{ "id": 4362865, "name": "HIEN NGUYEN, MATTHEW BROWN, RYAN CHILDREY, ROMAINE WATKINS, and DAVID GREGORY, Plaintiffs v. JAYCEON TAYLOR, ENGEL THEDFORD, MICHAEL KIMBREW, JOHN DOE a/k/a DJ SKEE, ANTHONY TORRES, BLACK WALL STREET RECORDS, LLC, BLACK WALL STREET PUBLISHING, LLC, BUNGALO RECORDS, INC., GENERAL GFX, GRIND MUSIC, INC., JUMP OFF FILMS, LIBERATION ENTERTAINMENT, INC., JOHN DOE #2, WWW.STOPSNITCHINSTOPLYIN.COM, UNIVERSAL HOME VIDEO, INC., and YOUTUBE, INC., Defendants", "name_abbreviation": "Hien Nguyen v. Taylor", "decision_date": "2012-02-21", "docket_number": "No. COA11-369", "first_page": "1", "last_page": "19", "citations": [ { "type": "official", "cite": "219 N.C. App. 1" } ], "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": "670 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642404 ], "year": 2009, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0604-01" ] }, { "cite": "645 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638642 ], "year": 2007, "pin_cites": [ { "page": "870", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0867-01" ] }, { "cite": "643 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638079 ], "year": 2007, "pin_cites": [ { "page": "429", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0410-01" ] }, { "cite": "308 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "65 N.C. 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Stat.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "312 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "310 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400761 ], "year": 1984, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0312-01" ] }, { "cite": "704 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "527", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "426 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. 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JAYCEON TAYLOR, ENGEL THEDFORD, MICHAEL KIMBREW, JOHN DOE a/k/a DJ SKEE, ANTHONY TORRES, BLACK WALL STREET RECORDS, LLC, BLACK WALL STREET PUBLISHING, LLC, BUNGALO RECORDS, INC., GENERAL GFX, GRIND MUSIC, INC., JUMP OFF FILMS, LIBERATION ENTERTAINMENT, INC., JOHN DOE #2, WWW.STOPSNITCHINSTOPLYIN.COM, UNIVERSAL HOME VIDEO, INC., and YOUTUBE, INC., Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nJayceon Taylor (\u201cTaylor\u201d) and B\u00fangalo Records, Inc. (\u201cBungalo\u201d) appeal the trial court\u2019s judgment which, following a bench trial, awarded five million dollars in compensatory damages and ten million dollars in punitive damages to Hien Nguyen, Matthew Brown, Ryan Childrey, Romaine Watkins, and David Gregory (collectively \u201cplaintiffs\u201d). We affirm in part, vacate in part, and remand.\nI. Factual and Procedural Background\nThe events which led to the filing of the instant case have previously been chronicled by this Court in Nguyen v. Taylor, 200 N.C. App. 387, 684 S.E.2d 470 (2009)(\u201cNguyen I\u201d). The factual and procedural history relevant to the instant appeal is as follows: On 28 October 2005, plaintiffs, who were officers with the Greensboro Police Department, arrested Taylor at the Four Seasons Mall in Greensboro, North Carolina and charged him with criminal trespass, communicating threats, and disorderly conduct. An individual in Taylor\u2019s entourage recorded the arrest with a video camera. A heavily edited version of that video recording, which made it appear as though Taylor was wrongfully arrested, was included as a bonus feature on a documentary DVD released by Taylor and others, entitled \u201cStop Snitchin\u2019 Stop Lyin\u2019 \u201d (\u201cthe DVD\u201d). B\u00fangalo was involved in the production of the DVD and also provided internet marketing services for it.\nOn 30 October 2006, plaintiffs filed a complaint against Taylor, B\u00fangalo, Engel Thedford, Michael Kimbrew, DJ Skee, Anthony Torres, Black Wall Street Records, LLC, Black Wall Street Publishing, LLC, General GFX, Grind Music, Inc., Jump Off Films, Liberation Entertainment, Inc., John Doe #2, www.stopsnitchinstoplyin.com, Universal Home Video, Inc., and Youtube, Inc. The complaint included claims against Taylor, individually, for a statement he allegedly made to the news media after his arrest. It also included claims against Taylor, B\u00fangalo, and other defendants for defamation, wrongful appropriation of a likeness, and unfair and deceptive practices. Plaintiffs\u2019 claims were based upon (1) the edited footage of Taylor\u2019s arrest contained in the DVD; (2) a description on the back of the DVD case which stated that it included the \u201c[e]ntire footage of [Taylor] being wrongfully arrested in North Carolina; and (3) a statement on the website Yvww.stopsnitchinstoplyin.com which referred to the video of the arrest as the \u201c[e]ntire footage of [Taylor] being wrongfully arrested and brutalized by the Police in North Carolina.\u201d\nB\u00fangalo was served with plaintiffs\u2019 complaint on 10 November 2006. Bungalo\u2019s counsel then contacted plaintiffs\u2019 counsel, who agreed to extend the time to file a responsive pleading until 2 January 2007. However, B\u00fangalo failed to file an answer. As a result, plaintiffs filed a motion for default on 23 January 2007, and on 24 January 2007, default was entered against B\u00fangalo by the Guilford County Clerk of Superior Court. On 30 January 2007, Bungalo\u2019s counsel contacted plaintiffs\u2019 counsel in an attempt to have the default set aside, but plaintiffs\u2019 counsel refused. On 21 March 2007, B\u00fangalo filed a motion to have the default set aside, and the motion was denied by Judge Edwin G. Wilson, Jr. on 21 May 2007. On 30 November 2007, plaintiffs sent discovery requests to B\u00fangalo, but B\u00fangalo refused to comply with the requests on the basis of the default.