Mccall v. Ikon

Decision Date12 December 2008
Docket NumberNo. 4466.,4466.
Citation380 S.C. 649,670 S.E.2d 695
CourtSouth Carolina Court of Appeals
PartiesJonathan S. McCALL, Appellant, v. IKON, d/b/a IKON Educational Services, Respondent.

Duke K. McCall, Jr., of Greenville, for Appellant.

Sandi R. Wilson and Keith D. Munson, of Greenville, for Respondent.

HUFF, J.

Jonathan S. McCall appeals from an order of the circuit court finding him entitled to damages of $24,379.33 on his breach of contract action against IKON Educational Services. We affirm.

FACTUAL/PROCEDURAL HISTORY

This matter originally came before this court on IKON's appeal from the denial of relief from a default judgment against it and in favor of McCall. Finding IKON did not receive sufficient notice of the damages hearing, we remanded the matter to the circuit court for a new hearing on damages. McCall v. IKON, 363 S.C. 646, 611 S.E.2d 315 (Ct. App.2005).

During this hearing, the parties presented evidence that in November 2001, McCall signed an agreement with IKON for an "Enterprise Training Pass," entitling him to twelve months of unlimited course attendance at any scheduled IKON public systems training course in certain specified areas, including Microsoft, Novell and Lotus. McCall entered the course of study with the goal of becoming a Microsoft Certified Systems Engineer, and paid IKON tuition of $12,500. At that time, McCall held a Bachelor's degree in biology, as well as a Master's degree in forestry, and had worked for a number of years in the forestry related area.

In order to become a certified Microsoft Systems Engineer, McCall needed to pass tests in seven different courses that were administered by an independent agency. McCall began attending IKON classes on November 19, 2001, and completed three courses. He subsequently passed two of the seven required tests. However, IKON sold the company to CESC in the last quarter of 2001 and, thereafter, on January 2, 2002, CESC chose to cease operating in the Greenville area.

After learning of the closing, McCall went to the training facility and requested a refund of $12,500. On January 9, 2002, McCall filed the present breach of contract action, against IKON and CESC. McCall, 363 S.C. at 650, 611 S.E.2d at 316. On January 24, 2002, Clint Babcock sent McCall an e-mail with a document attached, requesting McCall sign and return the form to "cesc/IKON Education" if he agreed to the terms. The document offered a refund to McCall in exchange for McCall signing a release.1 McCall testified he did not consider the document an offer, "because [he] never saw the check."

Thereafter, McCall began looking for a job and ultimately went to work for Schneider Tree Care as a consulting arborist in July 2002, where he earned approximately $35,000 a year. He continued his employment with Schneider until June 2004, at which time McCall left that job in order to pursue a Ph.D. in horticulture at Clemson University. McCall stated he worked as a graduate assistant while pursuing that degree, earning about $7,500, however, the program was discontinued within six months due to lack of research funding and McCall's position was terminated.2 On March 21, 2005, McCall began work with the North Carolina Forest Service, earning $33,942 a year. In May 2003, during the time he was working at Schneider's and well before he entered the Ph.D. program, McCall received a settlement of $25,000 from CESC.3

McCall admitted that in January 2002, he was aware of two or three other courses available in the area that were sufficient for him to obtain the certification he sought and were less expensive. He further agreed that after CESC stopped providing training in the area in January 2002, he did not enroll in any of the other available computer classes. McCall claimed, however, that his lack of funds, created by the actions of IKON, kept him out of a career in computers. He asserted at trial that he was entitled to damages of $12,500 plus prejudgment interest for the tuition he paid, lost wages for a period of six months, and interest of six percent incurred on the money borrowed for the tuition.

McCall further presented Dr. Charles Alford as an expert witness in economics and business valuation.4 Dr. Alford testified he computed the present value difference between a projection of lifetime earnings McCall would have received had he entered a career in the computer field as opposed to a projection of lifetime earnings in the forestry field in which McCall was currently working. Dr. Alford compared McCall's current wages of $33,942 in forestry and his projected future earnings were he to stay with his current job against data from a South Carolina Occupational Employment and Wage report indicating the projected income of someone working as a systems administrator in the computer field at the time McCall would have finished the IKON program, along with his projected future income in that field. He opined that if McCall had become a computer systems engineer, he would receive $340,406 more in lifetime income and fringe benefits than he would if he remained a forester.

