Hamlet H.M.A., LLC v. Hernandez

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-744

Filed: 16 October 2018

Richmond County, No. 14 CVS 892

HAMLET H.M.A., LLC D/B/A SANDHILLS REGIONAL MEDICAL CENTER,
Plaintiff,

v.

PEDRO HERNANDEZ, M.D., Defendant.

Appeal by defendant from judgment and order entered 9 January 2017 by

Judge Richard T. Brown in Superior Court, Richmond County. Heard in the Court of

Appeals 21 March 2018.

Thomerson Freeman & Rogers P.C., by William S. F. Freeman, for plaintiff-
appellee.

Mark L. Hayes, for defendant-appellant.

STROUD, Judge.

Defendant Pedro Hernandez, M.D. (“defendant”) appeals a judgment upon a

jury verdict finding him liable for breach of contract and an order denying his motions

for judgment notwithstanding the verdict and for a new trial. Defendant has raised

three issues on appeal regarding the judgment and order. First, defendant has failed

to demonstrate that the trial court abused its discretion in denying his motion for

new trial based upon his claim of a compromise verdict. Second, the trial court

improperly dismissed defendant’s Unfair and Deceptive Trade Practices (“UDTP”)
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

counterclaim based upon the “learned profession” exception to N.C. Gen. Stat. § 75.1-

1. Last, defendant failed to preserve his argument regarding erroneous admission of

parol evidence. We therefore reverse and remand in part and affirm in part the trial

court’s judgment.

I. Background

Defendant is a physician who moved from Maine to North Carolina to be closer

to his family. He had been practicing in Maine since 2008. In March of 2011, before

he and his wife moved, defendant used an online portal called MedHunters to look

for open medical positions in North Carolina. He sent seven hospitals an interest

email, including plaintiff Sandhills Regional Medical Center, a hospital owned and

operated by plaintiff Hamlet H.M.A. LLC.1 Plaintiff responded immediately, and on

16 March and 17 March 2011, plaintiff paid for defendant to visit the Hospital and

plaintiff. Plaintiff made an offer to defendant five days after his visit.

The original offer was for defendant to set up his own independent practice and

to be an independent contractor for plaintiff. The offer guaranteed a minimum

collection amount for the first 18 months of the 36-month contract. The income

guarantee was described in the email with the offer attached. Mr. Michael McNair,

the CEO of the Hospital at the time, testified: “the theory is, as his practice develops

over a period of time and his practice starts bringing in more money from him seeing

1 We will refer to Hamlet H.M.A., LLC as “plaintiff” and the Sandhills Regional Medical Center
operated by plaintiff as “the Hospital.”

-2-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

patients and doing surgery and those kind of things, then the amount that you get

paid [by plaintiff] gets less.”

Plaintiff also offered defendant an employment option as an addendum to the

original offer, which plaintiff could exercise at the end of the first 18 months of the

contract. The employment option section specified that the option would “at a

minimum, include the following material terms and conditions: Proposed Duration:

18 months. Proposed Compensation Methodology for Employment Agreement: Base

Salary $325,000 with a bonus based on worked RVUs.” 2

Defendant clarified in two emails dated 23 March 2011 and 24 March 2011

that he was not comfortable with this arrangement. Instead, he asked to be an

employee with a regular salary like the other doctors employed by Plaintiff. Plaintiff

sent defendant an employment offer on 25 March 2011 with a base salary of $275,000

and several other incentives. Defendant responded four hours later that he did not

think it made sense to accept less money for an employee position or status.

Defendant then sent plaintiff an email asking to extend the time period of

guaranteed income to 24 months, rather than 18 months. Plaintiff replied that it

could not extend the period but raised the monthly salary from $47,616.82 to

2 Mr. McNair testified that “RVUs” refers to “relative value units” and explained that this
portion of the agreement was “the bonus piece that’s based upon your productivity RVUs, relative
value units. That’s a fairly common term in physician contracting language.”

-3-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

$49,500.00 and also added a signing bonus of $30,000.00. After further negotiations,

the parties entered into a Physician Recruitment Agreement on 29 March 2011.

Defendant started his practice at the Hospital on 1 September 2011 and was

to work until 1 September 2014 based upon the 36-month contract requirement. The

practice was not successful, and at the end of the first 18-month period, defendant

timely notified plaintiff of his desire to exercise the employment option in his

contract. But plaintiff did not give defendant an employment contract at the end of

the 18-months. The Physician Recruitment Agreement defendant signed required

plaintiff to offer defendant an employment contract on one of plaintiff’s standard

template forms at the end of the first 18 months, should defendant exercise the

option. Plaintiff believed the Physician Recruitment Agreement itself to be the

employment contract, since it was on a standard template form and stated the

amount his salary would be as an employee, so plaintiff did not send defendant an

employee contract.

Defendant closed his practice in April 2013, so defendant did not practice for

the full 36-month period. Plaintiff informed defendant that whether defendant

became an employee of Plaintiff or not, he was still required to practice for the 36

month period. When defendant did not receive an 18-month employment contract

from plaintiff, he began looking for other work. Plaintiff made several requests to

-4-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

defendant demanding repayment of its loans made during defendant’s first 18 months

of practice, but defendant did not repay them.

