Collins Entertainment Corp. v. Coats & Coats Rental Amusement

Chief Justice TOAL

dissenting:

I respectfully dissent. In my view, the “lost volume seller” doctrine should not be adopted and applied in this case. Moreover, in my view, the court of appeals erred in affirming the trial court’s calculation of damages. Therefore, I would reverse and remand.

The lost volume seller doctrine is a measure of damages applied in cases involving breach-of-contract claims. See, e.g., Gianetti v. Norwalk Hosp., 266 Conn. 544, 833 A.2d 891 (2003); Jetz Serv. Co., Inc. v. Salina Properties, 19 Kan.App.2d 144, 865 P.2d 1051 (1993).

The present case, however, involves an allegation of tortious interference with contract.1 As its name implies, tortious interference with contract is a tort, requiring the plaintiff to establish, among other things, intentional procurement of the contract’s breach. See, e.g., Camp v. Spring Mortg. Co., 310 S.C. 514, 517, 426 S.E.2d 304, 305 (1993); Todd v. S.C. Farm Bureau Mut. Ins. Co., 287 S.C. 190, 192-93, 336 S.E.2d 472, 473 (1985). Consequently, damages for tortious interference *421of contract “are not measured by contract rules.” Collins Music Co., Inc. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct.App.1998) (quoting Ross v. Holton, 640 S.W.2d 166 (Mo.CtApp.1982)).

Because the lost volume seller doctrine applies in breach-of-contract cases only, and because the present case involves a tort, the court of appeals, in my view, erred in adopting and applying the doctrine.

Moreover, in my view, the court of appeals erred in affirming the trial court’s calculation of damages. A plaintiff may not recover twice for the same injury. Riddle v. City of Greenville, 251 S.C. 473, 478, 163 S.E.2d 462, 464 (1968); Collins Music Co., Inc. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct.App.1998). In Smith, Collins brought an action against one party for breach of contract and against a second party for tortious interference with contractual relations. The jury awarded $10,000 in actual damages on the breach-ofeontraet claim and $10,000 in actual damages for the tortiousinterference claim. After granting the defendants’ motions to amend the judgment, the trial court entered a single judgment of $10,000. The court of appeals affirmed. Id.

In affirming the award of a single judgment, the court explained as follows:

While the causes of action [of breach and tortious interference] involve separate and distinct wrongful acts committed by different parties, there are important commonalities which affect the damages question. The nexus between the two causes of action is the breach of the contract, for ... breach of the contract is an element of both causes of action. This is the element from which the injured party’s actual damages flow on both the contract and tort claims. This does not mean, however, that the measure of actual damages on both causes of action are coextensive.
Under the contract claim the injured party can recover actual damages for the direct and natural consequences of the breach, or for damages that were within the contemplation of the contracting parties. The damages recoverable for intentional interference are not measured by contract rules. The injured party can recover from the tortfeasor: the pecuniary loss of the benefits of the contract; conse*422quential losses for which the interference is the legal cause; and, emotional distress or actual harm to reputation if they are reasonably to be expected to result from the interference. Thus, the actual damages under the contract claim and tort claim will be coextensive only with respect to the lost benefits of the contract which were a direct and natural consequence of the breach, or within the contemplation of the contracting parties.
[The injured party] cannot collect double recovery (once from each defendant) for actual damages which are coextensive under the contract and tort claims.

Id. at 147-48, 503 S.E.2d at 482 (quoting Ross v. Holton, 640 S.W.2d 166 (Mo.Ct.App.1982) (internal citations omitted)) (emphasis added).

In the present case, Collins was awarded actual damages for the breach-of-contract claim in the amount of $232,628.00,2 plus $66,255.00 in pre-judgment interest. Collins was also awarded $157,449.663 in actual damages for the tortiousinterference claim, plus $1,569,013.00 in punitive damages.

In my view, Collins should not have received two separate actual damages awards for a single breach of contract. By awarding damages under both the breach-of-contract and tortious-interference claims, the trial court improperly awarded Collins the lost benefits of the contract twice. Because the evidence regarding damages was the direct and natural consequence of a single breach, Collins was not entitled to the full amount of actual damages under both causes of action.

While I disagree that the lost volume seller doctrine is applicable in a tort case, I would urge that if the doctrine is to be adopted that the doctrine be applied correctly.

*423Generally, the lost volume seller doctrine allows for the recovery of the lost profits resulting from the breach by showing that the party would have been able to enter into the beached contract and a subsequent contract even if there was no breach. Unique Designs, Inc. v. Pittard Machinery Co., 200 Ga.App. 647, 649, 409 S.E.2d 241, 243 (Ga.Ct.App.1991). However, the majority’s application of the doctrine allows for the double recovery from the same breach. In essence, the application of the doctrine by the majority allows for the recovery of one set of damages for the breach-of-contract and second recovery in tort for the tortious-interference with contract claim resulting from the same breach but brought about by joint actors.

As outlined above, in the present case, Collins settled its claim for breach of contract against Coats. In addition, Collins sought damages against American Bingo for tortious interference of contract. As a result, any recovery from American Bingo would have to be set off against any recovery from Coats. See Restatement 2d Torts § 774(2) (stating that payments made by the third person in settlement of the claim must be credited against the liability for causing the breach and go to reducing the damages for the tort). Accordingly, I write to prevent a third recovery on the part of Collins.

In addition, I disagree with the concurrence that the issue of double recovery is not before the Court. In my opinion, the issue arrives before this Court within the issue of when and how the lost volume seller doctrine is applied. As a result, I believe the Court should hold that the any recovery from American Bingo represents a double recovery and this amount should be offset from the Coats’ settlement.

Therefore, in my view, the court of appeals erred in using the lost volume seller doctrine to affirm the damages award. Moreover, in my view, the trial court’s calculation of damages was incorrect. Consequently, I would reverse and remand this case for a re-calculation of damages.4

BURNETT, J., concurs.

. This cause of action is also referred to as "intentional interference with contract.” Todd v. S.C. Farm Bureau Mut. Ins. Co., 287 S.C. 190, 192, 336 S.E.2d 472, 473 (1985).

. This award was calculated based on the terms of the contract signed by Collins and the other defendants, Coats and Coats Rental Amusements and Wayne Coats. The contract provides that in the event of a breach, Collins shall be "entitled to liquidated damages in an amount equal to Collins’ average weekly share of the contents of the coin boxes, prior to said breach, multiplied by the number of weeks remaining in the unexpired term of this agreement.”

. Like the award for breach of contract, the award for tortious interference was calculated by taking Collins' average revenue experience prior to the breach, multiplied by the number of weeks remaining in the contract. The difference in this award, though, is that license fees and other operating expenses were deducted from the final amount.

. On remand, the court should also reconsider the award of punitive damages. See McGee v. Bruce Hosp. Sys., 344 S.C. 466, 545 S.E.2d 286 *424(2001) (there must be an award of actual or nominal damages for a verdict of punitive damages to be supported).