{ "id": 8239503, "name": "PRINTING SERVICES OF GREENSBORO, INC., Plaintiff v. AMERICAN CAPITAL GROUP, INC., Defendant", "name_abbreviation": "Printing Services of Greensboro, Inc. v. American Capital Group, Inc.", "decision_date": "2006-11-07", "docket_number": "No. COA06-190", "first_page": "70", "last_page": "86", "citations": [ { "type": "official", "cite": "180 N.C. App. 70" } ], "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": "622 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634550 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "643", "parenthetical": "citation omitted" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0638-01" ] }, { "cite": "612 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632800 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01" ] }, { "cite": "359 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632800, 12632801, 12632802, 3797732, 3793990, 3803693, 3804429, 3799921, 3793971, 3799381, 3800918, 3798330 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01", "/se2d/612/0322-01", "/se2d/612/0322-02", "/nc/359/0411-06", "/nc/359/0411-08", "/nc/359/0411-01", "/nc/359/0411-02", "/nc/359/0411-05", "/nc/359/0411-09", "/nc/359/0411-07", "/nc/359/0411-04", "/nc/359/0411-03" ] }, { "cite": "129 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650749 ], "year": 1998, "pin_cites": [ { "page": "415-16", "parenthetical": "citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0413-01" ] }, { "cite": "444 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127010 ], "year": 1994, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0283-01" ] }, { "cite": "589 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "180" }, { "page": "181", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959285 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "559" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0558-01" ] }, { "cite": "566 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "161" }, { "page": "162", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081307 ], "year": 2002, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0565-01" ] }, { "cite": "380 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527244 ], "year": 1989, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0367-01" ] }, { "cite": "437 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529224 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0183-01" ] }, { "cite": "403 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524827 ], "year": 1991, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0484-01" ] }, { "cite": "561 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130892 ], "year": 2002, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0636-01" ] }, { "cite": "174 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353226 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "771", "parenthetical": "citation omitted" }, { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0764-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528467 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0657-01" ] }, { "cite": "363 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358357 ], "year": 1988, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0404-01" ] }, { "cite": "338 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519376 ], "year": 1986, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0051-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 66-111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(a)" }, { "page": "(d)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 66-107", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "590 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "285", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914736 ], "year": 2004, "pin_cites": [ { "page": "76-77", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0073-01" ] }, { "cite": "603 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "157" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411288 ], "year": 2004, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0283-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-112", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "606 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2005, "pin_cites": [ { "page": "373" }, { "page": "373-74" }, { "page": "374-75" }, { "page": "374" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 789", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414378 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/167/0789-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-106", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(b)" }, { "page": "(a)(1)" }, { "page": "(a)(2)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "464 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "342 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796111 ], "year": 1995, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0349-01" ] }, { "cite": "500 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107", "parenthetical": "citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)" } ], "opinion_index": 0 }, { "cite": "598 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631413 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/598/0380-01" ] }, { "cite": "358 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631407, 12631408, 12631378, 12631413, 12631383 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/598/0140-01", "/se2d/598/0141-01", "/se2d/597/0773-01", "/se2d/598/0380-01", "/se2d/597/0775-02" ] }, { "cite": "627 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635301 ], "year": 2006, "pin_cites": [ { "page": "279" } ], "opinion_index": 1, "case_paths": [ "/se2d/627/0276-01" ] }, { "cite": "614 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633157 ], "year": 2005, "pin_cites": [ { "page": "512", "parenthetical": "quoting Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 1, "case_paths": [ "/se2d/614/0504-01" ] }, { "cite": "612 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632800 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/612/0321-01" ] }, { "cite": "359 