{ "id": 11359685, "name": "KIRSTEN DURLING, TIM HULL, and DEE NICHOLS v. KEVIN J. KING, individually, KEVIN J. KING d/b/a KEVIN J. KING and RBT ENTERPRISES", "name_abbreviation": "Durling v. King", "decision_date": "2001-10-16", "docket_number": "No. COA00-707", "first_page": "483", "last_page": "494", "citations": [ { "type": "official", "cite": "146 N.C. App. 483" } ], "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": "454 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917851 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0296-01" ] }, { "cite": "401 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538159 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0276-01" ] }, { "cite": "547 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135585, 135627, 135955, 135741, 135711 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0397-04", "/nc/353/0397-03", "/nc/353/0397-01", "/nc/353/0397-02", "/nc/353/0397-05" ] }, { "cite": "538 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "140 N.C. App. 780", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135820 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/140/0780-01" ] }, { "cite": "550 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "145 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436886 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/145/0237-01" ] }, { "cite": "536 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "\"trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence\"" } ], "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "pin_cites": [ { "parenthetical": "\"trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "510 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "697", "parenthetical": "\"trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237254 ], "year": 1999, "pin_cites": [ { "page": "171", "parenthetical": "\"trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0160-01" ] }, { "cite": "548 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "contradictions in evidence are for the jury to resolve" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433837 ], "year": 2001, "pin_cites": [ { "parenthetical": "contradictions in evidence are for the jury to resolve" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0277-01" ] }, { "cite": "547 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135692, 135987, 135923, 135829, 135963 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0394-03", "/nc/353/0394-01", "/nc/353/0394-04", "/nc/353/0394-02", "/nc/353/0394-05" ] }, { "cite": "539 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "666" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123425 ], "year": 2000, "pin_cites": [ { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0169-01" ] }, { "cite": "443 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528002 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/114/0777-01" ] }, { "cite": "371 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450667 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/371/0296-01" ] }, { "cite": "503 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "when purchasing manager buys products for the company from partnerships in which he was partner, his activities affect commerce" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 576", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468964 ], "year": 1998, "pin_cites": [ { "parenthetical": "when purchasing manager buys products for the company from partnerships in which he was partner, his activities affect commerce" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0576-01" ] }, { "cite": "519 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "employee guilty of unfair and deceptive trade acts where he starts his own company, which then sells computer hardware and services to his employer at inflated prices" } ], "opinion_index": 0 }, { "cite": "351 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155931 ], "year": 1999, "pin_cites": [ { "parenthetical": "employee guilty of unfair and deceptive trade acts where he starts his own company, which then sells computer hardware and services to his employer at inflated prices" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0027-01" ] }, { "cite": "292 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "employer-employee relationships not within intended scope of the law" } ], "opinion_index": 0 }, { "cite": "305 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573251, 8573289, 8573226, 8573201, 8573274 ], "year": 1982, "pin_cites": [ { "parenthetical": "employer-employee relationships not within intended scope of the law" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0759-03", "/nc/305/0759-05", "/nc/305/0759-02", "/nc/305/0759-01", "/nc/305/0759-04" ] }, { "cite": "289 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "employer-employee relationships not within intended scope of the law" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521757 ], "year": 1982, "pin_cites": [ { "parenthetical": "employer-employee relationships not