{ "id": 11917552, "name": "JOHN B. McNAMARA, d/b/a McNAMARA JEWELERS, Plaintiff/Appellee v. WILMINGTON MALL REALTY CORP., Defendant/Appellant", "name_abbreviation": "McNamara v. Wilmington Mall Realty Corp.", "decision_date": "1996-02-06", "docket_number": "No. COA95-176", "first_page": "400", "last_page": "414", "citations": [ { "type": "official", "cite": "121 N.C. App. 400" } ], "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": "89 ALR4th 854", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "55 ALR4th 507", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "1 ALR4th 849", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "21 ALR3d 534", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "76 ALR4th 928", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "40 ALR3d 646", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "41 ALR2d 1414", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "344 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "99", "parenthetical": "dismissal of unfair and deceptive trade practices claim, injunctive relief, and claim for specific performance could only be challenged by cross-appeal" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521623 ], "year": 1986, "pin_cites": [ { "page": "118", "parenthetical": "dismissal of unfair and deceptive trade practices claim, injunctive relief, and claim for specific performance could only be challenged by cross-appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0116-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "directed verdict on abuse of process and malicious prosecution claims could only be challenged by cross appeal, not cross-assignments" } ], "opinion_index": 0 }, { "cite": "323 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561393, 2561378, 2562195, 2562245 ], "year": 1988, "pin_cites": [ { "parenthetical": "directed verdict on abuse of process and malicious prosecution claims could only be challenged by cross appeal, not cross-assignments" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0629-04", "/nc/323/0629-01", "/nc/323/0629-03", "/nc/323/0629-02" ] }, { "cite": "371 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "710", "parenthetical": "directed verdict on abuse of process and malicious prosecution claims could only be challenged by cross appeal, not cross-assignments" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524967 ], "year": 1988, "pin_cites": [ { "page": "185", "parenthetical": "directed verdict on abuse of process and malicious prosecution claims could only be challenged by cross appeal, not cross-assignments" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0171-01" ] }, { "cite": "382 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 243", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520328 ], "year": 1989, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0243-01" ] }, { "cite": "463 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795986 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0133-01" ] }, { "cite": "383 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "677", "parenthetical": "parol evidence admissible to show unfair and deceptive trade practices" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521850 ], "year": 1989, "pin_cites": [ { "page": "553", "parenthetical": "parol evidence admissible to show unfair and deceptive trade practices" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0549-01" ] }, { "cite": "233 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568837, 8568709, 8568747, 8568790, 8568892 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0266-04", "/nc/292/0266-01", "/nc/292/0266-02", "/nc/292/0266-03", "/nc/292/0266-05" ] }, { "cite": "231 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548489 ], "pin_cites": [ { "page": "50-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0046-01" ] }, { "cite": "449 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "338 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520195 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "296-97" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0293-01" ] }, { "cite": "435 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "568-69" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521415 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0318-01" ] }, { "cite": "248 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565194, 8565293, 8565169, 8565236, 8565270 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0550-02", "/nc/295/0550-05", "/nc/295/0550-01", "/nc/295/0550-03", "/nc/295/0550-04" ] }, { "cite": "243 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "915" }, { "page": "915", "parenthetical": "this Court has discretionary authority to award partial new trial on issue of damages where it is clear that error in assessing damages did not affect determination of issue of liability" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553551 ], "weight": 2, "pin_cites": [ { "page": "372" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0370-01" ] }, { "cite": "431 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1993, "pin_cites": [ { "page": "771" }, { "page": "848-49" }, { "page": "771" }, { "page": "849" }, { "page": "771" }, { "page": "771", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 843", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526617 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "848" }, { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0843-01" ] }, { "cite": "234 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "607" }, { "page": "607", "parenthetical": "where plaintiff's business suffered a net loss in its first year, evidence that the budget had projected a profit of $80,000 for that year provided no basis for an award of lost profits since any estimate of plaintiff's expected profits was based solely on speculation" } ], "opinion_index": 0 }, { "cite": "292 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571419 