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632800, 12632801, 12632802, 3797732, 3793990, 3803693, 3804429, 3799921, 3793971, 3799381, 3800918, 3798330 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/612/0321-01", "/se2d/612/0322-01", "/se2d/612/0322-02", "/nc/359/0411-06", "/nc/359/0411-08", "/nc/359/0411-01", "/nc/359/0411-02", "/nc/359/0411-05", "/nc/359/0411-09", "/nc/359/0411-07", "/nc/359/0411-04", "/nc/359/0411-03" ] }, { "cite": "114 S. Ct. 388", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1993, "opinion_index": 1 }, { "cite": "126 L. Ed. 2d 336", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 1 }, { "cite": "510 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 231648, 235299, 234277, 230215, 235337, 235819, 233355, 230350, 231566, 230768, 230996, 231382, 230175 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/us/510/0946-09", "/us/510/0946-11", "/us/510/0946-10", "/us/510/0946-04", "/us/510/0946-07", "/us/510/0946-05", "/us/510/0946-02", "/us/510/0946-06", "/us/510/0946-12", "/us/510/0946-13", "/us/510/0946-03", "/us/510/0946-01", "/us/510/0946-08" ] }, { "cite": "429 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "551" } ], "opinion_index": 1 }, { "cite": "333 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548606 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 1, "case_paths": [ "/nc/333/0555-01" ] }, { "cite": "590 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "403", "parenthetical": "\"A statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate.\"" } ], "opinion_index": 1 }, { "cite": "161 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8960084 ], "year": 2003, "pin_cites": [ { "page": "704", "parenthetical": "\"A statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/161/0700-01" ] }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "20", "parenthetical": "\"[W]e construe statutes in pari materia, giving effect, if possible, to every provision.\"" } ], "opinion_index": 1 }, { "cite": "358 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986939 ], "year": 2004, "pin_cites": [ { "page": "188", "parenthetical": "\"[W]e construe statutes in pari materia, giving effect, if possible, to every provision.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0160-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 12-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 1 }, { "cite": "176 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301615 ], "year": 2006, "pin_cites": [ { "page": "716-17" } ], "opinion_index": 1, "case_paths": [ "/nc-app/176/0711-01" ] }, { "cite": "209 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "756" } ], "opinion_index": 1 }, { "cite": "286 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563921 ], "year": 1974, "pin_cites": [ { "page": "151" } ], "opinion_index": 1, "case_paths": [ "/nc/286/0148-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 1 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "359 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802162 ], "year": 2005, "pin_cites": [ { "page": "488", "parenthetical": "quoting Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0474-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 66-107", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "790-91" } ], "opinion_index": 1 }, { "cite": "606 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 1 }, { "cite": "167 N.C. App. 789", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414378 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc-app/167/0789-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-106", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "year": 2003, "pin_cites": [ { "page": "(a)(1)", "parenthetical": "emphases added" }, { "page": "(b)" }, { "page": "(a)(1)(ii)" }, { "page": "(a)(1)" }, { "page": "(a)(1)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(a)(1)(ii)" }, { "page": "(b)" }, { "page": "(a)(1)(ii)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1275, "char_count": 39225, "ocr_confidence": 0.739, "pagerank": { "raw": 2.686337970141541e-07, "percentile": 0.8271074877338409 }, "sha256": "ce765da6633c5ea2c327e48030fa4d9778afdeec1039b8933f828b94b0bc306e", "simhash": "1:af714d63942d3fdc", "word_count": 6464 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge GEER concurs in part and dissents in part by separate opinion." ], "parties": [ "PRINTING SERVICES OF GREENSBORO, INC., Plaintiff v. AMERICAN CAPITAL GROUP, INC., Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nAmerican Capital Group, Inc. (\u201cdefendant\u201d) appeals from orders of the Guilford County Superior Court denying its motion for change of venue and granting a motion for summary judgment and award brought by Printing Services of Greensboro, Inc. (\u201cplaintiff\u201d).\nPlaintiff applied for financing with defendant by signing a proposed sixty-month lease agreement on 10 October 2003 and surrendering a deposit of $1,447.72. Said agreement was never signed by defendant and did not contain a description of the equipment to be leased. No equipment was ever delivered to plaintiff. Prior to 19 February 2004, defendant attempted to change the finance term from sixty months to thirty-six months, which was unacceptable to plaintiff. On 19 February 2004, plaintiff requested a full refund due to defendant\u2019s inability to \u201cexecute an initial proposal to finance a package for [plaintiff] regarding the terms.\u201d On 9 April 2004, defendant mailed a check in the amount of $697.72 to plaintiff, which plaintiff refused.\nPlaintiff filed suit on 15 November 2004, seeking damages for failure to comply with North Carolina General Statutes, section 66-106 et. seq. (the \u201cLoan Broker Act\u201d) and for breach of contract. On 3 January 2005, defendant filed a motion for change of venue, claiming the terms of the agreement included a forum selection clause, naming Orange County, California as the proper venue. A hearing on the motion was held on 7 March 2005, and the motion was denied by an order entered 3 May 2005.