{ "id": 8175220, "name": "BUSINESS CABLING, INC., Plaintiff v. BARRY W. YOKELEY and VITAFOAM INCORPORATED, Defendants", "name_abbreviation": "Business Cabling, Inc. v. Yokeley", "decision_date": "2007-04-17", "docket_number": "No. COA06-1255", "first_page": "657", "last_page": "666", "citations": [ { "type": "official", "cite": "182 N.C. App. 657" } ], "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": "402 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540625, 2542964, 2545140, 2542137, 2541311 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0089-05", "/nc/328/0089-02", "/nc/328/0089-04", "/nc/328/0089-03", "/nc/328/0089-01" ] }, { "cite": "394 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "651", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524249 ], "year": 1990, "pin_cites": [ { "page": "601", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0587-01" ] }, { "cite": "61 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "232 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607291 ], "year": 1950, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0497-01" ] }, { "cite": "66 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1951, "pin_cites": [ { "page": "785", "parenthetical": "emphasis supplied" }, { "page": "785" }, { "page": "785" } ], "opinion_index": 0 }, { "cite": "234 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620283 ], "weight": 3, "year": 1951, "pin_cites": [ { "page": "198", "parenthetical": "emphasis supplied" }, { "page": "198" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0195-01" ] }, { "cite": "83 S.E. 693", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "168 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658244 ], "year": 1914, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0204-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "337", "parenthetical": "quoting State v. Dalton, 168 N.C. 204, 205, 83 S.E. 693, 694 (1914)" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "456", "parenthetical": "quoting State v. Dalton, 168 N.C. 204, 205, 83 S.E. 693, 694 (1914)" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "372 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "904", "parenthetical": "N.C. Gen. Stat. \u00a7 75-1.1 \"is not so inclusive as to permit one competitor to claim unfair or deceptive trade practices on the ground that another competitor successfully bid for a contract.\"" }, { "page": "904" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526156 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "545", "parenthetical": "N.C. Gen. Stat. \u00a7 75-1.1 \"is not so inclusive as to permit one competitor to claim unfair or deceptive trade practices on the ground that another competitor successfully bid for a contract.\"" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0539-01" ] }, { "cite": "548 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "711", "parenthetical": "internal citations and quotation omitted" }, { "page": "711" } ], "opinion_index": 0 }, { "cite": "353 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135724 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "656-57", "parenthetical": "internal citations and quotation omitted" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0647-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "403", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "pin_cites": [ { "page": "548", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "265 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0186-01" ] }, { "cite": "556 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138470, 138323, 138489, 138494, 138495 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0365-03", "/nc/354/0365-04", "/nc/354/0365-02", "/nc/354/0365-01", "/nc/354/0365-05" ] }, { "cite": "551 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436228 ], "year": 2001, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0623-01" ] }, { "cite": "401 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "328 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538159 ], "year": 1991, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0276-01" ] } ], "analysis": { "cardinality": 828, "char_count": 21310, "ocr_confidence": 0.756, "pagerank": { "raw": 7.650184133358922e-08, "percentile": 0.4517452561906119 }, "sha256": "29c0dbc4e83926f84ed7445d67d13c459014cacbb5bb9aec3655c14df2920e19", "simhash": "1:9fe45a0aff323d70", "word_count": 3295 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "BUSINESS CABLING, INC., Plaintiff v. BARRY W. YOKELEY and VITAFOAM INCORPORATED, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nVitafoam, Incorporated (\u201cdefendant\u201d) appeals from judgment and order entered following a bench trial in which the court concluded defendant had engaged in unfair and deceptive practices (\u201cUDP\u201d) with Business Cabling, Inc. (\u201cplaintiff\u2019). Plaintiff cross-appeals only the portion of the judgment allowing credit to defendant for any amount it recovers from Barry W. Yokeley (\u201cYokeley\u201d). We reverse.