{ "id": 12169253, "name": "WEAVER INVESTMENT COMPANY AND TRAVEL CAMPS, INC., on their own behalf and on behalf of FOURTH CREEK LANDING HOUSING LIMITED PARTNERSHIP and FOURTH CREEK LANDING ASSOCIATES, Plaintiffs v. PRESSLY DEVELOPMENT ASSOCIATES, PRESSLY DEVELOPMENT COMPANY, INC., DAVID L. PRESSLY, and EDWIN A. PRESSLY, Defendants", "name_abbreviation": "Weaver Investment Co. v. Pressly Development Associates", "decision_date": "2014-07-01", "docket_number": "No. COA13-624", "first_page": "645", "last_page": "663", "citations": [ { "type": "official", "cite": "234 N.C. App. 645" } ], "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": "N.C. Gen. Stat. \u00a7 1-56", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "385 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521962 ], "year": 1989, "pin_cites": [ { "page": "331-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0329-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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App.", "case_ids": [ 11651029 ], "year": 1998, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0464-01" ] }, { "cite": "519 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1999, "pin_cites": [ { "page": "312" }, { "page": "309" }, { "page": "310" }, { "page": "312" } ], "opinion_index": 0 }, { "cite": "351 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155931 ], "year": 1999, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0027-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 75-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "691 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "676-78" }, { "page": "678-79" }, { "page": "680" } ], "opinion_index": 0 }, { "cite": "364 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152809 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0047-01" ] }, { "cite": "548 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "353 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135724 ], "year": 2001, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0647-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "731" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "97" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "572 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511169, 1511387, 1511370, 1511183, 1511131 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0434-04", "/nc/356/0434-05", "/nc/356/0434-02", "/nc/356/0434-03", "/nc/356/0434-01" ] }, { "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": "567 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082078 ], "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0697-01" ] } ], "analysis": { "cardinality": 1235, "char_count": 45227, "ocr_confidence": 0.713, "pagerank": { "raw": 5.378971468189423e-08, "percentile": 0.33701810414429567 }, "sha256": "ce1ec6dc0a79e66bd5981c97c0515f83e64ae8f886998fa4143ad97e116dfb2b", "simhash": "1:c7aae72266368c74", "word_count": 7141 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge DILLON concur." ], "parties": [ "WEAVER INVESTMENT COMPANY AND TRAVEL CAMPS, INC., on their own behalf and on behalf of FOURTH CREEK LANDING HOUSING LIMITED PARTNERSHIP and FOURTH CREEK LANDING ASSOCIATES, Plaintiffs v. PRESSLY DEVELOPMENT ASSOCIATES, PRESSLY DEVELOPMENT COMPANY, INC., DAVID L. PRESSLY, and EDWIN A. PRESSLY, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere alleged misconduct of certain defendants occurred within a partnership or joint enterprise, it was not \u201cin or affecting commerce\u201d for the purposes of an unfair and deceptive trade practices action. The trial court erred in trebling damages and awarding attorney\u2019s fees as to those parties pursuant to the unfair and deceptive trade practices statute. The trial court had the authority to appoint an accountant to perform a forensic accounting of the entities and to assess the fees for the expert. Where defendants sought to introduce evidence that was outside of the scope of the hearing, the trial court did not abuse its discretion in excluding this evidence. Where there was evidence that defendants were responsible for depreciation in value of certain property, the trial court did not err in holding defendants liable for the depreciation. Where defendants offer no legal argument as to why the trial court could not dissolve the partnership, defendants\u2019 argument is deemed abandoned. Where defendants do not challenge the trial court\u2019s findings regarding breach of fiduciary duty and constructive fraud, the trial court did not err in its conclusion based upon these findings. Where defendants concealed their misconduct, and this misconduct was reasonably discovered within the applicable statute of limitations periods, the trial court did not err in holding that the statute of limitations had not expired.\nI. Factual and Procedural Background\nWeaver Investment Company (WIC) is one of three limited partners of Fourth Creek Landing Housing Limited Partnership (Fourth Creek Limited Partnership), with an 18.75% ownership interest. The other two limited partners are Travel Camps, Inc., (Travel) with a 37.5% interest, and Pressly Development Associates, (PDA) with an 18.75% interest. The general partner of the Partnership is Fourth Creek Landing Associates (FCLA), a general partnership, which holds a 25% interest in Fourth Creek Limited Partnership. WIC and PDA are the two general partners of FCLA, each with a 50% interest. The business relationship between WIC and PDA, as general partners of FCLA, is governed by a partnership agreement dated 16 May 1985. The business relationship between the general and limited partners of Fourth Creek Limited Partnership is governed by a limited partnership agreement, dated 16 May 1985, along with several amendments thereto.