{ "id": 11917658, "name": "PCI ENERGY SERVICES, INC., Plaintiff-Appellee, v. WACHS TECHNICAL SERVICES, INC., Defendant-Appellant, and CHARLES L. WACHS, Respondent-Appellant", "name_abbreviation": "PCI Energy Services, Inc. v. Wachs Technical Services, Inc.", "decision_date": "1996-05-21", "docket_number": "No. 9426SC225", "first_page": "436", "last_page": "443", "citations": [ { "type": "official", "cite": "122 N.C. App. 436" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "69 ALR2d 755", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "327 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525088 ], "year": 1985, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0594-01" ] }, { "cite": "386 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "760", "parenthetical": "quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524223 ], "year": 1990, "pin_cites": [ { "page": "659", "parenthetical": "quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0654-01" ] }, { "cite": "407 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "103 N.C. App 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523197 ], "year": 1991, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0697-01" ] }, { "cite": "346 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358742 ], "year": 1986, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0289-01" ] }, { "cite": "159 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 9", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549678 ], "year": 1968, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0009-01" ] }, { "cite": "441 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527185 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "106" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0105-01" ] }, { "cite": "461 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "12" }, { "page": "12" }, { "page": "12", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914648 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "190" }, { "page": "191" }, { "page": "191" }, { "page": "191-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0188-01" ] } ], "analysis": { "cardinality": 620, "char_count": 13896, "ocr_confidence": 0.762, "pagerank": { "raw": 9.374640743358884e-08, "percentile": 0.51495164389893 }, "sha256": "3a3468717daa20e84cd0564e96dc4eebb3fbc27ba182ded516dd38d51848c4fe", "simhash": "1:5ad3451eee1c8dbe", "word_count": 2198 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "PCI ENERGY SERVICES, INC., Plaintiff-Appellee, v. WACHS TECHNICAL SERVICES, INC., Defendant-Appellant, and CHARLES L. WACHS, Respondent-Appellant." ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff, PCI Energy Services, Inc. (PCI) and defendant, Wachs Technical Services, Inc. (WTS) perform welding services, among other things. On 23 February 1993, PCI filed suit against WTS and its general manager, Richard Bryant, for unfair competition and for theft and conversion of PCI\u2019s property, trade secrets, equipment, and blueprints. Specifically, PCI alleged WTS misappropriated PCI\u2019s technology for performing narrow groove welding. The technology at issue included a special type of welding torch and gas cup developed by PCI.\nOn 18 March 1993, after a hearing with oral arguments from counsel and presentation of evidence by the parties, the trial court entered a preliminary injunction against WTS. The injunction barred WTS from performing narrow groove welding with any welding torch and gas cup derived from PCI technology or from advertising that it could do so. The case was set for trial on 9 August 1993.\nOn 7 August 1993, the parties entered into a settlement agreement. On 10 August 1993, the trial court entered a consent judgment which found:\n[T]he parties have entered into a Settlement Agreement which can be made the subject of this Consent Judgment and, accordingly, [the court] approves and adopts the Settlement Agreement, the Injunction contained therein, and its other terms and provisions, as a part of this Consent Judgment, and incorporates and attaches hereto such Settlement Agreement among the parties, signed by each of the parties on August 7, 1993 ....\nNow, Therefore, with the consent of the parties, and in the discretion of the Court, it is Ordered, Adjudged, and Decreed that the aforementioned Settlement Agreement be, and it hereby is, adopted, approved, and hereby made an enforceable Judgment of the Court....\nA copy of the settlement agreement was attached to the consent judgment.\nThe same day the court entered the consent judgment, WTS and its president, Charles Wachs, circulated a press release which PCI alleged violated the terms of the consent judgment. PCI filed a motion for civil and criminal contempt against WTS and Charles Wachs.\nThe trial court heard PCI\u2019s motion for contempt on 14 October 1993 and issued an order holding WTS and Charles Wachs in contempt of the consent judgment. From this contempt order, defendants appeal.\nI.\nWTS and Wachs (defendants) first argue the trial court erred in using its contempt powers. Specifically, defendants contend the consent judgment is not a court order that can be enforced through contempt.\n\u201cIf a consent judgment is merely a recital of the parties\u2019 agreement and not an adjudication of rights, it is not enforceable through the contempt powers of the court.\u201d Nohejl v. First Homes of Craven County, Inc., 120 N.C. App. 188, 190, 461 S.E.2d 10, 12 (1995); See also Crane v. Green, 114 N.C. App. 105, 106, 441 S.E.2d 144, 145 (1994). In Nohejl, this Court held the trial court\u2019s consent order contained findings of fact and that the order was based on those findings. 