FILED
January 12, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Susan Spangler, Individually and as the
Personal Representative of the
Estate of Leroy Alfred Hazelock, Jr.,
Defendant Below, Petitioner
vs.) No. 21-0002 (Kanawha County 18-C-137)
James Monroe Washington,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Susan Spangler, individually and as the personal representative of the estate of
Leroy Alfred Hazelock, Jr. (“Leroy Jr.”), by counsel Paul S. Saluja, appeals the December 1, 2020,
order of the Circuit Court of Kanawha County that awarded Respondent James Monroe
Washington damages for petitioner’s failure to honor that portion of Leroy Jr.’s will that gave
respondent the right of first refusal to purchase a house in Washington, D.C., which was part of
Leroy Jr.’s estate. Respondent, by counsel Joshua S. Rogers, Jill Cranston Rice, and Arie M. Spitz,
filed a response in support of the circuit court’s order.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Leroy Alfred Hazelock, Sr. (“Leroy Sr.”) owned a house in Washington, D.C. When he
died, the executor and sole heir of his estate was his son, Leroy Jr. Thus, Leroy Jr. inherited the
Washington, D.C. house (the “house”). However, Leroy Jr. died shortly thereafter. Leroy Jr.’s will
bequeathed the bulk of his estate to his ex-wife, petitioner Susan Spangler. The estate included the
proceeds from any sale of the house, but the will contained a “right of first refusal” that required
petitioner to offer respondent the right to purchase the house before it was offered for public sale.
Petitioner was appointed to serve as the executrix of Leroy Jr.’s estate. Soon thereafter, respondent
told petitioner that he wished to exercise his right of first refusal and purchase the house, and
petitioner agreed that she would sell respondent the house. By early July of 2017, petitioner and
respondent agreed to a $475,000 purchase price for the house and respondent’s adult son, Barry
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Washington, texted petitioner asking her to send a “Letter of Request” regarding the agreed
purchase price. On July 16, 2017, petitioner sent respondent’s son a text which provided that she
had “contacted attorneys regarding the sale of the home” and “[w]hen the probate process is
completed, they will draw up a sales contract. I will contact you as soon as this process and contract
is completed.”
On August 8, 2017, respondent, having not received any letter of request or other
communication, sent petitioner a certified letter again expressing his wish to exercise his right of
first refusal. The letter also provided that respondent’s son, Barry, would be the point of contact.
Receiving no response, respondent’s son e-mailed petitioner on September 15, 2017, inquiring
about respondent’s purchase of the house. Petitioner replied that she would be “in DC the later part
of the week to meet with the attorney and a DC probate representative. I have already conferred
the need for a real estate contract. Once this is completed, the law firm will set up a meeting. I will
have more information after the meeting.” Respondent’s son thereafter sent follow-up e-mails but
received no response from petitioner. Respondent learned on May 4, 2018, that petitioner had sold
the house to an entity known as “6th Street” for $505,000 or $30,000 more than the price that
respondent had negotiated with petitioner.
Respondent thereafter sued petitioner alleging breach of fiduciary duty and tortious
interference with a testamentary bequest. Respondent then moved for summary judgment on
liability for both causes of action. Attached to the motion were documents demonstrating that (1)
petitioner was the executor of Leroy Jr.’s estate; (2) the will gave respondent the right of first
refusal to purchase the house; (3) respondent sought to exercise that right; (4) petitioner twice told
respondent that, on behalf of the estate, she would sell the house to him but that she had to wait
until probate was completed and the lawyers drew up the contract; and (5) petitioner’s
representations to respondent were false given that she sold the house to a third party. Based on
this evidence, the circuit court granted respondent partial summary judgment on the issue of
liability, finding that petitioner breached her fiduciary duty as an executor and intentionally
interfered with a testamentary bequest.