\nFourth Creek Limited Partnership owns the first phase of an apartment complex known as Fourth Creek Landing Apartments (Fourth Creek Apartments I) located in Iredell County. Pressly Development Company, Inc. (PDCI) is a corporation that manages and leases the entire Fourth Creek Landing Apartments, which includes Fourth Creek Apartments I, and an additional 48 units (Fourth Creek Apartments II) owned by a separate company, Fourth Creek Landing Associates II, LLC (FCLA II). PDCI conducts the day to day business of Fourth Creek Apartments I and Fourth Creek Apartments II. PDCI charges fees to Fourth Creek Limited Partnership for its services to Fourth Creek Apartments I. David Pressly (David) and Edwin Pressly (Edwin) are brothers who are the general partners of Free Nancy Partnership (Free Nancy), which is the sole member of FCLA II. David and Edwin each hold a 50% general partnership interest in PDA, and a 50% shareholder interest in PDCI. David is also the President of PDCI and the Manager of FCLA II. Edwin is a General Partner of PDA and the Secretary of PDCI.\nOn 22 December 2009, WIC and Travel filed this action against PDA and PDCI. They also brought this action on behalf of Fourth Creek Limited Partnership and FCLA. FCLA II was not a party to this action. The complaint alleged that PDA had acted ultra vires to the partnership agreement of Fourth Creek Limited Partnership, that PDCI or FCLA II had converted funds related to cable television services in Fourth Creek Apartments I, and that PDCI had engaged in inappropriate accounting practices with regard to its management services for Fourth Creek Limited Partnership. Plaintiffs sought monetary damages from defendants, termination of PDCI as property manager for Fourth Creek Apartments I, dissolution of FCLA, dissolution of Fourth Creek Limited Partnership, and monetary damages for breach of fiduciary duty against PDA.\nOn 19 August 2010, plaintiffs moved to join David and Edwin as defendants. This motion was granted 8 September 2010. On 10 September 2010, plaintiffs filed an amended complaint. The amended complaint alleged additional causes of action for fraud against all four defendants; constructive fraud by PDA, David and Edwin; aiding and abetting fraud and breach of contract by Edwin; unfair and deceptive trade practices as to all four defendants; establishment of a constructive trust with regard to the converted funds; punitive damages; and to pierce the corporate veil of PDCI under an alter ego theory. Plaintiffs further alleged that David, having volunteered to locate a real estate broker in order to sell the property of Fourth Creek Apartments I, delayed doing so in an attempt to maximize his profits for FCLA II and PDCI; that David executed and recorded a cross-easement between Fourth Creek Apartments I and Fourth Creek Apartments II without authority, and failed to disclose that action; and that David executed a management agreement, ostensibly on behalf of Fourth Creek Limited Partnership, without authorization.\nOn 11 October 2010, defendants filed an answer and motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 17 December 2010, plaintiffs voluntarily dismissed their claim for dissolution of Fourth Creek Limited Partnership pursuant to Rule 41 of the Rules of Civil Procedure. All parties waived a jury trial pursuant to Rule 38(d) of the Rules of Civil Procedure.\nOn 18 May 2011, following a hearing, the trial court entered judgment. The trial court found that David, on his own behalf and on behalf of PDA and PDCI, had misled plaintiffs; engaged in unauthorized conduct; overcharged Fourth Creek Limited Partnership; failed to make payments owed to Fourth Creek Limited Partnership; purposefully delayed in obtaining a broker to sell the property of Fourth Creek Apartments I in order to increase revenues for PDCI and FCLA II; converted funds from Fourth Creek Limited Partnership; used PDA and PDCI as his alter ego; and engaged in unfair and deceptive trade practices. The trial court concluded that PDCI, through David, had breached its fiduciary duty to Fourth Creek Limited Partnership, and had engaged in constructive fraud; that PDA, through David, had breached its fiduciary duty to FCLA and to Fourth Creek Limited Partnership, and had engaged in constructive fraud; that David, PDA and PDCI had engaged in fraud; that Edwin did not aid and abet in the breaches of fiduciary duty of PDA and PDCI; that David, PDA and PDCI had engaged in unfair and deceptive trade practices; that David was individually liable for the torts of PDCI; that David and Edwin, as owners of PDCI, were personally liable for the liability attributable to PDCI under a piercing the corporate veil theory; that David and Edwin, as general partners in PDA, were personally liable for the liability attributable to PDA; and that Edwin\u2019s conduct was such as to not merit treble damages, which were assessed against David, PDA and PDCI. The trial court further concluded that plaintiffs did not meet their burden of proving damages with regard to David\u2019s alleged delay in fisting the property of Fourth Creek Apartments I for sale, his recordation of a cross-easement without authority, and his unauthorized execution of a management agreement, and that only nominal damages were appropriate for these claims. The trial court also concluded that David, Edwin, and Free Nancy reasonably relied on the business judgment rule with regard to unauthorized loans David had taken out as business necessities. The trial court ordered that an accounting of PDCI\u2019s books and records be conducted, the dissolution of FCLA, and held that, because defendants\u2019 actions did not cease three years before the filing of the suit against them, the continuing wrong doctrine barred defendants from asserting a statute of limitations defense.