120 N.C. App. at 191, 461 S.E.2d at 12. Therefore, the consent judgment was enforceable through the court\u2019s contempt powers. Id. In Crane, this Court found the consent judgment contained no determination by the trial court of either issues of fact or conclusions of law and therefore, \u201cthe judgment [was] nothing more than a contract which is enforceable only by means of an action for breach of contract.\u201d 114 N.C. App. at 106, 441 S.E.2d at 145.\nWhen a trial court uses its contempt powers to enforce a consent judgment, it must demonstrate that it has carefully read the settlement agreement and considered its legal effect. A court should not simply \u201crubber stamp\u201d the parties\u2019 agreement. Here, the consent judgment did go beyond a mere recital of the settlement agreement and actually involved the court\u2019s determination and adjudication of the parties\u2019 rights.\nThe procedural history of this case is significant. The same trial judge who entered the consent judgment had also previously entered the preliminary injunction against defendants after conducting a hearing on plaintiff\u2019s motion for an injunction. Thus, when the parties presented the settlement agreement to the court, the court was familiar with the facts and issues of the case.\nThe language of the consent judgment is also significant. In the consent judgment, the trial court found that \u201cthe parties have entered into a Settlement Agreement which can be made the subject of this Consent Agreement.\u201d The court then explicitly \u201capprove[d,] . . . adopt[ed,] . . . incorporated] and . . . made an enforceable Judgment of the Court,\u201d the terms of the settlement agreement. By \u201cadopting\u201d and \u201cincorporating\u201d the settlement agreement, the court transformed the parties\u2019 agreement into the court\u2019s own determination of the parties\u2019 respective rights and obligations.\nSettlements negotiated by parties are encouraged by the courts. Insurance Co. v. Surety Co., 1 N.C. App. 9, 14, 159 S.E.2d 268, 273 (1968). Parties who reach a settlement agreement have the option of filing voluntary dismissals of their claims and then using traditional contract remedies in the event there is a violation of the agreement. However, when parties to a settlement ask the court to make the terms of the settlement a court-ordered judgment, the parties must be prepared for the court to use its contempt powers to enforce its orders.\nBecause the trial court did not merely \u201crubber stamp\u201d the parties\u2019 private agreement, we find the consent judgment is a court order enforceable through the court\u2019s contempt powers.\nII.\nDefendants next contend the trial court erred as a matter of law in determining that the text of the WTS press release violated terms of the consent judgment. We disagree.\n\u201cReview in contempt proceedings is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.\u201d Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986).\nThe trial court concluded the press release was \u201cinaccurate and misleading and violates the terms of the settlement agreement and consent judgment.\u201d It held the publication of the press release was in contempt of the court\u2019s order and corrective action was needed. We find there is competent evidence to support the trial court\u2019s conclusion. The settlement agreement, which was incorporated into the court\u2019s consent judgment, prohibited defendants from advertising for eighteen months that WTS had the ability to perform narrow groove welding services:\nwith any welding torch and gas cup, other than Commercially Available welding torches and gas cups (a) obtained from [vendors urirelated to PCI] ... (b) ... [which were] not created or procured with any confidential information . . . obtained . . . from PCI, and (c) which are not modified by WTS or Bryant, (emphasis added).\nThe agreement also prohibited defendants from advertising for three years that WTS had the ability to:\n(a) [use] an oblong gas cup that sits above or outside or on the lip of the groove while welding in a Narrow Groove or any welding groove having an included angle of fifty (50) degrees or less, other than a Commercially Available gas cup that (i) is not created or procured with any information... obtain\u00e9d, directly or indirectly, from WTS or Bryant, (ii) ... was not created or procured with any confidential information . . . obtained, directly or indirectly, from PCI, and (iii) was not modified by WTS or Bryant; or\n(b) [use] a gas cup design that sits above or outside or on the lip of the groove while welding in grooves of approximately two and one-half (2 1/2) inches deep or greater, other than a Commercially Available gas cup that (i) is not created or procured with any information . . . obtained, directly or indirectly, from WTS or Bryant, (ii) . .. was not created or procured with any confidential information . . . obtained . . . from PCI, and (iii) was not modified by WTS or Bryant, (emphasis added).\nThe press release by defendants stated \u201c[WTS] retains the right to fully compete in ALL types of welding with its new state-of-the-art welding systems . . . .\u201d Defendants argue the consent judgment permitted WTS to perform narrow groove welding as long as the welding torch and gas cup used were not derived from PCI products or plans nor modified by WTS or its general manager, Bryant. We agree with defendants\u2019 reading of the consent judgment. However, we find this reading is not the message conveyed by the press release.\nIn its press release, defendants stated, \u201cneither party admitted to any wrongdoing\u201d and that if the case had gone to trial, they are \u201ccertain [they would] have been vindicated of all charges.\u201d However, the settlement agreement clearly states defendants \u201cunlawfully possessed and used\u201d PCI equipment and technology, and that defendants recognized the \u201cwrongful nature of [their] acts.