On 29 August 2014, plaintiff filed a complaint against defendant alleging

breach of contract and demanding repayment of the entire amount paid to defendant,

a total of 21 payments amounting to $902,259.66. Defendant filed an answer with

counterclaims for breach of contract, fraud, unfair or deceptive trade practices, and

unjust enrichment. A jury trial was held in Superior Court in Richmond County at

the end of August and beginning of September 2016. The jury returned a verdict for

plaintiff for $334,341.14. Defendant filed a Motion for Judgment Notwithstanding

the Verdict and a Motion for New Trial on 8 September 2016. On 9 January 2017,

the trial court entered judgment on the jury verdict and issued an order denying both

of defendant’s post-trial motions. Defendant timely appealed to this Court from both

the order denying the motions and the judgment.

II. Compromise Verdict

Defendant contends that the jury reached an impermissible compromise

verdict when it found that defendant owed $334,341.14, instead of $902,259.66.

a. Standard of Review

We review an appeal from denial of a motion for new trial based upon an

alleged compromise verdict for abuse of discretion. See Smith v. White, 213 N.C. App.

189, 195, 712 S.E.2d 717, 721 (2011) (“An appeal from a trial court’s denial of a motion

-5-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

for new trial because of an alleged compromise verdict is reviewed for an abuse of

discretion.”). The party seeking to show an abuse of discretion has the burden of

demonstrating that the verdict was a compromise. Id. Our Supreme Court has

stressed that we should not review this discretionary ruling except in “rare cases”:

It has been long settled in our jurisdiction that an appellate
court’s review of a trial judge’s discretionary ruling either
granting or denying a motion to set aside a verdict and
order a new trial is strictly limited to the determination of
whether the record affirmatively demonstrates a manifest
abuse of discretion by the judge. The legislative enactment
of the Rules of Civil Procedure in 1967 did not diminish the
inherent and traditional authority of the trial judges of our
state to set aside the verdict whenever in their sound
discretion they believe it necessary to attain justice for all
concerned, and the adoption of those Rules did not enlarge
the scope of appellate review of a trial judge’s exercise of
that power. The principle that appellate review is
restricted in these circumstances is so well established that
it should not require elaboration or explanation here.
Nevertheless, we feel compelled by the Court of Appeals’
disposition of the case before us to restate and reaffirm
today the basic tenets of our law which would permit only
circumscribed appellate review of a trial judge’s
discretionary order upon a Rule 59 motion for a new trial.
Those tenets have been competently set forth in
innumerable prior opinions of this Court, and, for
instructive purposes, we provide the following sampling
therefrom.

In Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E.
1050, 1051 (1915), the Court evinced a positive hesitancy
to review such discretionary rulings by the trial court
except in rare cases: While the necessity for exercising this
discretion, in any given case, is not to be determined by the
mere inclination of the judge, but by a sound and
enlightened judgment in an effort to attain the end of all

-6-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

law, namely, the doing of even and exact justice, we will yet
not supervise it, except, perhaps, in extreme
circumstances, not at all likely to arise; and it is therefore
practically unlimited.

Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602-03 (1982) (citations

and quotation marks omitted).

b. Analysis

Defendant contends the jury’s verdict is a compromise verdict so it must be set

aside. “A compromise verdict is one in which the jury answers the issues without

regard to the pleadings, evidence, contentions of the parties or instructions of the

court. The dollar amount of the verdict alone is insufficient to set aside the verdict

as being an unlawful compromise.” Smith, 213 N.C. App. at 195, 712 S.E.2d at 721

(citations and quotation marks omitted).

Where it appears that the verdict was the result of a
compromise, such error taints the entire verdict and
requires a new trial as to all of the issues in the case. If the
award of damages to the plaintiff is grossly inadequate, so
as to indicate that the jury was actuated by bias or
prejudice, or that the verdict was a compromise, the court
must set aside the verdict in its entirety and award a new
trial on all issues.

Robertson v. Stanley, 285 N.C. 561, 569, 206 S.E.2d 190, 195-96 (1974) (citation and

quotation marks omitted).

-7-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

Defendant argues that the verdict here is a compromise verdict much like an

example noted in Bartholomew v. Parrish, 186 N.C. 81, 118 S.E.2d 889 (1923). The

Court in that case set forth this example:

[I]f a suit were brought upon a promissory note, which
purported to be given for $100, and the only defense was
that the defendant did not execute the note, and the jury
should return a verdict for $50 only, it would not be allowed
to stand; for it would neither conform to the plaintiff’s
evidence, nor to that of the defendant. It would be a verdict
without evidence to support it; and it is not to be tolerated
that the jury should thus assume in disregard of the law
and evidence, to arbitrate the differences of parties, or to
decide according to some supposed natural equity, which in
reality is merely their own whim.

Id. at 84, 118 S.E.2d at 900; see also Smith, 213 N.C. App. at 195, 712 S.E.2d at 721

(“A compromise verdict is one in which the jury answers the issues without regard to

the pleadings, evidence, contentions of the parties or instructions of the court.”).

Defendant argues that but for the numbers, this case is almost identical to the

example in Bartholomew, 186 N.C. at 84, 118 S.E.2d at 900. At trial, the parties

entered into a stipulation that plaintiff loaned defendant $902,259.66. Defendant

disputed only that he had a legal obligation to repay plaintiff any of the payments.

