                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                             December 4, 2000 Session

   FTA ENTERPRISES, INC. v. POMEROY COMPUTER RESOURCES,
                  INC., and DANIEL K. COLE

                   Direct Appeal from the Circuit Court for Sullivan County
                    No. C2402    Hon. John S. McLellan, III, Circuit Judge

                                       FILED FEBRUARY 12, 2001

                                  No. E2000-01246-COA-R3-CV



In this action for interference with business relations, interference with contract, breach of fiduciary
duty, et., a jury awarded both compensatory and punitive damages in differing amounts against the
defendants. The Trial Judge approved the jury verdicts and defendants have appealed. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.


Stephen E. Roth, Knoxville, Tennessee, for Appellant, Pomeroy Computer Resources, Inc.

Mark S. Dessauer, Kingsport, Tennessee, for Appellant, Daniel K. Cole.

Hugh W. Morgan and John E. Winters, Knoxville, Tennessee, for Appellee, FTA Enterprises, Inc.




                                              OPINION



               The plaintiff FTA Enterprises, Inc. (“FTA”) sued Pomeroy Computer Resources, Inc.
(“Pomeroy”), as well as Daniel K. Cole, (“Cole”) a former FTA employee. FTA’s action against
defendants alleged interference with business relations, interference with contract, breach of
fiduciary duty, conversion, conspiracy, unfair competition, etc., and sought compensatory and
punitive damages.

                A lengthy trial ensued, and material evidence establishes that FTA, a computer
business, purchased offices in Kingsport, Johnson City, and Bristol, Tennessee in 1991-1992 from
Computer Choice. Dan Cole was President of Computer Choice. Cole became employed by FTA
as Vice-President, and branch manager of the Kingsport branch. For the years 1991 through 1993,
Kingsport generated most of FTA’s business, and Tennessee Eastman Corporation furnished the
Kingsport branch most of its business. The less profitable Johnson City branch was merged with
the Kingsport branch at the end of 1993, and after that merger Eastman accounted for approximately
two-thirds of the business of the Kingsport branch.

                David Pomeroy (“Pomeroy”), President and owner of Pomeroy Computer Resources,
approached Richard Eisenbach (“Eisenbach”) President of FTA, ostensibly to discuss acquisition
of FTA in mid 1993. No agreement was reached, and Pomeroy said at the conclusion of the meeting,
that he liked to acquire companies on his own terms, but that he “wasn’t adverse to blowing them
up.”

               Then, in February of 1994, Eisenbach contacted Pomeroy to see if he had any interest
in buying the FTA branch, but no agreement was reached.

              Cole called Eisenbach a few days later and asked him to consider selling to Pomeroy.
Eisenbach was then approached by Ed Weinstein from Pomeroy, who offered to buy the Kingsport
branch for approximately $700,000, which Eisenbach rejected.

              Eisenbach heard nothing further from Pomeroy until he received a call from Cole on
March 10, 1994, advising that Cole was resigning immediately to go to work for Pomeroy. When
Eisenbach went to the Kingsport office the following morning, he found it “in shambles” with papers
strewn everywhere, missing documents, furniture, disks, tools, a paging system, and the hard drives
on the computers had been erased. Twenty-nine of the thirty employees at the branch resigned.

              Eisenbach then met with Eastman’s representatives the following week and obtained
copies of FTA’s contracts with Eastman, but could not perform services for Eastman because FTA
had no employees. Thereafter, FTA was forced to close the Kingsport branch, and sold or returned
what inventory they could, and wrote off the rest.

               FTA employees were employees at will, and Eisenbach testified that FTA was
“shattered” by the loss of thirty-eight employees, but that they still wanted to do business with
Eastman later, and could have performed to meet Eastman’s needs.

                Numerous interrogatories were submitted to the jury, and defendants take issue with
most of the jury’s answers. The damages awarded to plaintiff are as follows: compensatory damages
against Pomeroy in the amount of $560,000.00; compensatory awarded against Cole in the amount
of $140,000.00; punitive damages awarded against Pomeroy in the amount of $220,000.00; and


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against Cole in the amount of $1.00.

                Our review of a jury verdict approved by the Trial Court is whether there is any
material evidence to support the verdict. Tenn. R. App. P. 13(d). We are required to take the
strongest legitimate view of the evidence in favor of the verdict, assume the truth of all evidence that
supports the verdict, allow reasonable inference to sustain it, and discard all countervailing evidence.
Barnes v. Goodyear Tire and Rubber Co., 2000 WL 688864 (Tenn. 2000). We do not re-weigh the
evidence nor decide where the preponderance of the evidence lies. If the record contains "any
material evidence to support the verdict, the Judgment must be upheld. Also see Crabtree Masonry
Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).