\nOn 18 June 2008, Taylor and other defendants filed a motion to dismiss all of plaintiffs\u2019 claims pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. On 5 August 2008, the trial court entered an order which granted defendants\u2019 motion in part and denied it in part. After the entry of this order, the remaining claims against Taylor were (1) defamation, based upon the edited footage contained in the DVD; (2) appropriation; and (3) unfair and deceptive practices. Plaintiffs appealed the trial court\u2019s order. On 20 October 2009, this Court, in Nguyen I, dismissed plaintiffs\u2019 appeal as interlocutory.\nWhile plaintiffs\u2019 appeal was pending, the trial court entered a stay of all proceedings. On 18 December 2009, plaintiffs sent Taylor \u201cRequests for Admission,\u201d and Taylor did not respond as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 36 (2011).\nPlaintiffs voluntarily dismissed, without prejudice, their claims against Universal Home Video, Inc., and Youtube, Inc. In addition, plaintiffs reached a settlement and voluntarily dismissed their claims against DJ Skee.\nThe case was set for trial on 13 September 2010. On 23 August 2010, plaintiffs moved for summary judgment against Taylor on the basis of his failure to respond to the requests for admission. The motion was heard on the day of trial. Taylor did not appear. The trial court entered summary judgment against Taylor and proceeded to trial on the issue of damages.\nThe bench trial on damages was conducted on 14 September 2010. At trial, each plaintiff testified regarding the negative effects of the DVD. They testified that people consistently recognized them as a result of appearing in the DVD and explained the problems this created. These included, inter alia, problems with their jobs and their fear for their own safety and for the safety of their families. On 20 September 2010, the trial court entered a judgment in favor of plaintiffs against Taylor, B\u00fangalo, Engel Thedford, Michael Kimbrew, Anthony Torres, Black Wall Street Records, LLC, Black Wall Street Publishing, LLC, General GFX, Grind Music, Inc., and Jump Off Films. Plaintiffs were each awarded one million dollars in compensatory damages and two million dollars in punitive damages. The defendants involved in this judgment were jointly and severally liable for the damages awarded.\nPlaintiffs subsequently voluntarily dismissed, without prejudice, their claims against the defendants who remained after the 20 September 2010 judgment: John Doe #2, www.stopsnitchinstoplyin.com, and Liberation Entertainment, Inc.\nTaylor and B\u00fangalo were the only defendants to file notice of appeal.\nII. Jacevon Tavlor\nTaylor raises numerous issues on appeal. He argues: (1) that the trial court erred by holding a summary judgment hearing on the day of trial; (2) that the trial court erred by granting summary judgment to plaintiffs against Taylor; (3) that the trial court erred by conducting a bench trial to determine damages, when Taylor had demanded a jury trial; (4) that the trial court erred by relying upon unanswered requests for admission to determine plaintiffs\u2019 damages; (5) that the trial court\u2019s findings were insufficient to support its verdict, because the findings did not indicate which tort gave rise to which damages; (6) that the trial court erred in awarding five million dollars in compensatory damages to plaintiffs, as these damages were not supported by competent evidence; (7) that the trial court erred in awarding punitive damages; and (8) that the trial court erred by awarding plaintiffs attorneys\u2019 fees.\nA. Timing of Summary Judgment Motion\nTaylor first argues that the trial court erred in granting summary judgment to plaintiffs because plaintiffs\u2019 summary judgment motion was untimely. Specifically, Taylor contends that plaintiffs failed to comply with a pretrial administrative scheduling order entered in the case that required plaintiffs to file their motion 14 days prior to trial. We disagree.\nAlthough Taylor was properly served with plaintiffs\u2019 motion, he failed to appear at the summary judgment hearing. Since he was not in court, he did not object at the time the trial court considered the motion. Accordingly, he has waived appellate review of this issue. See N.C.R. App. P. 10(a)(1) (2011)(\u201cIn order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d). This argument is overruled.\nB. Evidence Supporting Summary Judgment\nTaylor next argues that there was insufficient evidence to support the trial court\u2019s entry of summary judgment against him. We disagree.\nSummary judgment shall be rendered \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 N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2011). In the instant case, the trial court properly relied upon Taylor\u2019s admissions in granting summary judgment to plaintiffs. Plaintiffs sent Taylor requests for admission pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 36 (2011). This rule provides, in relevant part:\nEach matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 60 days after service of the summons and complaint upon him.