\nPlaintiff filed a motion for summary judgment on 31 August 2005, seeking damages in the amount of $1,447.72, treble damages, and attorney\u2019s fees. The motion for summary judgment was heard on 31 October 2005, and in an order entered 8 November 2005, the motion was granted in favor of plaintiff, with damages assessed at $4,343.16 and attorney\u2019s fees ordered in the amount of $4,707.76. Defendant filed a notice of appeal on 5 December 2005.\nDefendant argues five issues on appeal: 1) the trial court erred in denying defendant\u2019s motion for change of venue; 2) the trial court erred in determining that the Loan Broker Act applied to defendant; 3) the trial court erred in granting summary judgment; 4) the trial court erred in its calculation of damages; and 5) the trial court erred in the award of attorney\u2019s fees. For the reasons stated below, we affirm in part, and reverse and remand in part.\nDefendant first argues the trial court erred in denying its motion for change of venue. With respect to the trial court\u2019s decision concerning clauses on venue selection, this Court applies an abuse of discretion standard of review. Mark Grp. Int\u2019l Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002). \u201cUnder the abuse-of-discretion standard, we review to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.\u201d Id.\nThe clause in question in the instant case reads, \u201cYOU AGREE THAT THIS LEASE HAS BEEN PERFORMED AND ENTERED INTO IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, YOU CONSENT TO JURISDICTION IN ORANGE COUNTY, YOU EXPRESSLY WAIVE ANY RIGHTS TO A TRIAL BY JURY.\u201d\n[T]he general rule is when a jurisdiction is specified in a provision of contract, the provision generally will not be enforced as a mandatory selection clause without some further language that indicates the parties\u2019 intent to make jurisdiction exclusive. Indeed, mandatory forum selection clauses recognized by our appellate courts have contained words such as \u201cexclusive\u201d or \u201csole\u201d or \u201conly\u201d which indicate that the contracting parties intended to make jurisdiction exclusive.\nId. at 568, 566 S.E.2d at 162 (internal citations omitted). The clause in question contains no such language indicating the parties agreed to venue exclusively in California, merely that a court in Orange County, California would have jurisdiction. Therefore, the trial court did not abuse its discretion in denying defendant\u2019s motion for change of venue.\nDefendant next contends the trial court erred in determining that the Loan Broker Act is applicable in the instant case. Specifically, defendant argues that: 1) defendant is not a \u201cloan broker;\u201d 2) plaintiff is not a \u201cperson;\u201d and 3) the actions attendant upon the agreement were not conducted in North Carolina. As defendant\u2019s first and second arguments are intertwined, we address them together.\n\u201cQuestions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.\u201d In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179, 180 (2003). \u201cThe cardinal principle of statutory interpretation is to ensure that legislative intent is accomplished.\u201d McLeod v. Nationwide Mutual Ins. Co., 115 N.C. App. 283, 288, 444 S.E.2d 487, 490 (1994). \u201cTo determine legislative intent, we first look to the language of the statute.\u201d Estate of Wells v. Toms, 129 N.C. App. 413, 415-16, 500 S.E.2d 105, 107 (1998) (citing Poole v. Miller, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)).\nNorth Carolina General Statutes, section 66-106 provides:\nA \u201cloan broker\u201d is any person, firm, or corporation who, in return for any consideration from any person, promises to (i) procure for such person, or assist such person in procuring, a loan from any third party; or (ii) consider whether or not it will make a loan to such person.\nN.C. Gen. Stat. \u00a7 66-106(a)(l) (2003). Subsection (b) of section 66-106 designates certain groups of lenders as being exempt from the Loan Broker Act, and concludes with, \u201csubdivision (l)(ii) above shall not apply to any lender whose loans or advances to any person, firm or corporation in North Carolina aggregate more than one million dollars ($1,000,000) in the preceding calendar year.\u201d N.C. Gen. Stat. \u00a7 66-106(b) (2003).\nWe are guided in our review by several principles of statutory construction.\n[T]he judiciary must give \u201cclear and unambiguous\u201d language its \u201cplain and definite meaning.\u201d However, strict literalism will not be applied to the point of producing \u201cabsurd results.\u201d When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: \u201cthe purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means.\u201d The intent of the General Assembly may also be gleaned from legislative history. Likewise, \u201clater statutory amendments provide useful evidence of the legislative intent guiding the prior version of the statute.\u201d Statutory provisions must be read in context: \u201cParts of the same statute dealing with the same subject matter must be considered and interpreted as a whole.\u201d \u201cStatutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each.\u201d\nProposed Assessments, 161 N.C. App. at 560, 589 S.E.2d at 181 (internal citations omitted).\nIt is noteworthy that the resource used by many in North Carolina\u2019s legal community includes no reference to whom a loan is made or contemplated in its recitation of the definition of a loan broker. \u201cFor purposes of N.C. Gen. Stat. Chapter 66, Article 20, a \u2018loan broker\u2019 is any person, firm, or corporation who, with certain exceptions, in return for any consideration, promises to procure or assist in procuring a third party loan, or considers whether or not it will make the loan.\u201d 4 Strong\u2019s North Carolina Index 4th Brokers and Factors \u00a7 20 (2001). There is little case law interpreting the term \u201cloan broker,\u201d however, we find the recent case of Johnson v. Wornom, 167 N.C. App. 789, 606 S.E.2d 372, disc. review denied, 359 N.C. 411, 612 S.E.2d 321 (2005), to be instructive.\nIn Johnson, Mr. Wornom, an alleged \u201cloan broker,\u201d agreed to guarantee a Capital Bank loan of $82,000.00 to Dexter Sports Supplements, Inc. and Powerstar, Inc., both North Carolina \u201ccorporations.