2005-126, SYNCOM INDUSTRIES, INC. v. ELDON WOOD & a.

attorney’s fees on its claims of breach of contract, breach of fiduciary duty, and

awarding Syncom injunctive relief, compensatory and enhanced damages and appeal an order entered after a bench trial in the Superior Court (McHugh, J.) employees of plaintiff Syncom Industries, Inc. (“Syncom” or “the company”), BRODERICK, C.J. Defendants Eldon Wood and William Hogan, former

brief and orally), for defendant William Hogan. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

Davis on the brief and orally), for defendant Eldon Wood. Sheldon, Davis, Wells & Hockensmith, P.C., of Keene (James Romeyn

(William S. Gannon on the brief), for the plaintiff. Jr. on the brief and orally), and William S. Gannon, PLLC, of Manchester to press. Errors may be reported by E-mail at the following address: Law Offices of Paul M. Monzione, P.C., of Wolfeboro (V. Richards Ward,

page is: http://www.courts.state.nh.us/supreme. v.

SYNCOM INDUSTRIES, INC. d/b/a SYNCOM SERVICES

editorial errors in order that corrections may be made before the opinion goes No. 2005-126 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Company which he may learn while in the Company’s employ.

agreement on all the essential terms of a commission agreement. the matter among themselves, but Sinopoli and Wood never reached a final

the Company or any secrets or confidential information of the customers. [The employee] shall not disclose the private affairs of person, firm or corporation which may solicit business from such

commission was to be calculated, and various Syncom employees discussed

directly or indirectly, as principal, agent or employee, with any

[Sinopoli].” Sinopoli and Wood discussed the manner in which Wood’s per [week] . . . plus commission once sales level is exceeded per discussion with continuance of this Agreement a fixed compensation at the rate of $1,000.00

period the [employee] will not become interested in or associated, health insurance. of the Company. The [employee] also agrees that during such territory serviced by the Company while he was in the employment

fees and expenses incurred in such action.” Neither contract provided for business from any of the Company’s customers located in any

underlying Syncom’s breach of contract claims: contracts, Wood’s contract contained the following provision pertaining to by Syncom, Wood and Hogan, along with at least one other Syncom employee, In late November or early December 2001, while they were still employed

to enforce this contract, the Company shall be entitled to recover its attorney’s president and CEO, Matthew Sinopoli. without cause, the [employee] will not directly or indirectly, solicit

section titled “extent of services” that contained the two restrictive covenants regional manager. Each contract was for a term of three years and included a In addition to the restrictive covenants, which were common to both contract in September 2001, and served first as an area manager and later as a

Both contracts also provided that “[i]n any successful action by the Company for movie theaters. The company was established in 1995 by its current months) after termination of his employment, whether with or

and served as Syncom’s vice-president of sales. Hogan executed a similar

supported by the record. Syncom provides cleaning and maintenance services The [employee] . . . agrees that for a period of three (3) years (36

Wood executed a “key employment contract” with Syncom in June 2001,

The following facts were found by the trial court or are otherwise

vacate in part and remand. loss of business reputation and goodwill. We affirm in part, reverse in part, theaters, Imax, Movies 10, Neshaminy 24 and Tinseltown (the non-Regals). p. 3 E) with the Connecticut Secretary of State.

Regal theaters (the diverted Regals) and displaced Syncom at four additional counsel, Wood filed articles of organization for Big E Theater Cleaning, LLC (Big Syncom. Subsequently, Big E entered into cleaning contracts with six other his employment contract. York City (Empire 25) that he had previously spent six months soliciting for

payments and his suspension. Two days later, with the assistance of legal would consider doing so, and threatened to breach the restrictive covenants in January 14, 2002, Wood resigned from Syncom, citing the lack of commission his resignation, Wood secured as a Big E client an AMC theater complex in New without pay from January 14 through January 20, 2002. By letter dated matters. One day in early February, before he was terminated, Hogan went to

he was planning to form a rival company. He denied it, but indicated that he Ronkonkoma are referred to collectively as “the Regals”). Within six weeks of 2002, Wood’s superiors at Syncom confronted him with their suspicions that For that offense, DeSimone informed Wood that he would be suspended Regal Brandywine, Regal Burlington, Regal Cumberland and Regal three Regal theaters he had lined up as his future customers. On January 2, February, Big E had also displaced Syncom at Regal Ronkonkoma (hereinafter, tasks for Big E such as providing production rates and advising on budgetary