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 36(a). After Taylor was served with plaintiffs\u2019 requests for admission, he failed to answer or otherwise object to any of the requests. Consequently, each of plaintiffs\u2019 requests were deemed admitted.\nOur Supreme Court has stated that \u201c[f]acts that are admitted under Rule 36(b) are sufficient to support a grant of summary judgment.\u201d Goins v. Puleo, 350 N.C. 277, 280, 512 S.E.2d 748, 750 (1999). In the instant case, Taylor\u2019s admissions sufficiently established each element of defamation per se, appropriation, and unfair and deceptive practices.\n1. Defamation Per Se\nIn general, \u201c[t]o be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed.\u201d Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993). Moreover,\nNorth Carolina has long recognized the harm that can result from false statements that impeach a person in that person\u2019s trade or profession \u2014 such statements are deemed defamation per se. The mere saying or writing of the words is presumed to cause injury to the subject; there is no need to prove any actual injury.\nCohen v. McLawhorn, _ N.C. App. _, _, 704 S.E.2d 519, 527 (2010)(internal quotations and citations omitted). In the instant case, Taylor admitted that the DVD was edited to give the impression that he did nothing wrong during his arrest, in an attempt to defame plaintiffs. Taylor additionally admitted that the edited footage \u201cwas intentionally misleading\u201d and that he intended to \u201ccharacterize the Plaintiffs\u2019 actions [in arresting him] as illegal\u201d even though he \u201cknew the Plaintiffs\u2019 actions were legal.\u201d Finally, Taylor admitted that he intended to \u201cdefame the Plaintiffs with the DVD,\u201d and that he intended to \u201cinjure the Plaintiffs in their trades or professions.\u201d Based upon these admissions, the trial court properly granted summary judgment to plaintiffs on their defamation per se claim.\n2. Appropriation\nNorth Carolina recognizes a claim for invasion of privacy by means of \u201cappropriation, for the defendant\u2019s advantage, of the plaintiff\u2019s name or likeness[.]\u201d Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984). In the instant case, Taylor admitted that he appropriated plaintiffs\u2019 likenesses for his own advantage. As a result, the trial court properly granted plaintiffs summary judgment on their appropriation claim against Taylor.\n3. Unfair or Deceptive Practices\n\u201cThe elements of a claim for unfair or deceptive [] practices in violation of N.C. Gen. Stat. \u00a7 75-1.1 (2003) are: (1) an unfair or deceptive act or practice or an unfair method of competition; (2) in or affecting commerce; (3) that proximately causes actual injury to the plaintiff or to his business.\u201d RD&J Props. v. Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 748, 600 S.E.2d 492, 500 (2004). In the instant case, Taylor admitted that the DVD \u201cwas commercially released for worldwide distribution\u201d and that he was \u201cinvolved in all aspects of the filming, editing, directing, producing, and financing, and distribution of the DVD.\u201d He also admitted that he \u201cma[de] [plaintiffs] unwitting performers in [his] commercial DVD\u201d and \u201cdefam[ed] [plaintiffs] while profiting at their expense.\u201d In addition, he admitted that the use of plaintiffs in the DVD directly increased the DVD sales. Based upon these admissions, the trial court properly granted plaintiffs summary judgment against Taylor on their unfair and deceptive practices claim.\nTaylor\u2019s admissions were sufficient to establish each of plaintiffs\u2019 claims against him. Accordingly, the trial court did not err in granting plaintiffs summary judgment against Taylor on their claims for defamation per se, appropriation, and unfair and deceptive practices. This argument is overruled.\nC. Demand for Jury Trial\nTaylor argues that the trial court erred by conducting a bench trial to determine plaintiffs\u2019 damages when Taylor specifically demanded a jury trial in his answer. However, \u201c[a] party may waive his right to jury trial by . . . failing to appear at the trial[.]\u201d Carolina Forest Ass\u2019n v. White, 198 N.C. App. 1, 16, 678 S.E.2d 725, 735 (2009). Since Taylor did not appear at trial, he waived his right to a jury trial. This argument is overruled.\nD. Compensatory Damages\nTaylor argues that, for a variety of reasons, the trial court\u2019s award of compensatory damages was erroneous. We disagree.\n1. Division of Damages\nTaylor first argues that the trial court\u2019s judgment was inherently deficient because it failed to specify which portion of its damages award was attributable to each of plaintiffs\u2019 claims. However, Taylor fails to cite any authority in support of this argument, and so it is deemed abandoned pursuant to N.C.R. App. R 28 (b)(6) (2011).\n2. Use of Admissions\nTaylor also contends that the trial court erred by using Taylor\u2019s admissions to make its findings of fact. As previously noted, Taylor failed to respond to plaintiffs\u2019 requests for admission, and as a result, all of plaintiffs\u2019 requests were deemed admitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 36(a). \u201cAny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 36(b). This Court has explained that an admission under Rule 36 \u201cis not evidence, but it, instead, serves to remove the admitted fact from the trial by formally conceding its existence.\u201d J.M. Parker & Sons, Inc. v. William Barber, Inc., _ N.C. App. _, _, 704 S.E.2d 64, 69 (2010) (internal quotations and citation omitted).