{ "id": 8471236, "name": "CASTLE McCULLOCH, INC., Plaintiff v. DONALD LEE FREEDMAN, D/B/A FREEDMAN ASSOCIATES, and FREEDMAN ASSOCIATES, INC., Defendants", "name_abbreviation": "Castle McCulloch, Inc. v. Freedman", "decision_date": "2005-04-05", "docket_number": "No. COA04-514", "first_page": "497", "last_page": "508", "citations": [ { "type": "official", "cite": "169 N.C. App. 497" } ], "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": "296 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526257 ], "year": 1982, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0280-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "540 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "780" }, { "page": "780" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440648 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0203-01" ] }, { "cite": "315 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "732" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 768", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527968 ], "year": 1984, "pin_cites": [ { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0768-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "483 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708301 ], "year": 1997, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0001-01" ] }, { "cite": "173 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "599", "parenthetical": "an estimate of anticipated profits does not provide an adequate factual basis for a jury to ascertain the measure of damages" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552274 ], "year": 1970, "pin_cites": [ { "page": "623", "parenthetical": "an estimate of anticipated profits does not provide an adequate factual basis for a jury to ascertain the measure of damages" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0614-01" ] }, { "cite": "431 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1993, "pin_cites": [ { "page": "770" }, { "page": "847-48" }, { "page": "770" }, { "page": "848" }, { "page": "771" }, { "page": "848-49" }, { "page": "771" }, { "page": "849" }, { "page": "771" }, { "page": "770" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 843", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526617 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "847" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0843-01" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "586" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "year": 1987, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "63", "parenthetical": "citation omitted" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198692 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "252", "parenthetical": "citation omitted" }, { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0242-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "419 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527466 ], "year": 1992, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0252-01" ] }, { "cite": "598 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995643 ], "year": 2004, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0032-01" ] }, { "cite": "318 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519994 ], "year": 1984, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0001-01" ] }, { "cite": "295 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573964, 8573997, 8573942, 8573978, 8573919 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0741-03", "/nc/306/0741-05", "/nc/306/0741-02", "/nc/306/0741-04", "/nc/306/0741-01" ] }, { "cite": "292 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "734" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524073 ], "year": 1982, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0197-01" ] }, { "cite": "586 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "789-90" } ], "opinion_index": 1 }, { "cite": "160 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956985 ], "year": 2003, "pin_cites": [ { "page": "516" } ], "opinion_index": 1, "case_paths": [ "/nc-app/160/0511-01" ] }, { "cite": "550 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "265", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "145 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438193 ], "year": 2001, "pin_cites": [ { "page": "424", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/145/0418-01" ] }, { "cite": "580 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "158 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186665 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/158/0208-01" ] }, { "cite": "251 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "422" } ], "opinion_index": 1 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "pin_cites": [ { "page": "470" } ], "opinion_index": 1, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "458 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "340 