[he, Wood] had approached [his] father for funding for [his] start-up company.” costs he expected to incur in the course of providing cleaning services to the by telling the President of the company, in front of the Sr. Vice President, that solicited for Big E while he was still employed by Syncom. By the end of Wood resigned but before Hogan was terminated, Hogan performed various [attempting to start his own competing business and trying to destroy Syncom]

Wood asked his father to loan him $30,000 to cover three weeks of payroll performing cleaning and maintenance at the three Regal theaters Wood had On February 11, 2002, Syncom terminated Hogan’s employment. After from Syncom and the establishment of his new company. In late December, only openly refused to deny, but . . . cemented [his] participation in this offense Cumberland, and lined them up as customers for himself upon his departure

Within two weeks of Wood’s resignation from Syncom, Big E began operations, Carl DeSimone, sent Wood a memorandum noting that Wood “not Syncom’s customers, Regal Brandywine, Regal Burlington and Regal

After the January 2 meeting, Syncom’s senior vice-president of new company. Also during that month, Wood negotiated with three of in Connecticut, during working hours, to discuss the establishment of Wood’s Wood, Hogan and another Syncom employee, Fabio Flores, met at a restaurant

envisioned as a competitor to Syncom. On one occasion in December 2001, began plans to establish a new movie theater cleaning company, which they appeal followed. p. 4 extent of defining one of the terms in its injunction but otherwise denied. This

judgment of $3,650,000 against him. breach of contract. Flores defaulted, and the trial court awarded Syncom a

motion for reconsideration and clarification which the trial court granted to the

sought compensatory and enhanced damages. Hogan filed a counterclaim for

compensatory damages and $100,000 in attorney’s fees. The defendants filed a awarded Syncom $1,145,700 in compensatory damages, $250,000 in enhanced Syncom for a period of eighteen months, starting on January 1, 2005, and

Syncom’s motion to add a claim for breach of fiduciary duty, for which it

deemed him a fiduciary of Syncom; and (3) Hogan’s argument that the trial

the defendants from rendering services to any current or former customer of

a result of violating the restrictive covenants. During trial, the court granted and (5) award Syncom an amount equal to the profits the defendants earned as accounting of their dealings with any current or former Syncom customers; 4

fiduciary of Syncom; (2) Hogan’s argument that the trial court incorrectly

fiduciary duties to Syncom. Based upon those rulings, the trial court enjoined

or former Syncom customers; (4) require the defendants to provide a complete

court: (1) Wood’s argument that the trial court incorrectly deemed him a have not been preserved for our review because they were not raised in the trial ruled that Wood and Hogan breached both the restrictive covenants and their which we will consider in turn. First, however, we identify three issues that Between their two briefs, the defendants raise more than a dozen issues

breached the employment contract. Hogan defended on similar grounds.

permanently enjoin the defendants from rendering any services to any current and contracted with theaters in violation of the restrictive covenants; (3) contracts; (2) determine that the defendants, through Big E, solicited business

The trial court denied Hogan’s counterclaim for breach of contract and

unreasonable, and also were unenforceable because Syncom materially unenforceable as a matter of law because they were overly broad and otherwise trial, Wood argued, among other things, that the restrictive covenants were Syncom’s claims against Wood and Hogan were tried to the court. At

defendants were bound by the restrictive covenants in their employment

after Syncom terminated Hogan, Big E hired him. on various dates in March 2002. In May 2003, approximately fifteen months Syncom information were recovered from Wood’s trash. Those faxes were sent

Flores. Specifically, Syncom asked the court to: (1) declare that the judgment, permanent injunction and other relief against Wood, Hogan and In May 2002, Syncom brought a verified petition for declaratory

in late March or thereafter, several faxes from Hogan containing confidential Wood’s home during working hours, carrying a stack of papers. At some point the course of employment; contacts developed during the employment; and the

p. 5 employee’s special influence over the employer’s customers, obtained during trade secrets, such as information on a unique business method; an information communicated by the employer to the employee, but not involving

communicated to the employee during the course of employment; confidential the public interest. hardship upon the employee; and third, whether the restriction is injurious to

restraint is narrowly tailored to protect those interests. 5

competition include: the employer’s trade secrets that have been unreasonably broad and, consequently, unenforceable. We disagree. court rejected the defendants’ arguments that the covenants were interests of the employer; second, whether the restriction imposes an undue affiliated with a person or organization that solicited such business. The trial identify the legitimate interests of the employer, and to determine whether the