\u201d Id. at 790, 606 S.E.2d at 373. As consideration, Wornom was granted, inter alia, management rights in the two businesses. Id. Charles Johnson (\u201cJohnson\u201d), the founder of Dexter Sports Supplements, Inc. and Powerstar, Inc., brought suit against Wornam, alleging that Wornom failed to fulfill his obligations as a loan broker, pursuant to North Carolina General Statutes, section 66-107 et seq. Id. As noted by the dissent, Johnson brought this suit in his individual capacity; however, he also brought the suit in his capacity as a shareholder of the two corporations. Moreover, Johnson had sought the initial loan on behalf of the two corporations, and Wornom in turn guaranteed the loan on behalf of the corporations. Id. The trial court granted Wornom\u2019s motion for summary judgment, finding that Wornom had not acted as a loan broker and dismissed Johnson\u2019s loan broker claim with prejudice. Id. at 790, 606 S.E.2d at 373-74. This Court reversed the lower court\u2019s grant of summary judgment in Wornom\u2019s favor, based on Wornom\u2019s promise to, and subsequent procurement of a loan from a third party in return for consideration. Id. at 792, 606 S.E.2d at 374-75. As in Johnson, the alleged \u201cloan broker\u201d in the instant case received consideration from a \u201ccorporation,\u201d not a \u201cperson.\u201d We hold that Johnson is controlling, in that in both Johnson and the instant case, a \u201cloan broker\u201d promised to make or consider making a loan to a corporation, and in fact received consideration in exchange for the loan. \u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations omitted). Thus, as a matter of law, we hold defendant is not precluded from being considered a \u201cloan broker\u201d governed by the Loan Broker Act simply because the party for whom the loan is intended is a corporation and not an individual.\nDefendant also contends the provisions of North Carolina General Statutes, section 66-112 of the Loan Broker Act preclude recovery in this case because according to the terms of the agreement, the lease was performed and entered into in California, not North Carolina. In accordance with our reasoning regarding forum selection supra, we find the language of the agreement to be permissive rather than mandatory. In addition, section 66-112 provides that North Carolina\u2019s Loan Broker Act applies \u201cin all circumstances in which any party to the contract conducted any contractual activity (including but not limited to solicitation, discussion, negotiation, offer, acceptance, signing, or performance) in this State.\u201d N.C. Gen. Stat. \u00a7 66-112 (2003). Thus, as the lease agreement was signed in North Carolina, and presumably the solicitation, discussion, and negotiation of the agreement occurred in this state, then North Carolina\u2019s Loan Broker Act is applicable in the instant case.\nIn its next argument, defendant questions whether the trial court erred in granting summary judgment in plaintiff\u2019s favor. \u201c \u2018We review the trial court\u2019s grant of summary judgment de novo.\u2019 \u201d Johnson, 167\nN.C. App. at 791, 606 S.E.2d at 374 (quoting White v. Consolidated Planning, Inc., 166 N.C. App. 283, 296, 603 S.E.2d 147, 157 (2004)).\nSummary judgment is proper \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d \u201cA party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party\u2019s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.\u201d \u201cIf the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to \u2018set forth specific facts showing that there is a genuine issue for trial,\u2019 \u201d or, alternatively, must produce an excuse for not doing so. \u201cThe nonmoving party \u2018may not rest upon the mere allegations of his pleadings.\u2019 \u201d Thus where, \u201cthe moving party by affidavit or otherwise presents materials in support of his motion, it becomes incumbent upon the opposing party to take affirmative steps to defend his position by proof of his own. If he rests upon the mere allegations or denial of his pleading, he does so at the risk of having judgment entered against him.\u201d\nWall v. Fry, 162 N.C. App. 73, 76-77, 590 S.E.2d 283, 285 (2004) (internal citations omitted). The material facts of this case involve: 1) whether defendant was a loan broker; 2) if so, whether defendant failed to fully comply with the Loan Broker Act; and 3) if so, whether defendant failed to fully refund plaintiff\u2019s advanced funds.\nA \u201cloan broker\u201d includes 1) any corporation who, 2) in return for any consideration, 3) promises to consider whether or not it will make 4) a loan. See N.C. Gen. Stat. \u00a7 66-106(a)(1) (2003). It is undisputed that defendant is a corporation, as defendant admitted in its answer. It also is undisputed that defendant received consideration in the amount of $1,447.72 from plaintiff. This money was received by defendant as an initial deposit on the agreement that defendant would lease equipment to plaintiff. Further, defendant promised to consider entering into the lease, as evidenced by the lease agreement which stated \u201cTHIS LEASE IS SUBJECT TO APPROVAL AND ACCEPTANCE BY US.\u201d Finally, the \u201clease\u201d constituted a \u201cloan\u201d as defined by the Loan Broker Act, in that \u201c[a] \u2018loan\u2019 is an agreement to advance money or property in return for the promise to make payments therefor, whether such agreement is styled as a loan, credit card, line of credit, a lease or otherwise.\u201d N.C. Gen. Stat. \u00a7 66-106(a)(2) (2003) (emphasis added). During oral argument, defendant argued that it is an equipment leasing company, and does not provide monetary loans or financing to any of its customers. However, pursuant to section 66-106(a)(2), the definition of a \u201cloan\u201d includes an agreement to advance property, in addition to agreements to advance money. Further, defendant provided no evidence that it had loaned or advanced an aggregate of more than one million dollars in North Carolina in the preceding calendar year, a condition which would exempt it from the Loan Broker Act pursuant to section 66-106(b). Therefore, there is no genuine issue of material fact as to defendant\u2019s status as a loan broker subject to the provisions of the Loan Broker Act.