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790083, 790182, 790069, 790070, 790172 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/340/0359-05", "/nc/340/0359-02", "/nc/340/0359-01", "/nc/340/0359-03", "/nc/340/0359-04" ] }, { "cite": "454 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "828" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917278 ], "year": 1995, "pin_cites": [ { "page": "181" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0178-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "353" } ], "opinion_index": 1 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "579 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "507", "parenthetical": "quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187124 ], "year": 2003, "pin_cites": [ { "page": "477", "parenthetical": "quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0445-01" ] }, { "cite": "451 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "298", "parenthetical": "citations omitted" }, { "page": "298" } ], "opinion_index": 1 }, { "cite": "339 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559439 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "406", "parenthetical": "citations omitted" }, { "page": "406" } ], "opinion_index": 1, "case_paths": [ "/nc/339/0396-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2004, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2004, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "63", "parenthetical": "requiring evidence of \"actual injury\" as an element to a cause of action for unfair and deceptive trade practices" } ], "opinion_index": 1 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198692 ], "year": 1998, "pin_cites": [ { "page": "252", "parenthetical": "requiring evidence of \"actual injury\" as an element to a cause of action for unfair and deceptive trade practices" } ], "opinion_index": 1, "case_paths": [ "/nc-app/131/0242-01" ] } ], "analysis": { "cardinality": 1049, "char_count": 26655, "ocr_confidence": 0.757, "pagerank": { "raw": 3.0566931919834343e-07, "percentile": 0.8563344812767076 }, "sha256": "d81a4c2e4629006bc01b26e11607ef6c667dcf09e9872f503fa075b78725bebd", "simhash": "1:ab2b44627656ce78", "word_count": 4335 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge TYSON concurs in part and dissents in part." ], "parties": [ "CASTLE McCULLOCH, INC., Plaintiff v. DONALD LEE FREEDMAN, D/B/A FREEDMAN ASSOCIATES, and FREEDMAN ASSOCIATES, INC., Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nTo prevail on a claim of unfair and deceptive trade practices, under Chapter 75 of the North Carolina General Statutes, a plaintiff must show the defendant committed an unfair or deceptive act or practice, in or affecting commerce, and that the plaintiff was injured thereby. In this case, the record shows that Plaintiff failed to present evidence from which a jury could reasonably calculate damages. Accordingly, we hold that the trial court did not err in granting Defendant\u2019s Motion for a Directed Verdict.\nPlaintiff, Castle McCulloch, Inc., owns and operates a facility in Jamestown, North Carolina used primarily for weddings and wedding receptions. In 1999, Castle McCulloch also began holding bridal shows at its facility. At a bridal show various vendors \u2014 caterers, photographers, florists, musicians, etc. \u2014 display their products and services to brides. In January 1999, Castle McCulloch\u2019s first bridal show had twenty-six vendors and 150 brides. By June 2001, the bridal show consisted of seventy vendors and 506 brides. The January 2003 bridal show included 753 brides and fifty-five vendors.\nCastle McCulloch charges each vendor $650 per booth, unless they are a \u201cpreferred vendor\u201d in which case the charge is only $325-350. A \u201cpreferred vendor\u201d at Castle McCulloch has its literature included in a bridal notebook given to all brides that use Castle McCulloch, and the brides are encouraged to book services with the \u201cpreferred vendors.\u201d In addition, Castle McCulloch markets the \u201cpreferred vendors\u201d at various wedding shows its employees attend around North Carolina. In exchange for this marketing service, all \u201cpreferred vendors\u201d must pay Castle McCulloch fifteen percent (ten percent for caterers) of all sales they make to brides holding their events at Castle McCulloch. There is no charge for brides to attend the bridal show if they pre-register.\nDefendant, Donald Lee Freedman, operates three large wedding shows a year in Greensboro, North Carolina and two in Winston-Salem, North Carolina. Annually, Freedman rents booths to about 400 vendors at his bridal shows collectively at a rate of $640 per booth. Most brides are charged a ten dollar entrance fee to Freedman\u2019s shows.