He argued he had no obligation to pay plaintiff at all because plaintiff breached the

contract first by not fulfilling its obligation to give him an employment contract at

the end of the first 18 months. The employment contract was an optional provision,

but defendant had notified plaintiff of his intention to exercise the option in a timely

-8-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

fashion. Defendant argues that based upon the issues and the stipulation of the

amount of potential damages plaintiff may recover, the jury could return a verdict for

$902,259.66 or for nothing at all. See also Wiles v. Mullinax, 275 N.C. 473, 485-86,

168 S.E.2d 366, 375-76 (1969) (determining that because the damages were

stipulated at trial, they were not of issue and would not be reconsidered in a new

trial). Because the verdict was $334,341.14, defendant contends the jury apparently

came to a compromise by including the amounts on some of the checks in evidence at

the trial but excluding others.

Plaintiff contends that defendant has not demonstrated a compromise verdict

simply by the amount of damages so the trial court did not abuse its discretion by

denying his motion for new trial.3 Although the parties had stipulated that the total

sum paid to defendant was $902,259.66, the 21 payments plaintiff paid to defendant

were also in evidence, and the parties presented much testimony and other evidence

regarding the various obligations and amounts related to each. The Physician

Recruitment Agreement included payments and financial obligations of several

different types, and the checks included amounts based upon different portions of the

Agreement. For example, plaintiff notes that it “agreed to provide several categories

of financial assistance to [defendant] under the terms of the Recruitment Agreement,

3Plaintiff’s brief notes that plaintiff did not cross-appeal from the judgment, despite the fact
that the jury did not award the total $902,259.66, and it is difficult to see how defendant is an
“aggrieved party” since the verdict was far less than it should have been based upon defendant’s
argument regarding the compromise verdict.

-9-
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

including: (i) reimbursement of relocation expenses, up to $15,000; (ii)

reimbursement of expenses incurred to market the new practice, up to $10,000; (iii)

reimbursement of start-up expenses incurred with setting up a new practice, up to

$10,000; (iv) a sign-on bonus of $30,000; and (v) for the first eighteen (18) months of

the thirty-six (36) month period, a monthly income guarantee of $49,500 against cash

collections.” In addition, defendant had agreed to be on emergency call at the

Hospital and to accept calls for unassigned patients. The parties presented extensive

evidence over nine days regarding the various obligations and payments. The verdict

sheet had 12 separate issues, and the jury’s answers to all of the issues were

internally consistent. The jury never indicated any confusion about the issues under

consideration.

Plaintiff also notes that this case is not at all like Bartholomew, the case with

the example quoted above and noted by defendant. In Bartholomew, the jury’s

compromise was obvious both from the number and the notation on the verdict sheet:

“In answer to the issue, the jury rendered a verdict in word and figures as follows:

‘Compromise, $283.25.’” Bartholomew, 186 N.C. at 83, 118 S.E. at 900 (emphasis

added). In addition to labeling the verdict as a “[c]ompromise,” the way the jury had

calculated the compromise was obvious: “[T]he sum of $283.25 is arrived at by taking

one-half of the $366.51 and adding to it $100, the sum admitted by the defendant to

be due to the plaintiffs.” Id. at 84, 118 S.E. at 900.

- 10 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

Here, the only evidence defendant can offer of a compromise is the amount of

the damages, and given the complex evidence and issues presented, the amount alone

does not convince us that the jury reached a compromise verdict. See Piedmont Triad

Reg’l Water Auth. v. Lamb, 150 N.C. App. 594, 598, 564 S.E.2d 71, 74 (2002) (“The

dollar amount of the verdict alone is insufficient to set aside the verdict as being

either an unlawful compromise or a quotient verdict.”). The cases cited by plaintiff

in which the amount of damages could show a compromise verdict involved simple

single-issue verdicts. In addition, had the trial court granted defendant’s motion, it

would logically have granted a new trial on damages only and not on defendant’s

liability. See, e.g., Handex of Carolinas, Inc. v. County of Haywood, 168 N.C. App. 1,

20, 607 S.E.2d 25, 36-37 (2005) (“A new trial as to damages only should be ordered if

the damage issue is separate and distinct from the other issues and the new trial can

be had without danger of complication with other matters in the case. It must be

clear that the error in assessing damages did not affect the entire verdict.” (Citations

omitted)). Defendant argues that new trial should have been granted on all issues

because of how “interconnected” the issues were, but it is this very

“interconnectedness” that also makes it impossible to determine a compromise verdict

simply from the amount of the verdict. The jury’s answers as to liability were clear,

and defendant does not challenge those issues on appeal, other than as noted in the

parol evidence argument, so there would have been no need for a new trial on all

- 11 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

issues. See generally id. The trial court may have considered a new trial on damages

only to be unfair to defendant, considering the complexity of the evidence. This is not

one of those rare cases in which we can say that the trial court abused its discretion

by denying defendant’s motion. See Smith, 213 N.C. App. at 195, 712 S.E.2d at 721.