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "561" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0557-01" ] }, { "cite": "360 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727169, 4731299, 4726774 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0639-01", "/nc/320/0639-03", "/nc/320/0639-02" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "585" }, { "page": "585" }, { "page": "585" }, { "page": "586" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "546" }, { "page": "546" }, { "page": "547-48" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "370 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513344, 2514721, 2514790, 2518795, 2515646 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0607-02", "/nc/322/0607-04", "/nc/322/0607-05", "/nc/322/0607-01", "/nc/322/0607-03" ] }, { "cite": "74 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "237 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607045 ], "year": 1953, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0159-01" ] }, { "cite": "361 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1987, "pin_cites": [ { "page": "613", "parenthetical": "citing Perkins v. Langdon, 237 N.C. 159, 170, 74 S.E.2d 634, 643 (1953)" }, { "page": "613", "parenthetical": "when prospective profits are conjectural, remote, or speculative, they are not recoverable" }, { "page": "609-10" }, { "page": "613" }, { "page": "613" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358525 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "446", "parenthetical": "citing Perkins v. Langdon, 237 N.C. 159, 170, 74 S.E.2d 634, 643 (1953)" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0438-01" ] }, { "cite": "454 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557296 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0717-01" ] }, { "cite": "90 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "243 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621927 ], "year": 1955, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0131-01" ] }, { "cite": "321 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "541", "parenthetical": "citing Produce Co. v. Currin, 243 N.C. 131, 135, 90 S.E.2d 228, 230 (1955)" }, { "page": "541" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524116 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "117", "parenthetical": "citing Produce Co. v. Currin, 243 N.C. 131, 135, 90 S.E.2d 228, 230 (1955)" }, { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0113-01" ] }, { "cite": "173 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552727 ], "year": 1970, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0687-01" ] }, { "cite": "399 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498086, 2495398, 2496687, 2499154, 2499122 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0636-02", "/nc/327/0636-05", "/nc/327/0636-04", "/nc/327/0636-01", "/nc/327/0636-03" ] }, { "cite": "394 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "830" }, { "page": "830", "parenthetical": "evidence was sufficient to support constructive eviction claim even though landlord's alleged wrongful acts occurred prior to March 1985 and tenant did not abandon the premises until January 1986" }, { "page": "830" }, { "page": "831" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526332 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "92" }, { "page": "92-93" }, { "page": "92" }, { "page": "92" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0082-01" ] }, { "cite": "323 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755493, 4755336, 4753483, 4753324, 4752111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0622-01", "/nc/312/0622-05", "/nc/312/0622-03", "/nc/312/0622-04", "/nc/312/0622-02" ] }, { "cite": "319 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521768 ], "year": 1984, "pin_cites": [ { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0303-01" ] }, { "cite": "334 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "515-16" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521302 ], "year": 1985, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0209-01" ] }, { "cite": "326 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "313 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719700 ], "year": 1985, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0033-01" ] }, { "cite": "370 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "322 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518481 ], "year": 1988, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0643-01" ] }, { "cite": "231 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "291 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558910 ], "year": 1977, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0666-01" ] } ], "analysis": { "cardinality": 1309, "char_count": 36101, "ocr_confidence": 0.762, "pagerank": { "raw": 3.9939954242488615e-07, "percentile": 0.9055276967885 }, "sha256": "298ce3a2db03d5ba86f493810fd3cb876763b5ffda2cacfa9239ae7333d6a814", "simhash": "1:250174643d3c78dc", "word_count": 5804 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and SMITH concur." ], "parties": [ "JOHN B. McNAMARA, d/b/a McNAMARA JEWELERS, Plaintiff/Appellee v. WILMINGTON MALL REALTY CORP., Defendant/Appellant" ], "opinions": [ { "text": "WALKER, Judge.\nIn late spring 1991, plaintiff John B. McNamara became interested in leasing space at Long Leaf Mall (the Mall) to house a retail custom jewelry store. The Mall was at all relevant times owned by defendant Wilmington Mall Realty Corp. and managed by Great Atlantic Real Estate-Property Management (Great Atlantic). Plaintiff approached Newby Toms (Toms), a leasing agent for Great Atlantic, and brief negotiations followed. As a result of these negotiations, plaintiff and defendant, through Great Atlantic, executed a five-year lease for store space 26 in the Mall. Thereafter, plaintiff renovated the store space at his own expense and commenced operations in August 1991.