\nIn March 2001, Freedman conducted a survey questionnaire asking fifteen local caterers and four local wedding planners to grade various reception sites that allow outside caterers. Thirteen of the caterers were chosen from a list of the top fifteen caterers in the Triad area (two were removed because they did not caterer weddings) and Freedman added two more caterers that were frequently used for weddings. Along with five other sites, Castle McCulloch was one of the facilities graded. Each facility was given a letter grade in six categories \u2014 professionalism, integrity, personal service, convenience, preparation/amenities, and hidden costs. Freedman received responses from fifteen vendors and averaged the letter grades into a final list. Castle McCulloch received the worst grades with four \u201cCs\u201d and two \u201cDs.\u201d Some of the vendors who were sent the questionnaire were Castle McCulloch\u2019s \u201cpreferred vendors,\u201d while one vendor had been banned from performing services there. The survey results were sent to the nineteen vendors that the questionnaire was originally sent to, along with a few other vendors. It was not given to any brides.\nIn August 2001, Freedman sent Dave Card of After Five Framing a sheet entitled \u201cHow can I tell a Good bridal show from a not-so-good one?\u201d in response to Card inquiring into joining either Freedman\u2019s or Castle McCulloch\u2019s bridal show. Card eventually joined Castle McCulloch\u2019s bridal show. The sheet contained the following pertinent sections:\n\u25a0 KICKBACK FEES. Believe it or not, some shows hit you for a percentage of your hard-won sales. If you feel like you are not currently paying enough taxes, you\u2019ll love this type of deal.\nREAL BRIDES. Do most brides get into the show for free? Such \u201cbrides\u201d are not your best prospects: heck, access to free caterers\u2019 food is enough to draw a crowd. Look for a show where 90+% pay for tickets: now those are brides who are planning weddings!\n***\nOn 16 November 2001, Castle McCulloch filed a complaint against Freedman alleging unfair and deceptive actions constituting an unfair trade practice in violation of Chapter 75 on the North Carolina General Statutes. The case went to trial on 24 February 2004, and at the close of Castle McCulloch\u2019s evidence the trial court granted Freedman\u2019s motion for a directed verdict. Castle McCulloch appealed.\nOn appeal, Castle McCulloch argues that the trial court erred in (A) granting Freedman\u2019s Motion for a Directed Verdict, (B) not allowing its economic expert to testify as to damages, and (C) granting Freedman\u2019s Motion for Costs and Attorneys Fees. We disagree.\nA. Directed Verdict\nCastle McCulloch first contends that the trial court erred in granting Freedman\u2019s Motion for a Directed Verdict at the close of its evidence when it had properly stated its case within the meaning of section 75-1.1 of the North Carolina General Statutes. We disagree.\nA motion for a directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure presents the same question for both trial and appellate courts: whether the evidence, taken in a light most favorable to plaintiff, was sufficient for submission to the jury. Helvy v. Sweat, 58 N.C. App. 197, 199, 292 S.E.2d 733, 734, disc. review denied, 306 N.C. 741, 295 S.E.2d 477 (1982). The question of the evidence\u2019s sufficiency is a matter of law, and the motion should be reversed if there is more than a scintilla of evidence to support all the elements of plaintiff\u2019s prima facie case. S. Ry. Co. v. O\u2019Boyle Tank Lines, Inc., 70 N.C. App. 1, 4, 318 S.E.2d 872, 875 (1984). Therefore, this Court reviews the record and transcript de novo, reversing upon a finding of more than a scintilla of evidence supporting each element of plaintiff\u2019s prima facie case. Whitt v. Harris Teeter, Inc., 165 N.C. App. 32, 46, 598 S.E.2d 151, 160 (2004).\nTo prevail on a claim of unfair and deceptive trade practices, a plaintiff must show: (1) defendants committed an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that plaintiff was injured thereby. See Canady v. Mann, 107 N.C. App. 252, 260, 419 S.E.2d 597, 602 (1992); N.C. Gen. Stat. \u00a7 75-1.1 (2004). The plaintiff must also establish it \u201csuffered actual injury as a proximate result of defendants\u2019 misrepresentations or unfair conduct.\u201d First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998) (citation omitted).\nHere, the trial court concluded that \u201cthe plaintiff\u2019s evidence is insufficient as a matter of law to establish each of the elements of the plaintiff\u2019s claim and that the defendants\u2019 Motion should be granted.\u201d The trial court found that Castle McCulloch failed to establish with certainty the existence of any actual damages caused by Freedman.\nThe burden of proving damages is on the party seeking them. Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 547, 356 S.E.2d 578, 586 (1987). \u201cAs part of its burden, the party seeking damages must show that 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.\nAt trial, Castle McCulloch argued the damages it sustained from Freedman\u2019s survey and bridal show tip sheet amounted to the payroll time employees spent talking about the survey and the revenue from the decline in vendor booths at the wedding shows. Denisa Harvey, general manager of Castle McCulloch, testified at trial that although they had no meeting logs, based on her personal notes from staff meetings, she estimated that Castle McCulloch employees spent fifty to seventy hours working on the reaction to the Freedman survey and the average employee made ten dollars per hour. All employees were on the payroll and there was no overtime or additional employees hired in response to Freedman\u2019s survey. Richard Harris, president of Castle McCulloch, testified at trial that he calculated Castle McCulloch lost revenue in the amount of $33,000 to $67,000 due to Freedman\u2019s survey. Harris reached these numbers by calculating the amount of vendors lost since the highest point (seventy) to the current number (fifty-five) and multiplied this by $650 (the charge for a booth to a non-preferred vendor) to reach $33,000. He calculated the $67,000 by looking at the amount of vendors his show would have had if the number of vendors continued to grow as it previously had before the drop off.\nThe damages argued by Castle McCulloch regarding the lost vendor revenue are essentially damages for lost profits. \u201cNorth Carolina courts have long held that damages for lost profits will not be awarded based upon hypothetical or speculative forecasts of losses.\u201d Iron Steamer, Ltd. v. Trinity Rest., Inc., 110 N.C. App. 843, 847, 431 S.E.2d 767, 770 (1993). This Court has chosen to evaluate the quality of evidence of lost profits on an individual case-by-case basis in light of certain criteria to determine whether damages have been proven with \u201creasonable certainty.\u201d Id. at 847-48, 431 S.E.2d at 770.\nIn Iron Steamer, the defendant leasee operated a restaurant and his gross revenues for August, September, October, and November of 1989 were lower than the revenues from May, June, or July of that year. Id. at 848, 431 S.E.2d at 771. The trial court found that, but for the plaintiff\u2019s breach of contract, \u201cthe 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.\u201d Id. The defendant estimated his lost profits for the months of August through November, by estimating the gross sales figures would have been the same as in July and subtracting what he thought would have been the additional expenses for those months. Id. at 848-49, 431 S.E.2d at 771. This court found \u201cno factual basis upon which a jury could calculate lost profits with a \u2018reasonable certainty.\u2019 [The defendant\u2019s] estimation of lost profits is based on assumptions that are purely speculative in nature.\u201d Id. at 849, 431 S.E.2d at 771. See also Meares v. Nixon Constr. Co., 7 N.C. App. 614, 623, 173 S.E.2d 593, 599 (1970) (an estimate of anticipated profits does not provide an adequate factual basis for a jury to ascertain the measure of damages).\nHere, as in Iron Steamer, Castle McCulloch merely speculated as to the number of vendors that would have attended the bridal show but for Freedman\u2019s survey. Castle McCulloch speculated that the number of vendors would not have decreased or the rate of growth would not have slowed. No evidence was presented to show that any vendor left Castle McCulloch\u2019s bridal show as a result of Freedman\u2019s survey Castle McCulloch presented no evidence as to why those fifteen vendors left the bridal show. Also, Castle McCulloch assumed that all the missing vendors paid the full booth price without presenting evidence that the vendors who left were not \u201cpreferred vendors\u201d who paid half that price. Additionally, Castle McCulloch subtracted nothing for the additional setup or labor costs needed for those additional vendors.\nSimilarly, the only evidence Castle McCulloch presented regarding damages from payroll expenses was the general manager\u2019s testimony that she looked over her personal notes from some meetings and she estimated the time and then took an average hourly wage figure. This is far from a reasonably certain calculation. There were no meeting minutes or attendance logs of who was at these meetings. Nor was there any breakdown of how much time each individual employee spent and their individual wage.\nAfter reviewing the entire record, we find no evidence from which a jury could calculate lost profits from vendors or payroll damages with a \u201creasonable certainty.\u201d Iron Steamer, Ltd., 110 N.C. App. at 847, 431 S.E.2d at 770. As Castle McCulloch failed to present evidence that it suffered actual injury as a proximate result of Freedman\u2019s misrepresentations or unfair conduct, the trial court did not err in granting Freedman\u2019s motion for a directed verdict. First Atl. Mgmt., Corp., 131 N.C. App. at 252, 507 S.E.2d at 63.