\nI. Background\nPlaintiff is a North Carolina corporation with its principal place of business located in Davidson County, North Carolina. Plaintiff installs industrial grade computer cables. In 2004, Bud and Shira Hedgepeth owned ninety percent of plaintiff\u2019s outstanding stock.\nYokeley was employed by plaintiff from 26 November 2001 to 6 February 2004. During this time, Yokeley was an officer and director of the corporation and owned ten percent of plaintiff\u2019s stock. Yokeley was plaintiff\u2019s sole representative in sales and marketing. His duties included: (1) soliciting new customers; (2) making business proposals to new and existing customers; (3) entering into contracts on plaintiff\u2019s behalf with customers; and (4) supervising, performing, and carrying out these contracts with plaintiff\u2019s customers. Yokeley\u2019s employment was not subject to any covenant not to compete or a non-solicitation agreement with plaintiff.\nDefendant is a North Carolina corporation with its principal place of business located in Guilford County, North Carolina. Defendant manufactures foam used in various applications.\nRichard Loftin (\u201cLoftin\u201d), Yokeley\u2019s father-in-law, was defendant\u2019s chief operating officer until April 2004. In 2003, Loftin informed Yokeley that defendant was considering an update of its computer network and might require new computer cable of the type installed by plaintiff. Loftin was not involved in any contract negotiations between plaintiff and defendant.\nBetween May and July 2003, Yokeley submitted a bid on behalf of plaintiff for a small cable installation at defendant\u2019s High Point facility. Jim Bridges (\u201cBridges\u201d) was defendant\u2019s information technology director at that time and possessed authority to accept such small bids. Bridges accepted Yokeley\u2019s bid, the work was completed, and defendant paid plaintiff in full.\nIn July 2003, defendant was considering a major upgrade of its computer network at its locations in: (1) High Point; (2) Greensboro; (3) Thomasville, North Carolina; (4) Tupelo, Mississippi; and (5) Chattanooga, Tennessee. On 28 July 2003, plaintiff through Yokeley submitted bids to perform the cable installation at these locations.\nBridges informed Yokeley that no contract would exist between plaintiff and defendant until: (1) each separate agreement was approved by defendant\u2019s senior management; (2) a capital expense budget proposal was approved; (3) defendant was assigned a purchase order number; and (4) the purchase order number was given to plaintiff.\nBetween 19 September 2003 and 30 September 2003, Bridges accepted plaintiff\u2019s proposals on defendant\u2019s behalf for the High Point and Greensboro facilities. Plaintiff completed the work at both facilities, invoiced defendant, and was paid in full in December 2003.\nIn late 2003 or early 2004, defendant hired David Kame (\u201cKame\u201d) as its new chief financial officer. Kame was instructed to carefully review all proposed projects. Defendant\u2019s Thomasville and Chattanooga projects were placed on indefinite hold. The Tupelo project remained under consideration.\nDefendant never accepted plaintiff\u2019s bids to install cable at defendant\u2019s Thomasville and Chattanooga locations. No contract was entered into between plaintiff and defendant to perform any work at these locations. The Thomasville and Chattanooga projects were never performed by any vendor. Defendant ultimately sold these plants.\nIn late 2003, disputes arose between Bud and Shira Hedgepeth and Yokeley. In December 2003, Yokeley was asked to seek other employment. In January 2004, Yokeley began negotiations for employment with one of plaintiff\u2019s competitors, Fleet Communications (\u201cFleet\u201d). During Yokeley\u2019s negotiations with Fleet, he presented a list of potential customers he felt he could bring to Fleet. This list included cable installations at several of defendant\u2019s facilities, including Tupelo. Yokeley resigned from plaintiff on 6 February 2004 and became employed by Fleet on 9 February 2004.