concurring in part, dissenting in part.
I concur in the majority’s decision to affirm the trial court’s grant for a directed verdict and that Freedman’s cross-examination of Castle McCulloch’s expert witness was insufficient to “open the door” to testimony regarding the decline in vendors. I disagree with the majority’s decision to affirm the trial court’s award of attorney’s fees. I also vote to dismiss Castle McCulloch’s assignment of error to the trial court’s award of costs to Freedman. I respectfully dissent.
I. Attorney’s Fees
The majority’s opinion concludes, but does not set forth any evidence in the record to support the trial court’s finding that “[Castle McCulloch] failed to present evidence sufficient to prove that its business has suffered any economic injury caused by any of the alleged actions by [Freedman].” The majority’s opinion concludes this finding supports a conclusion of law of “frivolous and malicious” conduct by Castle McCulloch. I disagree. No evidence supports the trial court’s finding that Castle McCulloch’s claims were “frivolous and malicious,” and its prior rulings show otherwise.
The award of attorney’s fees pursuant to N.C. Gen. Stat. § 75-16.1 rests within the sound discretion of the trial court and cannot be reversed absent a showing that its determinations are “manifestly unsupported by reason.” Buford v. General Motors Corp., 339 N.C. 396, 406, 451 S.E.2d 293, 298 (1994) (citations omitted).
Here, the trial court found, “Following the denial of the defendants' Motion of Summary Judgment on February 18, 2003, the plaintiff knew, or should have known, that it would be unable to establish any damages arising from the alleged conduct of the defendants and that this action was frivolous and malicious.” (Emphasis supplied). A denial of defendants’ motion to dismiss under Rule 12(b)(6) and their motion for summary judgment under Rule 56 cannot support the trial *506court’s conclusion that Castle McCulloch, as plaintiff, “knew, or shoüld have known,” its complaint was “frivolous and malicious.”
A. Rule 12(hY6)
In his answer, Freedman asserted that Castle McCulloch failed “to state a claim upon which relief can be granted and should therefore be dismissed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.” See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). The trial court did not grant Freedman’s motion to dismiss accompanying their answer. The assertion of this defense followed by the trial court’s failure to dismiss Castle McCulloch’s complaint indicates that Castle McCulloch’s complaint stated a “claim upon which relief can be granted” and was not “frivolous and malicious.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6); N.C. Gen. Stat. § 75-16.1.
B. Summary Judgment
The standard of review for summary judgment is well established by the court.
“ ‘The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.’ ” Pacheco v. Rogers and Breece, Inc., 157 N.C. App. 445, 477, 579 S.E.2d 505, 507 (2003) (quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)).
A defendant may show entitlement to summary judgment by “(1) proving that an essential element of the plaintiff’s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.” James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979).
Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732 (2003).
Following hearing, the trial court denied Freedman’s motion for summary judgment. The trial court’s denial of Freedman’s motion establishes that Castle McCulloch’s complaint, affidavits, and forecast of evidence sufficiently presented “genuine issues of material *507fact” to support its causes of action, and that Freedman had failed to show or establish a defense to defeat Castle McCulloch’s claims. See id.; see also N.C. Gen. Stat. § 1A-1, Rule 56 (2003).
Because Castle McCulloch prevailed over Freedman’s assertion of a Rule 12(b)(6) defense and a Rule 56 motion for summary judgment, no evidence supports the trial court’s conclusion that Castle McCulloch’s complaint is wholly “frivolous or malicious.” Otherwise, the trial court would have either dismissed Castle McCulloch’s complaint under Rule 12(b)(6) or granted Freedman’s motion for summary judgment pursuant to Rule 56. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998) (requiring evidence of “actual injury” as an element to a cause of action for unfair and deceptive trade practices).
As Castle McCulloch prevailed in both instances, the trial court abused its discretion when it concluded that Castle McCulloch’s action was “frivolous and malicious.” The lack of a dismissal for Castle McCulloch’s failure to state a claim and the denial of. Freedman’s motion for summary judgment cannot support a finding that Castle McCulloch’s “knew or should have known that its action was frivolous and malicious,” as required by N.C. Gen. Stat. § 75-16.1(2). The trial court’s order awarding attorney’s fees to Freedman is “manifestly unsupported by reason.” Buford, 339 N.C. at 406, 451 S.E.2d at 298. The trial court’s finding of fact does not support its conclusion of law and award of attorney’s fees to Freedman is error. That portion of the judgment appealed from should be reversed.
II. Costs
Castle McCulloch’s assignment of error to the trial court’s award of costs is not properly before this Court and should be dismissed.
Freedman moved for costs pursuant to N.C. Gen. Stat. §§ 6-20 and 7A-305. N.C. Gen. Stat. § 7A-305(d) lists expenses that are recoverable. “The trial court ... is prohibited from assessing costs in civil cases which are neither enumerated in section 7A-305 nor provided by law.” Crist v. Crist, 145 N.C. App. 418, 424, 550 S.E.2d 260, 265 (2001) (citation omitted). N.C. Gen. Stat. § 6-20 (2003) provides that “costs may be allowed or not, in the discretion of the court.” “The trial court’s discretion to tax costs pursuant to N.C. Gen. Stat. § 6-20 is not reviewable on appeal absent an abuse of discretion.” Cosentino v. Weeks, 160 N.C. App. 511, 516, 586 S.E.2d 787, 789-90 (2003).
*508Castle McCulloch’s brief fails to assert any argument or cite to any authority to support a reversal of the trial court’s award of costs to Freedman. This assignment of error is not properly before this Court. I would dismiss this portion of Castle McCulloch’s assignment of error. N.C.R. App. P. 28(b)(6) (2004).
TII. Conclusion
I concur with the majority’s opinion to affirm the trial court’s award of a directed verdict for Freedman and its discussion of Freedman’s cross-examination of Castle McCulloch’s expert witness. I disagree with the holding in the majority’s opinion to affirm the trial court’s award of attorney’s fees to Freedman on the grounds that Castle McCulloch’s action was “frivolous and malicious.” I would dismiss Castle McCulloch’s assignment of error regarding costs. See N.C.R. App. P. 28(b)(6) (2004). I respectfully dissent.