{ "id": 8524827, "name": "UNITED LABORATORIES, INC., a Delaware Corporation, Plaintiff v. WILLIAM DOUGLAS KUYKENDALL and SHARE CORPORATION, a Wisconsin Corporation, Defendants", "name_abbreviation": "United Laboratories, Inc. v. Kuykendall", "decision_date": "1991-04-16", "docket_number": "No. 9028SC97", "first_page": "484", "last_page": "496", "citations": [ { "type": "official", "cite": "102 N.C. App. 484" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "370 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": -1 }, { "cite": "322 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518481 ], "year": 1988, "opinion_index": -1, "case_paths": [ "/nc/322/0643-01" ] }, { "cite": "361 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": -1 }, { "cite": "87 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358308 ], "year": 1987, "opinion_index": -1, "case_paths": [ "/nc-app/87/0296-01" ] }, { "cite": "319 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "70 N.C. 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App.", "case_ids": [ 8527244 ], "year": 1989, "pin_cites": [ { "page": "369", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0367-01" ] }, { "cite": "342 S.E.2d 896", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694693, 4700070, 4693586, 4700021, 4698716 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0378-02", "/nc/316/0378-03", "/nc/316/0378-01", "/nc/316/0378-04", "/nc/316/0378-05" ] }, { "cite": "338 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519376 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0051-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 75-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "364 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570563, 2567951, 2571154, 2571737, 2569151 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0473-05", "/nc/321/0473-04", "/nc/321/0473-01", "/nc/321/0473-03", "/nc/321/0473-02" ] }, { "cite": "362 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "88 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357753 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0044-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "347 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736775, 4740168, 4739944, 4736235, 4733980 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0283-02", "/nc/318/0283-05", "/nc/318/0283-04", "/nc/318/0283-01", "/nc/318/0283-03" ] }, { "cite": "344 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523445 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0421-01" ] }, { "cite": "333 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685783 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0219-01" ] }, { "cite": "382 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491117, 2492336, 2488371, 2490743, 2489723 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0271-01", "/nc/325/0271-05", "/nc/325/0271-02", "/nc/325/0271-04", "/nc/325/0271-03" ] }, { "cite": "379 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "94 N.C. 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App.", "case_ids": [ 8524125 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0013-01" ] }, { "cite": "378 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482087, 2482122, 2482350, 2485396, 2484925 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0246-03", "/nc/324/0246-05", "/nc/324/0246-01", "/nc/324/0246-04", "/nc/324/0246-02" ] }, { "cite": "373 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8526897 ], "year": 1989, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0215-01" ] }, { "cite": "90 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621927 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0131-01" ] }, { "cite": "160 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "73-4" } ], "opinion_index": 0 }, { "cite": "273 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575009 ], "year": 1968, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0228-01" ] }, { "cite": "318 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 327", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522000 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0327-01" ] }, { "cite": "300 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 736", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523830 ], "year": 1983, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0736-01" ] }, { "cite": "113 S.E. 606", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1965, "opinion_index": 0 }, { "cite": "184 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269243 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/184/0101-01" ] }, { "cite": "248 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567240, 8567274, 8567124, 8567193, 8567162 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0647-04", "/nc/295/0647-05", "/nc/295/0647-01", "/nc/295/0647-03", "/nc/295/0647-02" ] }, { "cite": "246 