\nIn the instant case, plaintiffs entered Taylor\u2019s admissions into evidence during the damages trial. Consequently, the admissions were conclusively established facts for purposes of that trial. Thus, the trial court did not err by making findings of fact based upon Taylor\u2019s admissions. This argument is overruled.\n3. Award of Consequential Damages\nTaylor next contends that there was insufficient evidence to support the trial court\u2019s award of one million dollars in compensatory damages per plaintiff. \u201cThe burden of proving damages is on the party seeking them. As 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 Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 547-48, 356 S.E.2d 578, 586 (1987) (internal citation omitted). In the instant case, Taylor was found liable for defamation per se, appropriation, and unfair and deceptive practices.\nFor a defamation claim, \u201c[compensatory damages include (1) pecuniary loss direct or indirect, i.e., special damages; (2) damages for physical pain and inconvenience; (3) damages for mental suffering; and (4) damages for injury to reputation.\u201d Roth v. News Co., 217 N.C. 13, 23, 6 S.E.2d 882, 889 (1940)(internal quotations and citations omitted). While our Courts have not precisely defined the measure of damages for an appropriation claim, the Restatement (Second) of Torts identifies the following types of damages for all invasion of privacy actions:\n(a) the harm to [the plaintiffs] interest in privacy resulting from the invasion;\n(b) [the plaintiff\u2019s] mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and\n(c) special damage of which the invasion is a legal cause.\nRestatement (Second) of Torts, \u00a7 652H. For the harm specific to the tort of appropriation, the Restatement notes that \u201c[o]ne whose name, likeness or identity is appropriated to the use of another . . . may recover for the loss of the exclusive use of the value so appropriated.\u201d Id., cmt. (a). Finally, for an unfair or deceptive practices claim, this Court has stated:\nUnfair and deceptive trade practices and unfair competition claims are neither wholly tortious nor wholly contractual in nature and the measure of damages is broader than common law actions. The measure of damages used should further the purpose of awarding damages, which is to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money.\nRichardson v. Bank of Am., N.A., 182 N.C. App. 531, 562, 643 S.E.2d 410, 429 (2007)(internal quotations and citations omitted).\nThe damages in the instant case were awarded after a bench trial. \u201cIn a bench trial in which the [trial] court sits without a jury, the standard of review is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870 (2007) (internal quotations and citation omitted). \u201cThe trial court\u2019s award of damages at a bench trial is a matter within its sound discretion, and will not be disturbed on appeal absent an abuse of discretion.\u201d Helms v. Schultze, 161 N.C. App. 404, 414, 588 S.E.2d 524, 530 (2003).\nThe trial court made the following relevant findings of fact regarding plaintiffs\u2019 damages:\n37. As a result of Defendants\u2019 actions, Plaintiffs have been substantially injured. The Plaintiffs are consistently recognized as being the officers who arrested [Taylor]. They are often accused of racism by those who recognize them as a result of the DVD, which undermines their authority as police officers. They have legitimate fears for their own safety, as well as for the safety of their families.\n39. The DVD and the statements made by the Defendants continue to be widely available across the world, and the footage remains readily available on the internet. As a result, it is likely that the Plaintiffs will continue to be damaged by these materials wherever they go and for the remainder of their careers.\nTaylor did not challenge these findings, and thus, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). In addition, based upon Taylor\u2019s admissions, the trial court found that \u201cTaylor . . . made in excess of TEN MILLION DOLLARS ($10,000,000.00) in profits on the sale of the DVD, the vast majority of which [he] attribute [d] to the use of Plaintiffs\u2019 likeness [es] and the defamatory statements.\u201d Thus, the trial court\u2019s binding findings of fact are that Taylor\u2019s actions have caused plaintiffs significant harm in their personal lives and in their careers as police officers, that this harm will continue throughout the remainder of plaintiffs\u2019 careers, and that Taylor profited from the harm he caused plaintiffs in an amount exceeding ten million dollars. In light of these findings, we cannot say the trial court abused its discretion by awarding each plaintiff one million dollars in compensatory damages. This argument is overruled.\nE. Punitive Damages\nTaylor next argues that the trial court erred in awarding each plaintiff two million dollars in punitive damages.\nUnder N.C. Gen. Stat. \u00a7 1D-I5(a) (2009), \u201c[p]unitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud[;] (2) Malice[; or] (3) Willful or wanton conduct.\u201d The plaintiff \u201cmust prove the existence of an aggravating factor by clear and convincing evidence.\u201d N.C. Gen. Stat. \u00a7 1D-I5(b).\nSprings v. City of Charlotte, _ N.C. App. _, _, 704 S.E.2d 319, 325-26 (2011). In the instant case, Taylor admitted that he \u201chad personal ill-will and malice towards each of the Plaintiffs in this action and that this ill-will and malice motivated [his] actions.