\nIn January or February 1992, Toms informed plaintiff that he was proposing to locate an aerobics studio in the space adjacent to plaintiff\u2019s store. Toms informed plaintiff that under the terms of the lease with the aerobics studio, the studio was required to do soundproofing and could be relocated if necessary. On 17 February 1992, the studio commenced operating.\nPlaintiff immediately began objecting to Toms that the music coming from the aerobics studio was too loud and could be heard in his store. He also complained to Nancy Arnoux, the owner of the studio. By letter dated 26 February 1992, plaintiff notified defendant that he was dissatisfied with defendant\u2019s lack of efforts to remedy the situation and demanded a resolution of the matter within seven (7) days of defendant\u2019s receipt of the letter. After receiving no response, plaintiff contacted an attorney, who notified Great Atlantic by letter dated 12 March 1992 that plaintiff would be depositing his current rental payment into an escrow account until the nuisance was abated. In response, Toms directed the studio to install insulation as required by the terms of the studio\u2019s lease. The insulation was promptly installed, but plaintiff continued to complain that the noise from the studio was disrupting his business. Great Atlantic informed plaintiff by letter dated 31 March 1992 that remedial action had been completed and it considered the matter closed. Great Atlantic demanded payment of the March and April rent within five (5) days of plaintiff\u2019s receipt of the letter. By letter dated 9 April 1992, plaintiff\u2019s attorney notified Great Atlantic that plaintiff disagreed that the matter was resolved. He stated that plaintiff would pay Toms his customary April rent but would continue to hold the March rent in escrow until the matter was resolved. In late April or early May, Great Atlantic agreed to pump insulation into the wall space between plaintiff\u2019s store and the aerobics studio. After this was done, Great Atlantic told plaintiff it considered the matter closed and demanded that plaintiff begin paying rent. Plaintiff paid no rent after April 1992, and on 24 December 1992, plaintiff abandoned his space in the Mall.\nOn 29 September 1992, plaintiff sued defendant for breach of contract based upon the theories of constructive eviction and breach of the covenant of quiet enjoyment. Defendant counterclaimed for past due rent. Plaintiff later amended his complaint to allege damages for fraud, negligent misrepresentation, and unfair and deceptive trade practices.\nAt trial, after the close of all the evidence, the trial court granted defendant\u2019s motion to dismiss the fraud, negligent misrepresentation, and unfair and deceptive trade practices claims. The jury thereafter returned a verdict for plaintiff in the amount of $110,000 on the breach of contract claim. The trial court denied defendant\u2019s motions for judgment notwithstanding the verdict (JNOV), new trial, remitti-tur, and amendment of the judgment.\nI.\nWe first address defendant\u2019s argument that the trial court erred in denying its motions for directed verdict and JNOV on plaintiff\u2019s breach of contract claim. Specifically, defendant argues that the evidence was insufficient as a matter of law to support plaintiff\u2019s constructive eviction claim.\nA motion for directed verdict tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the non-movant. Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). In ruling on a defendant\u2019s motion for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). All conflicts in the evidence must be resolved in the plaintiff\u2019s favor, and he must be given the benefit of every reasonable inference that can be drawn in his favor. Id. Only where the evidence is insufficient to support a verdict in the plaintiff\u2019s favor should the defendant\u2019s motion be granted. West v. Slick, 313 N.C. 33, 40, 326 S.E.2d 601, 606 (1985). If there is a scintilla of evidence supporting the plaintiff\u2019s prima facie case, then the motion should be denied. Burris v. Shoemate, 77 N.C. App. 209, 211, 334 S.E.2d 514, 515-16 (1985). A motion for JNOV is essentially the renewal of a prior motion for directed verdict, and the same rules regarding the sufficiency of the evidence apply. Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 306, 319 S.E.2d 290, 292, review denied, 312 N.C. 622, 323 S.E.2d 923 (1984).\nAt the outset it must be noted that plaintiff had two theories of recovery on his breach of contract claim: constructive eviction and breach of the covenant of quiet enjoyment. Although the trial court instructed the jury on both theories, a single issue was submitted to the jury which read, \u201cDid the Defendant, Wilmington Mall Realty, breach the lease agreement with the Plaintiff?\u201d On appeal, defendant does not challenge the issue as submitted. Therefore, if there was more than a scintilla of evidence to support either constructive eviction or breach of the covenant of quiet enjoyment, then the court properly denied defendant\u2019s motions for directed verdict and JNOV on the issue of breach of contract.\nConstructive eviction is defined as \u201c[a]n act of a landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under his lease, causing the tenant to abandon them. .. .\u201d Marina Food Assoc., Inc. v. Marina Restaurant, Inc., 100 N.C. App. 82, 92, 394 S.E.2d 824, 830, review denied, 327 N.C. 636, 399 S.E.2d 328 (1990). Stated another way, constructive eviction occurs \u201cwhen a landlord breaches a duty under the lease which renders the premises untenable....\u201d Id. As the trial court correctly instructed the jury here, a tenant seeking to establish a claim for constructive eviction has the burden of showing that he abandoned the premises within a reasonable time after the landlord\u2019s wrongful act and that the abandonment was proximately caused by the landlord\u2019s breach. Thompson v. Shoemaker, 7 N.C. App. 687, 690, 173 S.E.2d 627, 630 (1970); see also 49 Am. Jur. 2d, Landlord & Tenant \u00a7\u00a7 644-647 (1995). Defendant argues that plaintiff made neither of these required showings.