 and 2635.702 (which address conflicts of interest in

contracts involving federal monies); and the due process clauses of the federal and

state constitutions. These claims were premised upon Van-Go’s contentions that the

Contract should not have been awarded to EnRoute because (1) EnRoute’s proposal

was not responsive to the RFP in that it both failed to demonstrate that EnRoute had

procured the required insurance coverage and did not provide a fixed cost per mile;

and (2) a conflict of interest existed between the owners of EnRoute and the Director

of the Sampson County Department of Social Services, who participated in the

County’s consideration of the bids.

      The complaint included a request for a temporary restraining order (“TRO”)

pursuant to Rule 65 of the North Carolina Rules of Civil Procedure to enjoin EnRoute

from performing under the Contract and to allow Van-Go to extend its then-existing

contract with the County by continuing to provide transportation services at the cost-

per-mile rate of $1.85 as specified in that agreement. A TRO hearing was held in

Sampson County Superior Court on 29 June 2015 after which Judge W. Allen Cobb,



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Jr. issued a TRO granting Van-Go its requested relief pending the outcome of a

preliminary injunction hearing.      The TRO further directed Van-Go to post an

injunction bond in the amount of $25,000.

      Defendants subsequently filed a motion to dissolve the TRO on 13 July 2015.

Following a hearing, Judge Charles H. Henry issued an order on 20 July 2015 denying

Van-Go’s request for a preliminary injunction and granting Defendants’ motion to

dissolve the TRO. In its order, the court determined that Van-Go had not shown a

likelihood of success on the merits because, inter alia, (1) EnRoute’s bid substantially

conformed to the specifications of the RFP; and (2) Van-Go failed to show that a

conflict of interest had tainted the bidding process.

      Following the entry of this order, Defendants removed the case to the United

States District Court for the Eastern District of North Carolina based upon the

federal questions presented in Van-Go’s complaint. Van-Go subsequently filed an

amended complaint that did not contain any claims arising under federal law. Based

upon the lack of a federal question in the amended complaint, the federal court

granted Van-Go’s motion to remand the case to Sampson County Superior Court on

29 July 2015.

      On 17 August 2015, EnRoute filed a motion to dismiss Van-Go’s amended

complaint in Sampson County Superior Court.               On 10 December 2015 — while

EnRoute’s motion to dismiss was pending — Van-Go filed a voluntary dismissal of its



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lawsuit without prejudice pursuant to Rule 41 of the North Carolina Rules of Civil

Procedure. Van-Go subsequently filed a motion on 1 February 2016 requesting the

release of the $25,000 injunction bond it had posted in connection with the TRO. On

4 February 2016, EnRoute submitted an objection to Van-Go’s motion along with a

motion of its own seeking an award of damages in the full amount of the bond on the

ground that EnRoute had been wrongfully enjoined. On 18 March 2016, the County

filed a similar motion.

      A hearing was held before the Honorable Gale M. Adams on 21 March 2016.

Judge Adams issued an order on 12 May 2016 denying Van-Go’s motion for release of

the bond and awarding Defendants the proceeds of the bond. In its order, the trial

court allocated $15,993.57 of the $25,000 to EnRoute and $9,006.43 to the County.

Van-Go filed a timely notice of appeal from this order.

                                        Analysis

      Van-Go raises several issues on appeal. First, it asserts that the $25,000

injunction bond should have been released to Van-Go. Alternatively, it asserts that

even if EnRoute was entitled to recover some portion of the bond, EnRoute failed to

provide sufficient evidence of the damages it had incurred so as to warrant the trial

court’s award of $15,993.57. Finally, Van-Go argues that the trial court erred in

awarding any amount of damages to the County because all monies at issue belonged

to the State rather than the County.