Thereafter, the circuit court held a bench trial on damages. At that trial, respondent entered
the deposition testimony of Daniel Beard without objection from petitioner. Mr. Beard testified in
his deposition as follows: He had worked as a general contractor for thirty-seven years, eight years
of which involved working in real estate in the Washington, D.C. area. He consults with realtors,
offers advice about the purchase and renovation of properties, and has done post-renovation
valuations more than one hundred times. 6th Street, the entity that purchased the house, hired him
to design the renovations to the house. 6th Street’s plan was to invest $200,000.00 into the house
and sell it for $1,100,000. However, after tearing out the back of the house to enlarge it, renovations
were halted for six months due to permitting issues. During the delay, rain damaged the house
necessitating additional repairs and renovations. 6th Street eventually paid between $350,000 and
$400,000 to renovate the house and sold it for $985,000 on December 30, 2019. Mr. Beard opined
that if the cost overruns due to the permitting problems and subsequent flooding encountered by
6th Street had not occurred, the house could have been sold for $1,100,000.
Respondent’s counsel then called Barry Washington, respondent’s son, who testified as
follows: He worked for the federal government for thirty-seven years in architectural design,
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project management, construction management, and build-out services, and he had been a licensed
architectural designer for over twenty years. His father (respondent) had been managing real estate
for the past twenty years, was a real estate investor, and – in the past – did high-end interior design
work for embassies, for dignitaries, and for several presidents both in and out of the White House.
Respondent also had his work shown in magazines such as Architectural Digest and people still
seek out his father’s services (even though at the time of trial he was ninety-one years old). Barry
then explained why he was “kind of being the spokesperson” for his father. Specifically Barry said
that his father had “slowed down” and that he just doesn’t have the “capacity to want to – the drive
and motivation – he seems to be stunned a little bit.” Barry then explained the real estate renovation
business that his father, he, and his wife, Gigi Washington, had run as a team for more than fifteen
years. Barry said they locate properties, analyze them, decide whether to renovate them, and, if
they opt to renovate, whether to sell or lease a renovated property. Barry then gave examples of
the many homes and apartments that the family had acquired and renovated in the
D.C./Maryland/Virginia housing market. Barry testified that his father has very extensive
knowledge about architecture, quality work, and construction and, therefore, is at the “top of the
process” and is also the principal investor for most of the properties they work on. Barry also said
that his father coached Gigi Washington into getting her real estate license. Thereafter, Gigi
obtained her broker’s license and opened a real estate brokerage company. Barry further testified
that the family buys a property outright and that they use their own money to renovate a property
so that they own their properties free and clear. Barry said that he serves as a lead contractor and,
in that role, obtains cost estimates and necessary permits, prepares the construction design and
intent documents, and consults with the engineering disciplines.
Regarding the house, Barry testified in extraordinary detail about his cost estimates for
renovating the house. Barry added that his estimate contained a little “fluff” or a “contingency” to
address any overages. Barry said that he estimated that the house, when renovated, would have
sold for $1,100,000 and that the profit on the house, after expenses, would have been $450,700.
Barry further testified that when he worked for the federal government, his cost estimates were
required to be within five percent of the actual final construction price.
Barry also addressed the permitting issues 6th Street encountered in working on the house
and his own experience in working closely with the District of Columbia’s permitting agency.
Barry testified that he had never had a permit problem with any of the family’s properties and
never had a stop work order as did 6th Street.
Barry then testified regarding the effect on respondent of not being able to buy the house.
Barry said that the house originally belonged to his father’s favorite sister, that his father loaned
the sister the down-payment for the house, and that his father was very close to the sister and would
visit her at the house on a regular basis. Barry then testified to the letters and other communications
he sent to petitioner on respondent’s behalf regarding respondent’s attempts to purchase the house.
Barry said that when respondent learned that the house had been sold to someone else, he became
“depressed, very upset, [and] angry . . . because he was working in good faith and he was
manipulated in the process.”