\nPlaintiff first complained of noise in February 1992. Although defendant informed plaintiff in May 1992 that it considered the matter closed, plaintiff continued to lodge complaints with defendant\u2019s leasing agent into the fall of 1992 in an effort to resolve the situation. In mid-October plaintiff called a security officer to abate the noise, and six weeks later plaintiff abandoned the property.\nDefendant argues that even given the benefit of the time period during which repairs were made, plaintiff\u2019s abandonment of the premises some seven to eight months later was not within a reasonable time as a matter of law. While defendant directs us to cases from other jurisdictions which it claims support its position, we are unable to conclude that the time frame for plaintiff\u2019s abandonment was unreasonable as a matter of law. What constitutes a reasonable time for abandonment depends on the circumstances of each case and is an issue of fact for the jury. See Marina Food Assoc., 100 N.C. App. at 92-93, 394 S.E.2d at 830 (evidence was sufficient to support constructive eviction claim even though landlord\u2019s alleged wrongful acts occurred prior to March 1985 and tenant did not abandon the premises until January 1986). We find that the above facts, viewed in the light most favorable to plaintiff, constituted sufficient evidence to support a jury finding that plaintiff abandoned the premises within a reasonable time and that the abandonment was the result of defendant\u2019s failure to remedy the noise from the studio. Thus, we hold the trial court did not err in denying defendant\u2019s motions for directed verdict and JNOV on plaintiff\u2019s constructive eviction claim.\nThe trial court also instructed the jury on breach of the covenant of quiet enjoyment. North Carolina law provides that a lease, in the absence of a provision to the contrary, carries with it an implied covenant that the tenant will have the quiet and peaceable possession of the leased premises during the term of the lease. Marina Food Assoc., 100 N.C. App. at 92, 394 S.E.2d at 830; Dobbins v. Paul, 71 N.C. App. 113, 117, 321 S.E.2d 537, 541 (1984) (citing Produce Co. v. Currin, 243 N.C. 131, 135, 90 S.E.2d 228, 230 (1955)), overruled on other grounds, Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995). Our courts have held that where a tenant has been constructively evicted, the covenant of quiet enjoyment has been breached. Marina Food Assoc., 100 N.C. App. at 92, 394 S.E.2d at 830 (citing Dobbins, 71 N.C. App. at 117-18, 321 S.E.2d at 541). Since we have determined that plaintiff\u2019s evidence established a claim for constructive eviction, it follows that the evidence was also sufficient on plaintiff\u2019s claim for breach of the covenant of quiet enjoyment, and the trial court correctly denied defendant\u2019s motions for directed verdict and JNOV on that claim.\nDefendant attempts to persuade this Court that even if its actions did amount to a constructive eviction or a breach of the covenant of quiet enjoyment, plaintiff\u2019s failure to pay rent amounted to a waiver of his right to assert such claims. We note that defendant did not request an instruction that plaintiff\u2019s failure to pay rent operated as a waiver; this argument is asserted for the first time in defendant\u2019s brief to this Court.\nIn support of its argument, defendant points to Section 16 of the parties\u2019 lease, which reads as follows:\nSection 16. Quiet Enjoyment. Tenant, upon paying the rent and performing all the other covenants and conditions aforesaid on Tenant\u2019s part to be observed and performed under this Lease, shall and may peaceably and quietly have, hold and enjoy the Demised Premises . . . free from disturbance by Landlord or anyone claiming by, through or under Landlord. . . .\nDefendant claims that the terms of this express covenant of quiet enjoyment take precedence over any implied right of quiet enjoyment and that by its language, this provision expressly conditions plaintiffs right to quiet enjoyment upon his payment of the rent.\nIt is undisputed that plaintiff did not pay rent after April 1992; however, we disagree that this fact operates to bar plaintiff\u2019s breach of contract claims. If, as defendant admits, it took no action regarding plaintiffs complaints after April or May 1992, then for purposes of plaintiffs claims, defendant\u2019s failure to abate the noise constituted a constructive eviction as of that time. The trial court correctly instructed the jury that plaintiff had a reasonable time within which to abandon the premises, and the jury found that he did so. Therefore, plaintiff\u2019s failure to pay rent in the intervening period is not a bar to his breach of contract claims, notwithstanding \u2022 the language of Section 16.\nII.\nWe next address defendant\u2019s arguments regarding the issue of damages. At the charge conference, defendant requested a peremptory instruction on damages which was denied. Defendant assigns this denial as error and also argues that its motions for directed verdict and JNOV should have been granted because plaintiff did not meet his burden of proof with respect to damages. In the alternative, defendant seeks a new trial on the issue of damages.\nA plaintiff who has been constructively evicted may recover general damages measured by the value, at the time of eviction, of the unexpired term of the lease, less any rent reserved. Marina Food Assoc., 100 N.C. App. at 93, 394 S.E.2d at 831. Plaintiff presented no evidence of the value of the remainder of the lease, confining his proof of damages solely to the issue of lost future profits. \u201cDamages for breach of contract may include loss of prospective profits where the loss is the natural and proximate result of the breach.\u201d Mosley & Mosley Builders v. Landin Ltd., 87 N.C. App. 438, 446, 361 S.E.2d 608, 613 (1987) (citing Perkins v. Langdon, 237 N.C. 159, 170, 74 S.E.2d 634, 643 (1953)), cert. dismissed, 322 N.C. 607, 370 S.E.2d 416 (1988). To recover lost profits, the claimant must prove such losses with \u201creasonable certainty.