\nThe Loan Broker Act requires loan brokers to provide a disclosure statement and surety bond or trust account. See N.C. Gen. Stat. \u00a7\u00a7 66-107 and -108 (2003). Although in its answer, defendant generally denied plaintiffs allegations of its failure to comply with the Loan Broker Act, it provided no evidence showing that it had, in fact, provided the required disclosures and had a surety bond or trust, account. Therefore, there is no genuine issue of material fact as to defendant\u2019s failure to comply fully with the Loan Broker Act.\nThe Loan Broker Act entitles the borrower to receive a refund of all sums paid to the broker upon written notice. Defendant further provided no evidence in dispute of the fact that plaintiff paid $1,447.72 to defendant upon signing the lease agreement and that plaintiff requested a refund in writing. Defendant provided no evidence to dispute the fact that it failed to refund the full $1,447.72 to plaintiff. In fact, in support of its contention that the calculation of damages was erroneous, defendant argued the fact that it had proffered a partial refund. Therefore, there is no genuine issue of material fact as to defendant\u2019s failure to fully refund plaintiff\u2019s advanced funds.\nAs there were no genuine issues of material fact in dispute, we hold the trial court did not err in granting summary judgment in plaintiff\u2019s favor.\nIn its fourth argument, defendant contends that the trial court erred in its calculation of damages. North Carolina General Statutes, section 66-111 provides for the recovery of all fees paid to the broker for the failure to fully comply with the loan broker statutes. N.C. Gen. Stat. \u00a7 66-111(a) (2003). Subsection (d) states that such violation constitutes an unfair practice under section 75-1.1. N.C. Gen. Stat. \u00a7 66-111(d) (2003). Section 75-16, which establishes a private cause of action for any person injured by another\u2019s violation of section 75-1.1, specifically authorizes the award of treble damages. See N.C. Gen. Stat. \u00a7 75-16 (2003). \u201c[D]amages assessed pursuant to [N.C. Gen. Stat. \u00a7] 75-1.1 are trebled automatically.\u201d Pinehurst Inc. v. O\u2019Leary Bros. Realty, 79 N.C. App. 51, 61, 338 S.E.2d 918, 924 (1986).\nDefendant argues that the proffered $697.72 refund should have been credited prior to trebling. However, in Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 416, 363 S.E.2d 643, 652 (1988), this Court held that it was error to credit monies received by plaintiff in settlement prior to trebling the actual award. In addition, in its answer to the complaint, defendant denied the allegation in plaintiffs complaint which alleged that defendant had mailed a check for $697.72 to plaintiff as a partial refund. Defendant cannot deny the check existed, and then argue the check was proffered and should be credited to it.\nDefendant further argues that credit should have been given for payments proffered even if they were refused. However, in Washburn v. Vandiver, 93 N.C. App. 657, 379 S.E.2d 65 (1989), the holding of Seafare Corp. was applied where the purchasers of a truck refused a refund that was less than all sums paid for the truck. In that case, the purchasers had not yet paid for the truck in full. Defendant successfully brought a counterclaim for the unpaid balance. This Court upheld the trial court\u2019s trebling of the full award to plaintiffs, despite the offer of partial refund, followed by an offset for the money remaining due to defendant. Id. at 664, 379 S.E.2d at 69-70. There is no evidence sho'wing that plaintiff in the instant case has retained any money in settlement of this matter which could serve to offset any money due to plaintiff. Therefore, we hold the trial court did not err in calculating plaintiff\u2019s damages, and defendant\u2019s assignment of error is overruled.\nFinally, defendant argues the trial court erred in the award of attorney\u2019s fees. Attorney\u2019s fees are authorized in this case pursuant to two statutes: section 75-16.1 of the Unfair Trade Practices Act and section 66-111 of the Loan Broker Act. Under section 75-16.1, the presiding trial judge has the discretion to allow a reasonable attorney fee upon finding that the party charged with violating the unfair trade practices statutes acted willfully and unwarrantedly refused to fully resolve the matter. N.C. Gen. Stat. \u00a7 75-16.1(1) (2003). Under section 66-111, the prospective borrower \u201cshall be entitled to ... recover any additional damages including attorney\u2019s fees,\u201d if the loan broker fails to fully comply with statutory requirements. N.C. Gen. Stat. \u00a7 66-111(a) (2003).\nThe decision whether or not to award attorney fees under section 75-16.1 rests within the sole discretion of the trial judge. And if fees are awarded, the amount also rests within the discretion of the trial court and we review such awards for abuse of discretion. However, when awarding fees pursuant to N.C. Gen. Stat. \u00a7 75-16.1, the court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that it refused to resolve the matter fully, and that the attorney fee was reasonable. ... On appeal, the record must also contain findings regarding the attorney fees, such as: \u201cfindings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.\u201d\nBlankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 771, 622 S.E.2d 638, 643 (2005) (citation omitted). The trial court in the instant case found the following as fact: defendant willfully collected an advance fee in violation of section 66-108(c); defendant refused to fully resolve the matter; and the attorney\u2019s fees were reasonable.\nIt is well-settled that a trial court\u2019s findings of fact are binding upon appeal if they are supported by competent evidence, even when there may be evidence to the contrary. See Mason v. Town of Fletcher, 149 N.C. App. 636, 639, 561 S.E.2d 524, 526 (2002). As there was no record of the summary judgment hearing, we have little to guide us in determining if the findings made were supported by competent evidence. However, it is clear that in October 2003, defendant accepted $1,447.72 from plaintiff in advance of its acceptance of the lease agreement. Six months later, an agreement had not yet been reached. We hold this to be evidence that defendant acted willfully, and not by accident or mistake.