{ "id": 9081015, "name": "PAUL W. POTTER and MIRROR TECH, INC. v. HILEMN LABORATORIES, INC., Now Known As HILEMN SILVERING SOLUTIONS, VALSPAR MIRROR COATINGS DIVISION of THE VALSPAR CORPORATION v. SALEM DISTRIBUTING CO., INC., ROBERT A. LONG, and ARTHUR J. LOCKHART", "name_abbreviation": "Potter v. Hilemn Laboratories, Inc.", "decision_date": "2002-05-21", "docket_number": "No. COA01-399", "first_page": "326", "last_page": "337", "citations": [ { "type": "official", "cite": "150 N.C. App. 326" } ], "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": "465 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796064 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0418-01" ] }, { "cite": "462 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "220-21" } ], "opinion_index": 0 }, { "cite": "341 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793212 ], "pin_cites": [ { "page": "703-05" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0702-01" ] }, { "cite": "556 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138456 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0565-01" ] }, { "cite": "553 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138560, 138547, 138483, 138421, 138301 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0218-02", "/nc/354/0218-05", "/nc/354/0218-03", "/nc/354/0218-01", "/nc/354/0218-04" ] }, { "cite": "545 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "751-52" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432820 ], "pin_cites": [ { "page": "11-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0001-01" ] }, { "cite": "551 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "212", "parenthetical": "reversing the trial court's award of attorneys' fees due to lack of statutory authority despite an express provision in the parties' consent judgment allowing such fees" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437188 ], "year": 2001, "pin_cites": [ { "page": "297-98", "parenthetical": "reversing the trial court's award of attorneys' fees due to lack of statutory authority despite an express provision in the parties' consent judgment allowing such fees" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0290-01" ] }, { "cite": "450 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524938 ], "year": 1994, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0232-01" ] }, { "cite": "536 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "quoting Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "pin_cites": [ { "parenthetical": "quoting Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "510 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "695", "parenthetical": "quoting Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994)" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237254 ], "year": 1999, "pin_cites": [ { "page": "167", "parenthetical": "quoting Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0160-01" ] }, { "cite": "425 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "333 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549870 ], "year": 1993, "pin_cites": [ { "page": "312-13" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0307-01" ] }, { "cite": "343 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525232 ], "year": 1986, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0588-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-154", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1999, "pin_cites": [ { "page": "(b)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "403 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543042, 2543749, 2538439, 2540975, 2539765 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0576-02", "/nc/328/0576-04", "/nc/328/0576-03", "/nc/328/0576-05", "/nc/328/0576-01" ] }, { "cite": "400 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8527185 ], "year": 1994, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0105-01" ] }, { "cite": "467 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "411", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 879", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796075 ], "year": 1996, "pin_cites": [ { "page": "881", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0879-01" ] }, { "cite": "471 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918454 ], "year": 1996, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0518-01" ] }, { "cite": "427 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548707, 2547831, 2550268, 2547197, 2544383 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0463-03", "/nc/333/0463-04", "/nc/333/0463-05", "/nc/333/0463-02", "/nc/333/0463-01" ] }, { "cite": "423 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "495", "parenthetical": "an erroneous ruling requires reversal only when the objecting party demonstrates it has suffered resulting