\u201d Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 546, 356 S.E.2d 578, 585, reh\u2019g denied, 320 N.C. 639, 360 S.E.2d 92 (1987). Although absolute certainty is not required, damages for lost profits will not be awarded based on hypothetical or speculative forecasts. Mosley, 87 N.C. App. at 446, 361 S.E.2d at 613 (when prospective profits are conjectural, remote, or speculative, they are not recoverable); see also Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, 561, 234 S.E.2d 605, 607 (1977).\nIn Olivetti, our Supreme Court recognized that \u201clost future profits are difficult for a new business to calculate and prove. . . .\u201d Olivetti, 319 N.C. at 546, 356 S.E.2d at 585. However, the Court refused to adopt a per se \u201cNew Business Rule\u201d that would preclude an award of damages for lost profits where the allegedly damaged party has no recent record of profitability, holding instead that such businesses, like established businesses, must prove lost profits with reasonable certainty. Id. at 545-46, 356 S.E.2d at 585. The Court stated that the burden of proving such damages is on the party seeking them, and as part of this burden, that party must show \u201cthat the amount of damages is based upon a standard that will allow the finder of fact to calculate the amount of damages with reasonable certainty.\u201d Id. at 547-48, 356 S.E.2d at 586.\nPlaintiff here did not have an established history of profits. His evidence of lost profits consisted entirely of the testimony of Dr. Craig Galbraith, a professor of management at the University of North Carolina at Wilmington and a specialist in \u201centrepreneurship.\u201d Dr. Galbraith prepared two reports in connection with his calculation of plaintiff\u2019s lost profits. The first report, which Dr. Galbraith characterized as a \u201cpreliminary report,\u201d was dated 9 February 1993 and projected a loss of $15,200. Six days later, after meeting with plaintiff and his attorney to go over the \u201cpreliminary report,\u201d Dr. Galbraith prepared a second report which projected losses of $124,000 ($17,300 in lost earnings from 17 February 1992 to 24 December 1992, $97,000 in lost fair market value, and $9,000 in lost personal wages). Defendant argues that Dr. Galbraith\u2019s calculations are \u201cinherently speculative or otherwise flawed\u201d and that plaintiff has failed to prove lost profits with the requisite degree of certainty.\nDefendant first claims Dr. Galbraith\u2019s testimony failed to establish a causal connection between the noise from the studio and the lost profits sought by plaintiff. We have carefully examined the record, including Dr. Galbraith\u2019s testimony, and we find that the evidence of such a connection, while not overwhelming, was sufficient to withstand a motion for directed verdict. The trial court properly instructed the jury that in order to recover lost profits, plaintiff had to prove that except for defendant\u2019s breach of the lease agreement, such profits would have been realized. We cannot conclude that plaintiff\u2019s lost profits claim fails for lack of proximate cause.\nHowever, we agree with defendant that Dr. Galbraith\u2019s calculations were not based upon standards that allowed the jury to determine the amount of plaintiff\u2019s lost profits with reasonable certainty. See Olivetti, 319 N.C. at 547-48, 356 S.E.2d at 586. We have carefully examined Dr. Galbraith\u2019s testimony, and we find it is deficient in a number of respects. First, Dr. Galbraith based his estimate of plaintiff\u2019s lost profits on the assumption that from January 1992 through the remaining term of the lease, plaintiff\u2019s sales would have risen in a linear fashion to the point where they matched the average sales of independent national jewelers. There was no evidence presented to support such an assumption.\nSecond, Dr. Galbraith made virtually no effort to obtain sales figures and other financial data from small custom jewelry stores like plaintiff\u2019s or from other jewelers in the Wilmington area. Rather, he relied exclusively on data from independent national jewelers without ascertaining whether these jewelers bore any similarity to plaintiff\u2019s business. We hold that under the circumstances of this case, Dr. Galbraith\u2019s reliance on this data rendered his calculations too conjectural to support an award of lost profits.\nIn Iron Steamer, Ltd. v. Trinity Restaurant, 110 N.C. App. 843, 431 S.E.2d 767 (1993), the defendant lessee sought lost profits resulting from the plaintiff lessor\u2019s alleged breach of lease. The lessee opened a resort restaurant in April 1989 and ceased operations in November 1989. The lessee\u2019s gross revenues for August through November were lower than the revenues for May through July. The trial court found that but for the lessor\u2019s breach of contract, \u201c \u2018the gross sales figures for a restaurant of that type and location, for the month of August, should have been similar to the gross sales figures for the month of July.\u2019 \u201d The court further found that since September, October, and November are good fishing months, the restaurant\u2019s revenues \u201c \u2018should have been similar to, or better than, the gross sales figures for the months of May or June.\u2019 \u201d Iron Steamer, 110 N.C. App. at 848, 431 S.E.2d at 771. The court based its findings solely on the testimony of Mr. Cantor, one of the defendants, who assumed that August would have been a more profitable month than July and based his calculations of lost profits for August through November on this assumption. Id. at 848-49, 431 S.E.2d at 771. Mr. Cantor\u2019s bases for estimating the lost profits at this restaurant were his brief experience at a restaurant in another city and his experience as a cook at a nearby hotel. Id. at 849, 431 S.E.2d at 771. This Court reversed the award of lost profits to the lessee, stating that \u201cMr. Cantor\u2019s estimation of lost profits is based on assumptions that are purely speculative in nature.