\nAlthough there is some evidence that defendant attempted to resolve the matter, any attempt was only in partial satisfaction of defendant\u2019s obligations under the Loan Broker Act. Defendant argues that in addition to the proffered $697.72, an offer to settle was made on 19 July 2004 as evidenced by an entry in plaintiff\u2019s affidavit for attorney\u2019s fees which reads, \u201cReceive offer from PSG and advise client.\u201d Defendant contends that presumably the attorney meant \u201cACG\u201d rather than \u201cPSG\u201d because PSG could not make itself an offer. However, nowhere in the affidavit does the attorney refer to defendant as \u201cACG.\u201d Rather, twice he refers to defendant as \u201cAmerican Capital.\u201d Further, defendant offers no proof that such an offer was made on that date in an amount of full satisfaction. Plaintiffs affidavit reflects that in March 2005, plaintiffs attorney was engaged in drafting a settlement letter to opposing counsel. This letter may have been based on plaintiffs offer conveyed to its attorney on 19 July 2004. There is competent evidence from which the trial court could find that defendant had failed to fully resolve the matter. The fact that resolution could have been had for less than $1,447.72 is evidence from which the trial court could find that such refusal to fully resolve the matter was unwarranted.\nAlthough the order included a statement of the hourly billing rates, it did not include \u201cfindings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.\u201d See Blankenship, 174 N.C. App. at 771, 622 S.E.2d at 643. Without these findings, we are unable to determine the reasonableness of the trial court\u2019s award.\nHaving determined that defendant failed to fully comply with the Loan Broker Act, the trial court was obligated pursuant to North Carolina General Statutes, section 66-111 to assess attorney\u2019s fees against defendant. We hold the trial court did not err in awarding plaintiff attorney\u2019s fees in this case, as they were authorized by both sections 75-16.1 and 66-106. However, there are insufficient findings to support the reasonableness of the award. We note that when attorney\u2019s fees are authorized under section 75-16.1, such fees include those for appeal. See United Laboratories, Inc. v. Kuykendall, 102 N.C. App. 484, 495, 403 S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993); Cotton v. Stanley, 94 N.C. App. 367, 370, 380 S.E.2d 419, 422 (1989).\nWe hold there is no error at the trial court level, with the exception of the reasonableness of the attorney\u2019s fees. We therefore remand this cause for entry of findings of fact regarding the award of attorney\u2019s fees, including attorney\u2019s fees for this appeal.\nAffirmed in part; Reversed and remanded in part.\nJudge CALABRIA concurs.\nJudge GEER concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "GEER, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s holding regarding the motion for change of venue. Because, however, I believe the Loan Broker Act, N.C. Gen. Stat. \u00a7\u00a7 66-106 through -117 (2005), only operates to protect natural persons, I would reverse the judgment of the trial court awarding the corporate plaintiff summary judgment. Accordingly, I respectfully dissent from the remaining portions of the majority opinion.\nThe critical question on appeal is whether defendant is a \u201cloan broker\u201d within the meaning of the Loan Broker Act. That Act defines loan broker as follows:\nA \u201cloan broker\u201d is any person, firm, or corporation who, in return for any consideration from any person, promises to (i) procure for such person, or assist such person in procuring, a loan from any third party; or (ii) consider whether or not it will make a loan to such person.\nN.C. Gen. Stat. \u00a7 66-106(a)(1) (2005) (emphases added). The majority construes the word \u201cperson\u201d in this definition to include corporations. I do not believe that this view is consistent with principles of statutory construction.\n\u201cIn matters of statutory construction the task of the Court is to determine the legislative intent, and the intent is ascertained in the first instance \u2018from the plain words of the statute.\u2019 \u201d N.C. Sch. Bds. Ass\u2019n v. Moore, 359 N.C. 474, 488, 614 S.E.2d 504, 512 (2005) (quoting Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)). It is well established that \u201cwhere a statute is intelligible without any additional words, no additional words may be supplied.\u201d State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754, 756 (1974). Absent a showing that giving effect to the literal wording of a statute would produce absurd results or contravene the manifest purpose of the legislature, we may not disregard a statute\u2019s plain language. Union v. Branch Banking & Tr. Co., 176 N.C. App. 711, 716-17, 627 S.E.2d 276, 279 (2006).\nI recognize that N.C. Gen. Stat. \u00a7 12-3(6) (2005) provides, with respect to statutes, that \u201c[t]he word \u2018person\u2019 shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary.\u201d Here, I believe that the context clearly shows to the contrary. The definition of \u201cloan broker\u201d includes \u201cany person, firm, or corporation\u201d who engages in certain conduct with respect to \u201cany person.\u201d If the General Assembly had intended that the Loan Broker Act apply with respect to loans to corporations, it surely would have said so. It defined the entity engaging in the loan brokerage activity as encompassing persons, firms, or corporations, but, eight words later, chose not to reference firms or corporations when discussing potential borrowers.