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  "name": "VSD COMMUNICATIONS, INC., Plaintiff v. LONE WOLF PUBLISHING GROUP, INC., Defendant",
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    "judges": [
      "Judges MARTIN, JOHN C., and SMITH concur."
    ],
    "parties": [
      "VSD COMMUNICATIONS, INC., Plaintiff v. LONE WOLF PUBLISHING GROUP, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nWe first address the threshold question of whether defendant\u2019s motions may be ruled upon by the trial court after plaintiff voluntarily dismissed its claims without prejudice pursuant to Rule 41(a). In Walker Frames v. Shively, 123 N.C. App. 643, 646, 473 S.E.2d 776, 778 (1996), we recognized that, as a general proposition, a Rule 41(a) dismissal \u201cterminate [s] all adversary proceedings in [the] case.\u201d Id. The filing of a voluntary dismissal strips the trial court of its authority to enter further orders in the adversary proceedings, \u201cexcept as provided by Rule 41(d) which authorizes the court to enter specific orders apportioning and taxing costs.\u201d Id. (citing Fields v. Whitehouse & Sons Co., 98 N.C. App. 395, 397-98, 390 S.E.2d 725, 726-27, disc. review denied, 327 N.C. 427, 395 S.E.2d 676 (1990)).\nThis broad limitation on the trial, court\u2019s power to enter orders after a voluntary dismissal does not extend so far, however, as to bar the trial court from awarding attorney\u2019s fees pursuant to Rule 11(a) or G.S. 6-21.5 where the plaintiff\u2019s now dismissed action was frivolously filed or maintained in the absence of a justiciable issue. Bryson v. Sullivan, 330 N.C. 644, 664, 412 S.E.2d 327, 338 (1992). In the Rule 41(a) context, we recognize that a motion for attorney\u2019s fees pursuant to Rule 11(a) or G.S. 6-21.5 is not a continuation of adversary proceedings. Id. These motions have a life of their own and they address the propriety of the adversary proceedings that have previously occurred in the case without regard to whether the adversary proceedings in question are continuing when the motion for fees is filed. Id. Accordingly, we conclude that the trial court here could properly consider and rule upon defendant\u2019s motion for attorney\u2019s fees pursuant to Rule 11(a) and G.S. 6-21.5.\nWe turn now to plaintiff\u2019s argument that the trial court erred in concluding that, plaintiff\u2019s action was not well-grounded in fact, was not legally sufficient, and was interposed for an improper purpose, therefore entitling defendant to reasonable attorney\u2019s fees under Rule 11(a). Plaintiff argues that competent evidence does not support the trial court\u2019s findings and that the findings do not support the court\u2019s award of reasonable attorney\u2019s fees. We disagree.\nWe review de novo the trial court\u2019s decision to impose or not to impose mandatory sanctions pursuant to G.S. 1A-1, Rule 11 (a). Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).\nIn the de novo review, the appellate court will determine (1) whether the trial court\u2019s conclusions of law support its judgment or determination, (2) whether the trial court\u2019s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence. If the appellate court makes these three determinations in the affirmative, it must uphold the trial court\u2019s decision to impose or deny the imposition of mandatory sanctions under N.C.G.S. \u00a7 1A-1, Rule 11(a).\nId. If we determine in our de novo review that sanctions were properly imposed by the trial court, we then review under an \u201cabuse of discretion\u201d standard the appropriateness of the particular sanction imposed. Id.\nHere, the plaintiff challenges the following findings of fact made by the trial court:\n5. Plaintiffs Distribution Director knew, at the time the Complaint was filed, that the statements in Defendant\u2019s advertisements and correspondence [complaint Exhibits A, B and C] were true, or at least, did not understate the actual circulation of Plaintiff\u2019s \u201cApartment Finder\u201d magazine. The statements contained in Defendant\u2019s advertisements and correspondence were consistent with the figures for pricing and circulation as publicly stated by Plaintiff.... Plaintiff\u2019s Distribution Director communicated to Plaintiff\u2019s President, Walt Fletcher, that the number of Plaintiff\u2019s Apartment Finder magazines printed for both the monthly and quarterly publications were not actually being placed in circulation. Additionally, the number of Plaintiff\u2019s Apartment Finder magazines, for both the monthly and quarterly publications, were not consistently being printed at the volume Plaintiff quoted to its advertisers.