               First, appellants argue there is no material evidence to support the jury’s decision that
Pomeroy and Cole tortiously interfered with FTA’s business, and that Pomeroy and Cole tortiously
interfered with FTA’s contracts with Eastman.

                In order to establish the requisite elements of the tort of interference with a business
relationship, plaintiffs must establish the existence of a valid business relation, knowledge of the
relationship on the part of the interfering party, and an intentional interference inducing or causing
a termination of that relationship and resultant damage to the party whose relationship has been
disrupted. New Life Corp. of America v. Thomas Nelson, Inc., 932 S.W.2d 921 (Tenn. Ct. App.
1996). Malice or ill will is also a necessary element of tortious interference with a business
relationship. Lann v. Third Nat. Bank in Nashville, 198 Tenn. 70, 277 S.W.2d 439, 440 (Tenn.
1955); Testerman v. Tragesser, 789 S.W.2d 553, 556-57 (Tenn. Ct. App.1989).

                It is beyond dispute that FTA had a current and ongoing relationship with Eastman
at the time Pomeroy entered the picture. Cole knew of this relationship, because he worked with
Eastman for FTA and the evidence establishes that Pomeroy knew of the relationship. There is no
question that FTA was damaged when it lost its business relationship with Eastman, because
Eastman accounted for most of the business of FTA’s Kingsport branch. The issue thus becomes
whether Pomeroy and Cole intentionally interfered with that relationship, and whether the requisite
malice or ill will was shown.

                Pomeroy officials and Cole admit that they wanted to get Eastman as a customer for
Pomeroy, but claim that their motivation was simply normal competition, and that there was no
showing of malice or ill will. There was, however, testimony by two individuals not involved in this
action, who testified that Pomeroy had told them that his business philosophy was to try and hire key
people away from his competitors to get their accounts. One witness testified that Pomeroy told him
that he would often enter into negotiations with the company as if he wanted to acquire it so that he
could “get under the covers of the business” and find out who their best people were, and then hire
those people and walk away from the transaction. He was also quoted as saying that he would hire
all of the employees of his competitor “just to get rid of them” and would then fire the employees
he didn’t really want.



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               The evidence in this case demonstrates that Pomeroy followed this pattern of
conduct. Pomeroy used Cole to find out about the business and who the best employees were, but
then offered jobs to all the employees of the Kingsport branch, and hired all except one. Pomeroy
also managed to gain the use and control of FTA’s paging and email system used with Eastman
immediately after FTA’s employees went to work for Pomeroy, so that Eastman did not necessarily
know that its calls were being answered by Pomeroy employees. The result was that FTA was
unable to service the Eastman account, and had to close the branch. Pomeroy then laid off seven of
the employees hired from FTA after three months.

               As for Cole’s interference, he was the most knowledgeable person at FTA regarding
the Eastman account, and provided pertinent information regarding that account to Pomeroy’s
people while he was still working at FTA. Cole, before notifying Eisenbach that he was leaving,
held a meeting with all of the FTA employees and told them he was going to work for Pomeroy, and
the other employees then followed Cole to Pomeroy’s new branch, where Pomeroy offered them
employment with Pomeroy, which they accepted. The next day, Cole and Pomeroy’s agent met with
Cole’s contacts at Eastman to solicit their business.

                Taking the strongest legitimate view of the evidence favoring the verdict, as we are
required to do, there is ample evidence to support the jury’s verdict that Pomeroy and Cole tortiously
interfered with FTA’s business relationship with Eastman. The evidence supports the conclusion
that Cole and Pomeroy acted both intentionally and with malice. See Hayes v. Schweikart’s
Upholstering Co., 402 S.W.2d 472, 479 (Tenn. Ct. App. 1965).

                Next, defendant insist that there is no material evidence to support the charge that
they interfered with FTA’s contracts with Eastman. Many of the elements of this claim overlap with
the requirements of tortious interference with a business relationship. Defendants argue that one
element of this tort is missing, i.e., there must be a breach of a contract, and rely on Buddy Lee
Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343 (Tenn. Ct. App. 1999).