\u201d Id. Likewise, we find that Dr. Galbraith\u2019s assumption that plaintiff\u2019s sales would rise to meet the average sales of independent national jewelers is conjectural and speculative and cannot support the award of lost profits in this case. See also Weyerhaeuser, 292 N.C. at 560, 234 S.E.2d at 607 (where plaintiff\u2019s business suffered a net loss in its first year, evidence that the budget had projected a profit of $80,000 for that year provided no basis for an award of lost profits since any estimate of plaintiff\u2019s expected profits was based solely on speculation); McBride v. Camping Center, 36 N.C. App. 370, 372, 243 S.E.2d 913, 915 (where any estimate of plaintiff\u2019s expected profits was, on the evidence presented, based solely on speculation, there was no basis for an award of lost profits), review denied, 295 N.C. 550, 248 S.E.2d 727 (1978).\nThe Iron Steamer court concluded its opinion by emphasizing that the lessee\u2019s business was an unestablished resort restaurant. In that context, the Court noted that\nthe relationship between lost profits and the income needed to generate such lost profits is peculiarly sensitive to certain variables including the quality of food, quality of service, and the seasonal nature of the business. Therefore, proof of lost profits with reasonable certainty under these circumstances requires more specific evidence and thus a higher burden of proof. While difficult to determine, \u201cdamages may be established with reasonable certainty with the aid of expert testimony, economic and financial data, market surveys and analysis, and business records of similar enterprises.\u201d\nIron Steamer, 110 N.C. App. at 849, 431 S.E.2d at 771 (emphasis in original) (quoting 22 Am. Jur. 2d Damages \u00a7 627 (1988)). In the instant case, as in Iron Steamer, plaintiff\u2019s business was unestablished (it was only five months old when the aerobics studio moved in and the alleged breach occurred) and, by Dr. Galbraith\u2019s own testimony, was \u201cpeculiarly sensitive to certain variables\u201d such as.the quality of plaintiff\u2019s custom jewelry work, the extent of plaintiff\u2019s advertising and marketing efforts, and the seasonal nature of the jewelry business. Thus, plaintiff was required to come forward with more specific evidence to support his claim for lost profits. As the Iron Steamer court recognized, sales figures from businesses which are similar in size, location, and type of product sold are an important source of such specific evidence; however, Dr. Galbraith failed to obtain such figures and to include them in his calculations.\nPlaintiff relies on Mosley & Mosley Builders v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987), in support of his claim that Dr. Galbraith\u2019s method of calculating lost profits was reasonably certain. In Mosley, a retail store selling nuts was wrongfully evicted from a shopping mall two years after it moved into the mall. Upon relocation, the store failed to turn a profit. Id. at 440, 361 S.E.2d at 609-10. In support of its claim for lost profits against the landlord, the store relied on evidence of the sales of its successor tenant at the mall, a national franchise which sold products similar to those sold by the plaintiff\u2019s store. Id. at 445, 361 S.E.2d at 613. The defendant challenged the admission of this evidence, claiming that differences in marketing and management practices of the two stores rendered the evidence unreasonably speculative. Id. at 446, 361 S.E.2d at 613. This Court accepted the evidence, noting that differences in marketing and management practices of the two stores went only to the weight and not the admissibility of the evidence. Id. Plaintiff argues that under Mosley, any differences between plaintiff\u2019s business and the independent national jewelers upon whose sales data Dr. Galbraith relied should not render his testimony speculative and therefore inadmissible.\nWe find that Mosley is distinguishable from the instant case and, in fact, supports our conclusion here. In Mosley, the plaintiff\u2019s store was profitable at the time of the eviction and had successfully conducted its business for such length of time that its profits were reasonably ascertainable. Id. Furthermore, the successor store sold similar merchandise in the same location as plaintiff\u2019s store, and its sales figures were therefore relevant to show what sales the plaintiff\u2019s store might have expected in the future had it not been evicted. Id. Thus, in Mosley the expert was drawing comparisons between an established store with a history of profits, and a similar store at the same location. Here, by contrast, plaintiff\u2019s store had no history of profits, and Dr. Galbraith drew comparisons to much larger stores in different locations selling products other than custom jewelry.\nAlso, at the time plaintiff opened his store at the Mall, he had virtually no experience owning and operating a jewelry store. Dr. Galbraith acknowledged that start-up businesses such as plaintiffs have \u201crelatively high failure rates.\u201d However, he stated that he did not consider this factor relevant in calculating plaintiffs lost profits. With regard to his prior experience in the jewelry business, plaintiff testified that he worked at a custom design jewelry store in Wilmington for two years (1986 and 1987) and then in sales and management at a large chain jewelry store in Allentown, Pennsylvania, for a year. He also testified that he worked for Atlantis Gold Crafters in Wilmington from fall 1990 until early spring 1991, where his activities were limited to \u201cmaking the jewelry and doing some repair\u201d for about four hours a day. He stated he had no ownership interest in Atlantis and considered his work there a \u201chobby.