N.H. at 197. Legitimate interests of an employer that may be protected from first, whether the restriction is greater than necessary to protect the legitimate Merrimack Valley, 152 Company while [they were] in the employment of the Company” or to become The first step in determining the reasonableness of a given restraint is to circumstances of the case. (1991). the contract was entered into. Technical Aid Corp. v. Allen, 134 N.H. 1, 8 a restrictive covenant is reasonable, the court will look only to the time when competition. the restriction is unreasonable and unenforceable. Id. In determining whether

covenant ancillary to an employment contract, we employ a three-pronged test: from any of the Company’s customers located in any territory serviced by the for this court to decide. Id. To determine the reasonableness of a restrictive three years after leaving Syncom, not to “directly or indirectly, solicit business Id. A covenant’s reasonableness is a matter of law as a matter of law. The covenants obligated the defendants, for a period of valid and enforceable if the restraint is reasonable, given the particular Such contracts are narrowly construed. Id. However, restrictive covenants are

Merrimack Valley Wood Prods. v. Near, 152 N.H. 192, 197 (2005).

The law does not look with favor upon contracts in restraint of trade or

Both defendants argue that the restrictive covenants are unenforceable

whether the opposing party objects on [that] ground[ ]”). that the supreme court may consider the issue of preservation “regardless of forum.”); Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (explaining review issues raised on appeal that were not first presented in the trial Roofing Co., 151 N.H. 391, 393 (2004) (“It is well established that we will not court erred by failing to apportion damages. See Tiberghein v. B.R. Jones that were the intent of the covenants, they could have been written to prohibit

p. 6 information about all Syncom customers.

acquired about Syncom customers during the course of their employment. If interest in protecting its goodwill.

unique business model provided the defendants with important inside

protect Syncom’s legitimate interest in information Wood and Hogan may have were broader than necessary for the purpose of advancing Syncom’s legitimate

Syncom customers with whom they had no direct contact because Syncom’s employment.

from the employer’s entire customer base sweeps too broadly. customers, a covenant that restricts a former employee from soliciting business information about their customers gained by employees during the course of

long. Wood also argues, citing The restrictive covenants in this case are broader than necessary to Syncom customers with which Wood and Hogan had no direct contact, they

Id. covenants reasonably restricted the defendants from doing business with knowledge or understanding of those customers during the course of his or her

undue hardship upon him. Syncom argues, to the contrary, that the employee had no direct contact, so long as the employee gained significant appropriate any of the company’s goodwill; and (3) the covenants imposed an a former employee from soliciting business from customers with which that

employer seeks to protect with a restrictive covenant is its goodwill with However, employers also have a legitimate interest in protecting

covered both current and former Syncom customers; and (5) extended for too him from soliciting any theater in a chain with a theater served by Syncom; (4) never operated and theaters with which he never had contact; (3) prevented 134 N.H. at 10. Because the restrictive covenants in this case extended to competing with former practice for new patients was overbroad); Technical Aid, 440, 443 (1997) (holding that restrictive covenant prohibiting physician from Valley, 152 N.H. at 198; Concord Orthopaedics Prof. Assoc. v. Forbes, 142 N.H. company’s goodwill; (2) he worked for Syncom for too short a time to See Merrimack

It is well established in our case law that when the legitimate interest an

customers when he worked for the company; (2) included areas in which he

have the type of job with Syncom that allowed him to appropriate the argues that the covenants are unenforceable as to him because: (1) he did not of Syncom’s conduct, the covenants cannot be judicially reformed. Hogan

unenforceable because they: (1) covered theaters that were not Syncom Wood argues that the restrictive covenants are unreasonable and thus

Serv. Corp. v. Olsten Staffing Serv., 145 N.H. 158, 160 (2000). employer’s development of goodwill and a positive image. Nat’l Employment to protect Syncom’s legitimate interest in its proprietary information.