\u201d Pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 36(b), Taylor\u2019s admission conclusively established and formally conceded the existence of an aggravating factor. J.M. Parker & Sons, _ N.C. App. at _, 704 S.E.2d at 69.\nHowever, while the trial court\u2019s judgment concluded, based upon Taylor\u2019s admission, that he \u201cacted with actual malice and personal ill will towards the Plaintiffs,\u201d it failed to state whether this finding of an aggravating factor was by \u201cclear and convincing evidence,\u201d as required by N.C, Gen. Stat. \u00a7 1D-I5(b). As a result, we must remand the judgment to the trial court so that it may consider whether the evidence of that aggravating factor met the required standard of proof, and so that the judgment may be amended to reflect its determination on this issue.\nTaylor additionally contends that, even if punitive damages were appropriate, the amount of punitive damages awarded by the trial court constituted an abuse of discretion.\nIn determining the amount of punitive damages, if any, to be awarded, the trier of fact:\n(1) Shall consider the purposes of punitive damages set forth in G.S. ID-1; and\n(2) May consider only that evidence that relates to the following:\na. The reprehensibility of the defendant\u2019s motives and conduct.\nb. The likelihood, at the relevant time, of serious harm.\nc. The degree of the defendant\u2019s awareness of the probable consequences of its conduct.\nd. The duration of the defendant\u2019s conduct.\ne. The actual damages suffered by the claimant.\nf. Any concealment by the defendant of the facts or consequences of its conduct.\ng. The existence and frequency of any similar past conduct by the defendant.\nh. Whether the defendant profited from the conduct.\ni. The defendant\u2019s ability to pay punitive damages, as evidenced by its revenues or net worth.\nN.C. Gen. Stat. \u00a7 ID-35 (2011). In the instant case, the trial court\u2019s judgment specifically indicated that it had considered the purpose of punitive damages. In addition, the judgment concluded that \u201cDefendants\u2019 conduct and motives . . . were reprehensible,\u201d that \u201cthe Defendants either were or should have been aware of the likelihood of serious harm to the Plaintiffs,\u201d and that \u201cthe Defendants made in excess of FORTY MILLION DOLLARS ($40,000,000) from the DVD, and have the ability to pay the punitive damages awarded.\u201d Thus, the trial court\u2019s judgment complied with N.C. Gen. Stat. \u00a7 ID-35 in determining the punitive damages award, and we find no abuse of discretion in the amount awarded. This argument is overruled.\nF. Attorneys\u2019 Fees\nFinally, Taylor argues that the trial court erred in awarding plaintiffs attorneys\u2019 fees. Specifically, Taylor contends that there are no findings included in the trial court\u2019s judgment that Taylor\u2019s actions affected commerce, and without these findings the judgment failed to establish Taylor\u2019s liability for unfair or deceptive practices. Contrary to Taylor\u2019s assertion, the trial court specifically found as fact that the DVD which defamed plaintiffs was commercially released. The trial court\u2019s judgment included sufficient findings of fact to support its conclusion of law that Taylor was liable for unfair and deceptive practices, which permitted the trial court to award attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 75-1.1 (2011). This argument is overruled.\nIII. B\u00fangalo Records. Inc.\nB\u00fangalo raises two issues on appeal. First, B\u00fangalo argues that the trial court erred by denying Bungalo\u2019s motion to set aside the entry of default. Second, B\u00fangalo argues that the trial court erred by awarding plaintiffs a fifteen mill\u00f3n dollar judgment against B\u00fangalo.\nA. Entry of Default\nB\u00fangalo contends that the trial court abused its discretion by refusing to set aside the entry of default. We disagree.\nAn entry of default may be set aside for \u2018good cause shown. Williams v. Jennette, 77 N.C. App. 283, 287, 335 S.E.2d 191, 194 (1985). \u201cWhether \u2018good cause\u2019 exists depends on the facts and circumstances of each particular case, and the trial court\u2019s determination will not be disturbed on appeal unless a clear abuse of discretion is shown.\u201d Old Salem Foreign Car Serv., Inc. v. Webb, 159 N.C. App. 93, 97, 582 S.E.2d 673, 676 (2003). \u201cThe defendant carries the burden of showing good cause to set aside entry of default.\u201d Luke v. Omega Consulting Grp., LC, 194 N.C. App. 745, 748, 670 S.E.2d 604, 607 (2009).\nIn its brief, B\u00fangalo contends that its \u201cfailure to answer was inadvertent, due to a conversation in which [Bungalo\u2019s counsel] mistakenly believed that Plaintiffs\u2019 counsel agreed to an extension of time in which to file an answer.\u201d However, the conversation referenced by B\u00fangalo did not occur until 30 January 2007, after default had been entered. Thus, this conversation could not provide a basis for setting aside the default.\nB\u00fangalo was served with plaintiffs\u2019 complaint on 10 November 2006. Under the Rules of Civil Procedure, an answer is due within 30 days of service of a complaint. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(a)(1) (2011). Although B\u00fangalo, due to an agreement with plaintiffs\u2019 counsel, was granted an extension of time until 2 January 2007, an answer was never filed. Plaintiffs then waited an additional three weeks, until 23 January 2007, to file a motion for entry of default. Thereafter, B\u00fangalo did not file its motion to set aside the default until 21 March 2007. Under these circumstances, we find no abuse of discretion in the trial court\u2019s denial of Bungalo\u2019s motion to set aside default. This argument is overruled.\nB. Judgment\nB\u00fangalo argues that the evidence presented at the damages trial did not support an award of fifteen million dollars in compensatory and punitive damages against B\u00fangalo. We agree that the punitive damages award against B\u00fangalo was improper, and grant B\u00fangalo a new trial on the issue of punitive damages.\n1. Bungalo\u2019s Liability\nB\u00fangalo first argues that because it was not mentioned by name during the evidentiary portion of the damages trial, plaintiffs failed to establish that Bungalo\u2019s actions were the proximate cause of their damages. We disagree.\n\u201cThe effect of an entry of default is that the defendant against whom entry of default is made is deemed to have admitted the allegations in plaintiff\u2019s complaint and is prohibited from defending on the merits of the case.\u201d Spartan Leasing v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991)(internal citation omitted). Thus, as a result of the entry of default against B\u00fangalo, all of plaintiffs\u2019 allegations against B\u00fangalo were deemed to have been admitted. These included allegations that B\u00fangalo was involved in the production and distribution of the DVD which caused the harm to plaintiffs.\nThe sole purpose of the damages trial was to determine the harm to plaintiffs caused by the production and distribution of the DVD. Since B\u00fangalo admitted, by virtue of its default, its involvement in this process, any damages proven at the trial would be attributable to B\u00fangalo as well as the other defendants who were also involved with the DVD. The fact that B\u00fangalo was not mentioned specifically by name during the damages trial did not affect its responsibility for the amount of damages that were established at the damages trial. All of the defendants who were involved with the DVD, including B\u00fangalo, proximately caused plaintiffs\u2019 damages. This argument is overruled.\n2. Disclaimer on DVD\nB\u00fangalo next argues that the trial court abused its discretion by failing to reduce the amount of plaintiffs\u2019 damages attributable to B\u00fangalo. Specifically, B\u00fangalo contends that a disclaimer mentioned on the DVD, which stated that B\u00fangalo \u201cdisclaims all liability of any kind arising out of the content, comments, and the information contained and referenced within the DVD,\u201d should have reduced the amount of its liability for plaintiffs\u2019 damages.\nOnce default was entered against B\u00fangalo, it had \u201cno further standing to contest the merits of plaintiffs\u2019] right to recover. [Its] only recourse [wa]s ... to contest the amount of the recovery.\u201d Spartan Leasing, 101 N.C. App. at 460, 400 S.E.2d at 482. Contrary to Bungalo\u2019s assertions to the contrary, the disclaimer is relevant only to the merits of plaintiffs\u2019 claims against B\u00fangalo; it does not affect the amount of plaintiffs\u2019 damages which were attributable to the DVD. This argument is overruled.\n3. Rule 9(k)\nB\u00fangalo argues that plaintiffs\u2019 complaint was legally insufficient to support an award of punitive damages because it did not comply with N.C. Gen. Stat. \u00a7 1A-1, Rule 9(k) (2011). This rule requires, inter alia, that \u201cthe aggravating factor that supports the award of punitive damages shall be averred with particularity.\u201d Id.\nIn the instant case, plaintiffs\u2019 complaint does not specifically allege malice as an aggravating factor supporting the award of punitive damages. However, this Court has previously held that a complaint which included an allegation of defamation per se, together with an allegation that the defendant made a statement \u201cwith knowledge that the statement was false,\u201d and a demand for punitive damages, .met the Rule 9(k) particularity requirement. Ausley v. Bishop, 150 N.C. App. 56, 64-65, 564 S.E.2d 252, 258, rev\u2019d on other grounds, 356 N.C. 422, 572 S.E.2d 153 (2002)(per curiam). The allegations in plaintiffs\u2019 complaint cannot be materially distinguished from the complaint in Ausley. Accordingly, plaintiffs\u2019 complaint sufficiently complied with the requirements of Rule 9(k). This argument is overruled.\n4. Punitive Damages\nFinally, B\u00fangalo argues that the evidence presented at the damages trial was insufficient to support an award of punitive damages. As previously noted, the trial court\u2019s judgment indicates that it awarded punitive damages because (1) \u201cDefendants\u2019 conduct and motives . . . were reprehensible;\u201d (2) \u201cthe Defendants either were or should have been aware of the likelihood of serious harm to the Plaintiffs;\u201d and (3) \u201cthe Defendants made in excess of FORTY MILLION DOLLARS ($40,000,000) from the DVD, and have the ability to pay the punitive damages awarded.