within intended scope of the law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0445-01" ] }, { "cite": "403 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "although the statute has been extended to business relationships when appropriate, it is \"clearly intended to benefit consumers\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538399 ], "year": 1991, "pin_cites": [ { "parenthetical": "although the statute has been extended to business relationships when appropriate, it is \"clearly intended to benefit consumers\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0578-01" ] }, { "cite": "548 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "act intended to benefit consumers" }, { "page": "710" } ], "opinion_index": 0 }, { "cite": "353 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135724 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "act intended to benefit consumers" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0647-01" ] }, { "cite": "261 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574340, 8574361, 8574382, 8574319, 8574393 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0806-02", "/nc/298/0806-03", "/nc/298/0806-04", "/nc/298/0806-01", "/nc/298/0806-05" ] }, { "cite": "259 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550997 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0229-01" ] }, { "cite": "541 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "197" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440806 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "268-69" }, { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0262-01" ] }, { "cite": "529 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "352 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685063 ], "year": 2000, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0061-01" ] }, { "cite": "546 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135782, 135657, 135981, 135737, 135578 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0261-04", "/nc/353/0261-03", "/nc/353/0261-01", "/nc/353/0261-02", "/nc/353/0261-05" ] }, { "cite": "532 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080841 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0557-01" ] }, { "cite": "530 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078414 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0019-01" ] }, { "cite": "370 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518481 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0643-01" ] }, { "cite": "542 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155860, 1155894, 1155674, 1155806, 1155935 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0358-02", "/nc/351/0358-01", "/nc/351/0358-04", "/nc/351/0358-05", "/nc/351/0358-03" ] }, { "cite": "520 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "135 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239497 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/135/0143-01" ] }, { "cite": "550 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "144 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433876 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0286-01" ] } ], "analysis": { "cardinality": 1028, "char_count": 26971, "ocr_confidence": 0.746, "pagerank": { "raw": 4.1144607533982273e-07, "percentile": 0.9101905168988617 }, "sha256": "8d11b3e9f8d283350d22e69a37a7847f2fcb5845df405fd2d0dd57662f94ac05", "simhash": "1:cf6bf52e352938f2", "word_count": 4330 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and CAMPBELL concur." ], "parties": [ "KIRSTEN DURLING, TIM HULL, and DEE NICHOLS v. KEVIN J. KING, individually, KEVIN J. KING d/b/a KEVIN J. KING and RBT ENTERPRISES" ], "opinions": [ { "text": "BIGGS, Judge.\nKevin J. King, individually and d/b/a Kevin J. King and RBT Enterprises, (defendant) appeals from the trial court\u2019s judgment and amended judgment finding defendant liable for breach of contract and for other injurious behavior towards Kirsten Durling, Tim Hull, and Dee Nichols (Durling, Hull, and Nichols, or, collectively, plaintiffs), and awarding damages to plaintiffs. The plaintiffs cross-appeal from the amended judgment\u2019s conclusion that the defendant had not engaged in deceptive and unfair trade practices, and from its denial of plaintiffs\u2019 motion for attorneys\u2019 fees and treble compensatory damages. We affirm in part and reverse in part.\nTy, Inc. is a manufacturer of toys and gift products, most notably small stuffed animals known as \u201cBeanie Babies.\u201d Defendant began employment with Ty in 1992 as a salaried employee, and became a regional sales representative in 1995. As a sales representative, defendant traveled to card and gift shops in North Carolina to obtain orders for Ty, Inc.