\u201d Thus, plaintiffs own testimony established that plaintiff had no prior experience owning or operating a custom jewelry business. Dr. Galbraith, however, failed to consider this inexperience in his analysis. We believe that the owner\u2019s prior business experience (or lack thereof) could be a relevant factor in assessing the future profitability of a new business.\nIn sum, we hold that plaintiff failed to meet his burden of proving lost profits with reasonable certainty. We therefore vacate the portion of the trial court\u2019s judgment awarding plaintiff $110,000 in damages, and we remand this cause to the trial court for a new trial on the issue of damages. See McBride, 36 N.C. App. at 373, 243 S.E.2d at 915 (this Court has discretionary authority to award partial new trial on issue of damages where it is clear that error in assessing damages did not affect determination of issue of liability). In light of this decision, we decline to address defendant\u2019s remaining assignments on the issue of damages.\nIII.\nFinally, defendant argues that the trial court erred in its decisions on two evidentiary matters. We disagree.\nPlaintiff attempted to prove at trial that defendant breached its lease with plaintiff by allowing tenants other than retail establishments to locate in the Mall and by failing to attract other retail stores to the Mall. Over defendant\u2019s objection, plaintiff was allowed to introduce evidence of statements made during the course of lease negotiations regarding the Mall\u2019s desire to attract other retail tenants. The evidence was admitted under the holding of IRT Property Co. v. Papagayo, Inc., 112 N.C. App. 318, 435 S.E.2d 565 (1993), reversed, 338 N.C. 293, 449 S.E.2d 459 (1994), in which this Court held that the use of the words \u201cshopping center,\u201d \u201cmall,\u201d and \u201cgalleria\u201d in a commercial lease could be interpreted as requiring the shopping center to rent only to retail stores and that evidence of representations made prior to the execution of the lease could be admitted to explain the ambiguous terms of the lease. Id. at 324-26, 435 S.E.2d at 568-69. However, following the trial of the instant case, our Supreme Court reversed this Court\u2019s decision in Papagayo, holding that terms such as \u201cshopping center\u201d and \u201cmall\u201d in the lease agreement did not create an ambiguity and the parol evidence rule therefore prevented evidence of prior negotiations from coming in to contradict the terms of the lease. IRT Property Co. v. Papagayo, Inc., 338 N.C. 293, 296-97, 449 S.E.2d 459, 461 (1994).\nHere, plaintiff offered the evidence of prior negotiations for two purposes: to prove breach of the lease and to prove fraud and unfair and deceptive trade practices. Although the Papagayo case prevented the evidence from coming in to prove breach of the lease, the evidence was properly admitted to prove fraud and unfair and deceptive trade practices. See Parker v. Bennett, 32 N.C. App. 46, 50-51, 231 S.E.2d 10, 13 (citation omitted) (\u201c \u2018Parol evidence is admissible to show that a written contract was procured by fraud, for the allegations of fraud challenge the validity of the contract itself, not the accuracy of its terms. . . .\u2019 \u201d), review denied, 292 N.C. 266, 233 S.E.2d 393 (1977); Love v. Keith, 95 N.C. App. 549, 553, 383 S.E.2d 674, 677 (1989) (parol evidence admissible to show unfair and deceptive trade practices), overruled in part on other grounds, Custom Molders, Inc. v. American Yard Products, Inc., 342 N.C. 133, 463 S.E.2d 199 (1995). Thus, the trial court did not err in admitting this evidence.\nPlaintiff also offered evidence of numerous complaints lodged against defendant by other tenants of the Mall. This evidence was introduced to support plaintiffs claims for fraud and unfair and deceptive trade practices on the theory that defendant had an affirmative duty to disclose these complaints during the lease negotiations. Defendant argued that this testimony was irrelevant and unfairly prejudicial, but the court, after hearing the arguments of both parties, admitted the evidence. The trial court ultimately granted defendant\u2019s motion for a directed verdict on these claims. Defendant now contends the admission of this evidence was improper. The decision whether to exclude evidence due to the potential for unfair prejudice, confusion, or misleading the jury is within the sound discretion of the trial court and will not be disturbed absent a showing that the ruling was so arbitrary it could not have been the result of a reasoned decision. Smith v. Pass, 95 N.C. App. 243, 250, 382 S.E.2d 781, 786 (1989); see also N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992). Defendant has not shown that the trial court abused its discretion in admitting the contested evidence or that defendant was prejudiced by its admission.\nIV.\nIn a cross-assignment of error, plaintiff argues that the trial court erred in dismissing his claims for fraud and unfair and deceptive trade practices. We note that plaintiffs argument should have been presented as a cross-appeal rather than a cross-assignment of error. See U v. Duke University, 91 N.C. App. 171, 185, 371 S.E.2d 701, 710, review denied, 323 N.C. 629, 374 S.E.2d 590 (1988) (directed verdict on abuse of process and malicious prosecution claims could only be challenged by cross appeal, not cross-assignments); Cherry, Bekaert & Holland v. Worsham, 81 N.C. App. 116, 118, 344 S.E.2d 97, 99 (1986) (dismissal of unfair and deceptive trade practices claim, injunctive relief, and claim for specific performance could only be challenged by cross-appeal). Nevertheless, we have carefully reviewed plaintiff\u2019s argument, and we conclude the trial court did not err in dismissing those claims.\nAffirmed in part, vacated in part, and remanded for a new trial on the issue of damages.