Barry’s wife, Gigi Washington, testified next. She said that she has been a licensed realtor
in Washington, D.C. for more than fifteen years, a real estate broker for several years, and that she
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and her husband Barry operate a real estate brokerage company. She also said that she is a well-
known real estate investor in the Washington, D.C. area and her primary role in the family business
is to scout for potential properties. She said that she, Barry, and respondent then evaluate the
properties, buy some of them, and then sell or hold the properties they buy. She also testified that
she became a real estate broker at respondent’s urging because
[respondent] has always been a real estate investor and he really wanted someone
on the real estate broker side to be able to help expedite processes and also have
access to [the Multiple Listing Service], so that we can easily go in and do
comparative market analysis for properties that we are considering, . . . it is a good
easy way to determine value and what our return on investments will be.
Gigi further testified that she would have been the one to market and sell the house if they
had acquired it, she would not have charged a commission for selling the house, and she would
not have had to pay for marketing or advertising to sell the house because she had developed an
internet-based marketing system that costs the family nothing. As for the sale price of the house,
Gigi testified that the value of the house, based upon her performance of a competitive market
analysis, was $1,100,000; and the sale of the home for $985,000 was not the best indicator of the
house’s value. She further testified that she had done “[h]undreds of such evaluations during her
real estate career.” She explained that 6th Street lowered their initial list price of $1,100,000 to
$985,000 due to cost overruns, the permitting issues that resulted in a work stoppage, and the fact
that 6th Street had to borrow money to finance the purchase of the home and the renovations. Gigi
testified that she, Barry, and respondent had the experience to avoid permitting problems and self-
financed their home purchases and renovations. Finally, Gigi testified that her calculation of
respondent’s lost potential profit on the house was between $425,000 and $450,000.
Respondent James Monroe Washington testified that he agreed with Barry’s and Gigi’s
testimony. He said he had worked in construction and design since he was fifteen years old. As for
the house, he said that he agreed to buy it for the price petitioner asked and that he was unhappy
when petitioner sold it to another buyer. Respondent further stated that he asked his son Barry to
get a lawyer and to bring an action against petitioner. Respondent described the house as “a very
nice house.” Respondent said that he thought, “well maybe I could move into that house, but my
sister loved that house. She and her husband lived in there and had a wonderful time, and I miss
them, and I love that house.” Respondent concluded that he “felt very bad – very bad when I found
out [petitioner] had already sold [the house].”
Petitioner testified briefly during her case-in-chief and then called her forensic accountant,
David Epperly, who testified that 6th Street earned a profit on the sale of the house of $56,811
based on renovation costs of $375,000 and a real estate agent’s 3% sales commission. Petitioner
therefore argued that respondent’s damages were limited to a recovery of $56,811.
By order entered December 1, 2020, the circuit court reinstated its earlier conclusion that
petitioner, as the executor of Leroy Jr.’s estate, breached her fiduciary duty and tortiously
interfered with a testamentary bequest. The circuit court then ruled that (1) respondent was
deprived of the right to purchase the house for $475,000; and (2) if respondent had been allowed
to purchase the house for that price, he could have invested $200,000, sold the house for
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$1,100,000, and realized a profit of $425,000 to $450,000. Accordingly, the court found that
petitioner tortiously deprived respondent of $425,000 in profits and awarded that amount in
damages. The court further found that respondent was entitled to recover damages for emotional
distress, annoyance, and inconvenience and awarded $25,000 as damages. Finally, the court found
that, pursuant to West Virginia Code § 55-7-25(a), respondent presented “clear and convincing
evidence that the damages [he] suffered were the result of the conduct that was carried out by
[petitioner] with actual malice toward [respondent].” Accordingly, the court awarded respondent
$150,000 in punitive damages. Petitioner now appeals.
On appeal, petitioner first argues that the circuit court erred in granting partial summary
judgment to respondent on the issue of liability regarding her sale of the house to 6th Street.