\u2019s products. Pursuant to his employment contract, the defendant was allowed to hire \u201csub-representatives\u201d to assist him in managing his sales contracts. This proved necessary in 1997, when Beanie Babies became immensely popular, and he could no longer manage all of the Beanie Baby contracts alone. Accordingly, defendant hired Nichols, Hull, and Durling. He assigned each of them Beanie Baby sales accounts to service, although he remained responsible to Ty, Inc. for the accounts. The parties agreed that plaintiffs would be paid on a commission basis, to be determined by the value of sales that were paid for and shipped by Ty to its customers. This lawsuit arises out of a dispute over these commissions.\nPlaintiffs had no direct employment or contractual relationship with Ty, but only with defendant. Therefore, the documents that confirmed orders placed with and shipped by Ty were sent directly to defendant. These included shipping invoices and monthly sales summaries, from which defendant determined the commissions owed to plaintiffs. During 1997 and 1998, plaintiffs became concerned that defendant was not providing them with all the relevant sales information, or paying them all the commissions they were owed. The employment relationship among the parties ended in 1998.\nOn 13 October 1998, plaintiffs filed suit against defendant and against Ty, Inc., alleging breach of contract, unfair and deceptive trade practices, negligent retention and supervision (by Ty, Inc., in its supervision of defendant), conversion, and unjust enrichment (quantum meruit). Plaintiffs sought an accounting of all commissions owed them, as well as costs, attorneys\u2019 fees, and treble compensatory damages. Defendant moved for summary judgment, which the trial court granted with respect to the claims for unjust enrichment and conversion. Before trial, plaintiffs dismissed their claims against Ty Inc., leaving only the present defendant.\nA jury trial was held in November, 1999. The jury found that defendant had breached his contracts with plaintiffs, and awarded damages for breach of contract in the amounts of $106,000 (Nichols), $24,000 (Durling), and $57,000 (Hull). The jury also answered the following questions affirmatively:\n3. Did defendants do any one or more of [the] acts listed in the special interrogatories?\nSpecial Interrogatories\n(1) Did the defendant Kevin J. King, individually or through his trade names, Kevin J. King or RBT Enterprises, [make] efforts to conceal from the Plaintiffs or otherwise prevent them from discovering the true amount of money they were owed pursuant to the commission agreement^]\n(2) Did the defendant Kevin J. King, individually or through his trade names, Kevin J. King or RBT Enterprises, wilfully and unfairly [use] his position of power to retain funds due and owing to Plaintifffs] after being requested to pay these funds to the plaintiff]?]\nThe jury found that each plaintiff was entitled to $22,000 \u201cas a proximate cause of defendant\u2019s conduct,\u201d described in the special interrogatories, adding these damages to those owed for breach of contract, for total damages of $128,000 (Nichols), $46,000 (Durling), and $79,000 (Hull). The trial court entered a judgment reflecting this verdict, from which the defendant appealed on 18 November 1999. Following plaintiffs\u2019 motion for treble compensatory damages and attorney\u2019s fees, the trial court entered an amended judgment on 20 January 2000. The amended judgment awarded each plaintiff the same amount as in its original judgment, and denied plaintiffs\u2019 motions. Defendant gave notice of appeal from this judgment on 7 February 2000; plaintiffs gave notice of appeal from the denial of their motions on 1 February 2000.\nPlaintiffs\u2019 Appeal\nPlaintiffs assign error to the trial court\u2019s denial of their motions for treble damages under N.C.G.S. \u00a7 75-16 (1999), and for attorneys\u2019 fees under N.C.G.S. \u00a7 75-16.1 (1999). We will consider their argument together with defendant\u2019s contention that the trial court erred in \u201cpermitting plaintiffs to recover both breach of contract damages and damages for alleged violations of Chapter 75,\u201d because the two arguments are related. We affirm the trial court\u2019s holding that the defendant\u2019s conduct did not constitute unfair or deceptive trade acts or practices, and its consequent refusal to award treble damages to plaintiffs. However, because we affirm the trial court\u2019s ruling that plaintiffs did not prove unfair or deceptive trade practices under Chapter 75, we vacate the award to each plaintiff of $22,000 damages for the alleged deceptive or unfair acts.\nPlaintiffs moved for treble damages in connection with their claim for damages under N.C.G.S. \u00a7 75-1.1 (1999) for unfair and deceptive trade practices. N.C.G.S. \u00a7 75-1.1, \u201cMethods of competition, acts and practices regulated; legislative policy,\u201d provides that \u201c[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\u201d If a plaintiff proves damages arising under this statute, he or she is automatically entitled to treble damages pursuant to G.S. \u00a7 75-16, which states:\nIf any person shall be injured or the business of any person injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict.\nPlaintiffs contend that the jury\u2019s affirmative answers to Issues three and four of the verdict sheet which set forth the alleged unfair and deceptive acts, and Issue five which sets forth damages for the alleged acts, establish a violation of G.S. \u00a7 75-1.1, and thus entitle them to treble the damages awarded under Issue five. However, a successful claim under G.S. \u00a7 75-1.1 requires proof of three elements: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, (3) which proximately caused actual injury to the claimant. Rawls & Associates v. Hurst, 144 N.C. App. 286, 550 S.E.2d 219 (2001); Market America, Inc. v. Christman Orth, 135 N.C. App. 143, 520 S.E.2d 570 (1999), disc. review denied, 351 N.C. 358, 542 S.E.2d 213 (2000). The jury decides whether the defendant has committed the acts complained of. If it finds the alleged acts have been proved, the trial court then determines as a matter of law whether those acts constitute unfair or deceptive practices in or affecting commerce. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988); Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838 (2000); Allen v. Roberts Const. Co. Inc., 138 N.C. App. 557, 532 S.E.2d 534, disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000). In the instant case, the jury found that the defendant had committed the acts described in the special interrogatories. The trial court then held in its amended judgment that \u201cthe defendants\u2019 conduct, as found by the jury in their answers to the special interrogatories, does not constitute unfair and deceptive trade acts or practices.\u201d We affirm the trial court\u2019s ruling and its denial of treble damages.\nThe primary purpose of G.S. \u00a7 75-1.1 is to provide a \u201cprivate cause of action for consumers.\u201d Gray v. N.C. Underwriting Ass\u2019n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000). Although commerce is defined broadly under G.S. \u00a7 75-1.1(b) as \u201call business activities, however denominated,\u201d \u201cthe fundamental purpose of G.S. \u00a7 75-1.1 is to protect the consuming public.\u201d Prince v. Wright, 141 N.C. App. 262, 268-69, 541 S.E.2d 191, 197 (2000). Typically, claims under G.S. \u00a7 75-1.1 involve buyer and seller. Holley v. Coggin Pontiac, 43 N.C. App. 229, 259 S.E.2d 1, disc. review denied, 298 N.C. 806, 261 S.E.2d 919 (1979). Thus, the statute usually is not applicable to employment disputes. Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704 (2001) (act intended to benefit consumers); HAJMM Co. v. House of Raeford Farms, 328 N.C. 578, 403 S.E.2d 483 (1991) (although the statute has been extended to business relationships when appropriate, it is \u201cclearly intended to benefit consumers\u201d); Buie v. Daniel International, 56 N.C. App. 445, 289 S.E.2d 118, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (employer-employee relationships not within intended scope of the law). Nonetheless, \u201cthe mere existence of an employer-employee relationship does not in and of itself serve to exclude a party from pursuing an unfair trade or practice claim.\u201d Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 710 (2001). See, e.g., Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999) (employee guilty of unfair and deceptive trade acts where he starts his own company, which then sells computer hardware and services to his employer at inflated prices); Kewaunee Scientific Corp. v. Pegram, 130 N.C. App. 576, 503 S.E.2d 417 (1998) (when purchasing manager buys products for the company from partnerships in which he was partner, his activities affect commerce). The proper inquiry \u201cis not whether a contractual relationship existed between the parties, but rather whether the defendants\u2019 allegedly deceptive acts affected commerce.\u201d Prince v. Wright, 141 N.C. App. 262, 268, 541 S.E.2d 191, 197 (2000). What is an unfair or deceptive trade practice usually depends upon the facts of each case and the impact the practice has in the marketplace. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 9 L. Ed. 2d 325 (1963).\nThe evidence presented in the instant case was that the parties were engaged in a dispute over the amount of commissions that defendant owed to plaintiffs. Defendant\u2019s actions in withholding commissions that were owed to plaintiffs were a breach of the contracts that he had made with plaintiffs. However, no evidence was presented that the subject transactions had any impact beyond the parties\u2019 employment relationships. There is no indication that defendant\u2019s behavior was \u201cin or affecting commerce.\u201d Accordingly, we find that the trial court was correct in its ruling that defendant\u2019s actions did not amount to a violation of G.S. \u00a7 75-1.1.\nWe also affirm the trial judge\u2019s denial of plaintiffs\u2019 motion for attorneys\u2019 fees. Attorneys\u2019 fees may be awarded in a case alleging unfair or deceptive trade practices only to \u201cthe prevailing party.