\nTo construe the statute, as the majority does, so as to encompass firms and corporations within the phrase \u201cany person\u201d would lead to curious results. After substituting the majority\u2019s broader definition of \u201cperson,\u201d the definition of \u201cloan broker\u201d would then read: \u201cA \u2018loan broker\u2019 is any person, [firm, or corporation], firm, or corporation who, in return for any consideration from any person, [firm, or corporation], promises to (i) procure for such person, [firm, or corporation,] or assist such person[, firm, or corporation] in procuring, a loan from any third party; or (ii) consider whether or not it will make a loan to such person[, firm, or corporation].\u201d Because the statute\u2019s language is plain and not ambiguous, I do not believe that we need \u2014 or are permitted \u2014 to add additional words to the statute, especially when the result is such an odd redundancy.\nThe majority cites Johnson v. Wornom, 167 N.C. App. 789, 606 S.E.2d 372, disc. review denied, 359 N.C. 411, 612 S.E.2d 321 (2005), as supporting its conclusion that a corporation may seek relief under the'Loan Broker Act. I respectfully believe the majority has misread Johnson. Johnson involved loan procurement services to an individual and not a corporation. As the caption and text of Johnson indicates, the action under N.C. Gen. Stat. \u00a7 66-107 (2005) was brought by an individual, Charles Dexter Johnson, and not by a corporation. Id. at 790-91, 606 S.E.2d at 373-74 (reciting that \u201cJohnson filed an action\u201d under the Loan Broker Act and that the trial court dismissed \u201cJohnson\u2019s loan broker claim,\u201d a decision that \u201cJohnson appealed\u201d). Further, in the recitation of the facts, the opinion states that \u201cJohnson defaulted on [the] loan\u201d procured by the defendant, who was alleged to be a loan broker.\nIn short, as the opinion indicates, Johnson involved services being rendered to an individual (even if for the benefit of a corporation), and a claim being filed by an individual and not by a corporation. The result in Johnson \u2014 which did not, in any event, address the issue in this case \u2014 is entirely consistent with my construction of the Loan Broker Act. Here, in contrast to Johnson, services were rendered solely to a corporation, and the claim was filed by a corporation.\nThe majority also looks to N.C. Gen. Stat. \u00a7 66-106(b), which provides that N.C. Gen. Stat. \u00a7 66-106(a)(1)(ii) of the Loan Broker Act \u201cshall not apply to any lender whose loans or advances to any person, firm or corporation in North Carolina aggregate more than one million dollars ($1,000,000) in the preceding calendar year\u201d regardless whether the lending entity would otherwise fall within the definition of a loan broker under N.C. Gen. Stat. \u00a7 66-106(a)(1). (Emphasis added.) Plaintiff argues on appeal, and the majority apparently agrees, that under the principle of in pari materia, this provision necessarily indicates that lendees under the Loan Broker Act may also be \u201cfirm[s]\u201d or \u201ccorporation[s].\u201d See, e.g., Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004) (\u201c[W]e construe statutes in pari materia, giving effect, if possible, to every provision.\u201d).\nI believe, to the contrary, that this provision further supports my view that the plain language of the Loan Broker Act only allows claims by natural persons and not by borrowers who are firms or corporations. First, the fact that the General Assembly referred to \u201cany person, firm, or corporation\u201d in both N.C. Gen. Stat. \u00a7 66-106(a)(1) and in N.C. Gen. Stat. \u00a7 66-106(b) while elsewhere referring only to \u201cany person\u201d strongly suggests that the omission of \u201cfirm\u201d and \u201ccorporation\u201d in other portions of the statute was intentional. See Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 704, 590 S.E.2d 401, 403 (2003) (\u201cA statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate.\u201d), disc. review denied, 358 N.C. 380, 598 S.E.2d 380 (2004).\nSecond, I read N.C. Gen. Stat. \u00a7 66-106(b) as excepting in part from the Loan Broker Act\u2019s coverage large lenders: those whose loans in North Carolina to any party (i.e., \u201cperson, firm or corporation\u201d) exceed $1,000,000.00 are exempt from N.C. Gen. Stat. \u00a7 66-106(a)(1)(ii). In other words, even if a transaction would otherwise come within the scope of the Loan Broker Act (e.g., an individual person seeking loan services from a corporate lender), the lender would not be a \u201cloan broker\u201d so long as all of the lender\u2019s loans to North Carolina borrowers aggregated to more than $1,000,000.00, regardless whether those loans were made to a \u201cperson, firm or corporation.\u201d Thus, under N.C. Gen. Stat. \u00a7 66-106(b), large lenders are not \u201cloan broker[s]\u201d if the only act they take, in return for consideration from any person, is to promise to \u201cconsider whether or not [they] will make a loan to [any] person.\u201d N.C. Gen. Stat. \u00a7 66-106(a)(1)(ii). This limited exception for large lenders makes sense and does not, to me, suggest an expansion of the coverage of the Loan Broker Act to corporate borrowers.\nIn short, based on the language of the statute itself, I would hold that corporations \u2014 as opposed to individual borrowers \u2014 may not assert claims under the Loan Broker Act. See N.C. Ass\u2019n of Elec. Tax Filers, Inc. v. Graham, 333 N.C. 555, 567, 429 S.E.2d 544, 551 (observing that the Loan Broker Act was enacted \u201cfor consumer protection purposes\u201d), cert. denied, 510 U.S. 946, 126 L. Ed. 2d 336, 114 S. Ct. 388 (1993); Black\u2019s Law Dictionary 206 (8th ed. 2004) (defining \u201cloan broker\u201d as \u201c[a] person who is in the business of lending money, usu. to an individual, and taking as security an assignment of wages or a security interest in the debtor\u2019s personal property\u201d (emphasis added)). I would, therefore, reverse the trial court\u2019s decision and remand for consideration of plaintiff\u2019s breach of contract claim.