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552003 ], "year": 1978, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0240-01" ] } ], "analysis": { "cardinality": 1104, "char_count": 28430, "ocr_confidence": 0.765, "pagerank": { "raw": 5.417752340224265e-07, "percentile": 0.9446751528757082 }, "sha256": "47fb454e9bec3d8c7d3092903b84444cbc8d39d915410ebd877ab5db2adce573", "simhash": "1:4723d50cf65f9dfc", "word_count": 4622 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Parker concur." ], "parties": [ "UNITED LABORATORIES, INC., a Delaware Corporation, Plaintiff v. WILLIAM DOUGLAS KUYKENDALL and SHARE CORPORATION, a Wisconsin Corporation, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nFirst, Share assigns as error the trial court\u2019s exclusion from evidence a newsletter which Share contends was relevant to its intent. Without citing any authority, Share argues that it was unfair for the trial court to hold that plaintiff could introduce either the entire newsletter or none of it and then later refuse the same option to Share on the grounds that the document was irrelevant. Share argues that this was \u201cthe height of unfairness.\u201d\nWe hold that it is unnecessary to decide whether the trial court erred in refusing to admit the newsletter. The substance of the newsletter which related to Share\u2019s policy of defending employees in suits brought by the employees\u2019 former employers was admitted into evidence when portions of a transcript from the deposition of Share\u2019s General Counsel, Stephen C. Raymonds, were read to the jury. Also the jury heard similar testimony from portions of a transcript from the deposition of Share\u2019s Chairman of the Board and Director, Paul desJardins. During his deposition, Mr. desJardins stated that he did not know whether an offer was made to Kuykendall to pay for legal fees and expenses incurred during litigation but stated that \u201cwe [Share] will defend any of our employees whether they be salespeople or not, or what, in any litigation of this type.\u201d He further replied \u201cyes\u201d to a question concerning whether it was the custom and practice of Share to inform potential salespersons that it would pay legal fees and expenses prior to their being employed. While the newsletter contained details concerning the litigation of another suit, it addressed the policy of Share in defending its employees so that the threat of litigation would not deter a potential employee from leaving the employment of one of Share\u2019s competitors. Also, in a letter dated 15 October 1985, Stephen Raymonds told David Brown, General Counsel for United, that \u201c[a]s you probably know, Share has a history of fighting for the right of the salesperson to be free to choose for whom he or she wishes to work.\u201d Where the same evidence or testimony is introduced during the trial, the exclusion of even relevant evidence is harmless error. Munchak Corp. v. Caldwell, 37 N.C. App. 240, 247, 246 S.E.2d 13, disc. rev. denied, 295 N.C. 647, 248 S.E.2d 252 (1978). Accordingly, this assignment of error is overruled.\nSecond, Share assigns as error the trial court\u2019s refusal to instruct the jury that United had to mitigate its damages. Share contends that had the trial court instructed the jury on this issue, \u201cthe jury would have returned a verdict of zero damages or at least of smaller damages as to the unfair trade practice claims.\u201d We disagree.\n\u201cThe rule in North Carolina is that an injured plaintiff, whether his case be tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant\u2019s wrong. If he fails to do so, for any part of the loss incident to such failure, no recovery can be had. Johnson v. R.R., 184 N.C. 101, 113 S.E. 606. This rule is known as the doctrine of avoidable consequences or the duty to minimize damages. Failure to minimize damages does not bar the remedy; it goes only to the amount of damages recoverable. 22 Am. Jur. 2d Damages \u00a7\u00a7 30-32 (1965).\u201d\nWatson v. Storie, 60 N.C. App. 736, 739, 300 S.E.2d 55, 58 (1983), appeal after remand, 70 N.C. App. 327, 318 S.E.2d 910 (1984), quoting, Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-4 (1968). Where the duty to minimize damages applies, the burden is on the party who breached the contract to show matters in mitigation. Andrews & Knowles Produce Co. v. Currin, 243 N.C. 131, 90 S.E.2d 228 (1955). \u201cA trial judge is required to instruct a jury on the law arising from the evidence presented.\u201d Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989). \u201cWhen a defendant submits a request for specific instructions which are correct and are supported by the evidence, the trial court commits reversible error in failing to submit the substance of those instructions to the jury.