\u201d Defendants further stated in their press release:\nWe would like to be able to divulge all of the facts of this settlement but the agreement precludes either party from making those facts public. We would welcome a waiver of that confidentiality clause by PCI. . . any time that they are willing to let the public and the industry know the true facts.\nThe agreement, however, stated the parties have a \u201ccontinuing confidential obligation with regard to confidential information that is the subject of a Protective Order in the above referenced litigation.\u201d In addition, the agreement prohibited a disclosure of \u201cthe amount of any payments made or to be made.\u201d Except for these limitations, the \u201cparties have no confidential obligation with respect to this Agreement or the subject matter of the dispute which it addresses.\u201d\nIn light of the cumulative effect of defendants\u2019 assertions, we find the record contains competent evidence to support the trial court\u2019s findings of fact and conclusions of law that defendants violated the consent judgment.\nIII.\nFinally, defendants contend the trial court erred in awarding attorney\u2019s fees to PCI. We disagree.\nThe settlement agreement contained a specific \u201cLitigation Costs\u201d provision in which:\nWTS agrees to indemnify PCI for all costs and expenses incurred in furtherance of any litigation brought by PCI to enforce this Agreement in which PCI is awarded . . . relief to preserve the value of the PCI Narrow Groove Proprietary Technology.\nIn Nohejl, this Court said, \u201c[a]bsent express statutory authority for doing so, attorney\u2019s fees are not recoverable as an item of damages or costs.\u201d 120 N.C. App. at 191, 461 S.E.2d at 12 (citing Powers v. Powers, 103 N.C. App 697, 706, 407 S.E.2d 269, 275 (1991)). A trial court \u201chas no authority to award damages [in the form of costs] to a private party in a contempt proceeding.\u201d Green v. Crane, 96 N.C. App. 654, 659, 386 S.E.2d 757, 760 (1990) (quoting Glesner v. Dembrosky, 73 N.C. App. 594, 599, 327 S.E.2d 60, 63 (1985)). We note, however, that the Nohejl Court refused to award attorney\u2019s fees to the party seeking to enforce a consent judgment because \u201cthere was no express contractual provision or statutory authority permitting plaintiffs to recover\u201d such fees. 120 N.C. App. at 191-92, 461 S.E.2d at 12 (emphasis added).\nThis case is distinguishable from both Green and Nohejl. Neither the consent judgment in Green nor in Nohejl contained a provision to indemnify a party for costs of enforcing the judgment. Here, the consent judgment contained an express provision in which WTS agreed to pay PCI\u2019s costs associated with enforcing the consent judgment. Therefore, the trial court\u2019s order awarding attorney fees to PCI is affirmed.\nAffirmed.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Helms, Gannon, Hamel & Henderson, P.A., by Christian R. Troy; Daniel C. Abeles, Assistant General Counsel, Westinghouse Electric Company; and McDermott, Will & Emery, by William R Schuman, for plaintiff-appellee.", "Chuhak & Tecson, P.C., by James W. Naisbitt, and Robinson, Bradshaw & Hinson, P.A., by Louis A. Bledsoe, III, for defendant-appellants." ], "corrections": "", "head_matter": "PCI ENERGY SERVICES, INC., Plaintiff-Appellee, v. WACHS TECHNICAL SERVICES, INC., Defendant-Appellant, and CHARLES L. WACHS, Respondent-Appellant.\nNo. 9426SC225\n(Filed 21 May 1996)\n1. Judgments \u00a7 139 (NCI4th)\u2014 consent judgment \u2014 enforceability through contempt\nBecause the trial court did not merely \u201crubber stamp\u201d the parties\u2019 private agreement but instead explicitly approved, adopted, and incorporated the settlement agreement, the court transformed the parties\u2019 agreement into the court\u2019s own determination of the parties\u2019 respective rights and obligations, and the consent judgment was thus a court order enforceable through the court\u2019s contempt powers.\nAm Jur 2d, Judgments \u00a7\u00a7 207-227.\nRight to appellate review of consent judgment. 69 ALR2d 755.\n2. Judgments \u00a7 138 (NCI4th)\u2014 press release \u2014 violation of consent judgment \u2014 sufficiency of evidence\nThe record contained competent evidence to support the trial court\u2019s findings of fact and conclusions of law that defendants violated the parties\u2019 consent judgment by writing a press release with regard to confidentiality, its admission of wrongdoing, and its ability to offer welding services which violated the consent judgment; therefore, defendants were properly held in contempt for violating the consent judgment.\nAm Jur 2d, Judgments \u00a7\u00a7 207-227.\n3. Costs \u00a7 26 (NCI4th)\u2014 enforcement of consent judgment\u2014 plaintiff entitled to attorney fees\nThe trial court did not err in awarding attorney\u2019s fees to plaintiff since the parties\u2019 consent judgment contained an express provision in which defendant agreed to pay plaintiff\u2019s costs associated with enforcing the consent judgment.\nAm Jur 2d, Costs \u00a7\u00a7 57-70.\nAppeal by defendant Wachs Technical Services, Inc. and respondent Charles L. Wachs from order entered 16 December 1993 by Judge Robert M. Burroughs in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 April 1995.\nHelms, Gannon, Hamel & Henderson, P.A., by Christian R. Troy; Daniel C. Abeles, Assistant General Counsel, Westinghouse Electric Company; and McDermott, Will & Emery, by William R Schuman, for plaintiff-appellee.\nChuhak & Tecson, P.C., by James W. Naisbitt, and Robinson, Bradshaw & Hinson, P.A., by Louis A. Bledsoe, III, for defendant-appellants." }, "file_name": "0436-01", "first_page_order": 472, "last_page_order": 479 }