IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-363
Filed: 30 December 2016
Catawba County, No. 14 CVS 1724
BENJAMIN RIDLEY, Plaintiff,
v.
BRET WENDEL; HENDRICK LUXURY COLLISION CENTER, LLC; CITY
CHEVROLET AUTOMOTIVE COMPANY; NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY; and each of them, Defendants.
Appeal by defendant City Chevrolet Automotive Company from judgment
entered 4 January 2016 by Judge Daniel A. Kuehnert in Catawba County Superior
Court. Heard in the Court of Appeals 28 November 2016.
Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellant.
Law Offices of Jason E. Taylor, PC, by Lawrence B. Serbin and Jason E. Taylor,
for plaintiff-appellee.
ENOCHS, Judge.
City Chevrolet Automotive Company (“Defendant”)1 appeals from judgment
entered on 4 January 2016 following a jury verdict finding Defendant liable to
Benjamin Ridley (“Plaintiff”) for fraud and negligence and awarding damages in the
amount of $200,000.00. The judgment of the trial court remitted the jury’s verdict to
$110,270.66, found Defendant had violated the Unfair and Deceptive Trade Practices
1 City Chevrolet Automotive Company is the only defendant which is a party to the present
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Act, trebled the damages to $330,811.98, and awarded attorneys’ fees and costs to
Plaintiff. On appeal, Defendant contends that the trial court erred in allowing
Plaintiff’s expert witness to testify regarding the motivations and intent of
Defendant; in denying Defendant’s motion notwithstanding the verdict on the claim
for unfair and deceptive trade practices; in denying Defendant’s motion for a new
trial; and in awarding Plaintiff attorneys’ fees. After careful review, we affirm the
judgment, but reverse the grant of attorneys’ fees.
Factual Background
On 12 June 2013, Plaintiff was involved in a motor vehicle accident in his 2008
Land Rover LR3. Plaintiff’s vehicle struck Bret Wendel’s vehicle when Wendel
turned in front of Plaintiff at an intersection as the traffic light turned yellow.
Plaintiff was travelling at 40 miles per hour at the time of the collision and both
vehicles were damaged.
After the accident, Plaintiff contacted Land Rover Corporation of America to
find out who they recommended to repair his vehicle. Plaintiff ultimately selected
Hendrick Luxury Collision Center (“Hendrick”) to do the repairs. He specifically
relayed his concerns to Hendrick that because of the force of the collision there was
likely to be unseen damage to the vehicle’s frame.
Approximately one month later, Hendrick notified Plaintiff that his vehicle
had been repaired and was ready to be picked up. Hendrick, however, had not
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performed any repairs on the vehicle. Unbeknownst to Plaintiff, the repairs had, in
actuality, all been performed by the collision repair shop of Defendant.
Plaintiff picked up his vehicle from Hendrick and drove it home. On his way
home, he noticed that the vehicle was pulling to the right significantly and whenever
he hit a bump in the road, “there was a very loud clanking like metal slapping
metal[.]” When Plaintiff arrived home, he inspected the vehicle and noticed that the
front left tire had an eighteen inch gash in it and was the same tire that had been on
the vehicle at the time of the collision. Plaintiff contacted Hendrick with his concerns
about the repairs to his vehicle and, on 8 August 2013, Hendrick took Plaintiff’s Land
Rover back to their shop for further inspection and repairs.
Hendrick had possession of the vehicle “approximately from June until . . . the
first part of September.” When Hendrick returned the vehicle to Plaintiff, it still
pulled to the right, but the clanking sound was no longer heard. Plaintiff attempted
to contact Hendrick several times over the next several weeks, but Hendrick never
returned any of his phone calls.
Wendel was insured by Nationwide Mutual Fire Insurance Company
(“Nationwide”). After Hendrick returned his vehicle to him for the second time,
Plaintiff contacted Nationwide and requested that they reimburse him for the
diminished value of his Land Rover. Nationwide made Plaintiff an offer of
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reimbursement, but Plaintiff did not believe that it was fair, and so he declined the
offer.