\nThe trial court awarded Fourth Creek Limited Partnership damages in the amount of $176,000.00 for defendants\u2019 concealment of revenue, $226,464.00 for defendants\u2019 concealment of losses resulting from the unauthorized housing of on-site employees at Fourth Creek Apartments I, $46,872.00 for defendants\u2019 overcharging services to Fourth Creek Limited Partnership, $1.00 nominal damages for defendants\u2019 unauthorized execution and recordation of the cross-easement, $1.00 nominal damages for defendants\u2019 unauthorized execution of a management agreement, and $1.00 nominal damages for defendants\u2019 purposeful delay in retaining a broker for the purpose of selling the property of Fourth Creek Apartments I. The trial court held that Edwin would not be subject to treble damages. The trial court also determined that Fourth Creek Limited Partnership was entitled to an award of attorney\u2019s fees from PDA, PDCI and David. The trial court held that the damages awarded were subject to adjustment based upon an accounting of the books and records of PDCI. The trial court appointed a receiver for Fourth Creek Limited Partnership and FCLA, terminated PDCI as property manager for Fourth Creek Apartments I, and ordered a forensic accounting of PDCI\u2019s books. The trial court also ordered an accounting of the replacement cost of the amenities and facilities of Fourth Creek Apartments I, which Fourth Creek Limited Partnership would be entitled to collect as damages from defendants. The trial court also ordered that PDA\u2019s share of Fourth Creek Limited Partnership be redeemed. The trial court ordered the dissolution of FCLA, but not of Fourth Creek Limited Partnership, and the termination of the cross-easement between Fourth Creek Apartments I and Fourth Creek Apartments II. Finally, the trial court held that the unauthorized satellite television equipment installed by defendants was the property of Fourth Creek Limited Partnership, as its value was less than the unpaid rent that was owed by defendants to Fourth Creek Limited Partnership. The judgment also provided that these damages could be modified based upon the future accounting.\nOn 20 June 2012, the trial court entered its supplemental judgment as to damages, based upon the accounting of the books and records of PDCI. It held that the net fair market value of Fourth Creek Apartments I was $1,233,295.00; that PDA\u2019s net interest in Fourth Creek Limited Partnership was worth $385,405.00; that the total cost for site improvements to FCLA was $90,000.00; and that the total replacement damages for FCLA were $160,000.00. The trial court held that Fourth Creek Limited Partnership was entitled to recover from defendants $131,599.00 for the conversion of satellite television revenue, plus $45,249.00 interest. The court further held that the principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $394,797.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $13,851.00 for the assessment of management fees relating to the satellite television revenue, plus $5,015.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $41,553.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $41,385.00 for unauthorized housing of employees, plus $13,881.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $124,155.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $162,369.00 for the unauthorized income to Fourth Creek Apartments II based upon the unauthorized housing of employees, plus $62,926.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $487,107.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $32,880.00 based upon defendants\u2019 overcharging of salaries and expenses, plus $13,999.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $98,640.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $105,478.00 for the unauthorized collection of undisclosed bookkeeping fees beyond those contractually agreed upon by the parties, plus $53,998.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $316,434.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $48,000.00 for failure to pay its share of the amenities of Fourth Creek Apartments I, plus $35,531.00 interest. The principal portion of these damages was trebled with respect to PDA, PDCI, and David, for a total amount of $144,000.00.\nThe trial court also held that Fourth Creek Limited Partnership was entitled to recover from defendants $1.00 in nominal damages for the unauthorized execution and recordation of the 2001 Cross-Easement, $1.00 in nominal damages for the execution of the 1996 Management Agreement, and $1.00 in nominal damages for purposeful delay in contracting with a real estate broker.\nIn total, the trial court held that Fourth Creek Limited Partnership was entitled to $535,562.00, plus interest of $230,599.00, for a total of $766,161.00. The principal amounts were trebled to $1,606,686.00 with respect to PDA, PDCI, and David. All of the defendants were liable for the total of $3.00 in nominal damages. The trial court credited $385,405.00 against these damages based upon PDA\u2019s redemption of its interest in Fourth Creek Limited Partnership. The trial court further held that plaintiffs were entitled to recover from defendants $306,380.34 in reasonable attorney\u2019s fees, $5,500.00 for the cost of an appraisal of the Fourth Creek Apartments I amenities, $68,854.48 for the forensic audit, and $787.50 in expert witness fees for the testimony of the court-appointed appraiser.\nDefendants appeal.\nII. Standard of Review\n\u201cThe standard of review on appeal from a judgment entered after a non-jury trial is \u2018whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u2019 \u201d Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)), disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002).\nDefendants have not challenged the trial court\u2019s findings of fact. These findings are therefore binding upon this court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Our review is therefore limited to whether the trial court\u2019s findings support its conclusions of law.\nIII. Unfair and Deceptive Trade Practices\nIn their first argument, defendants contend that the trial court erred in concluding that defendants\u2019 acts were \u201cin or affecting commerce\u201d in North Carolina. We agree in part.\nPursuant to N.C. Gen. Stat. \u00a7 75-1.1, \u201c[i]n 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.