\nB. Expert Testimony\nCastle McCulloch next argues that the trial court erred in not allowing its expert to testify regarding damages because Freedman opened the door to the testimony by his cross-examination of Harris. We disagree.\nBefore trial, the trial court ruled that Castle McCulloch\u2019s expert witness, Erskine Walther, would not be permitted to testify concerning any economic impact Freedman\u2019s survey may have had on Castle McCulloch\u2019s business because his opinion had not been properly disclosed to Freedman in discovery.\nOn direct examination Harris testified concerning the number of vendors. \u201cWell, well, we get a peak in June of 2001. We had 70 vendors. We currently have 55, moved around in 50s, 60s. Generally falling since June of 2001.\u201d On cross-examination, Freedman questioned Harris on his testimony regarding vendor numbers as it conflicted with his earlier deposition testimony. At his deposition, Harris stated he had \u201cmore vendors, more brides, more money.\u201d Harris then asked if he could explain the differing testimonies and stated that Walther\u2019s economic data showed him he had \u201cbeen hurt.\u201d\nWe hold that Freedman did not open the door to Walther\u2019s testimony regarding damages. Defense counsel only questioned Harris as to the differing vendor numbers he testified to at his deposition and at trial. Harris interjected in his answer that he received information from Walther, the defense did not introduce this. \u201c[W]hen a party first raises an issue, it opens the door to questions in response to that issue and cannot later object to testimony regarding the subject raised.\u201d Middleton v. Russell Group, Ltd., 126 N.C. App. 1, 23-24, 483 S.E.2d 727, 740 (1997). However, since Freedman did not first raise the issue regarding Walther\u2019s testimony regarding damages or the issue of the decline in vendors, the door was not opened for Walther\u2019s testimony. Therefore, the trial court did not err in refusing to allow Walther\u2019s testimony regarding damages.\nC. Costs and Attorney\u2019s Fees\nCastle McCulloch argues the trial court erred in awarding costs and attorney\u2019s fees to Freedman. We disagree.\nSection 75-16.1 of the North Carolina General Statutes provides that\n[i]n any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee ... to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that: ... (2) The party instituting the action knew, or should have known, the action was frivolous and malicious.\nN.C. Gen. Stat. \u00a7 75-16.1 (2004). The award of attorneys\u2019 fees under section 75-16.1 of the North Carolina General Statutes is within the sound discretion of the trial judge. Borders v. Newton, 68 N.C. App. 768, 770, 315 S.E.2d 731, 732 (1984). A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. Smith v. Beaufort County Hosp. Ass\u2019n, Inc., 141 N.C. App. 203, 210, 540 S.E.2d 775, 780 (2000).\nCastle McCulloch argues that the trial court made no finding that the action was frivolous and malicious and there was no evidence to support such a finding. In its 10 July 2003 order, the trial court found that \u201cthe plaintiff knew, or should have known, that it would be unable to establish any damages arising from the alleged conduct of the defendants and that this action was frivolous and malicious.\u201d To support this finding, the trial court went on to state that \u201c[t]he plaintiff failed to present evidence sufficient to prove that it\u2019s [sic] business had suffered any economic injury caused by any of the alleged actions by the defendants.\u201d Here, the record shows that Castle McCulloch did not offer the testimony of any vendor that left its wedding show because of Freedman\u2019s tip sheet or questionnaire.\nMoreover, the trial court made a finding of fact that the action was frivolous and malicious and supported its finding. Although, the dissent does not agree that this is competent evidence to support the trial court\u2019s finding of frivolous and malicious, we conclude that the trial court\u2019s decision was not manifestly unsupported by reason. Smith, 141 N.C. App. at 210, 540 S.E.2d at 780.\nFinally, we point out that section 6-20 of the North Carolina General Statutes provides that \u201ccosts may be allowed or not, in the discretion of the court[.]\u201d N.C. Gen. Stat. \u00a7 6-20 (2004). Where the court has taxed costs in a discretionary manner its decision is not reviewable. Dixon, Odom & Co. v. Sledge, 59 N.C. App. 280, 286, 296 S.E.2d 512, 516 (1982). As the trial court awarded costs in its discretion, we do not review that decision on appeal.\nAffirmed.\nJudge McGEE concurs.