{ "id": 8526420, "name": "TELEPHONE SERVICES, INC. v. GENERAL TELEPHONE COMPANY OF THE SOUTH", "name_abbreviation": "Telephone Services, Inc. v. General Telephone Co. of the South", "decision_date": "1988-11-15", "docket_number": "No. 8814SC339", "first_page": "90", "last_page": "94", "citations": [ { "type": "official", "cite": "92 N.C. App. 90" } ], "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": "104 S.Ct. 242", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "78 L.Ed. 2d 232", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 894", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6413056, 6413218, 6413124, 6414405, 6414023, 6414151, 6413675, 6414251, 6413907, 6413461, 6413559, 6414526, 6413791 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0894-01", "/us/464/0894-03", "/us/464/0894-02", "/us/464/0894-12", "/us/464/0894-09", "/us/464/0894-10", "/us/464/0894-06", "/us/464/0894-11", "/us/464/0894-08", "/us/464/0894-04", "/us/464/0894-05", "/us/464/0894-13", "/us/464/0894-07" ] }, { "cite": "702 F. 2d 1207", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1848028 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f2d/702/1207-01" ] }, { "cite": "105 S.Ct. 1191", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 0 }, { "cite": "84 L.Ed. 2d 337", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "469 U.S. 1215", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12105539, 12105384, 12105576, 12105352, 12105293, 12105457, 12105330, 12105366, 12105431, 12105499, 12105309, 12105407 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/1215-11", "/us/469/1215-06", "/us/469/1215-12", "/us/469/1215-04", "/us/469/1215-01", "/us/469/1215-09", "/us/469/1215-03", "/us/469/1215-05", "/us/469/1215-08", "/us/469/1215-10", "/us/469/1215-02", "/us/469/1215-07" ] }, { "cite": "722 F. 2d 42", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10590559 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f2d/722/0042-01" ] }, { "cite": "194 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568164 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0643-01" ] }, { "cite": "250 U.S. 300", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3683981 ], "weight": 6, "year": 1919, "pin_cites": [ { "page": "307" }, { "page": "997" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/us/250/0300-01" ] }, { "cite": "198 S.E. 2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551891 ], "year": 1973, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0207-01" ] }, { "cite": "358 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726147, 4727463, 4730352, 4725020, 4723390 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0512-05", "/nc/320/0512-04", "/nc/320/0512-01", "/nc/320/0512-02", "/nc/320/0512-03" ] }, { "cite": "354 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169869 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0310-01" ] }, { "cite": "346 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "340 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "760" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523105 ], "year": 1986, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0678-01" ] }, { "cite": "266 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "338 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 763", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524124 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0763-01" ] }, { "cite": "354 S.E. 2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169904 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0338-01" ] } ], "analysis": { "cardinality": 559, "char_count": 9458, "ocr_confidence": 0.833, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7505402824643445 }, "sha256": "fc76981040ddbdd34b736cc45e917e4e549be5e3a1eb4d5accf0f5181c6badc8", "simhash": "1:af42756b2dcb0166", "word_count": 1515 }, "last_updated": "2023-07-14T21:55:11.858082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Orr and Greene concur." ], "parties": [ "TELEPHONE SERVICES, INC. v. GENERAL TELEPHONE COMPANY OF THE SOUTH" ], "opinions": [ { "text": "SMITH, Judge.