\n6. Plaintiff\u2019s President, Walt Fletcher, was told by his Distribution Director, and knew, or should have known (based on print orders placed by Plaintiff and printing invoices received by Plaintiff), at the time of filing the Complaint, and at the time of filing the Amended Complaint, that the allegations contained therein as to Plaintiff\u2019s circulation and pricing were false, frivolous, and without foundation or good faith basis in fact. Plaintiff\u2019s President, Walt Fletcher, believed that the filing of the Complaint would cause advertisers (actual or prospective clients of both Plaintiff and Defendant) to doubt the veracity of Defendant\u2019s advertisements, merely by virtue of the fact that a lawsuit had been filed, and intended to use this lawsuit in order to damage Defendant with regard to its relationship to advertisers.\n7. The Plaintiff\u2019s publishing bills and the testimony of Plaintiff\u2019s former Distribution Director, Rich F. Good, unequivocally show that the size of Plaintiff\u2019s \u201cApartment Finder\u2019s\u201d circulation was not 120,000 booklets for the Triangle area. The actual circulation of Plaintiff\u2019s \u201cApartment Finder\u201d magazine (combining the quarterly and monthly publications) did not exceed the amounts represented by Defendant in its advertisements and correspondence, and Defendant\u2019s pricing comparisons were accurate.\nThese findings are sufficiently supported in the record by advertising documents submitted by plaintiff as exhibits to plaintiff\u2019s amended complaint and by plaintiff\u2019s print invoices from the months immediately prior to plaintiff\u2019s filing of its complaint. We note here that we find adequate and independent support for the relevant findings by the trial court without considering the deposition of Rich F. Good. Accordingly we need not address whether the trial court could properly consider the deposition of Mr. Good in ruling upon defendant\u2019s motion for sanctions.\nWe also conclude that the trial court\u2019s findings of fact are sufficient to support its conclusion that \u201c[p]laintiff\u2019s action was not well-grounded in fact, was not legally sufficient, and was interposed for an improper purpose ... in violation of N.C. Gen. Stat. \u00a7 1A-1, Rule 11 . . . .\u201d Based on this conclusion, some measure of sanction is mandatory under Rule 11(a). Here, the trial court acted within its discretion in awarding reasonable attorney\u2019s fees as an appropriate sanction.\nAs to the amount of fees awarded, the trial court \u201cconsidered the skill, time and labor expended as well as the complexity of the case.\u201d Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 751, 392 S.E.2d 352, 358 (1990). The trial court\u2019s order here includes the appropriate findings of fact supported by competent evidence as to the \u201cskill, time and labor expended as well as the complexity of the case.\u201d Id. Accordingly, we conclude that the trial court did not err in its award of attorney\u2019s fees here pursuant to Rule 11(a).\nHaving upheld the trial court\u2019s award of attorney\u2019s fees pursuant to Rule 11(a) in the full amount awarded, we need not address plaintiff\u2019s argument that the trial court erred in concluding G.S. 6-21.5 provides an adequate and independent basis for the award of attorney\u2019s fees here.\nDefendant also argues here that the trial court erred in denying plaintiff\u2019s Rule 60(b) motion. We disagree. The standard of review on this issue is abuse of discretion. Based upon our review of the record here, we conclude that the trial court acted within its discretion in denying plaintiff\u2019s motion pursuant to Rule 60(b). E.g., Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). We have examined plaintiff\u2019s remaining assignments of error and conclude them to be without merit.\nAffirmed.\nJudges MARTIN, JOHN C., and SMITH concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Carlton & Carlton by Karen Kelly Carlton for plaintiff-appellant.",