\nJudge TYSON concurs in part and dissents in part.", "type": "majority", "author": "WYNN, Judge." }, { "text": "TYSON, Judge\nconcurring in part, dissenting in part.\nI concur in the majority\u2019s decision to affirm the trial court\u2019s grant for a directed verdict and that Freedman\u2019s cross-examination of Castle McCulloch\u2019s expert witness was insufficient to \u201copen the door\u201d to testimony regarding the decline in vendors. I disagree with the majority\u2019s decision to affirm the trial court\u2019s award of attorney\u2019s fees. I also vote to dismiss Castle McCulloch\u2019s assignment of error to the trial court\u2019s award of costs to Freedman. I respectfully dissent.\nI. Attorney\u2019s Fees\nThe majority\u2019s opinion concludes, but does not set forth any evidence in the record to support the trial court\u2019s finding that \u201c[Castle McCulloch] failed to present evidence sufficient to prove that its business has suffered any economic injury caused by any of the alleged actions by [Freedman].\u201d The majority\u2019s opinion concludes this finding supports a conclusion of law of \u201cfrivolous and malicious\u201d conduct by Castle McCulloch. I disagree. No evidence supports the trial court\u2019s finding that Castle McCulloch\u2019s claims were \u201cfrivolous and malicious,\u201d and its prior rulings show otherwise.\nThe award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 75-16.1 rests within the sound discretion of the trial court and cannot be reversed absent a showing that its determinations are \u201cmanifestly unsupported by reason.\u201d Buford v. General Motors Corp., 339 N.C. 396, 406, 451 S.E.2d 293, 298 (1994) (citations omitted).\nHere, the trial court found, \u201cFollowing the denial of the defendants' Motion of Summary Judgment on February 18, 2003, the plaintiff knew, or should have known, that it would be unable to establish any damages arising from the alleged conduct of the defendants and that this action was frivolous and malicious.\u201d (Emphasis supplied). A denial of defendants\u2019 motion to dismiss under Rule 12(b)(6) and their motion for summary judgment under Rule 56 cannot support the trial court\u2019s conclusion that Castle McCulloch, as plaintiff, \u201cknew, or sho\u00fcld have known,\u201d its complaint was \u201cfrivolous and malicious.\u201d\nA. Rule 12(hY6)\nIn his answer, Freedman asserted that Castle McCulloch failed \u201cto state a claim upon which relief can be granted and should therefore be dismissed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\u201d See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2003). The trial court did not grant Freedman\u2019s motion to dismiss accompanying their answer. The assertion of this defense followed by the trial court\u2019s failure to dismiss Castle McCulloch\u2019s complaint indicates that Castle McCulloch\u2019s complaint stated a \u201cclaim upon which relief can be granted\u201d and was not \u201cfrivolous and malicious.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6); N.C. Gen. Stat. \u00a7 75-16.1.\nB. Summary Judgment\nThe standard of review for summary judgment is well established by the court.\n\u201c \u2018The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.\u2019 \u201d Pacheco v. Rogers and Breece, Inc., 157 N.C. App. 445, 477, 579 S.E.2d 505, 507 (2003) (quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)).\nA defendant may show entitlement to summary judgment by \u201c(1) proving that an essential element of the plaintiff\u2019s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979).\nDraughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732 (2003).\nFollowing hearing, the trial court denied Freedman\u2019s motion for summary judgment. The trial court\u2019s denial of Freedman\u2019s motion establishes that Castle McCulloch\u2019s complaint, affidavits, and forecast of evidence sufficiently presented \u201cgenuine issues of material fact\u201d to support its causes of action, and that Freedman had failed to show or establish a defense to defeat Castle McCulloch\u2019s claims. See id.; see also N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (2003).\nBecause Castle McCulloch prevailed over Freedman\u2019s assertion of a Rule 12(b)(6) defense and a Rule 56 motion for summary judgment, no evidence supports the trial court\u2019s conclusion that Castle McCulloch\u2019s complaint is wholly \u201cfrivolous or malicious.\u201d Otherwise, the trial court would have either dismissed Castle McCulloch\u2019s complaint under Rule 12(b)(6) or granted Freedman\u2019s motion for summary judgment pursuant to Rule 56. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998) (requiring evidence of \u201cactual injury\u201d as an element to a cause of action for unfair and deceptive trade practices).\nAs Castle McCulloch prevailed in both instances, the trial court abused its discretion when it concluded that Castle McCulloch\u2019s action was \u201cfrivolous and malicious.