To determine the exact diminished value of his vehicle, Plaintiff took his
vehicle to Michael Bradshaw at K&M Auto in Hickory, North Carolina. After
inspecting Plaintiff’s vehicle, Bradshaw determined that the Land Rover was not safe
and “shouldn’t be on the road.” The vehicle had several issues that had either not
been repaired or had been repaired improperly. Plaintiff left the vehicle at K&M
Auto and contacted Nationwide to discuss these issues.
It was at this time that Nationwide “made the decision to total loss the vehicle”
and notified Plaintiff that he “would get paid the value of the vehicle in a couple of
days.” Nationwide produced a supplemental estimate of repair that included
replacing the frame of the vehicle. This estimate, or the separate estimate prepared
by Bradshaw, required that the vehicle be declared a total loss. However, Nationwide
then represented to Plaintiff that they would need to have the vehicle inspected by a
third-party to confirm that the frame of the vehicle did, in fact, need to be replaced.
This inspection was never performed because Plaintiff backed out of the agreed-upon
inspection.
On 15 July 2014, Plaintiff filed suit against Defendant, Wendel, Hendrick, and
Nationwide for damage done to his vehicle in the original collision, as well as damages
related to the repair of his vehicle. Plaintiff asserted claims for negligence, fraud,
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negligent misrepresentation, civil conspiracy, tortious breach of contract, bad faith
refusal to settle, and unfair and deceptive trade practices. Nationwide was dismissed
as a defendant, and the claims against Wendel were ordered to be tried separately.
Beginning on 9 November 2015, a jury trial was held on Plaintiff’s claims against
Defendant and Hendrick in Catawba County Superior Court before the Honorable
Daniel A. Kuehnert.
The jury returned a verdict against Defendant and Hendrick on 18 November
2015. The jury found Defendant guilty of fraud and negligence and awarded Plaintiff
$200,000.00 in damages. Because civil conspiracy was not found by the jury,
Hendrick was dismissed from the suit pursuant to the trial court’s granting of its
post-judgment motion to dismiss. On 20 November 2015, Defendant moved for
judgment notwithstanding the verdict and a new trial. On 1 December 2015, Plaintiff
filed a motion for costs and attorneys’ fees.
The trial court remitted the jury’s verdict to $110,270.66 when it entered
judgment on 28 December 2015. The trial court also found unfair and deceptive trade
practices, and trebled the damages to $330,811.98. The trial court also awarded
Plaintiff attorneys’ fees pursuant to the North Carolina Motor Vehicle Repair Act in
the amount of $100,725.00, as well as costs totaling $6,726.68. It is from this
judgment that Defendant appeals.
Analysis
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I. Expert Witness Testimony
Defendant first argues on appeal that the trial court erred in allowing
Plaintiff’s expert to testify that Defendant did not “just accidentally miss all this
damage” and that there was “motivation for not fixing the damaged areas” of the
vehicle. Specifically, Defendant argues that this testimony should have been
excluded as it “suggests whether legal conclusions should be drawn or whether legal
standards are satisfied.” HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578,
587, 403 S.E.2d 483, 489 (1991). We disagree, and affirm the trial court on this issue.
It is well established that “the trial judge is afforded wide latitude of discretion
when making a determination about the admissibility of expert testimony.” State v.
Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). “Given such latitude, it
follows that a trial court’s ruling on the qualifications of an expert or the admissibility
of an expert’s opinion will not be reversed on appeal absent a showing of abuse of
discretion.” State v. McGrady, 232 N.C. App. 95, 98, 753 S.E.2d 361, 365 (2014)
(quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686
(2004)), aff’d, 368 N.C. 880, 787 S.E.2d 1 (2016). “ ‘Abuse of discretion results where
the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision.’ ” Id. (quoting State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1998)).
Rule 702(a) of the North Carolina Rules of Evidence provides that
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(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
Furthermore, pursuant to Rule 704 of the North Carolina Rules of Evidence,
“[t]estimony in the form of an opinion or inference is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.” Expert testimony is
admissible if “ ‘the opinion expressed is really one based on the special expertise of
the expert, that is, whether the witness because of his expertise is in a better position
to have an opinion on the subject than is the trier of fact.’ ” State v. Lane, 365 N.C.