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I. Determination that Defendants Were Wrongfully Enjoined

      Pursuant to Rule 65(c), a party who obtains a TRO or preliminary injunction

must post a security bond. See N.C. R. Civ. P. 65(c) (providing that, with limited

exceptions, “[n]o restraining order or preliminary injunction shall issue except upon

the giving of security by the applicant, in such sum as the judge deems proper, for the

payment of such costs and damages as may be incurred or suffered by any party who

is found to have been wrongfully enjoined or restrained.”). In reviewing a trial court’s

judgment concerning the disposition of an injunction bond, “[w]e consider whether

the trial court’s findings of fact and conclusions of law are sufficient to support the

judgment.” Allen Indus., Inc. v. Kluttz, __ N.C. App. __, __ 788 S.E.2d 208, 209 (2016).

      In its 12 May 2016 order, the trial court made the following findings of fact in

determining that Van-Go was not entitled to the return of its $25,000 injunction bond:

                    26. On December 10, 2015, [Van-Go] filed a Notice
             of Voluntary Dismissal without prejudice pursuant to Rule
             41(a) of the North Carolina Rules of Civil Procedure. The
             Notice of Dismissal was unconditional, in that it was not
             stipulated as pursuant to Rule 41(a)(1)(ii) of the North
             Carolina Rules of Civil Procedure.

                    ....

                    30. The Court finds that, as a result of the TRO
             entered on June 29, 2015, the County and Enroute were
             restrained from performing under the Contract, which
             would have taken effect on July 1, 201[5], for a period of
             twenty (20) days.

      The trial court proceeded to enter the following pertinent conclusion of law:


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                    4. The Notice of Voluntary Dismissal without
             prejudice filed by [Van-Go] in this matter on or about
             December 10, 2015, which was unstipulated, is equivalent
             to a finding that the County and Enroute were wrongfully
             restrained by the entry of the TRO on June 29, 2015.

(Citation omitted.)

      In determining whether a party has been wrongfully enjoined, courts must

analyze the issue in a manner “consistent with the very purpose of the bond[,] which

is to require that the plaintiff assume the risks of paying damages he causes as the

price he must pay to have the extraordinary privilege of provisional relief.” Indus.

Innovators, Inc. v. Myrick-White, Inc., 99 N.C. App. 42, 50, 392 S.E.2d 425, 431

(citation and quotation marks omitted), disc. review denied, 327 N.C. 483, 397 S.E.2d

219 (1990); see also Leonard E. Warner, Inc. v. Nissan Motor Corp. in U.S.A., 66 N.C.

App. 73, 76, 311 S.E.2d 1, 3 (1984) (“The purpose of the security requirement is to

protect the restrained party from damages incurred as a result of the wrongful

issuance of the injunctive relief.” (citation omitted)).

      It is well established that “no right of action accrues upon an injunction bond

until the court has finally decided that plaintiff was not entitled to the injunction, or

until something occurs equivalent to such a decision.” M. Blatt Co. v. Southwell, 259

N.C. 468, 471, 130 S.E.2d 859, 861 (1963) (citation and quotation marks omitted).

The defendant has the burden of proof on the issue of whether it is entitled to recover

under the bond. Id. at 473, 130 S.E.2d at 862.



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        In the present case, Defendants do not contend that the trial court expressly

determined that Van-Go had not been entitled to the 29 June 2015 TRO.1 Rather

they contend that Van-Go’s voluntary dismissal of its lawsuit was equivalent to a

decision by the trial court that Van-Go was not entitled to the TRO.

        The seminal case on this issue is Blatt, in which our Supreme Court articulated

the following rule:

                [T]he voluntary and unconditional dismissal of the
                proceedings by the plaintiff is equivalent to a judicial
                determination that the proceeding for an injunction was
                wrongful, since thereby the plaintiff is held to have
                confessed that he was not entitled to the equitable relief
                sought.
                       When, however, the dismissal of the action is by an
                amicable and voluntary agreement of the parties, the same
                is not a confession by the plaintiff that he had no right to
                the injunction granted, and does not operate as a judgment
                to that effect.