prejudice" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523968 ], "year": 1992, "pin_cites": [ { "page": "309", "parenthetical": "an erroneous ruling requires reversal only when the objecting party demonstrates it has suffered resulting prejudice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0301-01" ] }, { "cite": "110 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "318", "parenthetical": "a consent judgment is binding on the parties thereto" } ], "opinion_index": 0 }, { "cite": "250 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625972 ], "year": 1959, "pin_cites": [ { "page": "716", "parenthetical": "a consent judgment is binding on the parties thereto" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0713-01" ] }, { "cite": "428 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "209" }, { "page": "210" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525721 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "456" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0451-01" ] }, { "cite": "436 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523565 ], "year": 1993, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0700-01" ] }, { "cite": "487 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139332, 139561, 139662, 139612, 139645 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0275-04", "/nc/346/0275-01", "/nc/346/0275-03", "/nc/346/0275-02", "/nc/346/0275-05" ] }, { "cite": "478 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "521" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890143 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "552-53" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0548-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 66-152", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 1029, "char_count": 26146, "ocr_confidence": 0.751, "pagerank": { "raw": 1.1220634811051976e-07, "percentile": 0.5736923272360667 }, "sha256": "5492ed13c9c09a5d5e376706060ea02a6d2f0d1f40eafe45f469e3e53ae85ac1", "simhash": "1:03abd326be1d3cd6", "word_count": 4145 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JUDGES HUDSON and JOHN concur." ], "parties": [ "PAUL W. POTTER and MIRROR TECH, INC. v. HILEMN LABORATORIES, INC., Now Known As HILEMN SILVERING SOLUTIONS, VALSPAR MIRROR COATINGS DIVISION of THE VALSPAR CORPORATION v. SALEM DISTRIBUTING CO., INC., ROBERT A. LONG, and ARTHUR J. LOCKHART" ], "opinions": [ { "text": "THOMAS, Judge.\nPlaintiffs, Paul W. Potter and Mirror Tech., Inc., appeal the trial court\u2019s judgment finding that they violated a consent decree by using a certain silvering solution (Substance X) in making mirrors. Plaintiffs contend the trial court erred in four ways: (1) in concluding that, as between the parties, this is a trade secrets case; (2) in reversing by written order its prior oral ruling that Substance X is not a trade secret; (3) in holding that plaintiffs knowingly and willfully violated the consent judgment; and (4) in determining the type of relief available to defendants.\nFor reasons discussed herein, we reverse in part and affirm in part.\nThe facts are as follows: From 1979 until 1990, Potter was employed by defendant, Hilemn Laboratories, Inc., now known as the Hilemn Silvering Coatings Division of the Yalspar Corporation (Hilemn). In 1991, Potter left Hilemn and became president of Mirror Tech., which also manufactures and sells silvering solutions used in making mirrors. It directly competes with Hilemn.\nPotter and Mirror Tech filed a complaint in 1991 for declaratory relief against Hilemn, primarily seeking two declarations: (1) that a non-competition agreement executed between Potter and Hilemn in 1979 was invalid; and (2) that Hilemn possessed no trade secrets which plaintiffs could be enjoined from using under the North Carolina Trade Secrets Protection Act or other relevant law. Hilemn counterclaimed. It sought to restrain plaintiffs from using or divulging Hilemn\u2019s trade secrets and from manufacturing or selling any mirroring solutions similar to Hilemn\u2019s solutions, particularly its silvering solutions. Hilemn\u2019s pleadings were based in\u201d part on the Trade Secrets Protection Act, N.C. Gen. Stat. \u00a7\u00a7 66-152 to 66-157 (1999), and alleged breach of fiduciary duty, breach of implied contract, and unfair and deceptive trade practices. Hilemn then filed motions for a temporary restraining order, accelerated discovery, and a preliminary injunction, all of which the trial court granted.\nHilemn also brought a third-party complaint against Salem Distributing Company, Inc., and its president and vice-president Robert A. Long and Arthur J. Lockhart, respectively. Hilemn contended they contacted Potter in an effort to appropriate Hilemn\u2019s trade secrets and confidential information.