III. Unfair and Deceptive Trade Practices (“UDTP”) Claim

Defendant argues the trial court erred by granting entry of directed verdict

dismissing his UDTP counterclaim “based on a misapplication of the ‘learned

profession’ exclusion.” (Original in all caps).

a. Standard of Review

The standard of review of directed verdict is whether
the evidence, taken in the light most favorable to the non-
moving party, is sufficient as a matter of law to be
submitted to the jury. On appeal the standard of review
for a JNOV is the same as that for a directed verdict, that
is whether the evidence was sufficient to go to the jury. A
motion for directed verdict or JNOV should be denied
unless the evidence, taken as true and viewed in the light
most favorable to the plaintiff, establishes an affirmative
defense as a matter of law. Our review is de novo.

King v. Brooks, 224 N.C. App. 315, 317-18, 736 S.E.2d 788, 791 (2012) (citations and

quotation marks omitted).

b. The Learned Profession Exception

The trial court granted the motion for a directed verdict based upon the learned

professional exception to a claim for Unfair and Deceptive Trade Practices. Chapter

75 of the North Carolina General Statutes states:

- 12 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

(a) Unfair methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or affecting
commerce, are declared unlawful.
(b) For purposes of this section, “commerce” includes all
business activities, however denominated, but does not
include professional services rendered by a member of a
learned profession.

N.C. Gen. Stat. § 75-1.1(a), (b) (2017) (emphasis added).

In Reid v. Ayers, this Court noted a two-part test to determine when the

learned profession exception applies: “In order for the learned profession exemption

to apply, a two-part test must be satisfied. First, the person or entity performing the

alleged act must be a member of a learned profession. Second, the conduct in question

must be a rendering of professional services.” 138 N.C. App. 261, 266, 531 S.E.2d

231, 235 (2000) (citations omitted).

There is no dispute that doctors and hospitals are members of a learned

profession. See Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App. 584, 589

768 S.E.2d 119, 123 (2014); see also Burgess v. Busby, 142 N.C. App. 393, 407, 544

S.E.2d 4, 11-12 (2001); Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660,

664 (2000); Abram v. Charter Medical Corp. of Raleigh, 100 N.C. App. 718, 722-23,

398 S.E.2d 331, 334 (1990). The first prong of the learned profession exception is

satisfied, since both parties are members of a learned profession. See generally Reid,

138 N.C. App. at 266, 531 S.E.2d at 235.

- 13 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

The second prong of the test is less clear. None of the cases cited by the parties

which address the learned profession exception deal with a dispute arising from a

contractual arrangement like this one among members of a learned profession. Since

the claims must arise out of “professional services rendered” by a physician, see N.C.

Gen. Stat. § 75-1.1 (b), where a claim does not arise directly from rendition of

professional services, defendant argues that one member of a learned profession may

bring a UDTP claim against another member of a learned profession regarding a

business dispute unrelated to rendition of medical services.

The pertinent parts of N.C. Gen. Stat. § 75-1.1 provide:

(a) Unfair methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or affecting
commerce, are declared unlawful.

(b) For purposes of this section, “commerce” includes all
business activities, however denominated, but does not
include professional services rendered by a member of a
learned profession.

N.C. Gen. Stat. § 75-1.1(a)-(b) (emphasis added).

The issue of first impression presented by this appeal is whether the “learned

profession” exception set forth in N.C. Gen. Stat. § 75-1.1(b) applies to a dispute

between a physician and a hospital relating to alleged false claims made by the

hospital to induce the physician to enter into an employment contract such as the one

at issue in this litigation. The gravamen of defendant’s UDTP counterclaim is that

plaintiff made certain false representations to him prior to his entering into the

- 14 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

contract at issue and that those false representations constituted a violation of N.C.

Gen. Stat. § 75.

Although no case has addressed a situation exactly like this one, other cases

have interpreted the learned profession exception in some medical contexts. In

Wheeless, the plaintiff physician brought a claim against the hospital based upon the

hospital’s complaint to the Medical Board about care provided by the plaintiff

physician, but this Court held making a complaint to the Medical Board is integral

to the hospital’s role in providing medical care and thus falls within the exception:

It is well-settled by our Courts that a matter affecting the
professional services rendered by members of a learned
profession therefore falls within the exception in N.C.G.S.
§ 75-1.1(b). Indeed, our Court has made clear that unfair
and deceptive acts committed by medical professionals are
not included within the prohibition of N.C.G.S. § 75-1.1(a).
This exception for medical professionals has been broadly
interpreted by this Court, and includes hospitals under the
definition of “medical professionals.” In this case,
defendants’ alleged conduct in making a complaint to the
Medical Board is integral to their role in ensuring the
provision of adequate medical care. Accordingly, plaintiff’s
argument is without merit.

Wheeless, 237 N.C. App. at 590-91, 768 S.E.2d at 123-24 (citations, quotation marks,

ellipses, and brackets omitted).