               The evidence establishes FTA had several existing service contracts with Eastman
through December 1994, but these contracts were terminable upon thirty days notice by either party.
After the mass exodus from the Kingsport branch, Eisenbach advised Eastman that he had no
employees left to provide service for Eastman, and Eastman cancelled in writing and with thirty
days’ notice in accordance with their terms. The general rule in this regard is set forth in Winfree
v. Educators Credit Union, 900 S.W.2d 285 (Tenn. Ct. App. 1995), that where a contract is
terminable at will, a competitor may legitimately seek termination of that relationship. But as the
Winfree Court notes, “one who intentionally causes a third party . . . not to continue an existing
contract terminable at will does not interfere improperly with the other’s relation if (a) the relation
concerns a matter involved in the competition between the actor and the other; and (b) the actor does
not employ wrongful means” (emphasis supplied); (c) his action does not create a continued and
unlawful restraint of trade; and (d) his purpose is at least, in part, to advance his interest in
competing with the other.” Clearly wrongful means were employed in this case, and the widely
followed rule in cases involving interference with at-will contracts is these cases are actionable if


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“improper methods” are employed. See e.g., HIB, Rogal and Hamilton Company of Richmond, et
al, v. Depew, et al., 440 S.E.2d 918 (Va. 1994). This issue is without merit.

               Cole argues that he was not an officer of plaintiff, and did not have an employment
contract with a restrictive covenant, and therefore did not breach his fiduciary duty to FTA. He
further asserts that the standard is whether he solicited FTA customers before leaving his
employment, and relies on Knott's Wholesale Foods, Inc. v. Azbell, 1996 WL 697943 (Tenn. Ct.
App. Dec. 6, 1996). We do not read Azbell to support his position. The Azbell Court said:

               After the termination of his agency, in the absence of a restrictive agreement,
               the agent can properly compete with his principal as to matters for which he
               has been employed.... Even before the termination of the agency, he is
               entitled to make arrangements to compete, except that he cannot properly use
               confidential information peculiar to his employer's business and acquired
               therein. Thus, before the end of his employment, he can properly purchase
               a rival business and upon termination of employment immediately compete.
               He is not, however, entitled to solicit customers for such rival business before
               the end of his employment nor can he properly do other similar acts in direct
               competition with the employer's business. (Emphasis supplied).

Azbell, quoting Restatement (Second) of Agency § 393, cmt. e. The Court also explained:

               During the employment relationship, an employee has a fiduciary duty of
               loyalty to the employer. The employee must act solely for the benefit of the
               employer in matters within the scope of his employment. The employee must
               not engage in conduct that is adverse to the employer's interests.

Azbell, citing 27 Am. Jur. 2d Employment Relationship § 216.

               Plaintiff’s action was not based simply on the direct solicitation of the employer’s
customers during Cole’s employment, although there is evidence that such solicitation occurred.
A breach of fiduciary duty may be based upon other conduct in competition with or directly adverse
to the employer’s interest, if the conduct violates the duty of loyalty to the employer. The evidence
demonstrates that Cole breached his duty of loyalty to FTA by giving Pomeroy confidential
information regarding FTA’s relationship with Eastman which he acquired while working for FTA,
so that Pomeroy was able to learn the types of service and products which Eastman expected and
then prepare themselves to provide those services. Cole provided FTA’s pricing for its purchase
orders with Eastman, which enabled Pomeroy to know how to price its products and service when
vying for Eastman’s business. Cole solicited FTA employees for Pomeroy, and performed other
functions to enable Pomeroy to ready its Kingsport branch to serve Eastman, and all of these acts
were performed while Cole was employed by FTA. The evidence supports the jury’s finding on this
issue.



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                Cole argues that he was not liable for tortiously interfering with FTA’s at-will
employees, because this cause of action only inures to the benefit of the employee, not the employer.
FTA based its claim for interference with its at-will employees on the case of Forrester v. Stockstill,
869 S.W.2d 328, 330 (Tenn. 1994), where the Supreme Court said that “intentional interference with
at-will employment by a third party, without privilege or justification, is actionable.” The Court
explained that this is based upon an individual’s “property interest in his labor, and the right to work
without unjustified interference.” Id. quoting Large v. Dick, 343 S.W.2d 693 (Tenn. 1960).

                Employees in this case were at-will employees and the cases in this jurisdiction which
addressed the issue of intentional interference with at-will employment involved employees only
because they were terminated, rather than an employer suing because someone “caused” his at-will
employees to resign, as in the case here. See e.g., Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758
(Tenn. 1977); Baldwin v. Pirelli Armstrong Tire Corp., 3 S.W.3d 1 (Tenn. Ct. App. 1999). There
are no cases in Tennessee recognizing the employer’s cause of action for this tort. However, other
jurisdictions which have recognized this tort have either held that it does not inure to the benefit of
the employer, or it is simply handled as an interference with business relationships and not as a
separate tort. See GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc., 99 Cal.
Rptr.2d 665 (Cal. Ct. App. 2000); Burk v. Heritage Food Service, Inc., 737 N.E.2d 803 (Ind. Ct.
App. 2000); Setliff v. Atkins, 616 N.W.2d 878 (S.D. 2000); Muuray v. SYSCO Corp., 273 A.D.2d
760 (N.Y. App. Div. 2000); Tom’s Amusement Co., Inc., v. Total Vending Services, 533 S.E.2d 413
(Ga. Ct. App. 2000). Thus, we conclude that this tort does not run in favor of the employer.
Accordingly, the Judge erred in submitting this issue to the jury. However, we find the error to be
harmless in view of all the evidence and the nature of the dispute. Tenn. R. App. P. Rule 36(b).