Id. at 472, 130 S.E.2d at 862 (internal citations and quotation marks omitted and

emphasis added). Thus, Blatt distinguished between, on the one hand, a plaintiff’s

voluntary dismissal of an action without conditions and, on the other hand, a

plaintiff’s voluntary dismissal that is conditioned upon an agreement between the

plaintiff and the defendant. Blatt makes clear that the former category of voluntary



        1 We note that a trial court’s subsequent refusal to grant a preliminary injunction to a plaintiff
does not, in itself, constitute a determination that the defendant was wrongly enjoined by the earlier
issuance of a TRO. See Blatt, 259 N.C. at 471, 130 S.E.2d at 861 (holding that trial court’s
determination that plaintiff was not entitled to continuation of TRO did not constitute ruling that TRO
had been wrongfully issued given that trial court failed to make any “recital, finding or adjudication
that plaintiff was not entitled to the temporary restraining order during the period it was in effect”).

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dismissals entitles the defendant to recovery on the injunction bond whereas the

latter category does not.

      Here, there was no “amicable” or “voluntary” agreement between Van-Go, the

County, and EnRoute at the time Van-Go dismissed its lawsuit. Instead, Van-Go

voluntarily, without any promise, consideration, or involvement of Defendants,

dismissed its lawsuit “as to all defendants” on 10 December 2015.         Due to the

voluntary, unilateral dismissal of its lawsuit, Van-Go “is held to have confessed that

[it] was not entitled to the equitable relief sought” by the 29 June 2015 TRO. Id.

      North Carolina courts have recognized one narrow exception to Blatt’s general

rule that a voluntary and unconditional dismissal is deemed to be an admission by

the plaintiff that it wrongfully enjoined the defendant. This exception applies in

instances in which a plaintiff dismisses a claim that has become legally moot. In

Democratic Party of Guilford County v. Guilford County Board of Elections, 342 N.C.

856, 467 S.E.2d 681 (1996), the plaintiffs filed suit to compel the Guilford County

Board of Elections to extend voting hours on Election Day in November 1990. The

trial court issued a TRO directing the board to keep polling places open for an

additional hour. Id. at 858, 467 S.E.2d at 682-83. Approximately one month later,

the board moved to vacate the TRO and sought damages for having been wrongfully

enjoined. Id. at 858, 467 S.E.2d at 683. A few hours later, the plaintiffs filed a

voluntary dismissal of the action. The trial court denied the board’s request for



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damages on the grounds that the TRO was no longer in existence and the board had

failed to demonstrate that it was wrongfully enjoined. Id. at 859, 467 S.E.2d at 683.

      On appeal to the Supreme Court, the board cited Blatt to support its contention

that the plaintiffs’ dismissal of their action “constituted a per se admission of wrongful

restraint which automatically entitled [the board] to damages.” Id. at 861, 467 S.E.2d

at 684. The Court rejected this argument, explaining that the plaintiffs’ dismissal of

their action was in effect a “legal nullity” given that their complaint “sought no relief

other than the temporary restraining order, and that order expired, at the latest, ten

days after [the trial court] entered it.” Id. at 862, 467 S.E.2d at 685.

      Another application of the mootness exception occurred in Allen Industries. In

that case, the plaintiff employer sued a former employee for breaching a covenant not

to compete contained in her employment contract by working for a direct competitor

and by improperly using the plaintiff’s customer data in that new position. Allen

Indus., __ N.C. App. at __, 788 S.E.2d at 209. The trial court granted the plaintiff’s

motion for a preliminary injunction prohibiting the defendant from working for the

competitor through March 2014 — the end of the noncompetition period specified in

the agreement. Id. at __, 788 S.E.2d at 209.

      The defendant appealed the preliminary injunction order to this Court, and we

dismissed the appeal as moot because the period of the covenant not to compete had

expired. Id. at __, 788 S.E.2d at 209. Following our remand to the trial court, the



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plaintiff voluntarily dismissed its action. The defendant then moved for damages on

the ground that she had been wrongfully enjoined. The trial court denied the motion

on the basis that the defendant’s actions had, in fact, violated the covenant not to

compete. Id. at __, 788 S.E.2d at 209.

      On a second appeal to this Court, the defendant argued that the trial court

should have treated the plaintiff’s voluntary dismissal as an admission that it had

wrongfully enjoined her. Id. at __, 788 S.E.2d at 209. We disagreed, explaining that

“the dismissal was taken only after there was no longer any need to maintain the case

because the covenant not to compete had expired by its own terms.” Id. at __, 788

S.E.2d at 210 (emphasis added). Therefore, based on the fact that the case had

become moot before the voluntary dismissal was taken, we affirmed the trial court’s

ruling. Id. at __, 788 S.E.2d at 211.