Another case which provides guidance into our determination of whether the

defendant’s claim relates to the rendition of professional services is Cameron v. New

Hanover Memorial Hospital, 58 N.C. App. 414, 293 S.E.2d 901 (1982). This case was

- 15 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

decided under a prior version of N.C. Gen. Stat. § 75-1.1, and this Court held that

plaintiffs could not maintain a UDTP claim against the defendant. See generally

Cameron, 58 N.C. App. at 445-46, 293 S.E.2d at 920-21. The holding was based upon

the wording of N.C. Gen. Stat. § 75-1.1 at that time, which referred to a “seller.” See

N.C. Gen. Stat. § 75-1.1 (1975 Replacement). But since Chapter 75 had been amended

just before Cameron, this Court noted, in dicta, that the result would have been the

same under the amended version of the statute, which is the version in effect now.

Cameron, 58 N.C. App. at 446, 293 S.E.2d at 920.

In Cameron, the plaintiffs were podiatrists who brought twelve different

claims against the defendant hospital arising out of the hospital’s denial of hospital

staff privileges. Id. at 416, 293 S.E.2d at 904. The claims included allegations based

upon the hospital’s bylaws and application process, civil conspiracy, interference with

contractual rights, “unfair methods of competition and unfair practices” in violation

of G.S. 75-1.1, slander, and libel. Id. The Court noted that under the newly amended

UDTP Act, the podiatrists’ UDTP claims against the hospital would be barred by the

learned profession exemption:

We are constrained to add that our conclusion would not be
different had we retroactively applied the current version
of G.S. 75-1.1(a) & (b) in this case. Plaintiffs contend that
the so-called “learned profession” exception in the current
G.S. 75-1.1(b) does not exclude defendants’ alleged
“anticompetitive” conduct because that conduct involves
“commercial” activity, not the rendering of “professional
services.” We do not agree for the following reasons.

- 16 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

At most, plaintiffs’ evidence tends to show that
Dineen and Thomas have individual, like personal opinions
regarding the provision of hospital staff privileges to
plaintiffs. Dineen’s testimony indicates that his objection
to plaintiffs is grounded in their qualifications to practice
podiatry in a hospital. Further, upon plaintiffs’ final
request for an amendment to the New Hanover medical
staff bylaws to include hospital staff privileges for
podiatrists, the 13 November 1978 minutes of the
Executive Committee state that the Credentials
Committee recommended that staff privileges for
podiatrists “be granted depending upon individual
qualifications.” Williams’ testimony also shows that the
New Hanover Board of Trustees considered qualifications
as a paramount issue: “As to who has to make the choice,
the Board has to determine with what information comes
to it, all the information it can determine, whether they feel
that those asking privileges have the qualifications that
the hospital has set as standard.”

This evidence indicates that defendants were acting in
large measure pursuant to an “important quality control
component” in the administration of the hospital. As one
court described it, the hospital’s obligation is to exact
professional competence and the ethical spirit of
Hippocrates as conditions precedent to staff privileges. We
conclude that the nature of this consideration of whom to
grant hospital staff privileges is a necessary assurance of
good health care; certainly, this is the rendering of
“professional services” which is now excluded from the
aegis of G.S. 75-1.1.13. In this respect, the current version
of G.S. 75-1.1 is not a substantive change from our prior
law. Defendants’ motions for a directed verdict upon this
issue also were properly granted.

Id. at 446-47, 293 S.E.2d at 920–21 (citations, quotation marks, brackets and footnote

omitted).

- 17 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

Cameron dealt with staff privileges at the hospital, and, similar to Wheeless,

this Court held the case fell within the learned profession exception because the

hospital’s process of evaluating the professional qualifications of physicians to

determine whether a physician should have staff privileges at the hospital was

necessary to assure “good health care” at the hospital. Id.

These cases addressing UDTP claims in a medical context do not suggest that

negotiations regarding a business arrangement, even between a physician and a

hospital, are “professional services rendered by a member of a learned profession.”

N.C. Gen. Stat. § 75-1.1(a) (emphasis added). In Wheeless, the Court found that

certain medical professionals making a complaint to the North Carolina Medical

Board alleging that Dr. Wheeless had engaged in inappropriate and disruptive

behavior fell within the learned profession exception because complaining to the

medical board was “integral to their role in ensuring the provision of adequate

medical care.” 237 N.C. App. at 591, 768 S.E.2d at 124. In Cameron, the issue related

to whether the plaintiff podiatrists should be granted staff privileges. The Court

found that because the “consideration of whom to grant staff privileges is a necessary

assurance of good health care[,] certainly, this is the rendering of ‘professional

services’ which is . . . excluded from the aegis of [N.C. Gen. Stat. §] 75-1.1.” 58 N.C.

App. at 447, 293 S.E.2d at 921.

- 18 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

This case involves a business deal, not rendition of professional medical

services. Defendant alleged that the hospital made false representations to induce

him to enter into a contract; the fact that he is a physician does not change the nature

of the negotiation of a business contract. Plaintiff declined to enter into an

employment contract with defendant; if defendant had been an employee of plaintiff,

this situation may be somewhat more similar to Wheeless and Cameron, but plaintiff

wanted defendant to be an independent contractor with an independent practice. If

we were to interpret the learned profession exception as broadly as plaintiffs suggest

we should, any business arrangement between medical professionals would be

exempted from UDTP claims. The learned profession exception does not cover claims

simply because the participants in the contract are medical professionals. For

example, if a physician entered into a lease agreement for space in a medical office

building owned by a group of physicians or hospital and then seeks to bring a UDTP

claim based upon a dispute over the lease, it should be treated no differently than a

similar lease arrangement for parties in any other business. The fact that medical

services will be provided in the building does not mean that the lease arrangement

arises from rendition of professional services and has no effect on the quality of the

medical care provided.