\nThe terms of the preliminary injunction were lengthy. The trial court found that Hilemn, through its research, had developed silvering solutions, and that two basic high efficiency concentrated solutions were made from Hilemn\u2019s own secret chemical formulations and processes: (1) Hilemn\u2019s three-part silvering solution; and (2) Hilemn\u2019s two-part silvering solution. The trial court further determined that \u201ceven though some of the elements used in Hilemn\u2019s trade secrets are known to chemists and to the industry ... it is the combination of the various elements and their processing which makefs] them a trade secret.\u201d Potter, the court found, breached his duty to his former employer not to use such secret information.\nThe trial court made an effort to protect the interests of Hilemn while still allowing Potter to work in the mirror silvering industry. It first listed the substances and processes that plaintiffs were forbidden to use or divulge. Among the prohibitions was one banning the use of Substance X in making silvering solutions until 28 September 1993. Provided plaintiffs did not violate this or any other prohibition, however, they were permitted to manufacture, use, or sell silvering solutions which did not contain Substance X. Those included some solutions developed by London Labs, Inc., Hilemn\u2019s only significant competitor, solutions not substantially similar to Hilemn\u2019s, and some solutions developed independently of Hilemn prior to 1 November 1990.\nApproximately a year later, on 17 March 1992, the parties entered into a consent judgment. Significantly, it amended and strengthened the preliminary injunction\u2019s provision forbidding plaintiffs from divulging or using Substance X in making silvering solutions by deleting any time limit on the prohibition.\nIn 1999, Hilemn became aware of possible violations of the consent judgment by plaintiffs. Based on affidavits submitted by Hilemn, the trial court determined that plaintiffs may have been violating the judgment and permitted defendant to test Mirror Tech\u2019s formulas. The tests revealed that plaintiffs were using Substance X in its two-part silvering system. Hilemn requested that the court, as the language provides in the consent judgment, \u201cdetermine the appropriate remedy for said violation.\u201d\nAt the hearing, Potter testified that following the entry of the injunction, he had begun to search for other mirroring solutions. On 15 April 1991, he purchased a two-part and a three-part mirroring solution formula from Mirror Labs. Mirror Lab\u2019s two-part formula called for the use of Substance X. Believing the use of Substance X in the Mirror Labs formula violated a London Labs patent, Potter used a different chemical until July of 1998, when the London Labs patent expired. He then started using Substance X. Potter said he believed he was allowed to use Substance X after the expiration of the patent since others in the industry could.\nThe trial court determined, however, that Substance X is a trade secret as between plaintiffs and defendant because of their agreement. It further found that, beginning in July of 1998, plaintiffs knowingly and willfully, but not maliciously, violated the consent order by using Substance X in its two-part silvering solutions.\nThe trial court concluded that: (1) Hilemn is entitled to recover from plaintiffs $233,499.17, the amount of plaintiffs\u2019 profits derived from using Substance X; (2) Hilemn is entitled to attorneys\u2019 fees for plaintiffs\u2019 bad faith misappropriation of a trade secret in the amount of $43,594.25, but is not entitled to punitive damages; and (3) Hilemn is not entitled to nominal damages for unfair and deceptive trade practices because it suffered indirect, not actual, injury. Plaintiffs appeal.\nWhere the plain language of a consent judgment is clear, the original intention of the parties is inferred from its words. Bicket v. McLean Securities, Inc., 124 N.C. App. 548, 552-53, 478 S.E.2d 518, 521 (1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997). The trial court\u2019s determination of original intent is a question of fact. Id. On appeal, a trial court\u2019s findings of fact have the force of a jury verdict and are conclusive if supported by competent evidence. Foster v. Foster Farms, Inc., 112 N.C. App. 700, 706, 436 S.E.2d 843, 847 (1993). The trial court\u2019s determination of whether the language in a consent judgment is ambiguous, however, is a question of law and therefore our review of that determination is de novo. Bicket, 124 N.C. App. at 553, 478 S.E.2d at 521. \u201cAn ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u201d Glover v. First Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993).\nBy plaintiffs\u2019 first assignment of error, they argue the trial court erred in determining this to be a trade secrets case. Looking to the consent judgment for guidance, the court found: \u201cSubstance X is a trade secret under the unique circumstances of this case.