\u201d\nThe allegations in plaintiffs\u2019 complaint, which were deemed admitted as a consequence of Bungalo\u2019s default, supported the first two factors considered by the trial court. However, the trial court improperly considered evidence of Bungalo\u2019s co-defendants\u2019 profits and ability to pay punitive damages when it awarded punitive damages against B\u00fangalo. The trial court\u2019s conclusion that defendants made in excess of forty million dollars from the DVD was based solely upon the admissions of Taylor, Black Wall Street Records, LLC, Black Wall Street Publishing, LLC, and Jump Off Films. This Court has long held that \u201c[f]acts admitted by one defendant are not binding on a co-defendant.\u201d Barclays American v. Haywood, 65 N.C. App. 387, 389, 308 S.E.2d 921, 923 (1983). Thus, the trial court improperly used the admissions of Bungalo\u2019s co-defendants to determine the amount of punitive damages to award against Bungalo.\nMoreover, under N.C. Gen. Stat. \u00a7 1D-35(2), the trier of fact \u201c[m]ay consider only that evidence that relates to[,]\u201d inter alia, \u201c[w]hether the defendant profited from the conduct\u201d and \u201cf t]he defendant\u2019s ability to pay punitive damages, as evidenced by its revenues or net worth.\u201d (Emphasis added). This statute does not permit the trier of fact to solely consider the co-defendants\u2019 profits and ability to pay when awarding punitive damages against a particular defendant. Since the trial court\u2019s judgment reflects that this is precisely what occurred in the instant case, we must vacate the portion of the judgment awarding punitive damages against B\u00fangalo and remand for a new trial on that issue.\nPlaintiffs concede that they presented no evidence of Bungalo\u2019s profits or its ability to pay punitive damages. They attribute this failure to Bungalo\u2019s \u201crefus[al] to provide information requested in discovery about its ability to pay\u201d and Bungalo\u2019s \u201crefusal to participate in the lawsuit.\u201d However, Bungalo\u2019s failure to participate in the instant case does not relieve plaintiffs of their burden to prove their damages. The Rules of Civil Procedure provide the appropriate methods and remedies by which to address Bungalo\u2019s failure to provide any required discovery materials. These remedies do not include allowing the trier of fact to assume facts which are not presented as evidence. On remand, plaintiffs are free to utilize the relevant discovery rules to obtain the information they seek.\nIV. Conclusion\nBy failing to appear, Taylor waived his ability to contest the timing of the summary judgment hearing and waived his right to a jury trial on damages. The trial court properly granted plaintiffs summary judgment against Taylor for their claims of defamation per se, appropriation, and unfair or deceptive practices. At the damages trial, the court properly considered unanswered requests for admissions. By operation of Rule 36 these requests became conclusively established facts. The trial court\u2019s findings of fact were based upon competent evidence and supported its conclusions of law, which in turn supported its award of compensatory damages against Taylor. However, the trial court\u2019s finding regarding the aggravating factor which supported the award of punitive damages against Taylor failed to indicate that the aggravating factor was established by clear and convincing evidence. We remand the judgment to the trial court so that it may consider whether the evidence of that aggravating factor met the required standard of proof and then amend the judgment to reflect its determination. Nevertheless, assuming an award of punitive damages was proper, the amount of punitive damages awarded did not constitute an abuse of discretion. Finally, the trial court\u2019s findings of fact and conclusions of law established Taylor\u2019s liability for unfair or deceptive practices, and thus, supported the trial court\u2019s award of attorneys\u2019 fees.\nThe trial court did not abuse its discretion in refusing to set aside Bungalo\u2019s default. The entry of default against B\u00fangalo and the evidence provided by plaintiffs at the damages trial established that B\u00fangalo proximately caused their damages. The trial court did not abuse its discretion in awarding plaintiffs one million dollars each in compensatory damages against B\u00fangalo.\nPlaintiffs\u2019 complaint contained sufficient allegations to comply with the requirements of Rule 9(k) and permitted the trial court to award plaintiffs punitive damages. However, the trial court erred by considering only evidence of Bungalo\u2019s co-defendants\u2019 profits and ability to pay when determining the amount of punitive damages owed by B\u00fangalo. As a result, the portion of the trial court\u2019s judgment which awarded punitive damages against B\u00fangalo is vacated and the case is remanded for a new trial solely on that issue.\nAffirmed in part, vacated in part, and remanded.\nJudges McGEE and HUNTER, Robert C. concur.\n. The parties have stipulated that \u201c[a]ll documents included [in the record on appeal] were properly filed and served.\u201d This includes plaintiffs\u2019 summary judgment motion.\n. Taylor has not stipulated that plaintiffs\u2019 \u201cRequests for Admission\u201d were properly served. However, the requests were.attached to plaintiffs\u2019 motion for summary judgment, which Taylor stipulated was properly served. As noted above, Taylor did not respond to the summary judgment motion and filed no objections to the requests for admission in response to that motion.\n. The Restatement also notes that for the second and third types of damages, an invasion of privacy action closely parallels a defamation action. See Restatement (Second) of Torts, \u00a7 652H, cmts. (b) & (d).