\u201d Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001).\nOur Supreme Court has held that N.C. Gen. Stat. \u00a7 75-1.1 does not apply within the confines of a partnership. See White v. Thompson, 364 N.C. 47, 691 S.E.2d 676 (2010). In White, the defendant, a partner in the Ace Fabrication and Welding entity, diverted work from the partnership prior to his departure from the business, and improperly maintained accounts. Plaintiffs brought action against defendant, alleging breach of fiduciary duty. The trial court ruled in favor of plaintiffs, and granted plaintiffs treble damages. Id. at 47-51, 691 S.E.2d at 676-78. On appeal, a majority of this Court reversed the treble damages, holding that defendant\u2019s usurpation of partnership opportunities was not \u201cin or affecting commerce\u201d under our Unfair and Deceptive Trade Practices statute. The majority otherwise affirmed the trial court\u2019s decision. Id. at 51, 691 S.E.2d at 678-79. The Supreme Court held that \u201c[o]ur prior decisions have determined that the General Assembly did not intend for the Act\u2019s protections to extend to a business\u2019s internal operations.\u201d Id. at 53, 691 S.E.2d at 680. It affirmed the decision of the Court of Appeals, concluding that defendant\u2019s conduct within the partnership was not \u201cin or affecting commerce.\u201d\nThe facts of the instant case show that PDA was a member of Fourth Creek Limited Partnership; that David and Edwin were the general partners of PDA; that defendants, through PDCI, were engaged by Fourth Creek Limited Partnership to operate Fourth Creek Apartments I; and that defendants engaged in various acts inconsistent with their obligations to Fourth Creek Limited Partnership.\nWe hold that, while the evidence in the record supports the trial court\u2019s findings that defendants committed fraud, delayed in the sale of real property, and had a duty to provide an accounting to plaintiffs, it also clearly shows the status of David, Edwin, and PDA as partners within the Fourth Creek Limited Partnership joint enterprise. Pursuant to the Supreme Court\u2019s decision in White v. Thompson, defendants\u2019 misconduct within the confines of the partnership was not \u201cin or affecting commerce,\u201d and therefore does not invoke N.C. Gen. Stat. \u00a7 75-1.1 or its trebling provisions. We hold that, while the trial court did not err in imposing damages against David, Edwin, and PDA for their misconduct, it erred in trebling the damages against David and PDA with regard to satellite revenue, employee housing, bookkeeping, salaries and expenses, and failure to maintain amenities, pursuant to North Carolina\u2019s Unfair and Deceptive Trade Practices statute, specifically N.C. Gen. Stat. \u00a7 75-16. Additionally, because the award of attorney\u2019s fees was made pursuant to N.C. Gen. Stat. \u00a7 75-16.1, based upon defendants\u2019 alleged violations of the Unfair and Deceptive Trade Practices statute, we hold that the trial court erred in awarding attorney\u2019s fees to plaintiffs, with regard to David, Edwin and PDA.\nPDCI, however, was not a member of the Fourth Creek Limited Partnership. The trial court found that PDCI \u201chas served as the property manager and leasing manager ... for the entire Fourth Creek Landing Apartments . . . [and] controls the day to day affairs of the Fourth Creek Landing Apartments[.]\u201d Although the conduct of David, Edwin, and PDA was within the partnership context, and thus was not \u201cin or affecting commerce,\u201d PDCI was a separate entity hired by Fourth Creek Limited Partnership.\nOur Supreme Court has held that an employee\u2019s fraudulent self-dealing misconduct \u201c[did] not preclude applicability of N.C.G.S. \u00a7 75-1.1 to [his] case.\u201d Sara Lee Corp. v. Carter, 351 N.C. 27, 34, 519 S.E.2d 308, 312 (1999). In Sara Lee, plaintiff Sara Lee hired defendant to \u201cdevelop[] and maintain]] relationships with vendors to provide [Sara Lee Knit Products] with the best possible pricing, availability, and support of hardware and services.\u201d Id. at 29, 519 S.E.2d at 309. Defendant was \u201cauthorized and entrusted to order and purchase computer parts at the lowest possible prices[,]\u201d and was \u201cresponsible for the maintenance and repair of personal computers.\u201d Id. During his employment with Sara Lee, defendant \u201cdeveloped four separate businesses . . . through which he engaged in self-dealing by supplying Sara Lee with computer parts and services at allegedly excessive cost while concealing his interest in these businesses. Sara Lee paid a total of $495,431.54 to defendant\u2019s businesses for parts and services.\u201d Id.\nWhen Sara Lee brought action against defendant for this fraud, the trial court ruled in favor of Sara Lee, holding that \u201c[t]he transactions between Sara Lee and the Carter Enterprises were not open, fair and honest. In fact, the clear, cogent, and convincing evidence is, to the contrary, that [defendant] used his position of trust at Sara Lee to make profits on transactions involving the Carter Enterprises without disclosing his financial interest in the Carter Enterprises to his superiors at Sara Lee.\u201d Id. at 30, 519 S.E.2d at 310. This Court agreed, holding that \u201c[defendant breached his fiduciary duty by selling computer parts to Sara Lee without disclosing his interest in the companies supplying these parts.\u201d Id. (quoting Sara Lee Corp. v. Carter, 129 N.C. App. 464, 471, 500 S.E.2d 732, 737 (1998)). However, this Court then held that the defendant did not violate \u00a7 75-1.1, because h\u00e9 was employed by Sara Lee at the time of the fraud.\nOur Supreme Court reversed, concluding that defendant\u2019s conduct was \u201cin or affecting commerce,\u201d and that,\nhaving already characterized defendant\u2019s conduct as buyer-seller transactions that fall squarely within the Act\u2019s intended reach, we conclude that defendant\u2019s relationship to plaintiff as an employee, under these facts, does not preclude applicability of N.C.G.S. \u00a7 75-1.1 to this case. Even though defendant was an employee, he nevertheless engaged in self-dealing conduct and \u201cbusiness activities.