\u201d Alston v. Monk, 92 N.C. App. 59, 66, 373 S.E.2d 463, 468 (1988), disc. rev. denied, 324 N.C. 246, 378 S.E.2d 420 (1989).\nHere, the evidence does not support the instruction on mitigation of damages. No testimony indicates that plaintiff failed to mitigate its damages or act other than reasonably. During trial, Eric Frazer, Vice President of Sales for United, testified that after Kuykendall left, they \u201cstarted to call all of the accounts on the telephone and tried to assure them that United would still service their needs, and tried to maintain that relationship or contact with the customer.\u201d Frazer further testified that they \u201cthen took the accounts and [they] divided them up between three of our top sales representatives in those areas, and our most experienced sales representatives, and had them call on the accounts and try to service the accounts as well.\u201d Kuykendall even testified that he had approached United about returning to his former job, which can be attributed to the delay, if any, on United\u2019s part in reassigning the accounts. While we note that Share presented testimony from one of United\u2019s former customers stating that he did not remember being called on by United after Kuykendall left the company, we hold that Share had not met its burden of proving that United did not act reasonably in seeking to reduce its loss. Since defendant has failed to meet its burden of proving that plaintiff did not act reasonably in minimizing its loss, we find it unnecessary to address whether the instruction is relevant as a matter of law to the unfair trade practice claim. Accordingly, this assignment of error is overruled.\nThird, Share contends that the trial court erred in concluding that Share engaged in an unfair trade practice by paying legal fees and draws and by using employees\u2019 customer information. We disagree.\nThe overall purpose and legislative intent of G.S. 75-1.1 is \u201cto declare deceptive acts or practices in the conduct of any trade or commerce in North Carolina unlawful, to provide civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public within this State, and to enable a person injured by deceptive acts or practices to recover treble damages from a wrongdoer.\u201d Furthermore, \u201c[t]he statutes do not protect only individual consumers, but serve to protect business persons as well.\u201d Thus, disputes between competitors in business fall under the province of the statute. Whether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has on the marketplace. Based upon the jury\u2019s findings of fact, the court must determine as a matter of law whether a defendant\u2019s conduct violates this section. [Citations omitted.]\nMcDonald v. Scarboro, 91 N.C. App. 13, 18, 370 S.E.2d 680, 683-84, disc. rev. denied, 323 N.C. 476, 373 S.E.2d 864 (1988).\nNo precise definition of \u201cunfair methods of competition\u201d as used in this section exists.\n\u201cUnfair competition has been referred to in terms of conduct \u2018which a court of equity would consider unfair.\u2019 (Citation omitted.) Thus viewed, the fairness or unfairness of particular conduct is not an abstraction to be derived by logic. Rather, the fair or unfair nature of particular conduct is to be judged by viewing it against the background of actual human experience and by determining its intended and actual effects upon others.\u201d\nId., 370 S.E.2d at 684, quoting, Harrington Manufacturing Co. v. Powell Manufacturing Co., 38 N.C. App. 393, 400, 248 S.E.2d 739, 744 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469, disc. rev. denied, 296 N.C. 411, 251 S.E.2d 469 (1979). \u201cFurthermore, \u2018[t]he concept of \u201cunfairness\u201d is broader than and includes the concept of \u201cdeception.\u201d \u2019 \u201d Id., quoting, Overstreet v. Brookland, Inc., 52 N.C. App. 444, 453, 279 S.E.2d 1, 7 (1981), quoting, Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980). \u201cUnfair methods of competition have been found by this Court in actions involving competitive business relationships.\u201d Id. at 19, 370 S.E.2d at 684. \u201cThe act is directed toward maintaining ethical standards in dealings between persons engaged in business and to promote good faith at all levels of commerce. Unfair methods of competition [. . .] would not promote good faith at any level of commerce.\u201d Id. at 20-21, 370 S.E.2d at 685 (citations omitted).\nHere, in its verdict, the jury specifically found that Share did the following: \u201c(a) Offerfed] to pay legal fees and costs to induce Kuykendall, in breach of his covenant not to compete, to attempt to divert to Share, unfairly, United\u2019s accounts; (b) Induce[ed] Kuykendall to use his relationship with United\u2019s accounts and knowledge of confidential business information to attempt to divert to Share, unfairly, United\u2019s accounts; (c) Offer[ed] to subsidize the income, draw and expenses of Kuykendall in the event of an injunction, to induce Kuykendall, to divert to Share, unfairly, United\u2019s accounts; and (d) As a matter of routine practice, offerfed] to pay legal fees and costs to induce experienced chemical sales representatives, in breach of the salesmen\u2019s covenant not to compete, to attempt to divert to Share, unfairly, the former employer\u2019s accounts.