Following a jury trial, Floyd Trotman III (in Case No. A11A0402) and CertiFi Project Management Certification Training, LLC ("CertiFi") (in Case No. A11A0403) appeal from a judgment and other orders entered against them in a dispute arising from Trotman's continued use of training materials he obtained as a former instructor for Velociteach Project Management, LLC ("Velociteach"). We have consolidated the cases for review, and for the reasons that follow, we affirm in part, vacate the award of attorney fees, and remand.
Viewed in favor of the jury's verdict,
In early 2006, Trotman formed his own company, CertiFi, and began teaching training courses on his own. In early 2007, after seeing Trotman in an airport, Crowe decided to search for information about Trotman on the Internet. Crowe discovered a CertiFi website listing Velociteach customers and containing marketing copy that Crowe had written for Velociteach. Crowe then enrolled a student in one of Trotman's classes to observe the course content and materials. Based on the similarities between Trotman's course materials and those he had used previously at Velociteach, Velociteach demanded that CertiFi cease operating in violation of Trotman's confidentiality agreement. Trotman refused, and Velociteach sued him and CertiFi, alleging claims for breach of contract, Uniform Deceptive Trade Practices Act
After discovery and the denial of the parties' cross-motions for summary judgment, the action was eventually tried by a jury, which awarded Velociteach $13,750 (from Trotman) and $134,000 (from CertiFi). The trial court also awarded Velociteach $30,000 in attorney fees and entered a permanent injunction requiring Trotman to, inter alia, return all Velociteach materials and abstain from using Velociteach's customer lists. Trotman appeals in A11A0402, and CertiFi appeals in A11A0403.
Case No. A11A0402
1. During the litigation, Velociteach obtained an interlocutory injunction that prohibited Trotman and CertiFi from using any instructional slides contained in a certain exhibit. Based on Trotman's subsequent reformulation and use of a prohibited slide, the trial court found that Trotman had violated the injunction and held him in contempt, ordering Trotman and CertiFi to provide a copy of its teaching materials to Velociteach and pay $1,012.50 in attorney fees incurred by Velociteach while pursuing the contempt motion.
On appeal, Trotman enumerates as error the trial court's interlocutory injunction, but he does not challenge the $1,012.50 attorney fee award, and the only other remedy, disclosure of his teaching materials, was permissible as part of the pending litigation. As Trotman points to no other remedy affecting him or CertiFi resulting from the contempt finding itself, this enumeration presents nothing for review.
2. Trotman argues that the evidence and verdict did not authorize the trial court to issue a permanent injunction against him based on a violation of the UDTPA. We disagree.
"Equitable relief is generally a matter within the sound discretion of the trial court. The action of the trial court should be sustained on review where such discretion has not been abused."
(a) Based on the jury's verdict that Trotman violated the UDTPA, the trial court granted an injunction against Trotman that (1) prohibited him from using a specified trial exhibit containing Velociteach course materials, (2) required him to return all Velociteach property and course materials, (3) forbade him from using Velociteach's customer lists, and (4) required disclosure of each person to whom he had shown the enjoined materials. Trotman argues that because only he, and not CertiFi, was found to have violated the UDTPA, the only basis for the finding would be his failure to maintain his PMP certification. And because he later remedied the lapse in his certification, he argues that this lapse in certification could not support the injunctive relief granted by the trial court.
This argument ignores the fact that the trial evidence supported a finding that he personally violated the UDTPA, regardless of whether the jury attributed his behavior to CertiFi. The UDTPA provides as follows, in relevant part:
At trial, there was evidence that Trotman created a misleading advertisement stating that CertiFi had developed course content over a four-year period, which would have referred to the time Trotman was with Velociteach, not CertiFi. There was also evidence that Trotman solicited former Velociteach students on behalf of CertiFi, referencing the Velociteach course and falsely holding himself out as PMP certified. Velociteach also introduced evidence that Trotman published a list of Velociteach customers and falsely represented them to be CertiFi customers. Finally, there was evidence that Trotman used nearly duplicate versions of certain Velociteach course materials without its consent. This evidence supported the jury's finding that he violated the UDTPA, and the trial court did not abuse its discretion by awarding equitable relief to Velociteach against Trotman based on the jury's finding.