\u201d While recognizing that the chemical has not been a trade secret since the \u201cPeacock Lab patent expired in 1993 and the London Lab[s] patent expired in 1998,\u201d the court held that, \u201cas between the plaintiffs . . . and the defendant Hilemn, the use of Substance X as a reducer in two-part silvering solutions was a trade secret.\u201d We agree with the trial court\u2019s conclusion that, regardless of whether Substance X is technically a trade secret, plaintiffs are bound by their agreement that they would treat it as one. See Lampley v. Bell, 250 N.C. 713, 716, 110 S.E.2d 316, 318 (1959) (a consent judgment is binding on the parties thereto).\nWe also reject plaintiffs\u2019 second assignment of error, by which they contend the trial court erred in reversing by written order its earlier oral ruling that Substance X is not a trade secret. Although the trial court did find that, due to \u201cthe unique circumstances of this case\u201d it \u201cexplicitly reverses its earlier ruling that Substance X is not a trade secret,\u201d plaintiffs failed to show that they suffered prejudice. See, e.g., Reed v. Abrahamson, 108 N.C. App. 301, 309, 423 S.E.2d 491, 495 (1992) (an erroneous ruling requires reversal only when the objecting party demonstrates it has suffered resulting prejudice), cert. denied, 333 N.C. 463, 427 S.E.2d 624 (1993). They were not prevented from introducing evidence as a result of the order. In fact, the primary focus of their case at trial was to show that the use of Substance X in silvering solutions was not a trade secret.\nBy plaintiffs\u2019 third assignment of error, they contend the trial court erred in finding a violation of the consent judgment in that the conduct constituting the alleged violation was not willful and fell within listed exceptions. The consent judgment provides in pertinent part:\n8. [Plaintiffs] shall not divulge or use [Substance X] in making silvering solutions.\n12. Except as provided in Paragraphs 1-11 above:\na. The plaintiffs . . . are not prohibited from manufacturing, using, or selling mirror solutions so long as such mirror solutions are\n(2) not solutions which, through misappropriation as defined in G.S. 66-152(1), utilize any trade secrets of Hilemn, or\n(4) not three-part or two-part silvering solutions substantially similar to Hilemn\u2019s three-part and two-part silvering solutions (for the purposes of this Order, London Labs solutions are not considered substantially similar to defendant\u2019s three-part or two-part silvering solutions), or\n(5) substantially similar to defendant\u2019s three-part and two-part silvering solutions, but the formulations of such solutions were developed and in existence before November 1, 1990 independently of the defendant\u2019s research and development.\nb. This Order does not prohibit plaintiffs or third-party defendants from\n(1) purchasing or licensing a formula for mirroring solutions which formula is presently legitimately owned by some non-party entity and was so owned before November 1,1990 although substantially similar to the defendant\u2019s three-part or two-part silvering solutions; or\n(2) purchasing or licensing a process for mirroring solutions which process is presently legitimately owned by some non-party entity, and was so owned before November 1, 1990 although substantially similar to the defendant\u2019s three-part or two-part silvering solutions; or\n(3) manufacturing or selling any mirroring solutions if plaintiffs . . . obtain the formula or process used for making mirroring solutions from some non-party source which presently legitimately owns such formula or process and was so owned before November 1, 1990 (for example, by obtaining another mirror solutions company, or by merging with another mirror solutions company, or by obtaining mirroring solutions from some non-party company)[.]\n(Emphasis added).\nCiting this Court in Hancock v. Hancock, 122 N.C. App. 518, 523, 471 S.E.2d 415, 418 (1996), plaintiffs contend that \u201cevidence which does not show a person to be guilty of \u2018purposeful and deliberate acts\u2019 or guilty of \u2018knowledge and stubborn resistance\u2019 is insufficient to support a finding of willfulness.\u201d Plaintiffs do not argue their conduct was not purposeful or deliberate. Rather, they maintain the evidence fails to establish that they knowingly violated the consent judgment because Potter purchased formulas in which the use of Substance X was not substantially similar to defendant\u2019s solutions. Thus, his conduct fell within the exceptions listed in the consent judgment. Moreover, plaintiffs argue, Potter acted in good faith by using Substance X only after the London Labs patent expired, and therefore did not willfully violate the consent judgment. We disagree.