\nOn 5 January 2004, Yokeley prepared a bid proposal in his own name for defendant\u2019s Tupelo project, prior to resigning from plaintiff. In mid-January 2004, Yokeley presented the bid to Bridges. On 18 February 2004, Bridges accepted Yokeley\u2019s bid for defendant\u2019s Tupelo project. Defendant\u2019s cable installation in Tupelo was performed by Yokeley\u2019s new employer, Fleet. Fleet invoiced defendant for the work and was paid in full.\nAfter Yokeley became employed by Fleet on -9 February 2004, Fleet, through Yokeley, bid on and performed several other projects for defendant. None of these projects had been previously bid upon by plaintiff. Plaintiff presented no evidence it was even aware of these projects. Among the projects Fleet bid on was a new project at defendant\u2019s Greensboro location (\u201cnew Greensboro project\u201d). The new Greensboro project was completely separate and apart from any work plaintiff had previously bid on. On 11 February 2004, defendant accepted Fleet\u2019s bid on the new Greensboro project. Fleet completed the work, submitted invoices, and was paid in full.\nOn 11 March 2004, Shira Hedgepeth contacted Bridges on plaintiff\u2019s behalf and inquired for updates on any of defendant\u2019s cable projects. Bridges responded he had no idea what the status of the projects were at that point and that until Bridges heard from defendant\u2019s chief executive officers, and Bud Hedgepeth heard from him, \u201call bets [were] off.\u201d On 12 March 2004, Bridges informed Shira Hedgepeth, \u201cI think at this point you need to plan as though [defendant\u2019s acceptance of plaintiff\u2019s bids] is not going to happen, which is a real possibility.\u201d\nAt the time this electronic mail correspondence occurred between Shira Hedgepeth and Bridges, Bridges was aware that defendant had contracted with Fleet through Yokeley to perform cable installation work at defendant\u2019s Tupelo and new Greensboro facilities. Bridges neither advised Shira Hedgepeth, nor any other person at plaintiff, that Fleet had performed the cable installation at defendant\u2019s Tupelo and new Greensboro locations. Bridges\u2019s employment with defendant was terminated on 31 March 2004.\nOn 15 September 2004, plaintiff filed suit against defendant and Yokeley. Plaintiff asserted claims against defendant for: (1) breach of contract; (2) breach of implied warranty of good faith and fair dealing; and (3) UDP. Plaintiff asserted claims against Yokeley for: (1) wrongful interference with contract; (2) UDP; and (3) punitive damages. Plaintiff\u2019s claims against defendant were tried separately from its claims against Yokeley.\nOn 22 June 2006, the trial court concluded defendant had participated in UDP and entered judgment against defendant. The trial court awarded plaintiff treble damages in the amount of $96,272.88, $95,000.00 in attorneys fees and various other costs. The trial court also ordered plaintiff to credit defendant for any amount it recovered from Yokeley. Plaintiff\u2019s claims against Yokeley were not tried and no judgment was entered against Yokeley. Defendant appeals and plaintiff cross-appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) concluding it engaged in UDP where the competent evidence presented and the facts found are insufficient to justify the conclusion; (2) finding and concluding it engaged in UDP with regard to its new Greensboro project where plaintiff neither alleged such claim in its complaint, nor amended its complaint to do so; (3) finding plaintiff would have obtained contracts with defendant to perform installations at defendant\u2019s Tupelo and new Greensboro projects or plaintiff could claim such potential installations were a prospective advantage or business opportunity; (4) finding plaintiff\u2019s profit margin on defendant\u2019s Tupelo and new Greensboro projects would have been 27.3% if plaintiff had obtained those contracts and/or finding plaintiff suffered actual damages resulting in lost profits of $32,090.96; (5) finding defendant unwarrantedly refused to fully resolve the underlying matter prior to plaintiff\u2019s action; (6) awarding plaintiff its legal fees; and (7) awarding plaintiff its court costs.