7, 27, 707 S.E.2d 210, 223 (citing State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d
905, 911 (1978)), cert. denied, __ U.S. __, 181 L. Ed. 2d 529 (2011).
In the present case, Plaintiff’s expert, Michael Bradshaw, had worked in the
automobile collision repair industry for twenty-five years. As an automotive steel
structural technician and as an estimator, Bradshaw had achieved the “platinum
level” of the Inter-Industry Conference on Auto Collision Repair. He was recognized
by Automotive Service Excellence as a certified collision repair technician and
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collision estimator. Also, he was certified by 17 different automobile manufacturers
to provide collision repair for their vehicles. Mr. Bradshaw was tendered as an expert
in automotive repair without objection, and was so admitted.
Plaintiff’s expert was asked, and answered in the negative, whether “any
professional body tech [could] just accidentally miss all this damage.” This testimony
followed his expert opinion, which was not objected to, as to the obviousness of the
damage to the vehicle. We find that this testimony was provided in response to a
general question and assisted the jury in understanding the evidence before it. It did
not address the intent or motivation of Defendant.
Defendant also argues that the expert should not have been allowed to testify
that there was “motivation for not fixing the damaged areas.” However, this
testimony did not address Defendant’s motivations, but instead gave a general
overview — based upon the witness’ area of expertise — of why a body shop may not
repair certain damage to a vehicle. Bradshaw explained different methods by which
an automotive repair shop can bill for services and opined that the method used by
Defendant could embolden a shop not to repair all of the damage to a vehicle.
None of the testimony Defendant argues was improperly admitted invaded the
province of the jury. Rather, it comprehensively assisted the jury in understanding
the evidence and determining a fact in issue. “The [expert] witness may offer
testimony in the form of an opinion or inference even though it may embrace the
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ultimate issue to be decided by the jury.” State v. Huang, 99 N.C. App. 658, 663, 394
S.E.2d 279, 283 (1990) (citation, quotation marks, and ellipses omitted).
To prevail on this issue, Defendant must not only show that the challenged
testimony was improperly admitted, but must also show that it was prejudicial. “In
civil cases, the burden is on the appellant not only to show error but to enable the
court to see that he was prejudiced or the verdict of the jury probably influenced
thereby.” HAJJM, 328 N.C. at 589, 403 S.E.2d at 490 (citation, quotation marks, and
brackets omitted). As shown above, the challenged expert testimony was properly
admitted and, therefore, whether this expert’s testimony was prejudicial need not be
addressed. The trial court did not err, and this assignment of error is overruled.
II. Unfair and Deceptive Trade Practices
Defendant argues in its second assignment of error that the trial court erred
in denying its motion for judgment notwithstanding the verdict on Plaintiff’s claim
for unfair and deceptive trade practices. Defendant asks this Court to grant it a new
trial because of the inconsistency between the basis for fraud pled in Plaintiff’s
complaint and the jury’s rejection of this basis in their verdict. It contends that for
this reason, Plaintiff’s fraud claim cannot support the finding of unfair and deceptive
trade practices. We disagree, and affirm the trial court’s denial of Defendant’s
motion.
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A motion for a judgment notwithstanding the verdict is, fundamentally, the
renewal of an earlier motion for a directed verdict. Henderson v. Traditional Log
Homes, Inc., 70 N.C. App. 303, 306, 319 S.E.2d 290, 292 (1984). When a motion for
judgment notwithstanding the verdict is brought, the issue is “whether the evidence
is sufficient to take the case to the jury and to support a verdict for [the non-moving
party].” Id. The evidence is to be considered in the light most favorable to the non-
moving party, and the non-moving party is entitled to all reasonable inferences that
can be drawn from that evidence. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408,
411 (1986). “This is a high standard for the moving party, requiring a denial of the
motion if there is more than a scintilla of evidence to support the non-movant’s prima
facie case.” Ellis v. Whitaker, 156 N.C. App. 192, 195, 576 S.E.2d 138, 140 (2003).