p. 7 strategy, we conclude that the restrictive covenants are broader than necessary

covenants is not cured by Syncom’s invocation of its top-down marketing

reverse that ruling. hold that the trial court erred by ruling to the contrary. Accordingly, we 7

employment, thus placing the question of reformation before us. We express

while working for Syncom, and because that deficiency in the framing of the rather than just those customers about which they had gained information covenants barred the defendants from soliciting all of Syncom’s customers,

unenforceable because they are unreasonably broad in their scope. Thus we

the restrictive covenants in light of Syncom’s conduct during and after his N.H. at 200. And indeed, Wood argues in his brief that we should not reform good faith in the execution of the employment contract. Merrimack Valley, 152 reform overly broad restrictive covenants if the employer shows that it acted in That is not, however, the end of the matter. Courts have the power to

rather than attenuated and speculative. Here, because the restrictive

As a matter of law, the two restrictive covenants at issue are new patients.”

information contemplated by employer for new patients. within several weeks of being hired, could have gained the kind of inside

employer may protect with a restrictive covenant must be direct and concrete Orthopaedics stands for the general proposition that the legitimate interests an subset of referring physicians.” Id. While not directly on point, Concord

Id. In other words, we declined to “consider new patients a

physicians generate new patients, [the employer had] a legitimate interest in all employee doctor] had actual contact with referring physicians, and those same time, however, we rejected the employer’s argument that “because [the

practice could not prohibit a former employee from competing with his former difficult to imagine how the defendants, had they terminated their employment do not accept that reasoning. In Concord Orthopaedics, we held that a medical company’s knowledge of its customers could be imputed to every employee, we “top-down” marketing strategy somehow created a situation in which all of the covenants barred the defendants from soliciting “business from Moreover, while Syncom appears to argue, at least implicitly, that its

independent of the knowledge he may have gained as a Syncom employee. theater industry, which provided him with knowledge of Syncom customers hired Wood in part to gain the benefit of Wood’s previous experience in the customers in all of its territories. And, as the record demonstrates, Syncom

[they were] in the employment of the Company.” (Emphasis added.) It is Company’s customers located in any territory serviced by the Company while

they had gained information while employed by Syncom. But, as drafted, the the defendants from soliciting business from Syncom customers about which p. 8 Syncom far more than the amount Wood claimed to have been owed.

the time he resigned, that would not have justified his actions, which cost

that even if Wood had proved that Syncom owed him $5,370 in commissions at entitled to recover the sum of $5,370” for unpaid commissions. It also noted conclude that . . . Wood ha[d] not sustained his burden of proof that he [was] 8

with a suspension without pay in violation of RSA 275:43-b, I (1999).

unenforceability. of judicial efficiency, we will consider the defendants’ arguments regarding reached as to how commissions were to be calculated, [it was] compelled to

meeting of the minds on all essential terms in order to form a valid contract. Behrens v. S.P. Constr. Co., 153 N.H. 498, 501 (2006). There must be a Offer, acceptance, and consideration are essential to contract formation.

material anticipatory breach of the employment contract by threatening him to pay him commissions he claims to have earned; and (2) committed a him because Syncom: (1) breached its employment contract with him by failing

reform them as to either or both of the defendants. Accordingly, in the interest The trial court held that “because there was never a specific agreement liable.

1. Commissions

breach by the employer of his own obligations under the contract.

aspects of the covenants are open to possible reformation. Wood argues that the restrictive covenants are unenforceable against

A. Wood’s Arguments for Unenforceability as drafted, are unenforceable, the possibility remains that the trial court could under the circumstances of this case. While we have ruled that the covenants, Id. wrong for breach of contract should not seek to hold his counter-promisor covenants are not unenforceable as a matter of law, they are unenforceable Clinic, Inc. v. Cullen, 119 N.H. 804, 807 (1979). One who is himself guilty of a

competition by the employee may not be enforced where there has been a A restrictive clause in an employment contract preventing future

restrictive covenants, and have properly preserved those challenges, both defendants have challenged both the geographic and temporal scope of the determinations, it is for the trial court to consider on remand. Finally, as the

Wood and Hogan both argue, on multiple grounds, that if the restrictive

the defendants. Rather, as resolution of that issue will require factual no opinion on whether the covenants should be reformed as to either or both of record demonstrates that the parties in this case, unlike those in

p. 9 complying with the restrictive covenants.