\u201d N.C.G.S. \u00a7 75-l.l(b). On these facts, defendant\u2019s mere employee status at the time he committed these acts does not safeguard him from liability under the Act.\nId. at 34, 519 S.E.2d at 312.\nIf an employee can be held liable under \u00a7 75-1.1, it seems clear that an independent contractor, such as PDCI, may also be held liable. Accordingly, we hold that the trial court did not err in trebling damages and awarding attorney\u2019s fees with regard to PDCI. Further, because the trial court concluded that David was individually liable for the torts committed by PDCI under a veil-piercing theory, David is subject to the same trebling of damages and attorney\u2019s fees to which PDCI is subject.\nWe vacate the portions of the trial court\u2019s order trebling damages and awarding attorney\u2019s fees against David, Edwin and PDA, as members of Fourth Creek Limited Partnership, pursuant to the Unfair and Deceptive Trade Practices statute, and remand for an order reducing damages accordingly. We affirm the judgment of the trial court trebling damages and awarding attorney\u2019s fees with regard to PDCI, and David individually based upon a piercing the corporate veil theory through PDCI.\nIV. Awards of Fees. Costs and Damages\nIn their second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth arguments, defendants contend that the trial court erred in awarding attorney\u2019s fees and bookkeeping fees, in basing its damages upon the testimony of an expert witness and denying defendants the opportunity to rebut that testimony, in awarding as costs the fees of expert witnesses, in awarding damages for the depreciation in value of Fourth Creek Apartments I, in basing damages upon the fair market value of Fourth Creek Apartments I, and in removing PDCI from the Partnership.\nA. Attorney\u2019s Fees\nDefendants first contend that the trial court erred in awarding attorney\u2019s fees. We agree in part.\nThe trial court awarded attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 75-16.1. This statute provides:\nIn any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such\nIN THE COURT OF APPEALS\n657\nWEAVER INV. CO. v. PRESSLY DEV. ASSOCS.\n[234 N.C. App. 645 (2014)]\nattorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that:\n(1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit; or\n(2) The party instituting the action knew, or should have known, the action was frivolous and malicious.\nN.C. Gen. Stat. \u00a7 75-16.1 (2013). As we held above, the trial court erred in concluding that certain defendants violated N.C. Gen. Stat. \u00a7 75-1.1. Accordingly, the trial court erred in awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 75-16.1 against David, Edwin, and PDA, as members of Fourth Creek Limited Partnership; the trial court did not err in awarding attorney\u2019s fees against PDCI, or against David who was individually hable for the actions of PDCI under a veil-piercing theory. As described in Section III of this opinion, we vacate the award of attorney\u2019s fees with respect to David, Edwin and PDA, and find no error with respect to PDCI, and David through PDCI. As discussed in Section III of this opinion, above, we remand with instructions for the trial court to award fees only against PDCI, and David through PDCI.\nB. Bookkeeping Fees\n[3] Defendants next contend that the trial court erred by awarding bookkeeping fees, by relying on the testimony of Eric Lioy in setting those fees, and by denying defendants the opportunity to rebut Lioy\u2019s testimony. We disagree.\nEric Lioy is a Grant Thornton accountant who was charged by the court to provide an accounting of PDCI\u2019s expenses for \u201cthings such as satehite television revenue, employee housing, affects [sic] of the management fee and a couple other matters[.]\u201d The trial court\u2019s judgment does not cite to his testimony, because Lioy did not testify at trial, but testified instead at a separate hearing, on 10 October 2011. Regarding Lioy\u2019s testimony, the trial court held that:\nNow, this is really just designed -- I\u2019m not - I\u2019m not going to treat it as an evidentiary hearing, but I\u2019m going to treat it as a way of this witness helping me and Mr. Eisele go through the book[s] and - or the documents and sort of just take me through it step by step as to what it - how it\u2019s comprised and how - what findings were made and\njust sort of take me through it as kind of a guideline or road map.\nAt this hearing, Lioy testified under oath that he and his team performed the services requested by the court, which also included forensic accounting, searches of computer documents, and double-checking of accounting calculations between \u201cJanuary 1, 2002 through March 31, 2011.\u201d Lioy went on to testify to the contents of his report, which had been previously submitted to the trial court. At no point did defendants object to Lioy\u2019s testimony. Defendants did object, however, to \u201cthis $159,000 item[,]\u201d referring to a $159,176.00 item in the report, which was bookkeeping fees paid by Fourth Creek Apartments I to PDCI in 1999, plus interest. Defendants contended at the hearing that this item\nwas not raised in the pleadings, it was never suggested during the trial, there was no mention of it made in oral argument at any time, it was not the subject of any amendment to the pleadings made at the conclusion of the trial. I didn\u2019t know anything about it until the Grant Thornton report came down and I\u2019m sure Mr. Rodenbough didn\u2019t know about it until the Grant Thornton report came down.\nThe trial court noted defendants\u2019 objection, but held that \u201cthat\u2019s something we\u2019re going to need to take up at a subsequent hearing.