(b) Trotman also argues that an injunction against future conduct is unwarranted because his confidentiality agreement has expired, and his wrongful conduct took place in the past and is not likely to recur. This argument is misplaced. There was evidence supporting a finding that Trotman's conduct violated the UDTPA regardless of his confidentiality agreement, and the nature of the wrongful behavior was not such that it could not be repeated, i.e., by re-creating confusing or misleading marketing materials or re-using Velociteach's proprietary course materials.
3. Trotman next challenges the trial court's failure to give his requested jury charge on the UDTPA claim. "In order for a refusal to charge to be error, the request must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge."
As support, Trotman relies on Ackerman Security Systems, Inc. v. Design Security Systems, Inc.,
Case No. A11A0403
4. CertiFi contends that the evidence was insufficient to support the jury's verdict on the conversion claim, which was predicated on Trotman's use of Velociteach training materials. Specifically, CertiFi argues that because Trotman's confidentiality agreement required him to return or destroy any training materials, Velociteach had abandoned them, which would preclude a conversion claim due to an absence of Velociteach's right of possession.
CertiFi also argues that the intangible teaching materials on the laptop were not "novel" and therefore not subject to a conversion claim.
5. CertiFi also challenges the sufficiency of the evidence as to the value element of Velociteach's unjust enrichment claim. CertiFi relies on Phoenix Airline Svcs. v. Metro Airlines,
6. CertiFi also challenges the trial court's award of $30,000 in attorney fees under OCGA § 9-15-14 (b) based on its finding that the defendants unnecessarily expanded the proceeding. That Code section authorizes an attorney fee award based on conduct "including, but not limited to, abuses of discovery procedures. . . ."
Based on this behavior, the trial court did not abuse its discretion by awarding attorney fees under OCGA § 9-14-15 (b),
7. (a) CertiFi contends that the trial court erred by failing to give its requested jury charge on waiver with respect to the conversion claim. However, in light of our holding in Division 4, that the confidentiality agreement did not evince Velociteach's abandonment or waiver of its right to exclusively possess its course materials, this charge was not authorized by the evidence.
(b) CertiFi also asserts as error the trial court's failure to give its requested jury charge on apportionment of damages under OCGA § 51-12-33, in light of evidence that Trotman had another Velociteach employee help him make revisions to the Velociteach teaching materials and that he hired a marketing firm to edit Velociteach presentation slides and "put some lipstick on" a chart in a Velociteach workbook. Nevertheless, "[a] trial court does not err in refusing to give a requested charge which is confusing, misleading, inapt, not precisely tailored or adjusted to the evidence, or not authorized by the evidence."
8. CertiFi challenges the trial court's exclusion of certain testimony that Crowe, the founder of Velociteach, was motivated by racial bias when he terminated Trotman. Specifically, CertiFi proffered testimony from a Velociteach employee who heard Crowe use racially derogatory language in reference to Trotman.
Here, the issues at trial centered on the similarity between the teaching material used by Trotman/CertiFi to that created by Crowe/Velociteach and Trotman's authority to use them after his termination. The proffered witness stated that any derogatory statements made by Crowe were not in connection with Crowe's termination of Trotman, who had received favorable evaluations prior to the events leading up to his termination, i.e., the lapse in Trotman's PMP credentials and his misuse of the company credit card. Based on the record before us and the inflamatory nature of the proffered evidence, we discern no clear abuse of the trial court's discretion.
9. Finally, CertiFi attempts to incorporate by reference to its brief in the companion case an argument challenging the sufficiency of the evidence to show that it tortiously interfered with Velociteach's business relationships or contracts. This enumeration was not otherwise supported by argument or citation to authority.
10. CertiFi and Trotman's remaining enumerations are moot.
Judgment affirmed in part and vacated in part; case remanded with direction. Ellington, C. J., and Miller, P. J., concur.