notwithstanding the participation of other Syncom employees in sales, the

Syncom’s failure to pay commissions was not a breach that excused Wood from

himself involved other Syncom employees in the sales process. However, than Wood had contributed. Moreover, the record demonstrates that Wood employment contract, and, therefore we affirm the trial court’s ruling that partially developed sales “in the pipeline” to which Syncom employees other argument that Syncom’s failure to pay commissions was a breach of the commission agreement. Accordingly, the trial court correctly rejected Wood’s

hiring, it is reasonable to conclude that at the time Wood was hired, there were

company’s first salesman, and, necessarily, had made sales prior to Wood’s Syncom had operated for more than five years prior to hiring Wood as the employees involved in making a particular sale. Because Syncom and Wood employees. Obviously, that was a matter of some importance. Given that

manner in which credit for sales was to be given to the various Syncom to be calculated on sales made partly by Wood and partly by other Syncom Chicago-Soft, 142 N.H. 752, 755 (1998), reached no agreement concerning the

when [Wood] left the company.”

by the record. Moreover, this is not a case such as meeting of the minds concerning the calculation of commissions is supported finding that the parties reached no agreement regarding how commissions were commissions once his sales reached $200,000, it also supports a factual While the record establishes that Syncom agreed to pay Wood

both parties’ versions, terming the commission formula “a work in progress id. at 799. Rather, this is a case in which the trial court essentially rejected of a commission agreement over the version propounded by the other party, see Inc., 126 N.H. 796 (1985), in which the trial court accepted one party’s version

The trial court’s finding that the parties failed to reach a complete

Behrens, 153 N.H. at 500-01. unless they are lacking in evidentiary support or tainted by an error of law. In such circumstances, we will sustain a trial court’s findings and conclusions contract, it is to be determined by the trier of fact. Chisholm, 150 N.H. at 145. When there is a disputed question of fact as to the existence and terms of a contract must be definite in order to be enforceable. Behrens, 153 N.H. at 501. Nashua Indus. Corp., 150 N.H. 141, 145 (2003). Moreover, the terms of a terms. Id. This is analyzed under an objective standard. Chisholm v. Ultima Id. A meeting of the minds is present when the parties assent to the same hour laws is a p. 10 be the premise of Wood’s argument; namely, that any violation of wage and anticipatory breach of the key employment contract. We reject what seems to

imposed, would have violated RSA 275:43-b but would not have been an

benefits; and (3) sought equitable relief with unclean hands. its employment contract with him by failing to provide him with health

incongruous for the court to determine that the suspension, if actually 10 complete abandonment of Syncom’s contractual obligations, it was not the context of a three-year employment agreement, was hardly tantamount to a contract that excused Wood from complying with the restrictive covenants. the January 10 letter was not a material anticipatory breach of the employment

when it was first presented to him, on his first day of employment; (2) breached

intent to impose a one-week suspension. Because a one-week suspension, in

we affirm the trial court’s determination that the disciplinary action stated in

him because Syncom: (1) required him to sign the key employment contract Hogan argues that the restrictive covenants are unenforceable against

B. Hogan’s Arguments for Unenforceability

obligations under the key employment contract. Rather, it merely signaled its

employment contract. payments on a loan with little or no prospect of resumption. obligations he or she may have under a contract of employment. Accordingly, to impose that action constituted a material anticipatory breach of the key per se anticipatory breach that relieves an employee of any suspension without pay for one week – violated RSA 275:43-b, Syncom’s threat payments it owed a landscaping contractor.

by contrast, Syncom did not threaten a complete abandonment of its

action that constituted an anticipatory breach was a cessation of installment Horst, 105 N.H. 380 (1964), our other leading anticipatory breach case, the contends that because the disciplinary action stated in the January 10 letter – Id. at 295. Similarly, in Hoyt v. approximately three years, to make any of the nineteen separate $1,000 anticipatory breach in LeTarte was a developer’s failure, over the course of Side Dev. Group, 151 N.H. 291, 294 (2004). The action that qualified as an himself from performing them before the time for performance. LeTarte v. West repudiates his obligations either through words or by voluntarily disabling An anticipatory breach of contract occurs when a promising party

him from his obligation to abide by the restrictive covenants. Specifically, he January 10, 2002 disciplinary action was an anticipatory breach that relieved Wood next contends that the trial court erred by failing to find that the