On cross-examination, Dr. Alford admitted he was not a vocational expert and was not qualified to determine employability. He testified he based his determination on projections for a network and systems administrator because McCall had identified that as his career objective, but agreed McCall had no employment history in the computer field and acknowledged he was not willing to offer testimony that McCall could have been employed as such. Dr. Alford also agreed his figures did not include starting McCall out at projected entry level earnings for a forester because he knew McCall's actual earnings at that time. He further admitted he did not take into account in the forestry earnings projection that McCall had years of experience as well as a Master's degree in forestry. He consistently stated that if the court were to determine McCall did not earn as much as he could have earned in the forestry field, the figures should be adjusted or "the whole thing [should] be set aside."

Dr. Benson Hecker testified on behalf of IKON as an expert in the area of vocational evaluation. Dr. Hecker testified, as a vocational evaluation specialist, he looked at a person's age, education, vocational background and skills, along with the job market to "put together an opinion regarding a person's capacity to earn money," to aid the court in determining a person's employability and salary levels. After reviewing information on McCall relative to these factors, as well as obtaining information from The U.S. Department of Labor Statistics showing State Occupation and Employment Wage Estimates for South Carolina, and further contacting Clemson University with regard to salary levels, Dr. Hecker was of the opinion that McCall would suffer no loss of earning capacity as a result of the cancellation of the computer program.

In reaching his conclusion, Dr. Hecker opined McCall could have entered the forestry field in North Carolina at the mean salary level rather than at entry level, and determined the appropriate figure to use for determining McCall's expected salary in forestry was the mean salary level of between $51,000 and $52,000 based on McCall's experience and background. Dr. Hecker further testified it was his opinion McCall's failure to take the refund offered in January 2002 delayed his completion of a program and continuation of his education, and further delayed his entry into the job market. Had McCall been dedicated to entering the computer field, he reasonably would have accepted the offer and continued his education. As a result, there would be no loss. Additionally, Dr. Hecker noted McCall's receipt of the $25,000 settlement proceeds in May 2003 and his failure to continue his education in the computer field at that time indicated McCall's desire to work in the forestry industry instead of the computer field. It was his opinion that the best occupational career path for McCall was, and continued to be, in the forestry field. According to Dr. Hecker, Dr. Alford's present value calculations were of no import because he was of the opinion McCall suffered "no loss of earning, no loss of wages."

IKON also presented the testimony of Peter Tiffany, a Certified Public Accountant. Mr. Tiffany was offered and qualified as an expert in the area of computation of present values. Given the $52,000 mean salary figure for foresters in Dr. Hecker's report, Mr. Tiffany used the same inflation rates, growth rates and discount rates as Dr. Alford used in his analysis to project present value and determined, using the same assumption as Dr. Alford for the projected present value of earnings in the computer field, that the projected earnings in the forestry industry would be greater than those in the computer industry, resulting in no loss of earning capacity for McCall. Mr. Tiffany likewise performed the same calculations based on an average $40,000 starting salary range for foresters, taken from Dr. Hecker's report indicating such starting range is between $35,000 and $45,000, as well as on a mean salary range of $49,538 taken from an exhibit from Dr. Alford's deposition. In both cases, the present values of the forestry earnings compared to the computer earnings resulted in a negative net result, showing no loss of earnings in the forestry field compared to the computer industry.

Based on the evidence presented, the circuit court found McCall was entitled to damages in the amount of $24,379.33. The court held the testimony of IKON's witnesses was more reliable, credible, and persuasive, and that Dr. Alford's opinion was not "reliable or probative on the issue of damages." The court noted, although McCall testified of his desire to pursue a career in computers, there was little evidence to support this assertion, the vast majority of McCall's education and employment was in forestry related fields,...

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