\u201d The jury also found that Share\u2019s conduct was in commerce or affected commerce. We agree with the trial court\u2019s finding that Share\u2019s conduct violated G.S. Chapter 75. These facts constituted unfair methods of competition and did not promote good faith dealings between Share and United. Accordingly, the trial court did not err in its judgment.\nFourth, Share contends that the trial court erred in misapplying the doctrine of election of remedies. Share argues that when United conceded that it was not entitled to both punitive damages and trebled damages, \u201cUnited actually . . . conceded] that it had to elect between its interference claim and its unfair trade practices claim.\u201d Share contends that the trial court erred in allowing United to elect between the punitive damages awarded on its interference claim and the trebled portion of its unfair trade practices claim. We disagree.\n\u201cPlaintiffs may in proper cases elect to recover either punitive damages under a common law claim or treble damages under N.C.G.S. \u00a7 75-16, but they may not recover both.\u201d Ellis v. Northern Star Co., 326 N.C. 219, 227, 388 S.E.2d 127, 132, r'hrg denied, 326 N.C. 488, 392 S.E.2d 89 (1990). In Ellis, the libel and unfair and deceptive trade practice claim arose from the same letter. There the jury awarded plaintiff, Ellis Brokerage Company, actual damages in the amount of $32,500 which pursuant to G.S. 75-16 would be trebled to $97,500 and punitive damages in the amount of $12,500 for libel. The Ellis court stated that on remand, the trial court had to allow plaintiff to elect its remedy: \u201ceither a total of $45,000 for the combined libel award; or a total of $97,500 under N.C.G.S. \u00a7 75-16.\u201d Id.\nHere, under the rationale of Ellis, supra, the trial court properly allowed the election of damages from the allocated award. Plaintiffs here could have elected to recover the trebled $15,000 compensatory award ($45,000) for defendants\u2019 violation of G.S. 75-1.1 and recovered nominal damages of $1.00 for the tortious interference claim or plaintiffs could have elected to take the nominal and punitive damages awarded for the tortious interference claim and the compensatory damages awarded for the violation of G.S. 75-1.1. Here plaintiff chose the latter.\nShare also contends that by electing the complete award of damages on the tortious interference claim, plaintiff elected against the Chapter 75 award in its entirety and is not entitled to attorneys\u2019 fees. Contrary to plaintiff\u2019s assertion, the law in this State does not hold that a plaintiff must elect against a Chapter 75 violation in its entirety. It merely holds that plaintiff must elect between punitive damages and compensatory damages that are trebled pursuant to G.S. 75-16. See HAJMM Co. v. House of Raeford Farms, 94 N.C. App. 1, 379 S.E.2d 868, rev. on additional issues allowed, 325 N.C. 271, 382 S.E.2d 439 (1989). See also Bicycle Transit Authority, Inc. v. Bell, 314 N.C. 219, 333 S.E.2d 299 (1985); Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986); Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Jennings Glass v. Brummer, 88 N.C. App. 44, 362 S.E.2d 578 (1987), disc. rev. denied, 321 N.C. 473, 364 S.E.2d 921 (1988).\nIn HAJMM Co., supra, this court stated that\n[i]f the trial court finds that defendants engaged in an unfair or deceptive trade practice, plaintiff is entitled to have its actual damages trebled and may be entitled to attorney fees in the trial court\u2019s discretion, if the court finds that defendants\u2019 act or practice was willful and their refusal to resolve the matter was unwarranted. N.C. Gen. Stat. \u00a7\u00a7 75-16 and 75-16.1 (1988). Plaintiff would then elect to recover either punitive damages or treble damages.\n94 N.C. App. at 15, 379 S.E.2d at 876-77. In Pinehurst v. O\u2019Leary Bros. Realty, Inc., 79 N.C. App. 51, 338 S.E.2d 918, disc. rev. denied and writ of supersedeas and temporary stay denied, 316 N.C. 378, 342 S.E.2d 896 (1986), this court upheld the trial court\u2019s award of attorneys\u2019 fees under G.S. 75-16.1 even where plaintiffs had offered no proof on the monetary value of their damages. The decision to award attorneys\u2019 fees is within the sole discretion of the trial court. Here, since Share did violate G.S. 75-1.1, we find no abuse of discretion.