\nPlaintiff cross-appeals and argues the trial court erred by allowing defendant credit for any amount plaintiff recovers from Yokeley \u201cwhether by judgment, settlement; or otherwise.\u201d\nIII. Standard of Review\nUpon an appeal from a judgment entered in a non-jury trial, our Supreme Court imposed \u201cthree requirements on the court sitting as finder of fact: it must (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising from the facts found; and (3) enter judgment accordingly.\u201d Stachlowski v. Stach, 328 N.C. 276, 285, 401 S.E.2d 638, 644 (1991). Our standard of review is whether competent evidence exists to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law. Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163, disc. rev. denied, 354 N.C. 365, 556 S.E.2d 577 (2001). The trial court\u2019s conclusions of law drawn from the findings of fact are reviewable de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).\nIV. TJDP\nDefendant argues the trial court erred by concluding it engaged in UDP. The trial court concluded:\n5. Yokeley\u2019s solicitation of the cable installation work at [defendant\u2019s] Tupelo plant in January 2004 constituted an interference with [plaintiff\u2019s] prospective advantage and a diversion of a business opportunity [plaintiff] would otherwise have obtained, and constituted an unfair or deceptive trade practice in trade or commerce of North Carolina by Yokeley in which [defendant], through its IT director,-Bridges, knowingly participated.\n8. Yokeley\u2019s solicitation on or after February 11, 2004, on behalf of Fleet of cable installation work in connection with [defendant\u2019s] new Greensboro project constituted an interference with [plaintiff\u2019s] prospective advantage and a diversion of a business opportunity [plaintiff] might otherwise have obtained, and constituted an unfair or deceptive trade practice in trade or commerce in North Carolina by Yokeley in which [defendant], through its IT director, Bridges, knowingly participated.\n10. [Plaintiff] suffered actual damages as a proximate result of Yokeley\u2019s [and defendant\u2019s] unfair and deceptive acts and practices in North Carolina[.]\n(Emphasis supplied). Defendant asserts the trial court\u2019s findings of fact are insufficient to justify these conclusions of law. We agree.\nOur Supreme Court has stated:\nWhether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. A practice is unfair when it offends established public policy as well as when the practice is immoral,, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\nMarshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981) (citations omitted) (emphasis supplied).\nIn order to establish a prima facie claim for unfair trade practices, a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff. A practice is unfair if it is unethical or unscrupulous, and it is deceptive if it has a tendency to deceive. The determination as to whether an act is unfair or deceptive is a question of law for the court.. .. Moreover, some type of egregious or aggravating circumstances must be alleged and proved before the [Act\u2019s] provisions may [take effect].\nDalton v. Camp, 353 N.C. 647, 656-57, 548 S.E.2d 704, 711 (2001) (internal citations and quotation omitted) (emphasis original and supplied).\nThe trial court concluded defendant had engaged in UDP by \u201cknowingly participat[ing]\u201d with Yokeley to: (1) solicit defendant\u2019s cabling business; (2) interfere with plaintiff\u2019s prospective advantage; and (3) divert plaintiff\u2019s business opportunity to perform cable installations at defendant\u2019s Tupelo and new Greensboro projects.\nThe trial court\u2019s findings of fact fail to support these conclusions. None of the trial court\u2019s extensive thirty findings of fact state how defendant \u201cknowingly participated\u201d with Yokeley to solicit defendant\u2019s cabling business or usurped a business opportunity from plaintiff.\nThe trial court\u2019s findings of fact support the opposite conclusion. The findings of fact show: (1) plaintiff was aware, through Yokeley, of defendant\u2019s approval process for the bids on any project with defendant; (2) no contract was ever entered into between defendant and plaintiff to perform work on defendant\u2019s Tupelo or new Greensboro projects; (3) defendant did not accept Yokeley\u2019s bids on these projects until after he had resigned from plaintiff on 6 February 2004; and (4) Yokeley was neither bound by a covenant not to compete nor non-solicitation agreement with plaintiff.