\nIn its complaint plaintiff Telephone Services, Inc. alleges that it is a Florida corporation doing business in North Carolina providing telephone services including installation and repair service, installation of central office equipment and sale of customer premise equipment. Defendant General Telephone Company of the South, a telecommunications common carrier with a service franchise regulated by the North Carolina Utilities Commission, also leases and sells customer premise equipment. Defendant contracts for installation and repair service from independent contractors. The complaint alleges that plaintiff provided installation and repair services to defendant\u2019s corporate predecessor from October 1971 to September 1982 and that plaintiff provided no installation and repair services to anyone from October 1982 to September 1984. Defendant notified plaintiff on 30 June 1983 that it was removing plaintiff from defendant\u2019s list of labor contractors for installation and repair services. Defendant\u2019s letter stated in part: \u201cIn an effort to reduce administrative functions, those firms that have not performed a significant amount of work in the last year are being removed from the active file and placed in the inactive file.\u201d During 1984 and 1985, plaintiffs requests for reinstatement as an active contract service provider were denied. On 23 August 1985, defendant\u2019s General Service Director, in answer to a request on plaintiffs behalf that plaintiff be reinstated as an active contract service provider, wrote:\nIn reviewing your company, it has been brought to my attention that you are actively involved in the marketing, installation, and maintenance of telephone terminal equipment. As you know, we are actively engaged in the same business. We do not believe it is in our best interest to subsidize our direct competitors.\nIn its complaint, plaintiff alleged that the effect of not allowing it to provide installation and repair services has been to eliminate plaintiff from defendant\u2019s labor market and thereby increase the cost of telephone service to the consumer. Plaintiff claims lost revenues of $1,668,777.05 resulting in lost profits in excess of $10,000.00 and requests reinstatement as a contract service provider and monetary damages.\nThe trial court granted defendant\u2019s motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6). Plaintiff appeals assigning error to the trial court\u2019s conclusion that it failed to state a claim upon which relief could be granted. Defendant assigns error to the trial court\u2019s determinations that the complaint was timely filed within the period of the applicable statute of limitations and that plaintiff had pled special damages with sufficient specificity. We hold that plaintiff has failed to state a claim for relief under G.S. 75-1.1 and affirm the trial court\u2019s order. In light of this holding, it is unnecessary to address defendant\u2019s cross-assignments of error.\nThe issue on appeal is whether the trial court properly granted defendant\u2019s motion to dismiss. A complaint is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted if no insurmountable bar to recovery appears from the face of the complaint and the allegations give notice of the nature of the claim. Dixon v. Stuart, 85 N.C. App. 338, 354 S.E. 2d 757 (1987). In determining whether the complaint is sufficient, the factual allegations of the complaint must be viewed as admitted, State of Tennessee v. Environmental Management Comm., 78 N.C. App. 763, 338 S.E. 2d 781 (1986), and must be liberally construed. Dixon v. Stuart, supra. \u201cA legal insufficiency may be due to an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim or the disclosure of some fact which will necessarily defeat the claim.\u201d State of Tennessee v. Environmental Management Comm., 78 N.C. App. at 765, 338 S.E. 2d at 782.\nG.S. 75-1.1 makes unlawful \u201c[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.\u201d \u201cA practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Johnson v. Insurance Co., 300 N.C. 247, 263, 266 S.E. 2d 610, 621 (1980). \u201cPractices are deceptive which have the capacity or tendency to deceive; proof of actual deception is not required.\u201d Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 686, 340 S.E. 2d 755, 760, cert. denied, 317 N.C. 333, 346 S.E. 2d 137 (1986). Whether an act or practice is unfair or deceptive in violation of G.S. 75-1.1 is a question of law for the court. Dull v. Mut. of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E. 2d 752, disc. rev. denied, 320 N.C. 512, 358 S.E. 2d 518 (1987).