\nFifth, Share contends that the trial court erred in awarding excessive attorneys\u2019 fees with no findings under G.S. 75-1.1. Share argues that the trial court erred in making a \u201cfull award of attorneys\u2019 fees for the first trial and the two appeals despite the two reversals and the need for a second trial.\u201d Share contends that the trial court made its award without making any findings as to the \u201creasonableness of the fees, the necessity for all of the hours, the quality of the services, or anything else.\u201d Share further contends that the trial court erred in not reducing plaintiff\u2019s request by allegedly unauthorized costs. We agree.\nG.S. 75-16.1 provides that\nIn any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that:\n(1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit; or\n(2) The party instituting the action knew, or should have known, the action was frivolous and malicious.\nOne purpose for the statute authorizing attorneys\u2019 fees is to encourage individuals to bring valid actions to enforce the statute by making such actions economically feasible. Whether to award or deny these fees is within the sound discretion of the trial judge. Once the court decides to award attorneys\u2019 fees, however, it must award reasonable attorneys\u2019 fees. Furthermore, in order for the appellate court to determine if the statutory award of attorneys\u2019 fees is reasonable, the record must contain findings of fact as to'the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\nCotton v. Stanley, 94 N.C. App. 367, 369, 380 S.E.2d 419, 421 (1989) (citations omitted). But c.f., McDonald v. Scarboro, 91 N.C. App. 13, 370 S.E.2d 680 (1988).\nIn the instant case, during a hearing concerning whether facts found by the jury in its verdict constituted unfair and deceptive trade practices and what attorneys\u2019 fees, if any, plaintiff was entitled to, the trial court made the appropriate statutory findings justifying plaintiff\u2019s entitlement to attorneys\u2019 fees. First, there is ample record evidence that Share wilfully engaged in the acts and practices found by the jury. Share\u2019s policy of defending its employees in suits resulting from the breach of covenants not to compete and its active encouragement of its employees to violate the covenants under the belief that the covenants were not enforceable is sufficient evidence on the wilfulness of Share\u2019s violation. Secondly, there is record evidence that there was unwarranted refusal on the part of Share to settle. Prior to the second trial, Share made an offer of $20,000 to settle this matter. After United demanded $225,000 and an eternal consent agreement, Share did not make a counteroffer. In view of the jury\u2019s award, Share\u2019s attempt at settling this matter was not realistic. After careful review of the record, we find that the trial court did not abuse its discretion in its decision to award attorneys\u2019 fees. However, the trial court did not include in its order findings of fact \u201cas to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\u201d 94 N.C. App. at 369, 380 S.E.2d at 421. Without these factual findings, we are unable to make a determination as to the reasonableness of the trial court\u2019s award. We also note that plaintiff\u2019s attorneys are entitled to fees for post-trial motions and this appeal.\nShare also contends that the trial court erred in making its finding that there had been an unwarranted refusal by Share to pay the unfair trade practice claim. For the reasons stated above, this assignment of error is overruled.\nShare next contends that the trial court erred in admitting an affidavit on the issues of whether Share\u2019s conduct constituted a wilful unfair trade practice. We disagree.\nOn these facts, we find it unnecessary to determine the admissibility of the affidavit. \u201cIn a trial by the court sitting as finder of fact, we presume that the trial judge disregards incompetent evidence. On appeal, it must be shown that the trial judge was affirmatively influenced by the incompetent matter to justify a finding of prejudicial error.\u201d Spencer v. Spencer, 70 N.C. App. 159, 167, 319 S.E.2d 636, 643 (1984). Here defendant has failed to rebut that presumption. Accordingly, this assignment of error is overruled.\nIn summary, we find no error in the trial below with the exception of the trial court\u2019s award of attorneys\u2019 fees. Accordingly, we remand this cause for entry of findings of fact consistent with this opinion on the attorneys\u2019 fee award including an award of attorneys\u2019 fees for post-trial motions and this appeal.\nAffirmed in part; reversed and remanded in part.