\n. Indeed, according to the caption of the opinion, the corporations cited by the majority \u2014 and for the benefit of whom Johnson apparently individually obtained the loan \u2014 were, in fact, co-defendants with the alleged loan broker.", "type": "concurring-in-part-and-dissenting-in-part", "author": "GEER, Judge," } ], "attorneys": [ "Robertson, Medlin & Troutman, PLLC, by Stephen E. Robertson, for plaintiff-appellee.", "The Wescott Law Firm P.C., by Lynanne B. Wescott, for defendant-appellant." ], "corrections": "", "head_matter": "PRINTING SERVICES OF GREENSBORO, INC., Plaintiff v. AMERICAN CAPITAL GROUP, INC., Defendant\nNo. COA06-190\n(Filed 7 November 2006)\n1. Venue\u2014 abuse of discretion standard \u2014 mandatory selection clause \u2014 exclusivity language required\nThe trial court did not abuse its discretion in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by denying defendant\u2019s motion for change of venue based on a clause in the lease agreement stating the lease has been performed and entered into in the County of Orang\u00e9, State of California, the parties consented to jurisdiction in Orange County, and the parties waived any rights to a trial by jury, because: (1) the general rule is when a jurisdiction is specified in a provision of a contract, the provision generally will not be enforced as a mandatory selection clause without some further language indicating the parties intended to make jurisdiction exclusive; and (2) the pertinent clause contained no language indicating the parties agreed to venue exclusively in California, but merely that a court in Orange County, California would have jurisdiction.\n2. Brokers\u2014 loan broker \u2014 Loan Broker Act\nThe trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by determining that the Loan Broker Act is applicable to the instant case, because: (1) a loan broker promised to make or consider making a loan to a corporation, and in fact received consideration in exchange for the loan; (2) defendant is not precluded from being considered a loan broker governed by the Loan Broker Act simply based on the fact that the party for whom the loan is intended is a corporation and not an individual; (3) although the terms of the agreement provide that the lease was performed and entered into in California, not North Carolina, the language of the agreement is permissive rather than mandatory; and (4) N.C.G.S. \u00a7 66-112 provides that North Carolina\u2019s Loan Broker Act applies in all circumstances in which any party to the contract conducted any contractual activity in this state, and the lease agreement in the pertinent case was signed in North Carolina, and presumably the solicitation, discussion, and negotiation of the agreement occurred in this state.\n3. Broker\u2014 loan broker \u2014 breach of Loan Broker Act \u2014 summary judgment\nThe trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by granting summary judgment in favor of plaintiff, because: (1) defendant met the definition of a loan broker under N.C.G.S. \u00a7 66-106(a)(l) when defendant is a corporation, defendant received consideration in the amount of $1,447.72 from plaintiff as an initial deposit on an agreement that defendant would lease equipment to plaintiff, defendant promised to consider entering into the lease as evidenced by the lease agreement, and the lease constituted a loan; (2) although defendant contends it is an equipment leasing company and does not provide monetary loans or financing to any of its customers, N.C.G.S. \u00a7 66-106(a)(2) provides that the definition of a loan includes an agreement to advance property in addition to agreements to advance money; (3) defendant provided no evidence that it had loaned or advanced an aggregate of more than one million dollars in North Carolina in the preceding calendar year, a condition which would exempt it from the Loan Broker Act under N.C.G.S. \u00a7 66-106(b); (4) although defendant generally denied plaintiffs allegations of its failure to comply with the Loan Broker Act, it provided no evidence showing that it had, in fact, provided the required disclosures and had a surety bond or trust account as required by N.C.G.S. \u00a7\u00a7 66-107-and 66-108; and (5) defendant provided no evidence to dispute the fact that plaintiff paid $1,447.72 to defendant upon signing the lease agreement, plaintiff requested a refund in writing, and defendant failed to refund the full amount to plaintiff.\n4. Damages and Remedies\u2014 calculation \u2014 failure to comply with loan broker statutes\nThe trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by its calculation of damages, because: (1) N.C.G.S. \u00a7 66-111 provides for the recovery of all fees paid to the broker for the failure to fully comply with the loan broker statutes, subsection (d) provides that such violation constitutes an unfair trade practice under N.C.G.S. \u00a7 75-1.1, and N.C.G.S. \u00a7 75-16 establishes a private cause of action for any person injured by another\u2019s violation of \u00a7 75-1.1 and specifically authorizes the award of treble damages; (2) monies received by plaintiff in a settlement cannot be credited prior to trebling the actual award; (3) trebling of the full amount is allowed despite the offer of a partial refund; and (4) there is no evidence showing plaintiff in the instant case has retained any money in settlement of this matter which could serve to offset any money due to plaintiff.\n5. Costs\u2014 attorney fees \u2014 reasonableness\nAlthough the trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by its award of attorney fees under N.C.G.S. \u00a7\u00a7 75-16.1 and 66-106, the findings were insufficient to support the reasonableness of the award because although the order included a statement of the hourly billing rates, it did not include findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney. The case is remanded for entry of findings of fact regarding the award of attorney fees, including attorney fees for this appeal.\nJudge Geer concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 8 November 2005 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 23 August 2006.\nRobertson, Medlin & Troutman, PLLC, by Stephen E. Robertson, for plaintiff-appellee.\nThe Wescott Law Firm P.C., by Lynanne B. Wescott, for defendant-appellant." }, "file_name": "0070-01", "first_page_order": 100, "last_page_order": 116 }