                Pomeroy argues that it cannot be found liable for unfair competition if no underlying
tort has been proven, and explains that unfair competition arises when “the defendant engages in any
conduct that amounts to a recognized tort, and when the tort deprives the plaintiff of customers or
other prospects”, citing Dade International, Inc. v. Iverson, 9 F. Supp. 2d 858 (M.D. Tenn. 1998).
However, the jury found and we affirm that Pomeroy tortiously interfered with FTA’s business
relationships, and the argument is without merit.

                 Likewise, Pomeroy and Cole argue that they cannot be held liable for civil conspiracy
if the tort claims against them are found to be baseless. This issue is also without merit.

              Next, defendants argue that there is no material evidence to support the jury’s award
of $560,000.00 in compensatory damages against Pomeroy, and $140,000.00 in compensatory
damages against Cole.

               The proper measure of damages in this case is lost profits, other consequential losses
which resulted from the wrongful interference, and emotional distress or actual harm to reputation
which result from the interference. Dorsett Carpet Mills, Inc. v. Whitt Tile & Marble Distributing,
734 S.W.2d 322 (Tenn. 1987).



                                                  -6-
               The Supreme Court explained:

               There may be other losses suffered by plaintiffs directly and proximately
               resulting from the wrongful interference that should be included within the
               measure of damages and for that reason, it is neither possible nor appropriate
               to articulate an inflexible measure of damages for interference with business
               relationships . . ..

Id. at 324. Additionally, the jury found Cole to be liable for breach of fiduciary duty, and found
Pomeroy to be liable for inducement of said breach and unfair competition. Moreover, both
defendants were found liable for conspiracy. Thus, damages may be awarded for all of the
defendants’ wrongful actions. FTA’s expert testified that the value of the Kingsport branch’s
income stream was some $2.5 million dollars, but conceded that his value might be drastically
reduced if plaintiff lost the Eastman account. Pomeroy’s expert opined that the profits from the
Kingsport branch were somewhere between $85,000.00 and $110,000.00. Defendants also argue
that the jury improperly based damages on defendants’ offer to purchase the branch for $700,000.00.
This assertion cannot be supported on the record. There is ample financial data in the record from
which the jury could derive the amount of damages. The jury could have utilized several amounts
from the various income statements of FTA, the reports and calculations of the expert witnesses, or
any other financial data contained in the voluminous record to determine the amount of damages.
Moreover, jurors are “not required to base damages on a precise mathematical formula, or find in
the exact amount of expert opinions, but may take into consideration his ordinary experience as to
what damages have been caused to the plaintiff”. Associates Commercial Corp. v. Francisco, 667
S.W.2d 481, 482 (Tenn. Ct. App. 1983). The amount of damages is supported by material evidence.

               Defendants argue that the jury apportioned the compensatory damages award between
the defendants, which was inappropriate. Neither party raised this issue in their post-trial motions,
and it may not be raised for the first time on appeal. Tenn. R. App. P. 36(a); Davis v. Tennessee
Dept. of Employment Sec., 23 S.W.3d 304 (Tenn. Ct. App. 1999).

               Finally defendants argue punitive damages were not appropriate. Punitive damages
are proper where a defendant has acted intentionally, fraudulently, maliciously, or recklessly.
Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). The Supreme Court defined
“intentionally” as “when it is the person’s conscious objective or desire to engage in the conduct or
cause the result”, and defined “maliciously” as “when the person is motivated by ill will, hatred, or
personal spite.” Id. at 901. Further, plaintiff must prove such conduct by clear and convincing
evidence, since punitive damages are to be awarded in “only the most egregious of cases”. Id.

              We find there is clear and convincing evidence to support the jury’s determination
that FTA was entitled to punitive damages from both defendants pursuant to the standards set forth
in Hodges.

               The appellee sets forth issues on appeal which we have considered and find to be


                                                -7-
without merit.

                For the foregoing reasons we affirm the Judgment of the Trial Court and remand, with
costs of the appeal assessed to defendants Pomeroy Computer Resources, Inc., and Daniel K. Cole.




                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS , J.




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