      Here, the trial court specifically concluded that “[t]he Notice of Voluntary

Dismissal without prejudice filed by [Van-Go] in this matter on or about December

10, 2015, which was unstipulated, is equivalent to a finding that the County and

Enroute were wrongfully restrained by the entry of the TRO on June 29, 2015.”

(Citation and quotation marks omitted.) Van-Go does not dispute the trial court’s

finding that its dismissal of this action was voluntary and without conditions.

However, Van-Go argues that the mootness exception to the Blatt rule is applicable

here on the theory that its lawsuit had effectively become moot once its request for a



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preliminary injunction was denied. To support this position, Van-Go’s president,

Azzam Osman, testified as follows in an affidavit submitted by Van-Go to the trial

court:

               Van-Go’s decision to discontinue the present litigation was
               consistent with its responsible financial business practices,
               taking into consideration the cost of further litigation, the
               profit that would be gained on the remainder of the
               contract, and the time that would be remaining on the
               contract by the time that the case would come to a final
               resolution.

         Essentially, Van-Go asks us to recognize a “constructive mootness” doctrine

premised upon its assertion that it dismissed its lawsuit based upon a “fiscally sound

business decision.” Recognition of such an exception, however, would be inconsistent

with both our precedent and the purpose of Rule 41. Unlike in Allen Industries, where

“the dismissal was taken only after there was no longer any need to maintain the

case[,]” id. at __, 788 S.E.2d at 210, or in Democratic Party of Guilford County, where

the plaintiffs’ dismissal came after receiving the only relief they sought, 342 N.C. at

862, 467 S.E.2d at 685, Van-Go does not actually assert that its claims were legally

moot at the time it dismissed its lawsuit. Rather, as Osman’s above-quoted testimony

demonstrates, Van-Go is making the qualitatively different argument that the value

of the case going forward would have been diminished in comparison to the costs of

litigation.




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       Van-Go points to no North Carolina legal authority — nor are we aware of any

— holding that the enjoining party may avoid operation of the Blatt rule simply by

asserting that the voluntary dismissal of the action was a business decision. Indeed,

the adoption of such an exception would swallow the general rule articulated in Blatt

as virtually any plaintiff in this procedural posture could claim its voluntary

dismissal was motivated by a cost-benefit analysis. Moreover, in addition to being

unworkable, such an exception would not be “consistent with the very purpose of the

bond[,] which is to require that the plaintiff assume the risks of paying damages he

causes as the price he must pay to have the extraordinary privilege of provisional

relief.”   Indus. Innovators, 99 N.C. App. at 50, 392 S.E.2d at 431 (citation and

quotation marks omitted).

       Thus, the general rule articulated in Blatt is controlling on the present facts.

Accordingly, the trial court did not err in holding that Defendants had been

wrongfully enjoined by Van-Go.

II. Award of Damages to Defendants

       In its alternative argument, Van-Go contends that the specific awards to

EnRoute and the County were improper albeit for different reasons. We address each

of Van-Go’s arguments in turn.

       A. EnRoute’s Damages




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      Van-Go asserts that the trial court’s award of $15,993.57 to EnRoute was not

supported by proper evidence. “According to well-established North Carolina law, a

party seeking to recover damages bears the burden of proving the amount that he or

she is entitled to recover in such a manner as to allow the finder of fact to calculate

the amount of damages that should be awarded to a reasonable degree of certainty.”

Lacey v. Kirk, 238 N.C. App. 376, 392, 767 S.E.2d 632, 644 (2014) (citation omitted),

disc. review denied, __ N.C. __, 771 S.E.2d 321 (2015). In so doing, “absolute certainty

is not required but evidence of damages must be sufficiently specific and complete to

permit the [fact finder] to arrive at a reasonable conclusion.” Fortune v. First Union

Nat’l Bank, 323 N.C. 146, 150, 371 S.E.2d 483, 485 (1988) (citation and quotation

marks omitted).