\u201d The lack of a dismissal for Castle McCulloch\u2019s failure to state a claim and the denial of. Freedman\u2019s motion for summary judgment cannot support a finding that Castle McCulloch\u2019s \u201cknew or should have known that its action was frivolous and malicious,\u201d as required by N.C. Gen. Stat. \u00a7 75-16.1(2). The trial court\u2019s order awarding attorney\u2019s fees to Freedman is \u201cmanifestly unsupported by reason.\u201d Buford, 339 N.C. at 406, 451 S.E.2d at 298. The trial court\u2019s finding of fact does not support its conclusion of law and award of attorney\u2019s fees to Freedman is error. That portion of the judgment appealed from should be reversed.\nII. Costs\nCastle McCulloch\u2019s assignment of error to the trial court\u2019s award of costs is not properly before this Court and should be dismissed.\nFreedman moved for costs pursuant to N.C. Gen. Stat. \u00a7\u00a7 6-20 and 7A-305. N.C. Gen. Stat. \u00a7 7A-305(d) lists expenses that are recoverable. \u201cThe trial court ... is prohibited from assessing costs in civil cases which are neither enumerated in section 7A-305 nor provided by law.\u201d Crist v. Crist, 145 N.C. App. 418, 424, 550 S.E.2d 260, 265 (2001) (citation omitted). N.C. Gen. Stat. \u00a7 6-20 (2003) provides that \u201ccosts may be allowed or not, in the discretion of the court.\u201d \u201cThe trial court\u2019s discretion to tax costs pursuant to N.C. Gen. Stat. \u00a7 6-20 is not reviewable on appeal absent an abuse of discretion.\u201d Cosentino v. Weeks, 160 N.C. App. 511, 516, 586 S.E.2d 787, 789-90 (2003).\nCastle McCulloch\u2019s brief fails to assert any argument or cite to any authority to support a reversal of the trial court\u2019s award of costs to Freedman. This assignment of error is not properly before this Court. I would dismiss this portion of Castle McCulloch\u2019s assignment of error. N.C.R. App. P. 28(b)(6) (2004).\nTII. Conclusion\nI concur with the majority\u2019s opinion to affirm the trial court\u2019s award of a directed verdict for Freedman and its discussion of Freedman\u2019s cross-examination of Castle McCulloch\u2019s expert witness. I disagree with the holding in the majority\u2019s opinion to affirm the trial court\u2019s award of attorney\u2019s fees to Freedman on the grounds that Castle McCulloch\u2019s action was \u201cfrivolous and malicious.\u201d I would dismiss Castle McCulloch\u2019s assignment of error regarding costs. See N.C.R. App. P. 28(b)(6) (2004). I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Douglas S. Harris for plaintiff-appellant.", "Elliot Pishko Gelbin & Morgan, P.A., by David G. Pishko for defendants-appellees." ], "corrections": "", "head_matter": "CASTLE McCULLOCH, INC., Plaintiff v. DONALD LEE FREEDMAN, D/B/A FREEDMAN ASSOCIATES, and FREEDMAN ASSOCIATES, INC., Defendants\nNo. COA04-514\n(Filed 5 April 2005)\n1. Unfair Trade Practices\u2014 competitor\u2019s survey \u2014 damages not shown\nThe trial court did not err by granting defendant\u2019s motion for a directed verdict in an action for unfair and deceptive trade practices arising from a bridal show survey and tip sheet by a competitor where plaintiff failed to present evidence that it suffered actual injury as a proximate result of defendant\u2019s conduct. There was no evidence from which a jury could calculate lost profits from vendors or payroll damages with a reasonable certainty.\n2. Evidence\u2014 door not opened on cross-examination \u2014 witness interjecting answer\nThe trial court did not err by refusing to allow plaintiff\u2019s expert to testify in an unfair and deceptive trade practices action arising from a bridal show survey and tip sheet where the court ruled that plaintiff had not properly disclosed the expert\u2019s opinion in discovery. Although plaintiff argued that defendant opened the door on cross-examination, the witness interjected the information and defendant was not the first to raise the issue.\n3. Unfair Trade Practices\u2014 costs and attorney fees \u2014 frivolous action \u2014 discretionary finding\nThe trial court did not abuse its discretion by awarding costs and attorney fees to defendant in an unfair and deceptive trade practices action arising from a bridal show survey and tip sheet where it found the action to be frivolous. The court\u2019s decision was not manifestly unsupported by reason; moreover, where the court has taxed costs in its discretion, that decision is not reviewable.\nJudge Tyson concurring in part and dissenting in part.\n\u25a0 Appeal by Plaintiff from judgment entered 17 March 2003 by Judge William Z. Wood, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 25 January 2005.\nDouglas S. Harris for plaintiff-appellant.\nElliot Pishko Gelbin & Morgan, P.A., by David G. Pishko for defendants-appellees." }, "file_name": "0497-01", "first_page_order": 527, "last_page_order": 538 }