\nParagraph (8) mandates that plaintiffs \u201cshall not divulge or use [Substance X] in making silvering solutions.\u201d Paragraph (12) then lists conduct that is not prohibited. It begins: \u201cExcept as provided in paragraphs .1-11 above . . . .\u201d Therefore, by the plain language of the consent order, there is no exception to paragraph (8)\u2019s prohibition against the use of Substance X. A mistaken belief that the use of the chemical came under an exception does not negate the purposefulness or deliberateness of Potter\u2019s acts. Accordingly, the evidence supports the trial court\u2019s finding that Potter willfully violated the consent judgment.\nPlaintiffs further argue that, because of the exceptions, the consent judgment was too ambiguous to provide notice of the forbidden conduct.\n\u201cA consent judgment is a court-approved contract subject to the rules of contract interpretation. If the plain language of a contract is clear, the intention of the parties is inferred from the words of the contract.\u201d Walton v. City of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996) (citations omitted). By the plain language of paragraph (8) of the consent judgment, use of Substance X is forbidden. The consent judgment contains no exceptions to this prohibition. Plaintiffs may not be relieved of their duty to comply with its provisions because they are mistaken in their interpretation or find interpreting it to be difficult. Accordingly, we reject this assignment of error.\nBy plaintiffs\u2019 fourth assignment of error, they argue that the trial court erred in determining defendant\u2019s relief under the consent judgment. Plaintiffs contend the award was not supported by the evidence or permitted by applicable law.\nA consent judgment is the contract of the parties entered upon the record with the sanction of the court. Crane v. Green, 114 N.C. App. 105, 106, 441 S.E.2d 144, 144-45 (1994). Thus, it is both an order of the court and a contract between the parties. See id. If 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, but only through a breach of contract action. Nohejl v. First Homes of Craven County, Inc., 120 N.C. App. 188, 190, 461 S.E.2d 10, 12 (1995).\nHere, the consent judgment is not a mere recital of the parties\u2019 agreement. It contains findings of fact and an order based on those findings. It provides:\nThis Final Judgment By Consent is a full resolution of all claims asserted or that could have been asserted in this action, including damages, with the following provision:' This Court and the Undersigned Judge shall retain jurisdiction to enforce the terms of this Final Judgment by Consent. Should the Court find that there has been a violation of this Final Judgment By Consent including a violation of the Permanent Injunction found in Exhibit A, the Court shall determine the appropriate remedy for said violation.\nDefendant argues that the foregoing language authorizes the trial court to award damages, costs, and fees in its discretion. Plaintiffs, however, contend that \u201cappropriate remedy\u201d limits the remedies to those allowed in a contempt proceeding. Therefore, plaintiffs argue, the trial court may not award damages based on remedies provided for trade secret violations under the Trade Secret Act or on breach of contract principles. We disagree.\nBy the plain language of the consent judgment, the parties entered into an agreement allowing \u201c[t]his Court and the Undersigned Judge\u201d to choose an appropriate remedy for a violation of the agreement. See State ex rel. Envir. Mgmt. Comm. v. House of Raeford Farms, Inc., 101 N.C. App. 433, 444, 400 S.E.2d 107, 114 (plain language of a consent judgment is controlling), writ of supersedeas and disc. review denied, 328 N.C. 576, 403 S.E.2d 521 (1991). In fact, the trial judge who signed the original consent judgment also presided over the present case. However, as evident by the interpretations advanced by each party, the phrase \u201cappropriate remedy\u201d is susceptible to different meanings and therefore is ambiguous. The trial court, acting in the instant case as the trier of fact, resolves this ambiguity by considering \u201ca range of factors including the expressions used, the subject matter, the end in view, the purpose and the situation of the parties.\u201d Glover, 109 N.C. App. at 458, 428 S.E.2d at 210.