      We have specifically applied this rule to the calculation of damages for lost

profits. See Supplee v. Miller-Motte Bus. Coll., Inc., 239 N.C. App. 208, 223, 768

S.E.2d 582, 594 (2015) (“To recover lost profits, the claimant must prove such losses

with ‘reasonable certainty.’ Although absolute certainty is not required, damages for

lost profits will not be awarded based on hypothetical or speculative forecasts.”

(citation omitted)). “The amount of damages is generally a question of fact, but

whether that amount has been proven with reasonable certainty is a question of law

we review de novo.” Plasma Ctrs. of Am., LLC v. Talecris Plasma Res., Inc., 222 N.C.

App. 83, 91, 731 S.E.2d 837, 843 (2012).



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      Here, the owner of EnRoute, Ricky Nelson Moore, submitted an affidavit to the

trial court in which he set forth the basis for EnRoute’s damages claim resulting from

the TRO. Moore testified that EnRoute incurred revenue losses in the amount of

$44,741.62 while the TRO was in effect. This figure was reached by multiplying the

actual number of miles (29,053) for which Van-Go billed the County in connection

with Medicaid transportation services provided during the time period in which the

TRO was in effect by the rate ($1.54) to which EnRoute and the County agreed in the

Contract.

      Moore’s affidavit then stated that EnRoute was able to avoid $20,918.00 in

“variable costs (such as fuel and labor expenses)” that it would have incurred had the

TRO not been in place and EnRoute actually performed the Contract during that time

period. To support this figure, Moore explained that he “calculated that EnRoute’s

total fuel and labor expenses amount to approximately $.72 per mile, based on

historical data (namely, our costs per mile during the past few months).” Moore then

subtracted these avoided costs ($20,918.00) from the lost revenue ($44,741.62) to

arrive at a lost profits figure of $23,823.00.2

      In response to Moore’s affidavit, Van-Go filed the affidavit of Osman stating

that, based upon Van-Go’s operating costs during the month of July, “[i]t is very

unlikely that EnRoute could provide 29,053 service miles at a rate of $1.54 per mile



      2   Moore rounded down to the nearest dollar in arriving at this figure.

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over [the period during which the TRO was in effect] and realize a profit in excess of

ten thousand dollars[.]”

      After holding a hearing on 21 March 2016, the trial court issued its order

awarding damages in the amount of $15,993.57 to EnRoute. The trial court’s order

contained the following pertinent findings of fact:

                    30.    [A]s a result of the TRO entered on June 29,
             2015, the County and Enroute were restrained from
             performing under the Contract, which would have taken
             effect on July 1, 201[5], for a period of (20) days.

                    31.   According to the Affidavit of Ricky Nelson
             Moore, which relies in part upon information that is also
             contained in the Affidavit of Azzam Osman, Enroute
             incurred lost profits of $23,823.00 during the period from
             July 1, 2015 to July 20, 2015 as a result of the TRO.

                    ....

                    35.    The Court finds that, but for the issuance of
             the TRO, Enroute would have been able to perform its
             duties under the Contract beginning on July 1, 2015.
             Accordingly, Enroute has demonstrated, to the satisfaction
             of the Court, that it has sustained substantial lost revenues
             and profits as a result of the issuance of the TRO. The
             Court finds the affidavit testimony of Mr. Ricky Nelson
             Moore credible as to the amounts of lost revenues and
             profits.

      The trial court then entered the following conclusion of law: “Enroute ha[s]

established that, by reason of said wrongful restraint, [it has] incurred actual and

substantial damages and, accordingly, [EnRoute is] entitled to a distribution of the

bond proceeds.” The trial court proceeded to award the sum of $15,993.57 to EnRoute.