Petitioner contends that the circuit court’s findings are inconsistent, that the will placed the burden
on closing the sale of the house within ninety days on respondent, and that a District of Columbia
probate court found that respondent’s right of first refusal had expired under the will by its own
terms.
We review a circuit court’s entry of summary judgment de novo. Syl. Pt. 1, Painter v.
Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
The circuit court found that petitioner, as the executor of Leroy Jr.’s estate, breached her
fiduciary duty when she sold the house to 6th Street. We have defined an executor’s fiduciary duty
in this way:
The personal representative of the estate of a deceased acts in a fiduciary
capacity. H[er] duty is to manage the estate under h[er] control to the advantage of
those interested in it and to act on their behalf. In the discharge of this duty, the
executor or administrator of a deceased’s estate is held to the highest degree of good
faith and is required to exercise the ordinary care and reasonable diligence which
prudent persons ordinarily exercise, under like circumstances, in their own personal
affairs.
Syl. Pt. 1, Latimer v. Mechling, 171 W. Va. 729, 301 S.E.2d 819 (1983). Thus, petitioner had a
duty to manage the estate in a manner that protected respondent’s interests. Specifically, she was
obligated to diligently discharge her duty to give respondent the right of first refusal to purchase
the house. The record shows that petitioner applied to serve as executor in June of 2017. By early
July, petitioner had recognized her duty under the will and reached a sale price with respondent.
In mid-July, petitioner told respondent that she would send a sales contract once the probate
process was completed, and in September she told respondent she was still waiting for her
attorneys to draw up the paperwork. Respondent wrote letters and emails to petitioner stating a
willingness to complete the purchase. Despite respondent’s persistent efforts to purchase the
house, petitioner sold it to a third party in May of 2018 for a higher price. On this record, petitioner
had a fiduciary duty to honor respondent’s exercise of his right of first refusal to purchase the
house. Accordingly, we find no error in the circuit court’s conclusion that respondent breached
that duty when she instead sold the house to 6th Street.
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Petitioner also tortiously interfered with a testamentary bequest by failing to sell
respondent the house. West Virginia has recognized the tort of interfering with a testamentary
bequest. See Syl. Pt. 2, Barone v. Barone, 170 W. Va. 407, 294 S.E.2d 260 (1982) (“An intended
beneficiary may sue for tortious interference with a testamentary bequest.”). The elements of a
tortious interference claim with business relations are “‘(1) existence of a contractual or business
relationship or expectancy; (2) an intentional act of interference by a party outside that relationship
or expectancy; (3) proof that the interference caused the harm sustained; and (4) damages.’” Kelley
v. Kelley, No. 15-0188, 2015 WL 7628821, at *16 (W. Va. Nov. 23, 2015)(memorandum decision)
(quoting Torbett v. Wheeling Dollar Sav. & Trust Co., 314 S.E.2d 166, 167 (1983)). Here,
respondent had a reasonable expectancy that petitioner, as the executor of Leroy Jr.’s estate, would
provide him a right of first refusal for the house as required by Leroy Jr.’s will. Petitioner
intentionally interfered with that expectancy, caused the harm respondent sustained (the ability to
purchase the house), and respondent’s resulting damages. Based on this record, we find that the
circuit court did not err in finding that petitioner, as the executor of Leroy Jr.’s estate, breached
her fiduciary duty when she sold the house to 6th Street and that she, therefore, tortiously interfered
with a testamentary bequest. Thus, we uphold the circuit’s court’s grant of summary judgment to
respondent on the issue of liability.
Petitioner next argues that the circuit court erred in permitting Barry Washington,
respondent’s son, to act as the de facto plaintiff below. Petitioner asserts that respondent is elderly
and was incapable of restoring the house himself. She also asserts that respondent participated
nominally in the case and generally acquiesced to his son’s testimony. Finally, petitioner contends
that respondent’s comment that he wanted to live in the house was wholly contrary to Barry
Washington’s statement that the family wanted to flip the house. Thus, she concludes that Barry
Washington was the real party in interest and that the trial court erred in allowing him to act as the
plaintiff below.