Taking the evidence in the light most favorable to defendant, as we must in

reviewing a directed verdict, the trial court should have submitted defendant’s UDTP

- 19 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

claim to the jury. The trial court therefore erred by granting directed verdict as to

defendant’s UDTP counterclaim.

IV. Parol Evidence

Defendant argues that “the jury’s verdict as to [defendant’s] alleged breach of

contract was unsupported by the plain terms of the agreement and the

uncontroverted evidence. The jury was only able to reach its verdict by the

impermissible use of parole [sic] evidence.” (Original in all caps).

Defendant argues that the trial court should have granted his Rule 59 motion

because of the improper parol evidence.

The standard of review for denial of a Rule 59 motion is
well-settled: According to Rule 59, a new trial may be
granted for the reasons enumerated in the Rule. By using
the word may, Rule 59 expressly grants the trial court the
discretion to determine whether a new trial should be
granted. Generally, therefore, the trial court’s decision on
a motion for a new trial under Rule 59 will not be disturbed
on appeal, absent abuse of discretion. This Court
recognizes a narrow exception to the general rule, applying
a de novo standard of review to a motion for a new trial
pursuant to Rule 59(a)(8), which is an error in law
occurring at the trial and objected to by the party making
the motion.

Kor Xiong v. Marks, 193 N.C. App. 644, 654, 668 S.E.2d 594, 601 (2008) (citation,

quotation marks, and brackets omitted).

In this case, defendant contends that the typical abuse of discretion standard

applies, and defendant’s argument presents two discrete issues. Defendant argues

- 20 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

that without the admission of improper parol evidence regarding the parties’ contract

negotiations, the evidence would have been insufficient to support the verdict. The

first issue is whether the trial court abused its discretion in admitting the alleged

improper parol evidence. See generally id. If so, the second issue is whether the

remaining evidence could support the verdict. If the trial court did not abuse its

discretion in admission of the alleged parol evidence, then we need not consider the

remainder of this argument, since there would be sufficient evidence to support the

jury verdict. See generally Nguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 454, 642

S.E.2d 502, 508 (2007) (“[A] review of the record evidence before this Court shows

that while defendant presented evidence in support of its position, plaintiff’s evidence

was sufficient to support the jury verdict. The jury verdict is not contrary to the

greater weight of the evidence nor contrary to law, and defendant has not shown that

the trial court abused its discretion in denying defendant’s motion for new trial.”

(Citation omitted)).

Since the first portion of this argument deals with the admission of evidence,

we must first consider whether the defendant preserved his objection to the particular

evidence. As to preservation, defendant argues that

After the jury returned its verdict, [defendant] filed a
motion for a new trial based on the following argument:
“The jury was improperly allowed to consider matters and
things which were barred by the parole [sic] evidence rule,
and as a result the verdict was based on improper evidence,
and must be set aside.” [Defendant] had already

- 21 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

established his concern about the improper use of parole
[sic] evidence as the jury considered the breach of contract
claims, lodging a standing objection to [plaintiff’s] parole
[sic] evidence exhibits and questions. Counsel for
[defendant] referenced these objections in its argument on
the Rule 59 motion.

Our first difficulty with defendant’s argument is that we are unable to identify

exactly what evidence he contends was improperly admitted. At the beginning of the

trial, before presentation of any evidence, defendant did “establish[ ] his concern”

about potential parol evidence issues and counsel for both parties discussed this

concern with the trial court.4 Defendant noted that he would object to some of the

evidence of emails and other negotiations plaintiff may seek to present as improper

parol evidence. But since defendant brought counterclaims other than breach of

contract, such as the fraud and UDTP claims, defendant also planned to introduce

some of the emails and communications prior to the Physician Recruitment

Agreement. Defendant contended plaintiff committed fraud in the inducement to get

defendant to enter into the Physician Recruitment Agreement, not fraud after the

signing of the agreement. Defendant would seek to show that plaintiff fraudulently

induced him to enter into the contract and planned to use some of the communications

in support of this theory. Plaintiff contended that if defendant wanted to introduce

some of the communications leading up to the entry of the Physician Recruitment

4 Defendant did not file a motion in limine seeking to exclude any evidence.

- 22 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

Agreement, all must be admitted so that the jury could understand the context of the

discussion: “[I]f he sends an e-mail but not the reply - I think it all comes in, or none

of it comes in.” The issue was not resolved at the time, and the trial court noted that

it would need to address the evidence as it was presented.

Defendant’s brief directs us to only two places in the transcript of nine days of

trial where he noted his objections to evidence he contends was improper parol

evidence. The first objection came in response to plaintiff’s introduction of an email

identified as “Plaintiff’s Exhibit 12,” which was a response from the plaintiff to an

email from defendant. The objection was: “Your Honor, just with our objection about

the parol evidence.” Defendant’s second, and final, objection was just after the

testimony about Exhibit 12:

MR. BUCKNER: If Your Honor please. I guess if that was
a question, we would object. And ask if we might have a
renewed continuing objection to all of the communications
before the merged agreement under the parol evidence
rule, and also relevance.