\nJudges Arnold and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Petree, Stockton & Robinson, by Jackson N. Steele and Schwartz & Freeman by Paul G. Simon and Jamie A. Maloney, for plaintiff-appellee.", "Brock, Drye & Aceto, P.A., by Michael W. Drye, for defendant-appellant." ], "corrections": "", "head_matter": "UNITED LABORATORIES, INC., a Delaware Corporation, Plaintiff v. WILLIAM DOUGLAS KUYKENDALL and SHARE CORPORATION, a Wisconsin Corporation, Defendants\nNo. 9028SC97\n(Filed 16 April 1991)\n1. Appeal and Error \u00a7 49 (NCI3d)\u2014 covenant not to compete\u2014 objection to exclusion of evidence \u2014 similar evidence already admitted\nIn an action for breach of covenant not to compete, the trial court\u2019s error, if any, in excluding a newsletter relating to defendant employer\u2019s policy of defending employees in suits brought by the employees\u2019 former employers was harmless, since other similar evidence was before the jury.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 800, 802.\n2. Damages \u00a7 161 (NCI4th)\u2014 covenant not to compete \u2014 mitigation of damages \u2014instruction not required\nThe trial court did not err in refusing to instruct the jury in an action for tortious interference with a covenant not to compete and unfair trade practices that plaintiff had to mitigate its damages where defendant failed to meet its burden of proving that plaintiff did not act reasonably.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7\u00a7 542 et seq.\n\" 3. Master and Servant \u00a7 11.1 (NCI3d); Unfair Competition \u00a7 1 (NCI3d)\u2014 covenant not to compete \u2014 inducement of employee to breach \u2014 unfair trade practice\nThe trial court did not err in concluding that defendant employer engaged in an unfair trade practice by paying legal fees and costs to induce defendant employee to breach his covenant not to compete with plaintiff, his former employer, by offering to subsidize the income, draw, and expenses of defendant employee in the event of an injunction, and by using defendant employee\u2019s customer information to divert accounts from plaintiff.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7\u00a7 542 et seq.\n4. Election of Remedies \u00a7 2 (NCI3d|\u2014 interference with contract\u2014 unfair trade practices \u2014 election properly allowed\nThe trial court did not err in allowing plaintiff to elect between the punitive damages awarded on its claim for tor-tious interference with a contract and trebled damages for unfair trade practices.\nAm Jur 2d, Election of Remedies \u00a7\u00a7 8 et seq.; Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7\u00a7 360, 362.\n5. Election of Remedies \u00a7 4 (NCI3d); Costs \u00a7 37 (NCI4th|\u2014 tor-tious interference with contract \u2014 unfair trade practices\u2014 election between punitive damages and trebled compensatory damages \u2014 attorney fees for unfair trade practices\nPlaintiffs election of punitive damages for tortious interference with a covenant not to compete rather than trebled damages for unfair trade practices under N.C.G.S. \u00a7 75-1 did not constitute an election against the Chapter 75 award in its entirety so as to prohibit the trial court from awarding attorney fees to plaintiff under N.C.G.S. \u00a7 75-16.1 in the unfair trade practices action.\nAm Jur 2d, Election of Remedies \u00a7\u00a7 8 et seq.; Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7\u00a7 360, 362.\n6. Costs \u00a7 37 (NCI4th) \u2014 decision to award attorney fees proper\u2014 insufficient findings in award\nIn an action for unfair trade practices arising out of tor-tious interference with a covenant not to compete, the trial court did not abuse its discretion in its decision to award attorney fees, since there was ample evidence that defendant wilfully engaged in the acts and practices found by the jury; however, the trial court erred in failing to include in its order findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 365.\nAPPEAL by defendant Share Corporation from judgment entered 19 July 1989 by Judge Hollis M. Owens in BUNCOMBE County Superior Court. Heard in the Court of Appeals 15 November 1990.\nThis is the second appeal in this matter. Plaintiff United Laboratories, Inc. (hereinafter United) and defendant Share Corporation (hereinafter Share) are in the business of selling specialty chemical products to commercial and municipal accounts. United and Share compete directly against each other. United hired defendant William Douglas Kuykendall in 1971 to sell chemical products. During his employment, Kuykendall signed a covenant not to call upon any of United\u2019s customers for eighteen months in the event he left United\u2019s employment. In 1985, Kuykendall responded to a Share advertisement for chemical sales representatives. During Kuykendall\u2019s interview with Vern Palmer, Share\u2019s Vice President of Sales, Kuykendall and Palmer allegedly discussed Kuykendall\u2019s covenant not to compete with United. Palmer advised Kuykendall that in the event United brought legal action against Kuykendall for violation of the covenant, Share would pay the legal costs associated with defending the lawsuit. Subsequently, Kuykendall agreed to work for Share. After beginning work with Share, Kuykendall called upon former customers of his while he was employed with United and sold within the restricted sales territory allegedly causing plaintiff to lose sales with its customers.