“In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is applied.
The final order and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court’s underlying factual findings are reviewed
under a clearly erroneous standard. Questions of law are subject to a de novo
review.” Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va.
329, 480 S.E.2d 538 (1996).
Syl. Pt. 2, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).
A circuit court’s finding is clearly erroneous when “although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Board of Educ. v. Wirt, 192
W.Va. 568, 579 n. 14, 453 S.E.2d 402, 413 n. 14 (1994), quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).
Pub. Citizen, Inc., 198 W.Va. at 334, 480 S.E.2d at 543.
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The circuit court’s findings, that respondent wanted to buy the house, remodel it, and then
sell it, were not clearly erroneous. The evidence shows that respondent’s son Barry negotiated with
petitioner for the price of the house and that respondent wanted to exercise his right of first refusal
and to purchase the house. Further, Barry testified to respondent’s ability, personally, and with the
assistance of Barry and Gigi, to renovate the house and to sell it for a profit. That this evidence
was admitted through Barry’s testimony is of no moment given that respondent testified that he
agreed with Barry’s and Gigi’s testimony and that he wanted Barry to handle the buying of the
house.
Respondent also testified about his history with, and sentimental feelings for, the house.
Specifically, respondent testified that his sister had owned the house, which he loved, and that he
might move into it. In weighing this testimony, the circuit court found that respondent’s fond
memories of his sister’s house did not mean that after he purchased the house and renovated it, he
intended to live in it. Instead, the circuit court found that respondent agreed with Barry and Gigi
Washington’s testimony that he intended to renovate and sell the house. The trial court’s finding
that respondent had the ability, with the help of Barry and Gigi, to renovate and sell the house was
also not clearly erroneous. Respondent presented evidence that he, Barry, and Gigi had the skill
and knowledge to renovate and sell the house, and that Barry and Gigi would help respondent in
those endeavors. Accordingly, the circuit court’s finding that respondent, with the help of his
family, had the ability to renovate and sell the house was not clear error. Thus, we reject
petitioner’s claim that the circuit court permitted Barry Washington, respondent’s son, to act as
the de facto plaintiff below.
In petitioner’s third and fourth assignments of error, she argues that the circuit court erred
in finding that respondent was entitled to damages based on the “speculative testimony” of Barry
and Gigi Washington. We review these assignments for clear error under Public Citizen, Inc.
As noted above, in addition to the testimony of Barry and Gigi Washington at the trial in
this matter, respondent entered the testimony of Dan Beard, whom 6th Street hired to renovate the
house. Also as noted above, Mr. Beard testified that if respondent had the capability to renovate
the house, a $200,000 investment in the house would have yielded a sales price of $1,100,000. Mr.
Beard further testified that his opinion was based on his own work on the house; his thirty-seven
years as a general contractor, which included eight years of contracting work in Washington, D.C.;
his experience consulting with realtors regarding the purchase and renovation of real properties,
as well as anticipating post-renovation values, which he had done about one hundred times; and
his comparison of the house with comparable properties in Washington, D.C. Petitioner lodged no
objections to Mr. Beard’s testimony, just as she lodged no objections to Barry or Gigi
Washington’s testimony.
“[P]arties must still make it clear that they object to the ruling or order of the court in order
to preserve such matter for appeal[.]” Maples v. W. Virginia Dep’t of Com., Div. of Parks &
Recreation, 197 W. Va. 318, 322, 475 S.E.2d 410, 414 (1996). “‘“Where objections were not
shown to have been made in the trial court, and the matters concerned were not jurisdictional in
character, such objections will not be considered on appeal.” Syl. pt. 1, State Road Commission v.
Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).’ Syllabus point 1, Estep v. Brewer, 192 W.Va.
511, 453 S.E.2d 345 (1994).” Maples, 197 W. Va. at 319, 475 S.E.2d at 411, Syl. Pt. 2. Here,
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petitioner failed to object to Barry Washington’s testimony, Gigi Washington’s testimony, or Mr.