\nHere, the trial court correctly determined that it had a choice of legal remedies not limited to contempt. To interpret \u201cappropriate remedy\u201d as plaintiffs argue would render superfluous the entire provision authorizing the court to determine a remedy and award damages. The language in the remedy provision is broad. Read in context with the entire judgment, it clearly shows an intent on the part of the parties to consolidate their potential claims based on a violation into one case. Therefore, the court did not err in looking to the North Carolina Trade Secrets Protection Act for guidance in fashioning an appropriate remedy because the wording of the consent judgment makes it appear that, as between the parties, Substance X is considered a trade secret. Nor did it err in finding that Hilemn may be entitled to relief under the law of restitution. Restitution measures the remedy by the wrongdoer\u2019s unjust enrichment, and seeks to force disgorgement of that gain. See 1 Dan B. Dobbs, Dobbs Law of Remedies \u00a7 4.1(1), at 555 (2d ed. 1993); see also id. \u00a7 10.5(3), at 691 (listing restitution as a remedy for misappropriation of confidential information or trade secrets).\nThe trial court stated that the appropriate relief is the measure of plaintiffs\u2019 unjust enrichment, which the Trade Secrets Protection Act expressly permits as a measure of damages. See N.C. Gen. Stat. \u00a7 66-154(b) (1999). Accordingly, the court took the total amount of sales of the product that included Substance X, $953,388.20, and subtracted direct costs incurred by plaintiffs, $719,939.03, to determine the award amount of $233,449.17. The trial court did not subtract indirect costs such as- health insurance, utilities, and uniforms, which would have been incurred with or without the offending sales.\nIn support of their contention that all costs, including indirect ones, should be deducted, plaintiffs cite cases involving lost profit damages due to a party\u2019s breach of contract. Lost profit damages means the non-breaching party is entitled to the contract price less cost of performance. Bowles Distributing Co. v. Pabst Brewing Co., 80 N.C. App. 588, 597, 343 S.E.2d 543, 548 (1986). The non-breaching party may not recover the expenses saved from the result of being excused from performance by the other party\u2019s breach. Hassett v. Dixie Furniture Co., 333 N.C. 307, 312-13, 425 S.E.2d 683, 685 (1993). Here, one party profited from violating the parties\u2019 consent judgment and the trial court sought to remedy the violation by, in effect, transferring those profits. The trial court\u2019s findings were that the additional expenses sought to be included by plaintiffs were fixed and not affected by the products at issue. We find no error in the trial court\u2019s calculation.\nThe trial court also did not err in holding plaintiffs to be jointly and severally liable. Joint tort-feasors are two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. N.C. Gen. Stat. \u00a7 1B-I(a) (1999). Potter, who is the president and majority shareholder of Mirror Tech, and Mirror Tech agreed to be bound by the consent order.\nPlaintiffs further argue the trial court erred in considering defendant\u2019s claim of unfair and deceptive trade practices. The trial court, however, found the elements for this claim did not exist. Plaintiffs suffered no harm and we do not address their argument.\nWe agree with plaintiffs\u2019 contention that, absent statutory authority, attorneys\u2019 fees are generally not available. This principle is applicable here despite the broad remedy language in the parties\u2019 agreement. \u201c \u2018As a general rule[,] contractual provisions for attorney\u2019s fees are invalid in the absence of statutory authority. This is a principle that has long been settled in North Carolina and fully reviewed by our Supreme Court....\u2019\u201d Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C. App. 160, 167, 510 S.E.2d 690, 695, disc. review denied and dismissed, 350 N.C. 379, 536 S.E.2d 70-71 (1999) (quoting Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994)); see also Harborgate Prop. Owners Ass\u2019n v. Mountain Lake Shores Dev. Corp., 145 N.C. App. 290, 297-98, 551 S.E.2d 207, 212 (2001) (reversing the trial court\u2019s award of attorneys\u2019 fees due to lack of statutory authority despite an express provision in the parties\u2019 consent judgment allowing such fees); Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 11-12, 545 S.E.2d 745, 751-52 (reversing the award of attorneys\u2019 fees due to lack of statutory authority despite an express contractual provision), appeal dismissed and cert. allowed, 354 N.C. 218, 553 S.E.2d 402, aff'd, 354 N.C. 565, 556 S.E.2d 293 (2001); but see Bromhal v. Stott, 341 N.C. 702, 703-05, 462 S.E.2d 219, 220-21 (permitting as an exception to the general rule the enforcement of attorneys\u2019 fees provisions contained in separation agreements based on public policy interests), reh\u2019g denied, 342 N.C. 418, 465 S.E.2d 536 (1995).\nThe Trade Secrets Protection Act does allow for attorneys\u2019 fees as a remedy, provided \u201cwillful and malicious misappropriation exists.