2. Disciplinary Action asked the court to rule that Syncom breached the employment contract by

p. 11 a request that it find Hogan had been terminated without cause. Hogan also

the restrictive covenants. to litigation to obtain relief. The trial court granted those requests, but denied Syncom failed to pay him certain wages and expenses and forced him to resort for findings of fact and rulings of law, Hogan asked the trial court to find that

way, we leave this issue to the trial court. breach of the employment contract that relieved him of his obligations under

unclean hands bar it from enforcing the restrictive covenants. In his request

reform the restrictive covenants. by Hogan is the kind of bad faith that would allow the trial court to decline to

the reformed covenants were unenforceable due to Syncom’s bad faith. Either the record. Accordingly, we reject Hogan’s argument that Syncom committed a never took. We cannot say that the trial court’s findings are not supported by obtaining coverage and submitting the paperwork to Syncom, steps that Hogan Therefore, according to Hogan, under the principles of equity, Syncom’s forced him to resort to litigation to collect unpaid wages and expenses. covenants, it had unclean hands because it terminated him without cause and

court must, of necessity, address this issue because duress of the sort claimed

acted in good faith, then it would, necessarily, reject Hogan’s argument that

offered Hogan partial reimbursement for health coverage, subject to Hogan’s

Hogan also argues that when Syncom sought to enforce the restrictive

3. Unclean Hands

upon it. On remand, when considering the question of reformation, the trial duress in his closing argument, but the trial court appears not to have ruled court’s rejection of Hogan’s argument on this point. Hogan raised the issue of their enforceability. However, if the trial court were to determine that Syncom due to Syncom’s bad faith, then there would be no need to further address court were to determine that the restrictive covenants could not be reformed court also found that, notwithstanding the terms of the agreement, Syncom contract did not obligate Syncom to provide him with health benefits. The The trial court found, as a factual matter, that Hogan’s employment

2. Health Benefits

employment. Syncom contends that the factual record supports the trial

employer acted in good faith in the execution of the contract.”). If the trial may partially enforce an overly broad restrictive covenant if it finds that the

required to sign it, on his first day of work, after he had left his previous contract are unenforceable because he was first shown the contract, and According to Hogan, the restrictive covenants in the key employment

1. Duress p. 12 Hogan’s alleged breach of fiduciary duty.

information; and (2) we should defer to the findings of the trial court regarding rejected Hogan’s “incredible testimony” that he did not disclose confidential covenants. In response, Syncom contends that: (1) the trial court properly

are critical components of the [Syncom] Model. 12 in determining that he violated the non-disclosure provision of the restrictive and pending sales efforts and sales techniques and contacts, that operations people, pricing, past and pending proposals and past

evidentiary support or are legally erroneous. of Syncom to Wood’s home.

participated in divulging Syncom’s confidential information, it necessarily erred inspection program, subcontractor labor base, managers, 183, 184 (2005). We defer to the trial court’s judgment on such issues as

We will uphold the findings and rulings of the trial court unless they lack confidential documents, proprietary information and trade secrets of unclean hands. Thus, that issue is not preserved for our review. here, that Syncom’s conduct was sufficient to trigger application of the doctrine

According to Hogan, because the trial court incorrectly determined that he had files, documents, policies, procedures, quality control program, belonging to the Plaintiff, including its customer lists, database, confidential and proprietary information and trade secrets 56. While still employed with Syncom, Hogan delivered

indicate that Hogan presented the trial court with the argument he makes. . . . court’s factual findings: Wood quit and when [he] was fired.” Specifically, he challenges two of the trial

February 10 or 11 when Hogan resigned, the Defendants took 52. Between January 14, 2002 when Wood resigned and

compliance with the restrictive covenants, there is nothing in the record to failure to pay wages and expenses was a breach of contract excusing his trial court denied that request. While Hogan asked the trial court to rule that divulging confidential information during the several weeks between when . . . Hogan argues that the trial court erred in finding that he “participated in

Tiberghein, 151 N.H. at 393.

employment; and (2) pay lawful wages and expenses after his termination. The failing to: (1) provide health insurance and profit sharing during his accounts it allegedly stole from Syncom. Because the defendants’ first two

p. 13 requested in its petition were limited to the profits Big E earned from the

barred from awarding Syncom its own lost profits because the damages it damages was speculative and inherently unreliable; and (4) the trial court was the defendants ever had any contact with them; (3) all of Syncom’s evidence on