THE COURT: Your objection is noted. The objection is
overruled. Thank you.

MR. BUCKNER: Then a continuing objection?

THE COURT: Your exception is noted. Yes, sir.

MR. BUCKNER: I don't want to keep interrupting, but --

THE COURT: The Court will note a continuing objection
by the defense to questions related to this series of
e-mails.

- 23 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

As a general rule, a party must make a contemporaneous objection to evidence

to preserve the issue for appellate review. See State v. Gray, 137 N.C. App. 345, 348,

528 S.E.2d 46, 48 (2000) (“Based on the established law of this State, because

defendant failed to object to the admission of the evidence at the time it was offered,

he has failed to preserve this issue for our review.”). But even if we were to assume

that defendant’s “continuing objection” here was a valid objection, defendant’s brief

has not noted which particular exhibits or testimony he contends would have been

covered by this “continuing objection.” This trial lasted nine days, and there was

extensive testimony and evidence of the emails and other communications between

the parties leading up to the entry of the Physician Recruitment Agreement, and

certainly some of this evidence defendant used to further his counterclaims of fraud

in the inducement and UDTP. We are simply unable to sort out which bits of

testimony and which exhibits might fall under defendant’s continuing objection to

improper parol evidence and which bits are evidence defendant sought to use for his

own purposes of showing fraud in the inducement. And since defendant’s brief did

not clearly identify which evidence it claims was erroneously admitted, plaintiff also

did not have the opportunity to respond as to any specific exhibit or testimony but

could only argue in broad terms the various reasons the communications prior to the

Physician Recruitment Agreement would be admissible. Defendant did not make

contemporaneous objections to the alleged parol evidence and did not sufficiently

- 24 -
 HAMLET H.M.A., LLC V. HERNANDEZ

Opinion of the Court

identify the evidence he claims was admitted in error, so he has not preserved this

argument for appeal. See, e.g., id. Since defendant’s argument regarding his Rule

59 motion and sufficiency of the evidence is based upon the jury’s consideration of

parol evidence, which should not have been admitted, and we have determined that

all of the evidence was properly before the jury, we need not address the remainder

of defendant’s argument. This issue is without merit.

V. Conclusion

For the reasons stated above, we affirm in part and reverse and remand the

granting of directed verdict as to defendant’s UDTP counterclaim.

AFFIRM IN PART; REVERSE AND REMAND IN PART.

Judge ARROWOOD concurs.

Judge DAVIS dissents in part with separate opinion.

- 25 -
 No. COA17-744 – Hamlet H.M.A, LLC v. Hernandez

DAVIS, Judge, dissenting in part.

While I concur in the majority’s well-reasoned opinion on the remaining issues

in this case, I respectfully dissent from Section III of its opinion as I believe the trial

court properly granted a directed verdict as to Defendant’s counterclaim for unfair

and deceptive trade practices under Chapter 75 of the North Carolina General

Statutes (“UDTP Claim”).

The trial court granted the motion for a directed verdict based upon the

“learned profession” exception to UDTP claims. N.C. Gen. Stat. § 75-1.1 states, in

pertinent part, as follows:

(a) Unfair methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or affecting
commerce, are declared unlawful.

(b) For purposes of this section, “commerce” includes all
business activities, however denominated, but does not
include professional services rendered by a member of a
learned profession.

N.C. Gen. Stat. § 75-1.1(a), (b) (2017) (emphasis added).

In Reid v. Ayers, 138 N.C. App. 261, 531 S.E.2d 231 (2000), this Court

articulated the following test to determine when the learned profession exception

applies: “In order for the learned profession exemption to apply, a two-part test must

be satisfied. First, the person or entity performing the alleged act must be a member

of a learned profession. Second, the conduct in question must be a rendering of

professional services.” Id. at 266, 531 S.E.2d at 235 (citations omitted).
 HAMLET H.M.A., LLC V. HERNANDEZ

DAVIS, J., dissenting in part

There is no dispute that doctors and hospitals are members of a learned

profession. See Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App. 584, 590,

768 S.E.2d 119, 123-24 (2014), disc. review denied, 368 N.C. 247, 771 S.E.2d 284

(2015); see also Burgess v. Busby, 142 N.C. App. 393, 407, 544 S.E.2d 4, 11-12, reh’g

denied, 355 N.C. 224, 559 S.E.2d 554 (2001); Gaunt v. Pittaway, 139 N.C. App. 778,

784, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001),

cert. denied, 534 U.S. 950, 151 L. Ed. 2d 261 (2001); Abram v. Charter Med. Corp. of

Raleigh, 100 N.C. App. 718, 722, 398 S.E.2d 331, 334 (1990), disc. review denied, 328

N.C. 328, 402 S.E.2d 828 (1991). Here, the first prong of the test is clearly satisfied

as both Plaintiff and Defendant are members of a learned profession.

With regard to the second prong, none of the cases cited by the parties concern

a dispute arising from a contractual arrangement between members of a learned

profession similar to the one at issue in the present case. This Court has made clear,

however, that the learned profession exception is to be construed broadly.