\nThe trial court\u2019s findings of fact demonstrate defendant\u2019s only participation with Yokeley was Bridges\u2019s receipt and subsequent acceptance of Fleet\u2019s bids, which Yokeley had prepared, on defendant\u2019s Tupelo and new Greensboro projects. Defendant\u2019s acceptance of Yokeley\u2019s bids on 18 February 2004 and 11 February 2004 did not constitute an UDR See Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales and Service, 91 N.C. App. 539, 545, 372 S.E.2d 901, 904 (1988) (N.C. Gen. Stat. \u00a7 75-1.1 \u201cis not so inclusive as to permit one competitor to claim unfair or deceptive trade practices on the ground that another competitor successfully bid for a contract.\u201d). The trial court also failed to find as fact any \u201cegregious or aggravating circumstances\u201d by defendant. Dalton, 353 N.C. at 657, 548 S.E.2d at 711.\nPlaintiff argues and the trial court\u2019s judgment appears to infer the existence of a conspiracy between defendant and Yokeley to divert a business opportunity from plaintiff to Yokeley or Fleet. \u201cA conspiracy has been defined as \u2018an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.\u2019 \u201d Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981) (quoting State v. Dalton, 168 N.C. 204, 205, 83 S.E. 693, 694 (1914)). To create an action for conspiracy, \u201ca wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object.\u201d Muse v. Morrison, 234 N.C. 195, 198, 66 S.E.2d 783, 785 (1951) (emphasis supplied) (quoting Holt v. Holt, 232 N.C. 497, 500, 61 S.E.2d 448, 451 (1950)).\nThe trial court failed to find, and no evidence in the record shows, \u201can agreement\u201d between defendant and Yokeley. Dickens, 302 N.C. at 456, 276 S.E.2d at 337. The trial court also failed to find, and no evidence in the record shows, a \u201ccommon scheme\u201d between defendant and Yokeley to divert a business opportunity from plaintiff to Yokeley or Fleet. Muse, 234 N.C. at 198, 66 S.E.2d at 785. The trial court failed to find or conclude, and no evidence in the record shows, that defendant and Yokeley were engaged in a conspiracy. The fact that defendant accepted Fleet\u2019s bids, which were prepared by Yokeley, and that Fleet performed and defendant paid for the work completed does not equate to \u201can agreement\u201d or \u201ccommon scheme\u201d between defendant and Yokeley. Dickens, 302 N.C. at 456, 276 S.E.2d at 337; Muse, 234 N.C. at 198, 66 S.E.2d at 785.\nPlaintiff also argues defendant participated with Yokeley to divert a business opportunity because Bridges deceived plaintiff during his electronic communications with Shira Hedgepeth on 11 March 2004. We disagree.\nThe trial court found as fact:\n20. On March 11, 2004, Shira Hedgepeth (Shira), on behalf of [plaintiff], contacted Bridges by e-mail... inquiring as to whether or not there were \u201cAny updates on the cabling projects start date?\u201d Bridges responded by e-mail on March 11, 2004, saying, \u201cNothing to date. Looks like the new CFO [Kame] may be looking at other solutions that do not require the upgrades.\u201d Shira further inquired of Bridges by e-mail on March 11, 2004, asking, \u201cWhen will we know for sure?\u201d Bridges responded by e-mail on March 11, 2004, saying, \u201cI have no idea at this point. I told Bud [Hedgepeth, Shira\u2019s husband and President of [plaintiff]] that until I hear from the CXOs [i.e., [defendant\u2019s] chief executive officers], and Bud hears from me, all bets are off.\u201d Shira responded by e-mail late on March 11, 2004, saying, \u201cWe just want to make sure we do not overbook ourselves so we needed to check. Thanks for your, help.\u201d Early on March 12, _ 2004, Bridges responded to Shira saying, \u201cI think at this point you need to plan as though it is not going to happen, which is a real possibilily. I understand if we come back later we will go into the scheduling que.