      "William E. Moore, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "VSD COMMUNICATIONS, INC., Plaintiff v. LONE WOLF PUBLISHING GROUP, INC., Defendant\nNo. COA96-170\n(Filed 3 December 1996)\n1. Costs \u00a7 36 (NCI4th); Pleadings \u00a7 64 (NCI4th)\u2014 voluntary dismissal \u2014 jurisdiction to award attorney fees\nThe trial court could properly consider and rule upon defendant\u2019s motion for attorney fees pursuant to Rule 11(a) and N.C.G.S. \u00a7 6-21.5 after plaintiff voluntarily dismissed its claims without prejudice pursuant to Rule 41(a). N.C.G.S. \u00a7 1A-1, Rules 11(a) and 41(a).\nAm Jur 2d, Costs \u00a7\u00a7 5, 57, 70.\n2. Pleadings \u00a7 63 (NCI4th)\u2014 claim not well-grounded\u2014 improper purpose \u2014 attorney fees as sanction\nThe trial court did not err in concluding that plaintiff apartment guide magazine publisher\u2019s action against its competitor for defamation, unfair trade practices, and malicious interference with contract was not well-grounded in fact, was not legally suf- . ficient, and was interposed for an improper purpose, therefore entitling defendant to reasonable attorney fees as a sanction under Rule 11(a), where plaintiff\u2019s claims were based on statements in defendant\u2019s advertisements and correspondence about the circulation and pricing of plaintiff\u2019s magazine; plaintiff voluntarily dismissed its action under Rule 41(a); and the evidence supported the trial court\u2019s findings that plaintiff\u2019s president knew or should have known at the time the complaint was filed that the allegations therein concerning plaintiff\u2019s circulation and pricing were false, that the actual circulation of plaintiff\u2019s magazine did not exceed the amounts represented by defendant, and that plaintiff\u2019s president intended to use this lawsuit to damage defendant\u2019s relationships with its advertisers. N.C.G.S. \u00a7 1A-1, Rule 11(a).\nAm Jur 2d, Pleading \u00a7 339.\nAppeal by plaintiff from order entered 11 April 1995 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 23 October 1996.\nPlaintiff, VSD Communications, Inc., and defendant, Lone Wolf Publishing Group, Inc., are competitors in the publishing business in Wake County. Plaintiff publishes a guide called the \u201cApartment Finder\u201d while defendant publishes a similar guide named the \u201cApartment Book.\u201d The dispute here began when defendant undertook an advertising campaign directly attacking plaintiff. On 19 September 1994, plaintiff filed suit against defendant alleging unfair trade practices, malicious interference with contract, and defamation, and seeking both legal and equitable relief. Plaintiff amended its complaint to allege additional specific instances of defamation.\nOn 7 February 1995, defendant moved for summary judgment. On 8 March 1995, plaintiff filed a voluntary dismissal without prejudice pursuant to Rule 41(a). Thereafter, defendant filed additional motions (1) for attorney\u2019s fees pursuant to G.S. 75-16.1, (2) to set aside plaintiffs voluntary dismissal without prejudice, and (3) for attorney\u2019s fees pursuant to Rule 11 and pursuant to G.S. 6-21.5.\nOn 4 April 1995, the matter came on for hearing before Judge Stafford G. Bullock. On 11 April 1995, the trial court ordered plaintiff to pay defendant\u2019s attorney\u2019s fees in the amount of $5,783.00 pursuant to Rule 11 and G.S. 6-21.5. The trial court denied defendant\u2019s motions for summary judgment and to set aside plaintiff\u2019s voluntary dismissal. On 28 April 1995, plaintiff filed a motion pursuant to Rule 60(b) to set aside the trial court\u2019s order of 11 April 1995. The trial court denied plaintiffs motion on 21 June 1995.\nPlaintiff appeals.\nCarlton & Carlton by Karen Kelly Carlton for plaintiff-appellant.\nWilliam E. Moore, Jr., for defendant-appellee."
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  "file_name": "0642-01",
  "first_page_order": 680,
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