\n. Defendants Black Wall Street Records, LLC, Black Wall Street Publishing, LLC, and Jump Off Films each admitted that they, like Taylor, made in excess of ten million dollars in profits from the DVD.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M. Hartzog Jr., for plaintiff-appellees.", "Osborne Law Firm, P.C., by Curtis C. Osborne, for defendant-appellant Jayceon Taylor.", "Blanco Tackaberry & Matamoros, P.A., by Peter J. Juran, for defendant-appellant B\u00fangalo Records, Inc." ], "corrections": "", "head_matter": "HIEN NGUYEN, MATTHEW BROWN, RYAN CHILDREY, ROMAINE WATKINS, and DAVID GREGORY, Plaintiffs v. JAYCEON TAYLOR, ENGEL THEDFORD, MICHAEL KIMBREW, JOHN DOE a/k/a DJ SKEE, ANTHONY TORRES, BLACK WALL STREET RECORDS, LLC, BLACK WALL STREET PUBLISHING, LLC, BUNGALO RECORDS, INC., GENERAL GFX, GRIND MUSIC, INC., JUMP OFF FILMS, LIBERATION ENTERTAINMENT, INC., JOHN DOE #2, WWW.STOPSNITCHINSTOPLYIN.COM, UNIVERSAL HOME VIDEO, INC., and YOUTUBE, INC., Defendants\nNo. COA11-369\n(Filed 21 February 2012)\n1. Appeal and Error\u2014preservation of issues\u2014failure to timely object\nAlthough defendant Taylor contended the trial court erred by granting summary judgment in favor of plaintiffs even though the motion was allegedly untimely, defendant waived this issue by failing to appear and object at the time the trial court considered the motion.\n2. Pleadings\u2014failure to answer or object\u2014requests deemed admitted\nThe trial court did not err by granting summary judgment against defendant Taylor because he failed to answer or otherwise object to any of the requests. Consequently, each of plaintiffs\u2019 requests were deemed admitted, and defendant\u2019s admissions sufficiently established each element of defamation per se, appropriation, and unfair and deceptive practices.\n3. Constitutional Law\u2014right to jury trial\u2014waiver\u2014failure to appear\nThe trial court did not err by conducting a bench trial to determine plaintiffs\u2019 damages even though defendant Taylor specifically demanded a jury trial in his answer. Since defendant did not appear at trial, he waived his right to a jury trial.\n4. Damages and Remedies\u2014compensatory damages\u2014amount\nThe trial court did not abuse its discretion in a defamation per se, appropriation, and unfair and deceptive practices case by awarding one million dollars in compensatory damages to each plaintiff police officer. Defendant Taylor\u2019s action of creating a heavily edited version of a video recording making it appear as though defendant was wrongfully arrested caused plaintiffs significant harm in their personal lives and in their careers as police officers, this harm will continue throughout the remainder of plaintiffs\u2019 careers, and defendant profited from the harm he caused plaintiffs in an amount exceeding ten million dollars.\n5. Damages and Remedies\u2014punitive damages\u2014aggravating factors\u2014standard of proof\nThe trial court did not abuse its discretion in a defamation per se, appropriation, and unfair and deceptive practices case by awarding each plaintiff two million dollars in punitive damages from defendant Taylor. However, while the trial court\u2019s judgment concluded, based upon defendant\u2019s admission, that he acted with actual malice and personal ill will toward plaintiffs, it failed to state whether this finding of an aggravating factor was by clear and convincing evidence as required by N.C.G.S. \u00a7 1D-I5(b). The judgment was remanded to the trial court to consider whether the evidence of that aggravating factor met the required standard of proof, and so that the judgment could be amended to reflect its determination on this issue.\n6. Attorney Fees\u2014unfair trade practices\u2014sufficient findings of fact\nThe trial court\u2019s judgment included sufficient findings of fact to support its conclusion of law that defendant Taylor was liable for unfair and deceptive practices, which permitted the trial court to award attorney fees under N.C.G.S. \u00a7 75-1.1.\n7. Judgments\u2014motion to set aside entry of default\u2014agreement for extension of time\u2014failure to file answer\nThe trial court did not abuse its discretion by refusing to set aside entiy of default against defendant B\u00fangalo. Although defendant, due to an agreement with plaintiffs\u2019 counsel, was granted an extension of time, an answer was never filed. Further, plaintiffs then waited an additional three weeks to file a motion for entry of default.\n8. Damages and Remedies\u2014punitive damages\u2014improper use of co-defendants\u2019 admissions\nThe trial court erred by its punitive damages award. The trial court improperly used the admissions of defendant\u2019s co-defendants regarding profits and ability to pay to determine the amount of punitive damages to award against defendant. Defendant\u2019s failure to participate in the instant case did not relieve plaintiffs of their burden to prove their damages. Defendant was granted a new trial on the issue of punitive damages.\nAppeal by defendants Jayceon Taylor and B\u00fangalo Records, Inc. from judgment entered 20 September 2010 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 11 October 2011.\nCranfill Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M. Hartzog Jr., for plaintiff-appellees.\nOsborne Law Firm, P.C., by Curtis C. Osborne, for defendant-appellant Jayceon Taylor.\nBlanco Tackaberry & Matamoros, P.A., by Peter J. Juran, for defendant-appellant B\u00fangalo Records, Inc." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 29 }