\u201d G.S. \u00a7 75-16.1; Evans v. Full Circle Productions, 114 N.C. App. 777, 443 S.E.2d 108 (1994). In the instant case, the plaintiffs did not prevail on their claim of a violation of G.S. \u00a7 75-1.1. Thus, plaintiffs were not entitled to an award of attorneys\u2019 fees. Consequently, we affirm the trial court\u2019s denial both of treble damages and of attorneys\u2019 fees.\nDefendant argues that plaintiffs should not have been allowed damages for the acts submitted to the jury in support of plaintiffs\u2019 claim of unfair or deceptive trade practices. We agree with this contention. The trial judge correctly found that the defendant\u2019s acts did not meet the requirements for recovery under G.S. \u00a7 75-1.1. The trial judge\u2019s ruling eliminated plaintiffs\u2019 theory of recovery, and left no basis for the award of damages beyond those found to result from defendant\u2019s breach of contract. Consequently, we vacate the part of the judgment and amended judgment awarding each plaintiff $22,000 damages for alleged unfair or deceptive trade acts or practices.\nDefendant\u2019s Appeal\nDefendant argues that the trial court erred in its limitation of his cross-examination of Nichols. Defendant\u2019s contention is that the trial judge prevented him from exploring inconsistencies between dollar amounts stated in Nichols\u2019 trial testimony and the figures listed in the various charts, ledgers, and other documents submitted by plaintiffs. Defendant also argues that the trial judge was obligated to enter judgment in an amount that reflected specific testimony by Nichols, even though the testimony was contradicted by other evidence or testimony. We disagree with both of these contentions.\nThe general rule regarding cross-examination is that \u201c[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.\u201d N.C.G.S. \u00a7 8C-1, Rule 611 (b) (1999). Nichols\u2019 calculations of her unpaid commissions were relevant to the issues of whether she was owed any unpaid commissions and, if so, in what amount. Thus, this was a proper subject for cross-examination. However, Rule 611 also provides that:\nThe court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.\nRule 611(a). \u201c[T]he scope of cross-examination rests largely within the trial court\u2019s discretion and is not ground for reversal unless the cross-examination is shown to have improperly influenced the verdict.\u201d State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656, 666 (2000), disc. review denied, 353 N.C. 394, 547 S.E.2d 37 (2001) (citation omitted).\nIn the instant case, the record indicates that King\u2019s cross-examination of Nichols extends for approximately one hundred pages of transcript. King obtained repeated concessions from Nichols that she probably had made some mathematical errors in her calculation of the commissions owed. Indeed, most of this cross-examination concerns the mathematical method by which plaintiffs attempted to determine whether King owed them any unpaid commissions. Any inconsistency between the amount of unpaid commissions presented in plaintiffs\u2019 exhibits and Nichols\u2019s trial testimony was available for the jury\u2019s consideration. Moreover, King himself testified concerning the same matters, followed by Nichols\u2019s rebuttal testimony, and a second cross-examination of Nichols. We find that the trial court neither prevented King from conducting cross-examination, nor abused its discretion in limiting cross-examination. We also find that the trial court was not required to enter a judgment that reflected particular parts of Nichols\u2019s testimony that may have been contradicted by other testimony or evidence. See State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773 (2001) (contradictions in evidence are for the jury to resolve); Delta Env. Consultants of N. C. v. Wysong & Miles Co., 132 N.C. App. 160, 171, 510 S.E.2d 690, 697, disc. review denied, 350 N.C. 379, 536 S.E.2d 70 (1999) (\u201ctrier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence\u201d)- For these reasons, this assignment of error is overruled.\nDefendant next argues that the trial court erred in its denial of defendant\u2019s motion for a directed verdict on the claim of unfair and deceptive trade practices. However, we have held above that the portion of the judgment awarding damages for purported unfair or deceptive trade acts or practices must be vacated. This ruling renders harmless any error in the court\u2019s denial of defendant\u2019s motion for directed verdict on the issue of unfair and deceptive trade practices.\nFinally, defendant argues that the judgment entered by the court in this case did not accurately reflect the jury\u2019s verdict, and was not properly entered. We disagree with both contentions.\nThe jury was given five issues to answer regarding possible injury and damages to plaintiffs. These issues may be summarized as follows:\nIssue One: Did the defendant breach his contracts with any or all of the plaintiffs?\nIssue Two: If there was a breach of contract, what damages resulted from the breach?