\u201d\nThe hearing was recessed, and subsequently reconvened on 2 December, 2011. At this hearing, defendants once again objected to the bookkeeping fees, asserting that \u201c[t]he word bookkeeping fees never came up.\u201d The trial court responded, however, that \u201cMr. Eisele, my recollection of things and my concept of things are different from yours.\u201d The trial court overruled defendants\u2019 objection, and considered the evidence.\nThe trial court\u2019s order did not refer to Lioy\u2019s testimony. Instead, as defendants concede,\nthere is nothing in the record except the Grant Thornton report (presented at a hearing deemed not to be \u201ceviden-tiary\u201d) pertaining to bookkeeping fees, save and except (1) par. 8.7(c) of the Limited Partnership Agreement (Ps\u2019 Ex 3) allowing as Expenses \u201c(c) legal, audit, accounting, brokerage and other fees\u201d, and (2) Defendants\u2019 Exhibit H-2, which reveals bookkeeping fees in addition to PDC\u2019s 6% commission dating back to 1999.\nDefendants acknowledge the existence of evidence to support the trial court\u2019s finding that PDCI charged bookkeeping fees; the fact that the trial court may or may not have additionally relied upon Mr. Lioy\u2019s testimony is irrelevant. This evidence supports a finding that PDCI charged fees for bookkeeping, which as stated above supports an order awarding those fees as damages to plaintiffs.\nThe trial court found that PDCI had charged plaintiffs for bookkeeping, while PDCI used its own formulae on Fourth Creek Limited Partnership\u2019s books to conceal the treatment of particular expenses. As a result of the commingling of assets between defendants and Fourth Creek Limited Partnership, the trial court ordered that forensic investigators \u201cinquire into ... failures by [PDCI] to properly calculate, allocate and/or charge to [Fourth Creek Limited Partnership] any management fees, bookkeeping fees, employee reimbursements or other expense reimbursements,\u201d which the Partnership would be entitled to receive as damages. PDCI charged plaintiffs for bookkeeping services, and then fraudulently concealed expenses from plaintiffs on those books. We therefore hold that, where PDCI used its authority as bookkeeper to fraudulently conceal expenses, the trial court did not err in awarding damages to plaintiffs based upon the bookkeeping fees charged by PDCI.\nThis argument is without merit.\nC. Defendants\u2019 Evidence on Bookkeeping Fees\nAt the hearings before the trial court to address the amount of damages, attorney\u2019s fees and costs to be awarded to plaintiffs, defendants sought to introduce evidence that defendants were entitled to charge fees for the bookkeeping defendants performed. Defendants intended to use this evidence to rebut plaintiffs\u2019 claims that defendants\u2019 fees were fraudulent, and sought to make an offer of proof before the trial court. The trial court excluded this evidence. Defendants contend that this exclusion was error. We disagree.\nWe note first that the trial court\u2019s decisions to admit or exclude evidence are reviewed for abuse of discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).\nIn its 18 May 2011 order, the trial court found that defendants used accounting procedures to improperly allocate expenses to Fourth Creek Landing Partnership. Preliminary damages were awarded to plaintiffs, subject to being increased or decreased based upon a forensic accounting ordered by the court. At the hearings on the amount of damages, defendants sought to introduce evidence as to \u201cthe propriety of charging bookkeeping expenses as a project cost to the project and not to be included in the six percent management fee ...\u201d\nThe trial court held that it had already ruled on the liability issue in its 18 May 2011 order, and that the. current hearing was limited to damages. Since the evidence offered by defendants went to liability rather than damages, the trial court excluded the evidence. We discern no abuse of discretion on the part of the trial court in the exclusion of this evidence.\nThis argument is without merit.\nD. Court-Ordered Accounting\nIn a supplemental order and judgment on damages dated 12 June 2012, the trial court ruled that the fees of the forensic accountants ordered to examine the books of Fourth Creek Limited Partnership and PDCI were costs recoverable by plaintiffs. Defendants contend that the trial court erred in awarding these fees as costs against defendants. We disagree.\nPursuant to the North Carolina Rules of Evidence, an expert appointed by the court is \u201centitled to reasonable compensation in whatever sum the court may allow.... In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.\u201d N.C. R. Evid. 706.\nDefendants contend that the forensic accountants were not court-appointed experts, but plaintiffs\u2019 experts, and thus that these fees should not have been taxed as costs. Defendants argue that the accountants never provided defendants with a copy of their findings. The testimony cited by defendants shows that the accountant, Lioy, did not provide defendants with a copy of his report. However, this same testimony indicates that defendants never sought this report, and that Lioy had discussed the contents of the report at length with defendants.\nDefendants further contend that another court-appointed accountant, Nancy Tritt, engaged in extensive ex parte communications with plaintiffs. However, defendants merely assert that there were contacts between plaintiffs and the expert; defendants present no evidence that such contacts were improper. Defendants further concede that there are times when ex parte contact with a court-appointed expert is not improper. See Point Intrepid, LLC v. Farley, _ N.C. App. _, _, 714 S.E.2d 797, 802-03 (2011). In the instant case, the record demonstrates that the trial court ordered that forensic accountants perform \u201ca complete accounting of the books and records maintained by [PDCI] for [Fourth Creek Limited Partnership] and [Fourth Creek Apartments I][.]