\nPlaintiff claims that defendant\u2019s refusal to reinstate plaintiff to the list of labor service contractors is an unfair trade practice in violation of G.S. 75-1.1. The complaint alleges that defendant refused to deal with plaintiff merely because plaintiff is defendant\u2019s competitor in the customer premise equipment market. Plaintiff contends that defendant\u2019s monopoly status as a public utility gives defendant power and position in the franchised area and that defendant\u2019s name recognition and marketing and sales offices give defendant a significant competitive advantage. Thus, plaintiff reasons, defendant is unfairly using its position of power by attempting to force plaintiff to abandon either its labor service opportunities or its customer premise equipment sales market. We disagree.\n\u201cIn the absence of conspiracy or monopoly, one may deal with whom he pleases.\u201d Records v. Tape Corp., 19 N.C. App. 207, 214, 198 S.E. 2d 452, 457 (1973). This principle is based on United States v. Colgate & Co., 250 U.S. 300, 63 L.Ed. 992, 39 S.Ct. 465 (1919), in which the Supreme Court held that \u201c[i]n the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.\u201d Id. at 307, 63 L.Ed. at 997, 39 S.Ct. at 468. Plaintiff contends the Colgate rule is inapplicable to the facts of this case as defendant is not an entirely private business but is a regulated utility. However, defendant is not a regulated utility in either the market in which the parties compete, customer premise equipment sales, or the areas of service plaintiff wishes to provide for defendant, installation and repair services. Thus, defendant\u2019s election not to use plaintiff to perform its installation and repair service is not an unfair assertion of any power or position defendant might enjoy as a regulated utility. We hold that it is not unfair for defendant to refuse to employ its competitor. Plaintiff also contends the Colgate rule does not apply as the purposes of the Sherman Act and Chapter 75 are different. Plaintiff cites Rose v. Materials Co., 282 N.C. 643, 194 S.E. 2d 521 (1973); ITCO Corp. v. Michelin Tire Corp., Com. Div., 722 F. 2d 42 (4th Cir. 1983), cert. denied, 469 U.S. 1215, 84 L.Ed. 2d 337, 105 S.Ct. 1191 (1985); and Bostick Oil Co. v. Michelin Tire Corp., Com. Div., 702 F. 2d 1207 (4th Cir. 1983), cert. denied, 464 U.S. 894, 78 L.Ed. 2d 232, 104 S.Ct. 242 (1983), to demonstrate that the state statute has been read broadly to prohibit unfair trade practices, including anti-competitive practices, not prohibited by Federal Law. Even accepting plaintiffs interpretation of the North Carolina statute as correct, we hold that it is not an unfair trade practice for defendant to refuse to employ its competitor under the facts as alleged in this case.\nAffirmed.\nJudges Orr and Greene concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Mount White Hutson & Carden, P.A., by James H. Hughes and Graham H. Kidner, for plaintiff-appellant.", "Faison & Brown, by 0. William Faison and A. Vann Irvin, for defendant-appe lie e." ], "corrections": "", "head_matter": "TELEPHONE SERVICES, INC. v. GENERAL TELEPHONE COMPANY OF THE SOUTH\nNo. 8814SC339\n(Filed 15 November 1988)\nUnfair Competition \u00a7 1\u2014 telephone company \u2014 refusal to deal-with competitor\u2014 12(b)(6) dismissal improper\nThe trial court properly granted defendant\u2019s motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) of plaintiffs claim for unfair trade practices based upon defendant\u2019s refusal to deal with plaintiff as a labor service contractor merely because plaintiff is defendant\u2019s competitor in the customer premise equipment market, thereby allegedly unfairly using its monopoly status as a public utility to attempt to force plaintiff to abandon either its labor service opportunities or its customer premise sales market. Defendant is not a regulated utility in either the market in which the parties compete, customer premise sales, or the areas of service plaintiff wishes to provide for defendant, installation and repair services:\nAPPEAL by plaintiff from Stephens (Donald W.), Judge. Order entered 22 January 1988 in Superior Court, DURHAM County. Heard in the Court of Appeals 4 October 1988.\nPlaintiffs complaint alleged an unfair trade practice by defendant in violation of G.S. 75-1.1. The trial court concluded that plaintiff s complaint failed to state a claim upon which relief could be granted and allowed defendant\u2019s motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6). Plaintiff appeals.\nMount White Hutson & Carden, P.A., by James H. Hughes and Graham H. Kidner, for plaintiff-appellant.\nFaison & Brown, by 0. William Faison and A. Vann Irvin, for defendant-appe lie e." }, "file_name": "0090-01", "first_page_order": 120, "last_page_order": 124 }