Syncom customers during the defendants’ tenure with the company, neither of

damages were improper for the non-Regals because, while those theaters were Syncom, and the defendants never solicited business from those theaters; (2) those theaters were not Syncom customers when the defendants worked for

has evidentiary support. the defendants: (1) damages for the diverted Regals were improper because restrictive covenants, we need not decide whether finding number fifty-six also court’s determination that Hogan violated the non-disclosure portion of the

December 13, 2004, the date of the trial court’s post-trial order. According to and Empire 25 from the time of the defendants’ departure from Syncom until number fifty-two has evidentiary support, and is a sufficient basis for the trial Syncom would have made from the Regals, the diverted Regals, the non-Regals,

disclosure provision in the restrictive covenants. Finally, because finding $1,145,700 in compensatory damages. That total was composed of profits Hogan that the trial court erred by determining that Hogan violated the noninformation for the purpose of providing it to Wood, we cannot agree with

compensatory damages was incorrect. The trial court awarded a total of support for the trial court’s finding that Hogan took confidential Syncom it, took that information from Syncom at a time when he had legitimate access to

characterization of that material as confidential or proprietary.

Both defendants argue that the trial court’s computation of determination regarding finding number fifty-two. Because there is evidentiary information was faxed in March, after Hogan was terminated, he necessarily IV

transmitted to us, so we are hardly in a position to question the trial court’s was before the trial court, in the form of exhibits, it is not in the record transmitted to Wood was not confidential or proprietary. While that material

support the result reached by the trial court”). Thus, we affirm the trial court’s record, the supreme court “must assume that the evidence was sufficient to there was evidence that Hogan faxed Syncom information to Wood. While that N.H. at 250 (explaining that when trial evidence is not included in the appellate

for the purpose of providing it to Wood. Hogan argues that the material he court to find, in light of the facts of the case, that Hogan took that information i.e., prior to his termination, and it would have been reasonable for the trial

Finding number fifty-two does not lack evidentiary support. At trial,

determining the weight to be given evidence. Id. resolving conflicts in the testimony, measuring the credibility of witnesses and necessary.

p. 14 this time whether the defendants’ litigation tactics warranted an award of

damages and remand for such further proceedings as the trial court deems the scope of the restrictive covenants, we vacate the award of compensatory damages. However, because a proper calculation of damages will depend upon fees should be awarded under the employment contract, we decline to decide at

unreasonably in relying upon the evidence before it in making an award of under the contract. Because it may be determined on remand that attorney’s Syncom to an award of attorney’s fees and expenses if it prevails in an action fees to Syncom. The key employment contract, however, plainly entitles

unchanged over time.

overhead costs are. In sum, we cannot say that the trial court acted

Both defendants argue that the trial court erred by awarding attorney’s

earnings was, among other things, based upon an assumption – refuted by their burden of proof on damages when their calculation of prospective lost

sufficient to support

Syncom charges its customers, how much it pays its contractors, and what its Sinopoli which was, in turn, based upon his direct knowledge of how much erroneous. Syncom’s projected lost profits were supported by the testimony of Matthew

we held that the trial court properly ruled that the plaintiffs failed to sustain Rytman, 122 N.H. 777 (1982), upon which the defendants rely. In that case, We begin by noting that this case is not analogous to Whitehouse v. at this point only whether the quality of the evidence before the trial court was scope of the restrictive covenants, a question we are remanding, we will decide award of damages was reasonable. Id. Moreover, because the actual amount of the damage award depends upon the computing damages. Id. The law does, however, require an indication that the

Id. New Hampshire law does not require mathematical certainty in

(2003). We will overturn a damage award only if we find it to be clearly for our review. favorable to the prevailing party. T&M Assocs. v. Goodrich, 150 N.H. 161, 164 did not raise their fourth issue before the trial court, it has not been preserved In reviewing damage awards, we view the evidence in the light most

question may be helpful to the parties on remand. the record is sufficient for such a determination and because resolution of this

inherently unreliable evidence and subsequently misunderstood that evidence. defendants’ third argument, that the trial court awarded damages based upon

See Tiberghein, 151 N.H. at 393. Thus, we consider only the

remanding, we decline to address them. In addition, because the defendants arguments depend upon the scope of the restrictive covenants, a matter we are p. 15 15

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

the trial court has ruled upon the other remanded issues. (2000). We vacate the award of attorney’s fees for further consideration after attorney’s fees under the common law. See Kukene v. Genualdo, 145 N.H. 1, 3