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      On appeal, Van-Go contends that EnRoute failed to adequately support its

calculation that its costs would have amounted to $0.72 per mile. Specifically, Van-

Go faults EnRoute for failing to provide evidence other than Moore’s affidavit that

would support this figure and for basing the amount upon fuel and labor “costs per

mile during the past few months” rather than costs during the time period covered

by the TRO. Van-Go points out that Moore’s affidavit was executed on 4 February

2016, meaning that the avoided costs figure was derived from costs incurred during

the latter part of 2015 and early 2016 whereas the TRO was in place during July

2015. Van-Go states in its brief that “Moore’s calculation does not take into account

the difference in fuel price in July 2015 and the ‘past few months.’ ”

      As noted above, damages for lost profits may not be speculative. See, e.g.,

Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 292 N.C. 557, 560, 234 S.E.2d 605, 607

(1977) (holding that party’s mere statement of amount of losses “provides no basis for

an award of [the party’s] damages for lost profits, since any estimate of [the party’s]

expected profits must on the evidence presented be based solely upon speculation”);

Rankin v. Helms, 244 N.C. 532, 538, 94 S.E.2d 651, 656 (1956) (ruling that party’s

bald statement of damages amount was “if not a mere guess, a statement of his mere

opinion or conclusion as to the amount of damages he has suffered, where no proper

basis for the receipt of such evidence had been shown”); Iron Steamer, Ltd. v. Trinity

Rest., Inc., 110 N.C. App. 843, 847, 431 S.E.2d 767, 770 (1993) (“North Carolina courts



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have long held that damages for lost profits will not be awarded based upon

hypothetical or speculative forecasts of losses.”).

      The risk of speculative lost profits calculations is greatest in situations where

parties must estimate revenues that they likely would have earned in an uncertain

industry with numerous variables. See, e.g., id. at 849, 431 S.E.2d at 771 (“[I]n an

unestablished resort restaurant context, the relationship between lost profits and the

income needed to generate such lost profits is peculiarly sensitive to certain variables

including the quality of food, quality of service, and the seasonal nature of the

business. Therefore, proof of lost profits with reasonable certainty under these

circumstances requires more specific evidence and thus a higher burden of proof.”).

      The present case, however, deals not with an inherently uncertain forecast of

profits but rather with known historical facts. Here, the expected revenue was both

precise and undisputed as it was based upon the per-mile rate ($1.54) set forth in the

Contract and the actual number of miles (29,053) Van-Go billed to the County during

the TRO period. Moreover, Moore specified his basis for the other key variable, the

avoided costs figure, stating that EnRoute’s records reflected a cost-per-mile rate

during “the past few months” of $0.72, which included fuel and labor costs. We are

not convinced that the discrepancy in time frames Van-Go attempts to rely upon is

material under the facts of this case given (1) the relatively close proximity of these

two time frames; and (2) the fact that although the total amount of damages for lost



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profits stated in Moore’s affidavit was $23,823.00, the trial court awarded EnRoute

only $15,993.57.

      We have never held that a party is required to meet a formulaic standard in

order to satisfy its burden of affixing damages with reasonable certainty. Rather, we

have previously explained that generally “[e]xpert testimony and mathematical

formulas are not required to meet the burden of proof concerning damages.” Hudgins

v. Wagoner, 204 N.C. App. 480, 492, 694 S.E.2d 436, 446 (2010), appeal dismissed and

disc. review denied, 365 N.C. 88, 706 S.E.2d 250 (2011).

      Our decision in United Leasing Corp. v. Guthrie, 192 N.C. App. 623, 666 S.E.2d

504 (2008) is instructive. In that case, the damages issue concerned the value of

merchandise in a large box truck that was being transferred from one store to

another. At trial, a witness testified that the aggregate value of this merchandise

was $150,000. The witness based this assessment upon his professional background,

which included moving similar inventory during the process of setting up new stores

and his “familiarity with the inventory at the various store locations and its pricing.”