N.C. Gen. Stat. § 75-1.1(a) (2015) states, in pertinent part, that “unfair or
deceptive acts or practices in or affecting commerce [ ] are declared unlawful.” Our
Supreme Court has maintained that “ ‘[i]n order to establish a prima facie claim for
unfair trade practices, a plaintiff must show: (1) [the] 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.’ ” Bumpers v. Cmty. Bank
of N. Virginia, 367 N.C. 81, 88, 747 S.E.2d 220, 226 (2013) (quoting Dalton v. Camp,
353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001)).
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“While our Supreme Court has held that to succeed under G.S. 75-1.1, it is not
necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of
deception, or actual deception, plaintiff must, nevertheless, show that the acts
complained of possessed the tendency or capacity to mislead, or created the likelihood
of deception.” Overstreet v. Brookland, Inc., 52 N.C. App. 444, 452-53, 279 S.E.2d 1,
7 (1981). Moreover, while “[a] mere breach of contract, even if intentional, is not an
unfair or deceptive act under Chapter 75[,]” Bob Timberlake Collection, Inc. v.
Edwards, 176 N.C. App. 33, 42, 626 S.E.2d 315, 323 (2006), “substantial aggravating
circumstances attending the breach [may allow the plaintiff] to recover under the
Act[.]” Branch Banking and Trust Co. v. Thompson, 107 N.C. App. 53, 62, 418 S.E.2d
694, 700 (1992) (citation omitted).
In the present case, evidence was presented, which when viewed in the light
most favorable to Plaintiff, tended to show that Plaintiff had suffered damages due
to Defendant’s representations to him that his vehicle was repaired, when Defendant
knew or should have known that it was not fully or properly repaired. Furthermore,
the evidence tended to show that Defendant had also conducted unauthorized repairs
to Plaintiff’s vehicle. These actions by Defendant had the tendency or capacity to
mislead or create the likelihood of deception. Additionally, these facts were
ultimately found by the jury. Consequently, because more than a scintilla of evidence
was presented establishing these facts, the trial court correctly denied Defendant’s
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motion for judgment notwithstanding the verdict. Therefore, Defendant’s arguments
on this issue are overruled.
III. Remittitur and New Trial
Defendant next argues that it should also be granted a new trial because the
jury’s verdict indicates that they ignored the trial court’s instructions on damages. It
further argues that even the trial court’s remittitur of damages was insufficient to
uphold the verdict because it is unclear whether the jury’s verdict included punitive
damages and because the trial court’s remittitur included items which were not
recoverable as damages. Again, we disagree.
Defendant asserts that the trial court should have granted its motion for a new
trial pursuant to Rules 59(a)(5)-(7) of the North Carolina Rules of Civil Procedure
which provide as follows:
A new trial may be granted to all or any of the parties and
on all or part of the issues for any of the following causes
or grounds:
....
(5) Manifest disregard by the jury of the instructions
of the court;
(6) Excessive or inadequate damages appearing to
have been given under the influence of passion or
prejudice;
(7) Insufficiency of the evidence to justify the verdict
or that the verdict is contrary to law[.]
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“Denial of a motion for a new trial pursuant to N.C.R. Civ. P. 59(a)(5) and (6) is
reviewed for an abuse of discretion, while the sufficiency of the evidence to justify the
verdict is reviewed under a de novo standard.” Everhart v. O’Charley’s Inc., 200 N.C.
App. 142, 160, 683 S.E.2d 728, 742 (2009).
“A jury is presumed to follow the court’s instructions[,]” and we must therefore
presume that the jury based its verdict on these instructions. Nunn v. Allen, 154 N.C.
App. 523, 541, 574 S.E.2d 35, 46 (2002). Defendant has presented no evidence, aside
from the amount of the jury award, to show that the jury did not follow the
instructions of the trial court. While “[t]he party seeking damages bears the burden
of proving them in a manner that allows the fact-finder to calculate the amount of
damages to a reasonable certainty . . . proof to an absolute mathematical certainty is
not required.” State Properties, LLC v. Ray, 155 N.C. App. 65, 76, 574 S.E.2d 180,
188 (2002).