Beard’s testimony. On this record, we find that the circuit court did not clearly err in relying on
that testimony in finding that respondent was entitled to damages
Petitioner’s fifth assignment of error regards the testimony of her forensic economist who
produced a report in response to Mr. Beard’s testimony. In a skeletal argument, petitioner contends
that the circuit court erred in discounting her forensic economist’s qualifications and report
because, under Cell, Inc. v. Ranson Investors, 189 W. Va. 13, 427 S.E.2d 447 (1992), “there was
a need for expert testimony here and [p]etitioner was denied any meaningful opportunity to provide
the same.”
We often have cautioned that “‘[a] skeletal “argument,” really nothing more than an
assertion, does not preserve a claim . . . . Judges are not like pigs, hunting for truffles buried in
briefs.’” W. Va. Dep’t of Health & Human Res., Child Advocate Office ex rel. Robert Michael B.
v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting U.S. v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991)); see also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d
613, 621 (1996) (“Although we liberally construe briefs in determining issues presented for
review, issues [that] are . . . mentioned only in passing but [that] are not supported with pertinent
authority, are not considered on appeal.”). Accordingly, we do not further address this assignment
of error.
Finally, in petitioner’s sixth assignment of error, she claims that the circuit court erred in
the amount of damages it awarded to respondent.
We disagree and find that the circuit court correctly concluded that respondent could
recover the profit of which he was deprived as a result of petitioner’s failure to sell him the house.
See 22 Am. Jur. 2d Damages § 266 (2021) (“Generally, damages for tortious interference with
contract are calculated to place the injured party in the position he or she would have been in had
the contract been performed.”). Thus, based on the evidence before it, the circuit court correctly
awarded respondent $425,000.
Moreover, the circuit court correctly concluded that respondent proved a loss of $425,000
with reasonable certainty. Damages for lost profits “must be established with reasonable certainty
and not be speculative or conjectural in character or amount.” Rubin Res., Inc. v. Morris, 237 W.
Va. 370, 379, 787 S.E.2d 641, 650 (2016). “[D]amages may be established with reasonable
certainty with the aid of expert testimony, economic and financial data, market surveys and
analyses, business records of similar enterprises, and the like.” Given v. Field, 199 W. Va. 394,
398, 484 S.E.2d 647, 651 (1997) (citing Restatement (Second) of Contracts § 352, cmt. b (1981)).
Damages are recoverable only to the extent that the evidence shows with reasonable
certainty the damage sustained as a result of the negligence and affords a sufficient
basis for estimating the amount in money with reasonable certainty. Similarly,
plaintiffs will not be denied recovery of damages for breach of contract merely
because the damages are difficult to ascertain so long as they prove damages with
reasonable certainty.
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Reasonable certainty requires proof of a rational basis for measuring the
loss, without allowing a jury to speculate. Reasonable certainty does not mean
precise or mathematical certainty. Reasonable certainty does not require absolute
assurance or mathematical exactitude; rather, the evidence need only be sufficient
to remove the existence of damages from the realm of speculation and provide a
reasonable basis for computing an approximate amount of damages. For instance,
the absence of a mathematical formula for gauging the future probability of the
harm occurring or the monetary value of that loss does not prevent the recovery of
monetary damages for future harm. When damages are difficult to prove, the
plaintiff is required to prove them with the precision that the facts permit but no
more.
22 Am. Jur. 2d Damages § 340 (2021) (footnotes omitted).
Here, respondent demonstrated his lost damages with reasonable certainty through the
testimony of Mr. Beard, Barry Washington, and Gigi Washington. Accordingly, we find that the
circuit court did not err in finding, with reasonable certainty, that respondent’s economic damages
were $425,000, and in awarding that amount to petitioner.
Accordingly, for the foregoing reasons, we affirm the circuit court’s December 1, 2020,
order.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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