\nOn 26 November 1985, plaintiff filed its original action against defendant Share and defendant Kuykendall seeking an injunction and damages based on Kuykendall\u2019s alleged breach of restrictive covenants, Share\u2019s interference resulting from the two restrictive covenants and Kuykendall\u2019s and Share\u2019s unfair trade practices under G.S. Chapter 75. On 31 December 1985, the trial court entered a preliminary injunction enjoining Kuykendall from \u201csoliciting, calling upon or contacting\u201d customers of plaintiff that Kuykendall had previously contacted on plaintiff\u2019s behalf and from disclosing United\u2019s confidential information to Share. The case went to trial on 23 June 1986. The trial court directed a verdict against defendants on the issue of liability and submitted the issue of damages to the jury. The jury returned a judgment in the amount of $38,738.89 which was trebled upon the court\u2019s finding of liability pursuant to G.S. 75-1.1. The trial court awarded attorneys\u2019 fees and costs for $47,522.23 pursuant to G.S. 75-16.1. The trial court also entered a permanent injunction enjoining Kuykendall from selling, directly or indirectly, Share products within United\u2019s territory for the remainder of his eighteen month covenant period and enjoining Share from utilizing, directly or indirectly, any confidential information obtained from Kuykendall. Defendants appealed from the trial court\u2019s judgment.\nThis court reversed that judgment in United Laboratories, Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987), holding that the two restrictive covenants executed by Kuykendall were unenforceable and accordingly there could be no interference. This court then ordered a directed verdict in favor of Share on the interference claim, held that the trial court improperly directed a verdict as to the Chapter 75 claims and remanded those claims for a new trial. Plaintiff then appealed to the North Carolina Supreme Court who affirmed the Court of Appeals in part and reversed it in part holding that the restrictive covenants were enforceable. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988). The Court stated that it could not determine from the verdict which part of the damages was attributable to the breach of contract claim. Accordingly, the Supreme Court remanded that matter for trial as to the damages on the breach of contract claim against Kuykendall. The Supreme Court remanded the interference claim for a new trial as to both liability and damages. The unfair trade practice claim was also remanded for trial on the issues of liability and damages.\nPrior to the second trial, Share offered to settle the case for $20,000. United rejected this offer and countered that it would settle the case if Share entered into an eternal consent decree whereby Share would not solicit or hire United\u2019s sales representatives in violation of their contracts with United and paid $225,000. Share rejected the counteroffer.\nThis matter went to trial again on 22 May 1989. The jury returned a verdict in favor of plaintiff against Kuykendall on damages for breach of contract in the amount of $11,700; they found liability and damages against Share on the interference claim in the amount of $1.00 in nominal damages and $100,000 in punitive damages and made findings of facts and found damages on the unfair trade practice claim in the amount of $15,000 compensatory damages which United conceded was duplicative of the compensatory damages awarded for the breach of contract claim. At a subsequent hearing, the trial court awarded legal fees to United in the amount of $250,000. The trial court then entered judgment against Kuykendall on the breach of contract claim in the amount of $11,700; against Share on the interference claim in the amount of $1.00 in nominal damages and $100,000 in punitive damages; and against Share on the unfair trade practice claim in the amount of $45,000 which was $15,000 in compensatory damages trebled with $250,000 in attorneys\u2019 fees. United elected the $1.00 nominal damages and $100,000 punitive damages of the interference claim and $15,000 untrebled compensatory damages and $250,000 attorneys\u2019 fees in the unfair trade practices claim. Share appeals.\nPetree, Stockton & Robinson, by Jackson N. Steele and Schwartz & Freeman by Paul G. Simon and Jamie A. Maloney, for plaintiff-appellee.\nBrock, Drye & Aceto, P.A., by Michael W. Drye, for defendant-appellant." }, "file_name": "0484-01", "first_page_order": 514, "last_page_order": 526 }