Here, Plaintiff presented evidence regarding the cost incurred for the storage
of his damaged vehicle, his loss of the use of his vehicle, and the cost of renting a
vehicle while his was unsafe to drive. Certainly Plaintiff should not recover a windfall
of excess recovery, but, if fraud is proved — as the verdict here indicates — he must
be allowed “a complete remedy.” Tradewinds Airlines, Inc. v. C-S Aviation Servs.,
222 N.C. App. 834, 841, 733 S.E.2d 162, 169 (2012) (citation omitted). “ ‘[I]t is
elementary that a plaintiff in a fraud suit has a right to recover an amount in
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damages which will put him in the same position as if the fraud had not been
practiced on him.’ ” Id. (quoting Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 79, 598
S.E.2d 396, 404 (2004)). “ ‘Damages are compensation in money, in an amount so far
is possible, to restore a respective plaintiff to his or her original condition or
position[.]’ ” Id. (quoting Godfrey, 165 N.C. App. at 78-79, 598 S.E.2d at 404). We are
satisfied here that the trial court properly calculated the remittitur of damages to put
Plaintiff in the same position he would have been in had he not been the victim of
fraud, and, as a result, we affirm the trial court’s denial of Defendant’s motion for a
new trial on this ground.
IV. Attorneys’ Fees
In its final argument on appeal, Defendant asserts that the trial court erred in
awarding attorneys’ fees to Plaintiff pursuant to N.C. Gen. Stat. § 20-354.9 (2015) for
violation of the North Carolina Motor Vehicle Repair Act. This case was not tried
under this Act and the jury was neither given instructions on nor asked to render a
verdict on any cause of action related to this Act. Therefore, we reverse the trial
court’s award of attorneys’ fees.
“Because statutes awarding an attorney’s fee to the prevailing party are in
derogation of the common law, [these statutes] must be strictly construed.”
Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437
(1991). Here, the statute under which the trial court awarded attorneys’ fees states,
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in pertinent part: “Any customer injured by a violation of this Article may bring an
action in the appropriate court for relief. The prevailing party in that action may be
entitled to damages plus court costs and reasonable attorneys’ fees.” N.C. Gen. Stat.
§ 20-354.9 (emphasis added).
Rule 54(c) of the North Carolina Rules of Civil Procedure states, in pertinent
part, that “[e]very final judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not demanded such relief in his
pleadings.”
[I]t is well-settled that adherence to the particular legal
theories that are suggested by the pleadings is subordinate
to the court’s duty to grant the relief to which the
prevailing party is entitled. It is equally well-settled,
however, that the relief granted must be consistent with
the claims pleaded and embraced within the issues
determined at trial, which presumably the opposing party
had the opportunity to challenge. Simply put, the scope of
a lawsuit is measured by the allegations of the pleadings
and the evidence before the court and not by what is
demanded. Hence, relief under Rule 54(c) is always proper
when it does not operate to the substantial prejudice of the
opposing party. Such relief should, therefore, be denied
when the relief demanded was not suggested or
illuminated by the pleadings nor justified by the evidence
adduced at trial.
N.C. Nat. Bank v. Carter, 71 N.C. App. 118, 121-22, 322 S.E.2d 180, 183 (1984)
(internal citations omitted).
Here, Plaintiff brought his case without reference to, or reliance upon, the
North Carolina Motor Vehicle Repair Act. Neither his pleadings nor his evidence at
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trial gave any indication that he was relying on this Act to remedy his loss. It is thus
axiomatic that he may not recover any remedy provided for by this Act. Therefore,
the trial court’s grant of attorneys’ fees based upon the Motor Vehicle Repair Act must
be reversed.
Conclusion
In conclusion, the trial court properly allowed Plaintiff’s expert witness to
testify at trial. Furthermore, the trial court did not err in finding unfair and deceptive
trade practices or in denying Defendant’s motion for a new trial. These rulings of the
trial court are consequently affirmed. The granting of attorneys’ fees based upon the
North Carolina Motor Vehicle Repair Act, however, is reversed.
AFFIRMED IN PART; REVERSED IN PART.
Chief Judge McGEE and Judge BRYANT concur.
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