It is well-settled by our Courts that a matter affecting the
professional services rendered by members of a learned
profession therefore falls within the exception in N.C.G.S.
§ 75-1.1(b). Indeed, our Court has made clear that unfair
and deceptive acts committed by medical professionals are
not included within the prohibition of N.C.G.S. § 75-1.1(a).
This exception for medical professionals has been broadly
interpreted by this Court, and includes hospitals under the
definition of “medical professionals.” In this case,
defendants’ alleged conduct in making a complaint to the
Medical Board is integral to their role in ensuring the
provision of adequate medical care. Accordingly, plaintiff’s

2
 HAMLET H.M.A., LLC V. HERNANDEZ

DAVIS, J., dissenting in part

argument is without merit.

Wheeless, 237 N.C. App. at 590-91, 768 S.E.2d at 123-24 (citations, quotation marks,

ellipses, and brackets omitted).

Another case that provides guidance on this issue is Cameron v. New Hanover

Mem’l Hosp., 58 N.C. App. 414, 293 S.E.2d 901 (1982), disc. review denied, 307 N.C.

127, 297 S.E.2d 399 (1982). Cameron was decided under a prior version of N.C. Gen.

Stat. § 75-1.1, and this Court held that the plaintiffs could not maintain a UDTP

claim against the defendant. Id. at 446, 293 S.E.2d at 920. We noted, albeit in dicta,

that the result would have been the same under the amended version of the statute

(which is the version currently in effect). Id.

In Cameron, the plaintiffs were podiatrists who brought a number of claims

against the defendant hospital arising out of the hospital’s denial of the plaintiffs’

request for staff privileges, including a UDTP claim. Id. at 446, 293 S.E.2d at 920.

This Court noted that even under the newly amended UDTP Act, the podiatrists’

UDTP claim against the hospital would be barred by the learned profession exception.

We are constrained to add that our conclusion would not be
different had we retroactively applied the current version
of G.S. 75-1.1(a) & (b) in this case. Plaintiffs contend that
the so-called “learned profession” exception in the current
G.S. 75-1.1(b) does not exclude defendants’ alleged
“anticompetitive” conduct because that conduct involves
“commercial” activity, not the rendering of “professional
services.” We do not agree for the following reasons.

At most, plaintiffs’ evidence tends to show that Dineen and

3
 HAMLET H.M.A., LLC V. HERNANDEZ

DAVIS, J., dissenting in part

Thomas have individual, like personal opinions regarding
the provision of hospital staff privileges to plaintiffs.
Dineen’s testimony indicates that his objection to plaintiffs
is grounded in their qualifications to practice podiatry in a
hospital. Further, upon plaintiffs’ final request for an
amendment to the New Hanover medical staff bylaws to
include hospital staff privileges for podiatrists, the 13
November 1978 minutes of the Executive Committee state
that the Credentials Committee recommended that staff
privileges for podiatrists “be granted depending upon
individual qualifications.” Williams’ testimony also shows
that the New Hanover Board of Trustees considered
qualifications as a paramount issue: “As to who has to
make the choice, the Board has to determine with what
information comes to it, all the information it can
determine, whether they feel that those asking privileges
have the qualifications that the hospital has set as
standard.”

This evidence indicates that defendants were acting in
large measure pursuant to an “important quality control
component” in the administration of the hospital. As one
court described it, the hospital’s obligation is to exact
professional competence and the ethical spirit of
Hippocrates as conditions precedent to staff privileges. We
conclude that the nature of this consideration of whom to
grant hospital staff privileges is a necessary assurance of
good health care; certainly, this is the rendering of
“professional services” which is now excluded from the
aegis of G.S. 75-1.1. In this respect, the current version of
G.S. 75-1.1 is not a substantive change from our prior law.
Defendants’ motions for a directed verdict upon this issue
also were properly granted.

Cameron, 58 N.C. App. at 446-47, 293 S.E.2d at 920-21 (citations, quotation marks,

brackets and footnote omitted).

4
 HAMLET H.M.A., LLC V. HERNANDEZ

DAVIS, J., dissenting in part

Cameron is analogous to the present case as it involved a dispute between

medical professionals and a hospital — both members of a learned profession — and

the plaintiffs’ claims were based upon their attempt to provide medical care as

podiatrists at the defendant hospital. Although the claims did not involve breach of

contract or a proposed employment arrangement, the effect is essentially the same:

the hospital was making arrangements for medical professionals to provide care to

patients served at its facilities.

Here, Plaintiff and Defendant were seeking to do the same thing. Plaintiff was

making arrangements, or attempting to make arrangements, for Defendant to

provide medical care to patients served at its facilities. In this sense, the negotiations

and contractual arrangement between Plaintiff and Defendant were “integral to their

role in ensuring the provision of adequate medical care.” Wheeless, 237 N.C. App. at

591, 768 S.E.2d at 124. The agreement even included specific requirements for

Defendant to be on emergency call at the Hospital and to accept unassigned patients.

Thus, these provisions of the agreement address the rendition of professional services

by both the Plaintiff and Defendant and fall within the learned profession exception.

For these reasons, I believe the trial court did not err by granting a directed

verdict dismissing Defendant’s UDTP claim against Plaintiff. Accordingly, I

respectfully dissent.

5