Id. at 628, 666 S.E.2d at 508. On appeal, we held that his testimony was properly

admitted lay opinion testimony as it “tended to show that he had knowledge of the

property and some basis for his opinion regarding the value of said property at the

time of its conversion.” Id. at 629, 666 S.E.2d at 508 (citation, quotation marks, and

brackets omitted).    We then determined that this “lay opinion testimony was



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                                  Opinion of the Court



sufficient to establish the aggregate value of the converted inventory.” Id. at 631-32,

666 S.E.2d at 510.

      Here, we conclude that Moore’s testimony provided a sufficient basis from

which the trial court could assess EnRoute’s damages with a reasonable degree of

certainty. In fixing the specific amount of damages, the trial court was permitted to

determine the appropriate weight to be accorded to the evidence before it. See CDC

Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 655, 622 S.E.2d 512, 520

(2005) (“If there is a question regarding the reliability of the evidence presented to

support an award of damages, the questions should go to the weight of the

evidence[.]”), disc. review denied, 360 N.C. 478, 630 S.E.2d 925 (2006). Accordingly,

we are unable to conclude that the trial court committed reversible error in its award

of damages to EnRoute.

      B. Damages Awarded to County

      Finally, Van-Go argues that the trial court erred in awarding damages under

the injunction bond to the County because the issuance of the TRO did not actually

cause the County to suffer any damages. Instead, Van-Go contends, any additional

monies paid by the County during the period in which the TRO was in effect belonged

to the State given the manner in which funding for local Medicaid programs is

administered. This argument lacks merit.

      In its verified response in opposition to Van-Go’s motion for return of the bond,



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                                  Opinion of the Court



the County stated that during the TRO period, it paid Van-Go a total of $53,748.05

for Medicaid transportation services. This figure was based on a total of 29,053 miles

driven under the then-existing contract rate of $1.85 per mile. The County’s response

also stated that had the TRO not been in place and EnRoute been permitted to

perform the Contract, the County would have paid EnRoute $1.54 per mile for these

29,053 miles, resulting in a total of $44,741.62. Therefore, according to the response,

the County was damaged in the amount of $9,006.43 — the difference between the

amount it actually paid Van-Go and the amount it would have paid EnRoute to

perform the same services had the TRO not been issued.

      The trial court made the following pertinent findings of fact on this issue:

                   32. [T]he verified Opposition submitted by the
             County and Board clearly establishes that the County was
             required to pay [Van-Go] a rate of $1.85 per mile, which
             was the rate under the prior Medicaid Transportation
             Contract, as opposed to the $1.54 per mile rate that the
             County would have been required to pay Enroute for the
             same number of miles.

                   33. It is undisputed based upon the Affidavits and
             other filings before the Court that [Van-Go] billed the
             County, through its DSS, for 29,053 miles during the
             period from July 1, 2015 to July 20, 2015 and that these
             miles were billed at the prior contract rate of $1.85 per
             mile.

                   34. Accordingly, the County incurred $9,006.43 in
             Medicaid Transportation costs that it would not otherwise
             have had to pay as a result of the TRO. The fact that the
             funds originated with DHHS does not alter this fact, and
             the Court finds that the County has a duty to seek to


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                                  Opinion of the Court



             recover the above amount, despite the fact that the funds
             may have originated with DHHS.

      The trial court therefore awarded the County the full $9,006.43 it sought. On

appeal, Van-Go does not challenge the calculation of this figure but rather asserts

that the County was not damaged by paying out the extra funds because (1) the

County is “simply a conduit for the State” in that the State provided the County the

funds to pay Van-Go for the transportation services; and (2) the County does not

possess a legal duty to recoup the funds on behalf of the State.

      Van-Go has failed to cite any legal authority showing that the County — after

being sued, wrongfully enjoined, and forced to pay out funds to Van-Go — had no

right to collect from Van-Go the monetary damages that Van-Go caused to the

County’s Medicaid transportation program. Pursuant to applicable law, counties bid

out, award, and administer contracts for Medicaid transportation services and cause

public monies to be paid to vendors performing those contracts. The existence of any

obligation that the County may ultimately have to reimburse the State for the

$9,006.43 it was awarded is not relevant to the question of whether the County was

entitled to seek recovery of taxpayer funds that were wrongfully expended due to the

actions of Van-Go. Accordingly, Van-Go has failed to show that the award of damages

to the County was improper.

                                    Conclusion

      For the reasons stated above, we affirm the trial court’s 12 May 2016 order.


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                       Opinion of the Court



AFFIRMED.

Chief Judge McGEE and Judge MURPHY concur.




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