\u201d N.C. Gen. Stat. \u00a7 66-154(d) (1999). However, even utilizing the Act as a basis, Hilemn would not be entitled to attorneys\u2019 fees. The trial court specifically found that Potter\u2019s misappropriation of Substance X was not malicious. As a result, we hold that the trial court was without authority to award attorneys\u2019 fees.\nAccordingly, the judgment of the trial court is reversed as to the award of attorneys\u2019 fees and is otherwise affirmed.\nREVERSED IN PART; AFFIRMED IN PART.\nJUDGES HUDSON and JOHN concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Bell, Davis & Pitt, P.A., by William K. Davis and Alan M. Ruley, for plaintiffs-appellants.", "Adams & Osteen, by William L. Osteen, Jr., for plaintiffs-appellants.", "Smith Helms Mulliss & Moore, L.L.P, by Bynum M. Hunter, Gregory G. Holland, and Allison Van Laningham, for defendant-appellee." ], "corrections": "", "head_matter": "PAUL W. POTTER and MIRROR TECH, INC. v. HILEMN LABORATORIES, INC., Now Known As HILEMN SILVERING SOLUTIONS, VALSPAR MIRROR COATINGS DIVISION of THE VALSPAR CORPORATION v. SALEM DISTRIBUTING CO., INC., ROBERT A. LONG, and ARTHUR J. LOCKHART\nNo. COA01-399\n(Filed 21 May 2002)\n1. Trade Secrets\u2014 silvering solution \u2014 consent agreement\u2014 patent expired\nThe trial court did not err by determining that plaintiffs\u2019 use of a certain silvering solution in making mirrors was a trade secrets case even though the patent for the substance already expired, because regardless of whether the substance is technically a trade secret, plaintiffs are bound by their agreement that they would treat it as one.\n2. Trade Secrets\u2014 silvering solution \u2014 reversal of oral ruling in written order\nThe trial court did not commit prejudicial error by reversing in a written order its earlier oral ruling that a certain silvering solution used to make mirrors was not a trade secret, because: (1) plaintiffs were not prevented from introducing evidence as a result of the order; and (2) the primary focus of plaintiffs\u2019 case at trial was to show that the use of the substance in silvering solutions was not a trade secret.\n3. Trade Secrets\u2014 silvering solution \u2014 violation of consent judgment \u2014 willfulness\nThe trial court did not err by finding plaintiffs willfully violated a consent judgment based on plaintiffs\u2019 conduct of using a certain silvering solution to make mirrors, because: (1) a mistaken belief that the use of the chemical came under an exception does not negate the purposefulness or deliberateness of plaintiff individual\u2019s acts; and (2) plaintiffs may not be relieved of their duty to comply with a consent judgment\u2019s provisions based on their mistaken interpretation or finding the judgment difficult to interpret.\n4. Trade Secrets\u2014 silvering solution \u2014 appropriate relief under consent judgment\nThe trial court did not err by determining that defendant\u2019s relief under a consent judgment, stating that a certain silvering solution used to make mirrors was a trade secret between the parties, included remedies provided for trade secret violations under the Trade Secrets Act or for breach of contract because: (1) by the plain language of the consent judgment, the parties entered into an agreement allowing the court and the undersigned judge to choose an appropriate remedy for a violation of the agreement; and (2) the trial court correctly determined that it had a choice of legal remedies not limited to contempt.\n5. Judgments\u2014 consent \u2014 jointly and severally liable\nThe trial court did not err by holding plaintiffs to be jointly and severally liable under N.C.G.S. \u00a7 1B-I(a) in a trade secrets case because plaintiff president and majority shareholder, as well as plaintiff corporation, both agreed to be bound by the consent order.\n6. Unfair Trade Practices\u2014 consideration of claim \u2014 no harm\nAlthough plaintiffs contend the trial court erred by considering defendant\u2019s claim of unfair and deceptive trade practices, plaintiffs suffered no harm and the argument will not be addressed because the trial court found the elements for this claim did not exist.\n7. Costs\u2014 attorney fees \u2014 Trade Secrets Protection Act\nThe trial court erred by awarding attorney fees in a trade secrets cas\u00e9, because: (1) the Trade Secrets Protection Act does not allow for attorney fees as a remedy; and (2) even if the Act were utilized as a basis, plaintiffs misappropriation of the pertinent substance was not malicious.\nAppeal by plaintiffs from judgment entered 14 August 2000 by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 23 January 2002.\nBell, Davis & Pitt, P.A., by William K. Davis and Alan M. Ruley, for plaintiffs-appellants.\nAdams & Osteen, by William L. Osteen, Jr., for plaintiffs-appellants.\nSmith Helms Mulliss & Moore, L.L.P, by Bynum M. Hunter, Gregory G. Holland, and Allison Van Laningham, for defendant-appellee." }, "file_name": "0326-01", "first_page_order": 356, "last_page_order": 367 }