\nJudges JOHNSON and SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Shipman & Lea, by Gary K. Shipman, for plaintiff-appellee.", "Murchison, Taylor, Kendrick, Gibson & Davenport, L.L.P., by Michael Murchison, for defendant-appellant." ], "corrections": "", "head_matter": "JOHN B. McNAMARA, d/b/a McNAMARA JEWELERS, Plaintiff/Appellee v. WILMINGTON MALL REALTY CORP., Defendant/Appellant\nNo. COA95-176\n(Filed 6 February 1996)\n1. Landlord and Tenant \u00a7 13 (NCI4th)\u2014 lease of mall space\u2014 constructive eviction \u2014 breach of covenant of quiet enjoyment \u2014 sufficiency of evidence\nThe trial court did not err in denying defendant\u2019s motions for directed verdict and JNOV on plaintiffs constructive eviction claim and claim for breach of covenant of quiet enjoyment where the evidence tended to show that plaintiff leased mall space from defendant for the purpose of operating a jewelry store; about six months after the jewelry store opened, an aerobics studio opened next door; plaintiff immediately began to complain about the noise; although defendant made efforts to remedy the situation and informed plaintiff in May 1992 that it considered the matter closed, plaintiff continued to lodge complaints with defendant\u2019s leasing agent into the fall of 1992 in an effort to resolve the situation; in mid-October plaintiff called a security officer to abate the noise; six weeks later plaintiff abandoned the property; and the jury thus could find that plaintiff abandoned the premises within a reasonable time and that the abandonment was the result of defendant\u2019s failure to remedy the noise from the studio.\nAm Jur 2d, Covenants, Conditions, and Restrictions \u00a7\u00a7 71, 94, 96, 115; Landlord and Tenant \u00a7 734.\nBreach of covenant for quiet enjoyment in lease. 41 ALR2d 1414.\nModern status of rules as to existence of implied warranty of habitability or fitness for use of leased premises. 40 ALR3d 646.\nImplied warranty of fitness or suitability in commercial leases \u2014 modern status. 76 ALR4th 928.\n2. Landlord and Tenant \u00a7 13 (NCI4th)\u2014 breach of lease agreement \u2014 failure to pay rent \u2014 no bar to action for breach\nThere was no merit to defendant\u2019s contention that, even if its actions did amount to a constructive eviction or a breach of the covenant of quiet enjoyment, plaintiffs failure to pay rent amounted to a waiver of his right to assert such claims, since defendant took no action regarding plaintiffs complaints after April or May 1992; for the purposes of plaintiffs claims, defendant\u2019s failure to abate the noise constituted a constructive eviction as of that time; plaintiff had a reasonable time within which to abandon the premises, which he did; and plaintiffs failure to pay rent in the intervening period was not a bar to his breach of contract claims, notwithstanding the language in the parties\u2019 lease which defendant alleged expressly conditioned plaintiff\u2019s right to quiet enjoyment upon his payment of the rent.\nAm Jur 2d, Landlord and Tenant \u00a7\u00a7 729, 804.\nLandlord\u2019s duty, on tenant\u2019s failure to occupy, or abandonment of, premises, to mitigate damages by accepting or procuring another tenant. 21 ALR3d 534.\nConstructive eviction by another tenant\u2019s conduct. 1 ALR4th 849.\nImplied warranty of fitness or suitability in commercial leases \u2014 modern status. 76 ALR4th 928.\n3. Landlord and Tenant \u00a7 27 (NCI4th)\u2014 breach of contract\u2014 lost profits \u2014 failure to meet burden of proof\nIn an action for breach of contract based upon the theories of constructive eviction and breach of the covenant of quiet enjoyment, plaintiff failed to meet his burden of proving lost profits with reasonable certainty where plaintiff did not have an established history of profits; his evidence of lost profits consisted entirely of the testimony of a professor at UNC-Wilmington who was a specialist in \u201centrepreneurship\u201d; the witness based his estimate of lost profits on the assumption that during the remaining term of the lease plaintiff\u2019s sales would have risen in a linear fashion to the point where they matched the average sales of independent national jewelers; the witness made virtually no effort to obtain sales figures and other financial data from small custom jewelry stores like plaintiff\u2019s or from other jewelers in the Wilmington area; the witness\u2019s reliance on data from independent national jewelers without ascertaining whether these jewelers bore any similarities to plaintiff\u2019s business rendered his calculations too conjectural to support an award of lost profits; plaintiff owner\u2019s lack of business experience could be a relevant factor in assessing the future profitability of his new business, a factor which the witness failed to consider; and thus the witness\u2019s calculations were not based upon standards which allowed the jury to determine the amount of plaintiffs lost profits with reasonable certainty.\nAm Jur 2d, Damages \u00a7\u00a7 902, 913, 939, 962-964.\nRecovery of anticipated lost profits of new business. 55 ALR4th 507.\n4. Evidence and Witnesses \u00a7\u00a7 1994, 2010 (NCI4th)\u2014 evidence of prior lease negotiations \u2014 inadmissibility to prove breach of lease \u2014 admissibility to prove fraud and unfair and deceptive trade practices\nThough evidence of prior lease negotiations was not admissible to prove breach of the lease, since terms such as \u201cshopping center\u201d and \u201cmall\u201d in the lease agreement did not create an ambiguity and the parol evidence rule therefore prevented evidence of prior negotiations from coming in to contradict the terms of the lease, such evidence was admissible to prove fraud and unfair and deceptive trade practices.\nAm Jur 2d, Fraud and Deceit \u00a7\u00a7 451-453.\nCoverage of leases under state consumer protection statutes. 89 ALR4th 854.\nAppeal by defendant from judgment entered 27 July 1994 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 14 November 1995.\nShipman & Lea, by Gary K. Shipman, for plaintiff-appellee.\nMurchison, Taylor, Kendrick, Gibson & Davenport, L.L.P., by Michael Murchison, for defendant-appellant." }, "file_name": "0400-01", "first_page_order": 434, "last_page_order": 448 }