\u201d ... At the time of the aforesaid e-mail exchange, Bridges was aware that [defendant] had contracted with Fleet (through Yokeley) on February 18, 2004, to provide the cabling installation work at [defendant\u2019s] Tupelo facility on a proposal that was essentially identical to [plaintiff\u2019s] bid to do that work dated July 28, 2003. He was also aware that [defendant] had accepted Fleet\u2019s February 11, 2004, proposal on [defendant\u2019s] new [Greensboro] project. However, Bridges did not advise Shira, nor anyone else at [plaintiff], that Fleet was then doing, or about to do, the work on both the Tupelo . . . and the new [Greensboro] projects.\nDeceptive acts can constitute UDP, but \u201crecovery according to [N.C. Gen. Stat. \u00a7 75-1.1 and 75-16] is limited to those situations when a plaintiff can show that plaintiff detrimentally relied upon a statement or misrepresentation and he or she suffered actual injury as a proximate result of defendant\u2019s deceptive statement or misrepresentation.\u201d Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 601, 394 S.E.2d 643, 651 (1990) (internal citation and quotation omitted), disc. rev. denied, 328 N.C. 89, 402 S.E.2d 824 (1991).\nHere, the trial court failed to find as fact, and no evidence shows, plaintiff \u201cdetrimentally relied upon\u201d Bridges\u2019s statement. Id. As the trial court\u2019s findings of fact indicate, at the time of this communication, defendant had already accepted plaintiff\u2019s competitor\u2019s bids on 11 February 2004 and 18 February 2004. Also, the trial court failed to find as fact, and no evidence tends to show, plaintiff \u201csuffered actual injury as a proximate result of defendant\u2019s deceptive statement or misrepresentation.\u201d Id.\nUntil all conditions precedent were satisfied, no contract could or did exist between plaintiff and defendant. No evidence tends .to show defendant would have accepted plaintiff\u2019s bid or was under any restraints from accepting any competitors\u2019 bids. At the time of the awarding of the contracts for the Tupelo and new Greensboro projects, Fleet and Yokeley were plaintiff\u2019s competitors. Defendant cannot be placed at risk for accepting one competitor\u2019s bid over another. Chesapeake Microfilm, 91 N.C. App. at 545, 372 S.E.2d at 904. Such risk is beyond what the law requires and is contrary to Chapter 75 of the North Carolina General Statutes. Id.\nV. Conclusion\nThe trial court\u2019s findings of fact, and the evidence in the record, fails to support the trial court\u2019s conclusions of law that defendant engaged in UDP. In light of our holding, we do not reach defendant\u2019s remaining assignments of error, nor do we reach plaintiff\u2019s cross assignment of error. The trial court\u2019s judgment is reversed.\nReversed.\nJudges HUNTER and JACKSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Stephen E. Lawing, for plaintiff -appellee/cross appellant.", "Wyatt Early Harris Wheeler LLP, by William E. Wheeler, for defendant-appellant/cross appellee.", "Kennedy Covington Lobdell & Hickman, LLP, by William G. Scoggin, for Amicus Curae North Carolina Citizens for Business and Industry." ], "corrections": "", "head_matter": "BUSINESS CABLING, INC., Plaintiff v. BARRY W. YOKELEY and VITAFOAM INCORPORATED, Defendants\nNo. COA06-1255\n(Filed 17 April 2007)\nUnfair Trade Practices\u2014 bids through former employee \u2014 no contract or conspiracy\nThe evidence, and the trial court\u2019s findings following a bench trial did not support the conclusion that defendant engaged in an unfair and deceptive trade practice in accepting bids for work through a former employee of plaintiff (there was no non-compete agreement). None of the court\u2019s extensive findings state how defendant \u201cknowingly participated\u201d with the former employee to solicit defendant\u2019s business or to usurp a business opportunity, there is no evidence of a conspiracy, no evidence of detrimental reliance, and no contract. Defendant cannot be placed at risk for accepting one competitor\u2019s bid over another. The court\u2019s judgment was reversed.\nAppeal by defendant Vitafoam Incorporated and cross appeal by plaintiff from judgment entered 22 June 2006 and order entered 26 June 2006 by Judge John O. Craig, III, in Guilford County Superior Court. Heard in the Court of Appeals 28 March 2007.\nStephen E. Lawing, for plaintiff -appellee/cross appellant.\nWyatt Early Harris Wheeler LLP, by William E. Wheeler, for defendant-appellant/cross appellee.\nKennedy Covington Lobdell & Hickman, LLP, by William G. Scoggin, for Amicus Curae North Carolina Citizens for Business and Industry." }, "file_name": "0657-01", "first_page_order": 689, "last_page_order": 698 }