Population Planning Associates, Inc. v. Mews

EAGLES, Judge. Plaintiffs first assignment of error is that the trial court erred at the end of all the evidence when it granted defendants’ motion to dismiss plaintiffs first (breach of the consent judgment), second (willful violation of the consent judgment), and fifth (unfair trade practices) claims for relief. In considering defendants’ motion for a directed verdict pursuant to Rule 50 of the Rules of Civil Procedure, the question presented is whether all the evidence which supports plaintiffs claim, when taken as true, considered in the light most favorable to plaintiff and given the benefit of every reasonable inference in the plaintiffs favor which may be legitimately drawn therefrom, is sufficient for submission to the jury. Tripp v. Pate, 49 N.C. App. 329, 271 S.E. 2d 407 (1980). A directed verdict motion by defendants may be granted only if the evidence is insufficient, as a matter of law, to justify a verdict for plaintiff. Arnold v. Sharpe, 296 N.C. 533, 251 S.E. 2d 452 (1979). Plaintiffs first claim for relief alleges that defendants breached the consent order by using the old Carrboro post office box designation in advertising after June 1980. Plaintiffs evidence showed that defendants published 12 advertisements in various publications that were in violation of the consent judgment, that defendants had requested publications to “pick up” and reuse advertisements that had used the old Carrboro address for Romeo, Inc. instead of preparing and submitting to the publications new advertisements on which the new address was printed, and that defendants sent insertion orders for advertisements with the old address to be “picked up” and reused by [99] publications after June 1980. Through cross examination, defendants presented evidence showing that advertisements with the old address were published after June 1980 due to publisher error. This presents a factual dispute as to whether defendants complied with the consent judgment. A verdict may not be directed when the facts are in dispute, and the credibility of testimony is for the jury, not the trial judge. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). Here, there was a question of fact to be determined by the jury, and we hold that the directed verdict as to the first claim for relief was improperly granted. Plaintiffs second claim for relief alleges that defendants willfully violated the consent judgment. Although plaintiffs evidence tends to show a violation of the consent judgment by publication of Romeo, Inc. advertisements with the old Carrboro address, there was no evidence presented to indicate that defendants acted willfully. The evidence shows that defendants’ insertion orders for advertisements with the old address to be “picked up” and reused by publications after June 1980 were mailed after defendants had already informed those publishers that the Carr-boro address was not to be used in any future ads. Because there was no evidence that defendants willfully violated the consent judgment, we hold that the directed verdict as to the second claim was properly granted. Plaintiffs fifth claim for relief alleges that defendants’ violation of the consent judgment constituted an unfair trade practice in violation of G.S. 75-1.1 et seq. We find no merit in plaintiffs contention that use of an address that is similar to a competitor’s address is equivalent to “passing off’ one’s goods as those of a competitor and constitutes an unfair trade practice. We find that plaintiff introduced no evidence that defendants published false or misleading advertisements so as to perpetrate an unfair or deceptive act or practice or an unfair method of competition within the meaning of G.S. 75-1.1 et seq. See, Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E. 2d 739 (1978), rev. and cert. denied, 296 N.C. 411, 251 S.E. 2d 469 (1979). The directed verdict as to the fifth claim was properly granted. Plaintiffs final assignment of error is that the trial court erred in sustaining defendants’ objections to opinion testimony by Phil Harvey, the President of Adam & Eve and of another mail [100] order firm, as to the amount of damages to the plaintiff as a result of the publication of defendants’ advertisements with the old Carrboro address. Opinion evidence is not generally admissible if, in lieu of stating his conclusion, the witness can relate the facts so that the jury will have an adequate understanding of them and if the jury is as well qualified as the witness to draw inferences and conclusions from the facts. 1 Brandis, N.C. Evidence § 124 (2d rev. ed. 1982). Here, plaintiff questioned Harvey on his familiarity with mail order marketing and then asked his opinion as to plaintiffs damages as a result of the publication of defendants’ advertisements with the old Carrboro address. Defendants’ objections to Harvey giving his conclusory opinion as to the amount of damages were properly sustained. Here the amount of damages is the ultimate issue to be determined by the jury. See, Lowe v. Hall 227 N.C. 541, 42 S.E. 2d 670 (1947). Harvey’s testimony was properly restricted to offering factual testimony from which the jury could arrive at an amount of damages. See, 1 Brandis, N.C. Evidence § 126 n. 62 (2d rev. ed. 1982). Defendants cross-assign as error the trial court’s denial of defendants’ Rule 12(b)(6) motion with respect to plaintiffs first, second and fifth claims for relief. Defendants contend that the appropriate relief from noncompliance with a consent judgment is a proceeding pursuant to Rule 70, N.C. R. Civ. P. Rule 70 empowers the court to enforce a judgment that requires performance of a “specific act” by ordering that the act be done by “another party appointed by the judge.” A motion pursuant to Rule 70 would be proper here if plaintiff simply wanted specific performance. Here, plaintiff alleged damages as a result of noncompliance, and where damages are alleged because of noncompliance with a consent judgment, a Rule 70 motion is inappropriate. The present lawsuit is the appropriate avenue by which plaintiff may seek relief. The denial of the motion to dismiss plaintiffs claims merely served to allow the action to be tried. No final judgment was involved at that point, and defendant was not deprived of any substantial right which could not be protected by timely appeal from the trial court’s ultimate disposition of the case. An adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal can be taken. State, Child DayCare Licensing Comm’n v. Fayetteville Street Christian School 299 N.C. 351, 261 S.E. 2d 908, appeal dismissed, 449 U.S. 807, 101 [101] S.Ct. 55, 66 L.Ed. 2d 11 (1980). Because we uphold the directed verdict granted against plaintiff in the second and fifth claims for relief, we need not address the denial of the Rule 12(b)(6) motions as to these claims. As to the first claim, the allegations of the complaint must be taken as true, and on that basis the court must decide as a matter of law whether the allegations state a claim for which relief may be granted. See Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979). We hold that the allegations of plaintiffs first claim of action state a valid claim for breach of the consent judgment, and we therefore uphold the trial court’s denial of defendants’ Rule 12(b)(6) motion as to that claim. Directed verdict is reversed and new trial is ordered as to plaintiffs first claim for relief. Judges Arnold and Wells concur.