\nIssue Three: Did the defendant either (a) make efforts to conceal from the plaintiffs, or otherwise prevent them from discovering, the true amount of commissions owed them, or (b) willfully and unfairly use his position of power to retain funds due to the plaintiffs after being requested to pay these funds?\nIssue Four: If defendant did either or both of the acts in Issue three, did this cause damage to the plaintiffs?\nIssue Five: What amount of damages were caused by the behavior described in the special interrogatories?\nThe jury was instructed to consider two possible sources of injury, and each verdict sheet had two spaces for entry of dollar amounts: Issues two and five. The jury answered Issues one, three, and four affirmatively for each plaintiff, and entered the dollar amount owed to each plaintiff in Issues two and five. Below the dollar amount entered for Issue five, the foreman totaled the entries from Issues two and five. This notation did not affect the validity of the verdict, nor render the verdict or judgment erroneous. We find that the verdict sheets were correctly completed. The defendant argues that each plaintiff was entitled to only $22,000, the amount entered in response to Issue Five. We find no support in the record for this position. The trial court instructed the jury as follows on the damages that could be awarded in response to Issues 2 and 5:\n[SECOND ISSUE:]\nTHEN THE SECOND ISSUE IS, WHAT AMOUNT OF DAMAGES IS THE PLAINTIFF ENTITLED TO RECOVER FOR BREACH OF CONTRACT? IF YOU\u2019VE ANSWERED THE FIRST ISSUE IN FAVOR OF THE PLAINTIFF, THEN EVEN WITHOUT PROOF OF ACTUAL DAMAGES, THE PLAINTIFFS WILL BE ENTITLED TO AT LEAST NOMINAL DAMAGES. . . .\n[FIFTH ISSUE:]\nTHE FIFTH AND FINAL ISSUE, WHAT AMOUNT OF DAMAGES HAS THE PLAINTIFF SUSTAINED AS A PROXIMATE CAUSE OF THE DEFENDANTS\u2019 CONDUCT? IF YOU ANSWERED ISSUES THREE AND FOUR \u201cYES\u201d IN FAVOR OF THE PLAINTIFF, THE PLAINTIFF IS ENTITLED TO RECOVER AT LEAST NOMINAL DAMAGES WITHOUT PROOF OF ACTUAL DAMAGES. ... SO, FINALLY, IF BY THE GREATER WEIGHT OF THE EVIDENCE THE PLAINTIFF [NAME] HAS PROVEN THE AMOUNT OF DAMAGES SHE SUSTAINED BY THE DEFENDANTS\u2019 CONDUCT SPECIFICALLY REFERRED TO IN ISSUES THREE AND FOUR. YOU WOULD WRITE THAT AMOUNT IN THE SPACE PROVIDED.\nIt is clear from a review of the record that the damages awarded pursuant to Issues two and five were separate amounts. Therefore, we conclude that the judgment was an accurate statement of the jury\u2019s verdict. However, as we have held above, plaintiffs are entitled to recover damages for breach of contract, but not for unfair or deceptive trade acts or practices. Thus, each plaintiff should be awarded only the damages specified by the jury in response to Issue two.\nDefendant also contends that the judgment was not properly entered. The jury returned a verdict in favor of plaintiffs on 12 November 1999. Plaintiffs then made a motion for treble damages and for attorneys\u2019 fees. The trial court directed plaintiffs to prepare a judgment expressing the jury\u2019s verdict, and indicated that it would reserve ruling on plaintiffs\u2019 post-trial motions until a later date. Plaintiffs prepared a judgment, which was signed by the trial court and filed with the clerk of court on 12 November 1999, the same afternoon that the jury\u2019s verdict was returned. Defendant had left the courtroom at some point before the trial court signed the judgment. Therefore, plaintiffs faxed a copy of the judgment to defense counsel\u2019s office; defendant received the copy on 17 November 1999, and gave notice of appeal to this Court the following day.\nDefendant contends that because plaintiffs sent a copy of the judgment by fax, the judgment was not properly entered in compliance with N.C.R. Civ. P. 58 (2000). Rule 58 provides as follows:\n\u00cdA] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. (emphasis added)\nJudgment is entered when the three requirements stated in the first sentence of this rule are met. State v. Coronel, 145 N.C. App. 237, 550 S.E.2d 561 (2001); Stevens v. Guzman, 140 N.C. App. 780, 538 S.E.2d 590 (2000), disc. review allowed, 353 N.C. 397, 547 S.E.2d 437 (2001). The record shows that the judgment was reduced to writing, signed by the judge, and filed with the clerk on 12 November 1999. We find that judgment was entered on that date. The defendant does not dispute that these criteria for entry of judgment were met; rather, he contends that plaintiffs\u2019s use of a fax to provide defendant with a copy of the judgment renders it void and unenforceable. Defendant is correct that N.C.R. Civ. P. 5 does not authorize use of facsimile machines for service of documents. However, under Rule 58, the procedures for serving all parties with a copy of the judgment after its entry are separate and distinct from the criteria that govern entry of judgment, and the method of service of copies of the judgment is not a statutory criteria for entry of judgment. The cases cited by defendant for this proposition interpret an earlier version of Rule 58, which included different requirements.\nMoreover, the purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered. Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991); In re Estate of Peebles, 118 N.C. App. 296, 454 S.E.2d 854 (1995). Defendant clearly had notice of the entry of judgment, as shown by his filing notice of appeal from the judgment. In addition, the trial judge on 13 January 2000 filed an amended judgment, whose entry defendant does not contest. The amended judgment awarded plaintiffs the same damages as the original judgment, and differed from it only in its denial of certain of plaintiffs\u2019 motions. Any procedural errors in plaintiffs\u2019 service of the first judgment upon defendant were rendered irrelevant by the entry of the later amended judgment. For these reasons, we hold that the judgment was properly entered pursuant to N.C.R. Civ. P. 58.\nIn conclusion, we affirm the trial court\u2019s order finding that the evidence did not establish that defendant had committed unfair or deceptive trade acts or practices, and its consequent denial of plaintiffs\u2019 motion for treble damages and attorneys\u2019 fees. Consistent with this ruling, we vacate the part of the judgment and the amended judgment awarding plaintiffs $22,000 each for unfair or deceptive trade acts or practices.\nAffirmed in part; reversed and vacated in part.\nJudges WYNN and CAMPBELL concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Van Gamp, Hayes, & Meacham, P.A., by Michael J. Newman for defendant.", "Sanford Holshouser Law Firm, PLLC, by Rieran J. Shanahan and Daniel G. Cahill for plaintiffs." ], "corrections": "", "head_matter": "KIRSTEN DURLING, TIM HULL, and DEE NICHOLS v. KEVIN J. KING, individually, KEVIN J. KING d/b/a KEVIN J. KING and RBT ENTERPRISES\nNo. COA00-707\n(Filed 16 October 2001)\n1. Unfair Trade Practices\u2014 sufficiency of evidence \u2014 in or affecting commerce\nThe trial court did not err by denying plaintiffs\u2019 motions for treble damages under N.C.G.S. \u00a7 75-16 where there was evidence of a breach of contract involving sales commissions, but there was no evidence that these transactions had any impact beyond the parties\u2019 employment relationships or that defendant\u2019s behavior was \u201cin or affecting commerce.\u201d\n2. Unfair Trade Practices\u2014 attorney fees \u2014 denied\nThe trial court correctly denied plaintiffs\u2019 motion for attorney fees under N.C.G.S. \u00a7 75-16.1 where plaintiffs did not prevail on their claim under N.C.G.S. \u00a7 75-1.1.\n3. Unfair Trade Practices\u2014 damages \u2014 basis\nThe trial court should not have awarded damages to plaintiffs for alleged unfair or deceptive trade practices based upon a jury finding where the judge correctly found that the defendant\u2019s acts did not meet the requirements for recovery under N.C.G.S. \u00a7 75-1.1. The judge\u2019s ruling eliminated plaintiffs\u2019 theory of recovery and left no basis for the award of damages beyond those resulting from a breach of contract.\n4. Evidence\u2014 cross-examination \u2014 limited\u2014no error\nThe court neither prevented defendant from conducting cross-examination nor abused its discretion in limiting cross-examination in an action concerning compensation for Beanie Baby sales reps; moreover, the court was not required to enter a judgment that reflected particular parts of a witness\u2019s testimony that may have been contradicted by other testimony or evidence.\n5. Jury\u2014 notation on verdict sheet \u2014 validity of verdict\nA judgment in an action arising from unpaid sales commissions was supported by the verdict sheet where the jury was instructed to consider two possible sources of injury and the damages awarded for those injuries were separate amounts, even though the foreman also totaled the damages. The additional notation did not affect the validity of the verdict.\n6. Judgments\u2014 entry \u2014 notice to opposing party by fax\nA judgment was properly entered where it was reduced to writing, signed by the judge, and filed with the clerk, but faxed. N.C.G.S. \u00a7 1A-1, Rule 5 does not authorize the use of facsimile machines for service of documents, but the procedures for serving all parties with a copy of a judgment after its entry under N.C.G.S. \u00a7 1A-1, Rule 58 are separate and distinct and the method of service of copies of the judgment is not a statutory criteria for entry of judgment. Moreover, defendant clearly had notice of the entry of judgment, and any procedural errors in plaintiffs\u2019 service of the first judgment upon defendant were rendered irrelevant by a subsequent amended judgment awarding the same damages.\nAppeal by defendant from judgment entered 12 November 1999 and from amended judgment entered 20 January 2000, and by plaintiffs from amended judgment entered 20 January 2000. Judgments entered by Judge Wiley F. Bowen in Wake County Superior Court. Heard in the Court of Appeals 16 May 2001.\nVan Gamp, Hayes, & Meacham, P.A., by Michael J. Newman for defendant.\nSanford Holshouser Law Firm, PLLC, by Rieran J. Shanahan and Daniel G. Cahill for plaintiffs." }, "file_name": "0483-01", "first_page_order": 515, "last_page_order": 526 }