\u201d There is no evidence that these experts were deposed by either party. There is no evidence that the accountants were not court-appointed experts, nor that any improper contact occurred. There is evidence to show that these were court-appointed experts, and we therefore hold that the trial court did not err in awarding their fees as costs.\nThis argument is without merit.\nF. Damages\nDefendants next contend that the trial court erred in awarding damages for the depreciated value of the amenities on Fourth Creek Apartments I as a result of PDCI\u2019s management, and awarding damages based upon the value of the property itself. Defendants contend that the only parties which caused the depreciation were FCLA II and Free Nancy, neither of which was a party to this lawsuit, and that this award was simply a means of bypassing issues of joinder. However, the trial court held that it was defendants, acting through FCLA II and Free Nancy, that caused the actions which led to the depreciation of the amenities. Accordingly, the trial court did not err in holding defendants hable for the depreciation in value caused by their actions.\nThis argument is without merit.\nG. Dissolution\nDefendants also contend that the trial court erred in removing PDCI from Fourth Creek Limited Partnership. Defendants contend that, absent total dissolution of Fourth Creek Limited Partnership, there is no legal basis for the removal of PDCI. We first note that PDCI was not removed from the partnership; FCLA, and its half-owner PDA, were removed from the partnership.\nEven assuming that defendants were contending that the trial court erred in removing PDA, however, .defendants do not cite this Court to any authority indicating that the trial court lacked the authority to remove FCLA and PDA. Accordingly, defendants\u2019 argument on this point is deemed abandoned. See N.C. R. App. P. 28(b)(6).\nThis argument is without merit.\nV. Breach of Duty and Constructive Fraud\nIn their eleventh argument, defendants contend that the trial court erred in finding that PDCI and PDA breached fiduciary duty to Fourth Creek Limited Partnership and FCLA and engaged in constructive fraud. We disagree.\nThe trial court found as fact that defendants had converted funds, had engaged in unauthorized and ultra vires conduct, had profited without informing Fourth Creek Limited Partnership, and had delayed in taking actions beneficial to Fourth Creek Limited Partnership in order to maximize their own profits. Defendants do not challenge these findings; rather, they assert that their conduct was entirely legal. The trial court\u2019s findings support the conclusion that defendants breached their fiduciary duty and engaged in constructive fraud.\nThis argument is without merit.\nVI. Statute of Limitations\nIn their twelfth argument, defendants contend that the trial court erred in concluding that plaintiffs\u2019 claims were not barred by the statute of limitations. We disagree.\nThe trial court examined defendants\u2019 affirmative defense of the statute of limitations extensively. It concluded that (1) because defendants engaged in continuing conduct that had not ceased prior to three years before the filing of the instant lawsuit, the continuing wrong doctrine prevented the statute of limitations from running; (2) because defendants actively concealed their wrong from plaintiffs, the doctrine of equitable estoppel prevented them from relying upon their concealment to cause the statute of limitations to expire; (3) plaintiffs\u2019 claims for dissolution are not subject to the statute of limitations, since the statute would only begin to run from the time of discovery of defendants\u2019 wrongdoing; (4) plaintiffs\u2019 claim for unfair and deceptive trade practices is governed by a four-year statute of limitations, N.C. Gen. Stat. \u00a7 75-16.2, which begins to run when the fraud is discovered or should have been discovered, rather than when the act is committed, see Nash v. Motorola Communications and Electronics. Inc., 96 N.C. App. 329, 331-32, 385 S.E.2d 537, 538 (1989); and (5) plaintiffs\u2019 remaining claims were governed by a ten-year statute of limitations, N.C. Gen. Stat. \u00a7 1-56, which had not expired at the time the lawsuit was filed. The trial court based these conclusions on its findings that this action was filed in 2009; that operation of the satellite television system was disclosed to Fourth Creek Limited Partnership in a meeting in 2009; that plaintiffs could not have reasonably discovered defendants\u2019 on-site housing of employees until this information was revealed in 2009; that defendants were assessing disproportionate costs to Fourth Creek Limited Partnership as recently as October 2009; and that these costs were not revealed until late 2009. Defendants do not challenge these findings; instead, defendants contend that plaintiffs\u2019 negligence, not defendants\u2019 concealment, was the cause of plaintiffs\u2019 late discovery of defendants\u2019 conduct, and that the statute of limitations should bar plaintiffs\u2019 claims. As defendants do not challenge the trial court\u2019s findings, they are binding upon this Court on appeal. Koufman 330 N.C. at 97, 408 S.E.2d at 731. These findings support the trial court\u2019s conclusion that the statute of limitations did not bar plaintiffs\u2019 claims.\nThis argument is without merit.\nVII. Conclusion\nThe portions of the trial court\u2019s judgment awarding trebled damages and attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 75-1.1 et seq. against David, Edwin, and PDA, are vacated. The trial court, upon remand, shall award damages for these claims, without trebling. The portions trebling damages and awarding attorney\u2019s fees against PDCI, and David through PDCI, are affirmed. All other aspects of the trial court\u2019s order are affirmed.\nVACATED AND REMANDED IN PART, AFFIRMED IN PART.\nChief Judge MARTIN and Judge DILLON concur.\n. All damages that were trebled were pursuant to Chapter 75 of the North Carolina General Statutes.\n. Defendants mischaracterize the court\u2019s conclusions of law that defendants breached their fiduciary duty and engaged in constructive fraud as findings of fact; they are not findings of fact, but conclusions of law.\n. Defendants contend that the trial court erred in removing PDCI as a member of the partnership. However, the trial court did not remove PDCI; it removed FCLA, and its half-owner PDA, from the partnership.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by S. Leigh Rodenbough IV and Chamanda T Reid, for plaintiff-appellees.", "Bisele Ashbum Greene & Chapman, PA, by Douglas G. Eisele, for defendant-appellants." ], "corrections": "", "head_matter": "WEAVER INVESTMENT COMPANY AND TRAVEL CAMPS, INC., on their own behalf and on behalf of FOURTH CREEK LANDING HOUSING LIMITED PARTNERSHIP and FOURTH CREEK LANDING ASSOCIATES, Plaintiffs v. PRESSLY DEVELOPMENT ASSOCIATES, PRESSLY DEVELOPMENT COMPANY, INC., DAVID L. PRESSLY, and EDWIN A. PRESSLY, Defendants\nNo. COA13-624\nFiled 1 July 2014\n1. Unfair Trade Practices\u2014acts occurring within partnership\u2014 no in or affecting commerce\nThe trial court erred in part in a fraud and unfair and deceptive trade practices case by concluding that defendants\u2019 acts were \u201cin or affecting commerce\u201d in North Carolina. Because the alleged misconduct of certain defendants occurred within a partnership or joint enterprise, it was not \u201cin or affecting commerce\u201d for the purposes of an unfair and deceptive trade practices action. Accordingly, the trial court erred in trebling damages as to those parties pursuant to the unfair and deceptive trade practices statute. The trial court did not err by trebling damages with regard to an independent contractor. Further, because the trial court concluded that an individual defendant was individually liable for the torts committed by the independent contractor under a veil-piercing theory, that individual was subject to the same trebling of damages and attorney\u2019s fees to which the independent contractor was subject.\n2. Attorney Fees\u2014fraud\u2014unfair trade practices\u2014acts occurring within partnership\u2014no in or affecting commerce\nThe trial court erred in part in a fraud and unfair trade practices case by awarding attorney fees based on its conclusion that defendants\u2019 acts were \u201cin or affecting commerce\u201d in North Carolina. Because the alleged misconduct of certain defendants occurred within a partnership or joint enterprise, it was not \u201cin or affecting commerce\u201d for the purposes of an unfair and deceptive trade practices action. Accordingly, the trial court erred in awarding attorney fees as to those parties pursuant to the unfair and deceptive trade practices statute. The trial court did not err by awarding attorney\u2019s fees with regard to an independent contractor. Further, because the trial court concluded that an individual defendant was individually liable for the torts committed by the independent contractor under a veil-piercing theory, that individual was subject to the same attorney\u2019s fees to which the independent contractor was subject.\n3. Costs\u2014bookkeeping fees\u2014testimony of court-appointed accountant\u2014authority of trial court\nThe trial court did not err in a fraud and unfair trade practices case by awarding bookkeeping fees, relying on the testimony of a court-appointed accountant in setting those fees, and denying defendants the opportunity to rebut that accountant\u2019s testimony. The trial court had the authority to appoint an accountant to perform a forensic accounting of the entities and to assess the fees for the expert.\n4. Evidence\u2014outside of scope\u2014damages\u2014excluded\nWhere defendants sought to introduce evidence that was outside of the scope of the hearing on damages in a fraud and unfair trade practices case, the trial court did not abuse its discretion in excluding this evidence.\n5. Costs\u2014forensic accountants fees\u2014recoverable by plaintiffs\nThe trial court did not err in a fraud and unfair trade practices case by ruling that the fees of the forensic accountants ordered to examine defendants\u2019 books were costs recoverable by plaintiffs.\n6. Fraud\u2014unfair trade practices\u2014depreciation of value of property\nThe trial court did not err in a fraud and unfair trade practices case by holding defendants liable for the depreciation in value of certain property where there was evidence that defendants were responsible for depreciation in value of that property.\n7. Appeal and Error\u2014argument deemed abandoned\u2014no legal support\nWhere defendants offered no legal argument as to why the trial court could not dissolve the partnership at issue, defendants\u2019 argument was deemed abandoned pursuant to N.C. R. App. P. 28(b)(6).\n8. Fiduciary Relationship\u2014breach of duty\u2014constructive fraud \u2014unchallenged findings of fact\nThe trial court did not err by finding that defendants breached a fiduciary duty and engaged in constructive fraud. Defendants did not challenge the trial court\u2019s relevant findings and the findings supported the conclusion that defendants breached their fiduciary duty and engaged in constructive fraud.\n9. Statute of Limitations and Repose\u2014fraud\u2014unfair trade practices\u2014statute not expired\nThe trial court did not err in a fraud and unfair trade practices case by holding that the statute of limitations had not expired. Defendants concealed their misconduct, and this misconduct was reasonably discovered within the applicable statute of limitations periods.\nAppeal by defendants from judgment entered 18 May 2011 by Judge John 0. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 21 October 2013.\nBrooks, Pierce, McLendon, Humphrey & Leonard, LLP, by S. Leigh Rodenbough IV and Chamanda T Reid, for plaintiff-appellees.\nBisele Ashbum Greene & Chapman, PA, by Douglas G. Eisele, for defendant-appellants." }, "file_name": "0645-01", "first_page_order": 655, "last_page_order": 673 }