Opinion
No. COA11–1089.
2012-08-7
Edward BOYNTON, Plaintiff, v. Grace McLAURIN dba Vitality Anti–Aging Medical Spa, Vitality Anti–Aging Medical Spa, LLC, Medical Laser Technologies, LLC, Sandstone Medical Technologies, LLC and Carolyn Crews, Defendants.
Law Offices of Thomas B. Kobrin, by Thomas B. Kobrin, for plaintiff-appellee. Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers, for defendant-appellant, Vitality Anti–Aging Medical Spa, LLC.
Appeal by defendant from judgment entered 17 December 2010 by Judge Julius A. Rousseau, Jr. in Catawba County Superior Court. Heard in the Court of Appeals 8 February 2012. Law Offices of Thomas B. Kobrin, by Thomas B. Kobrin, for plaintiff-appellee. Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers, for defendant-appellant, Vitality Anti–Aging Medical Spa, LLC.
GEER, Judge.
Defendant Vitality Anti–Aging Medical Spa, LLC (“Vitality”) appeals from a judgment entered against it on 17 December 2010 following a jury trial. We are unable to review Vitality's contentions regarding the jury instructions, the verdict sheet, and its motion for judgment notwithstanding the verdict because it has failed to include in the record on appeal the necessary portions of the trial transcript.
With respect to Vitality's argument that the trial court erred in granting a directed verdict on its fraud and unfair and deceptive trade practices counterclaims, after carefully reviewing the record, we hold that the trial court properly concluded that Vitality failed to present sufficient evidence to take those claims to the jury. We agree with Vitality, however, that the trial court's award of costs must be remanded for further proceedings.
Facts
The Court is handicapped in setting out the facts because the parties have not provided the Court with a complete transcript of the trial testimony. The record contains only the cross-examination testimony of Mr. Boynton, the direct examination of Grace McLaurin, and the direct examination of Carolyn Crews. While Mr. Boynton, in his brief, cites to other testimony supportive of his claims and the verdict, that part of the transcript was not filed with this Court.
In April 2006, Grace McLaurin, a licensed Physician's Assistant, formed Vitality, a practice specializing in wellness care, preventative medicine, and non-surgical aesthetics. Ms. McLaurin first met Mr. Boynton when he was demonstrating medical lasers at a seminar in his capacity as an independent sales representative for Radiancy, Inc.
Mr. Boynton subsequently approached Ms. McLaurin about selling her medical equipment. Although Mr. Boynton solicited Ms. McLaurin on multiple occasions, she did not purchase any equipment from him until early summer 2007. At that point, she contacted Mr. Boynton, expressing an interest in purchasing a Whisper Erbium yag resurfacing laser. Mr. Boynton came to Vitality and spent two hours demonstrating the laser as well as another piece of equipment. Mr. Boynton left his demonstration laser at Vitality to allow them to see how the laser worked.
After about a week, Mr. Boynton called to see if Ms. McLaurin was interested in purchasing a new laser. Ms. McLaurin told Mr. Boynton that Vitality was not financially able to purchase a new laser at that time, but that she still believed her practice could use the Whisper laser. She asked if it would be possible to rent a new Whisper laser. Mr. Boynton told her that although it was not possible to rent a new laser, he would rent her his demonstration laser, which he said had only been used on one or two patients.
On 16 July 2007, Mr. Boynton and Vitality entered into a rent-to-own written agreement with respect to Mr. Boynton's demonstration laser. The agreement specified that “[t]his device, while being sold as my demo[,] has never been placed and has only been used on two previous clients; thus, it is close to new.” The parties agreed to a purchase price of $30,000.00 due six months from 16 July 2007, the first day of the rental period. Over the six-month rental period, Vitality was required to pay $833.33 per month. At the end of the rental period, the total rent paid ($5,000.00) would be deducted from the $30,000.00 purchase price, leaving a balance due of $25,000.00 to be paid “to PRC Medical or Ed Boynton.”
The agreement further provided that the laser would “remain under warrantee [sic] for one year from July, [sic] 2007.” According to the agreement, if Vitality wished to “continue the warrantee [sic] in years two and three, [it would] have to maintain it from the factory.” With respect to the “Head/Rod” of the laser, the agreement represented that it would last approximately 1,000,000 shots before needing to be replaced. The cost for replacement would “be born[e] by Vitality Anti-aging and Medspa.”
On 27 February 2008, Mr. Boynton filed suit against Grace McLaurin d/b/a Vitality Anti–Aging Medical Spa, Medical Laser Technologies, LLC, Sandstone Medical Technologies, LLC, and Carolyn Crews. The complaint alleged that Ms. McLaurin, from July 2007, when she received the laser, until 25 January 2008, had never indicated to Mr. Boynton that the laser was not working properly. According to the complaint, Ms. McLaurin telephoned Mr. Boynton on 25 January 2008 to notify him that there was a problem with the electronics on the laser and to ask that he have it repaired. Mr. Boynton alleged that he picked up the laser at Vitality on 28 January 2008 and sent it to defendant Medical Laser Technologies (the manufacturer) for repairs, where it was received on 30 January 2008.
The complaint further alleged that defendant Carolyn Crews, acting for defendant Medical Laser Technologies and defendant Sandstone Medical Technologies, LLC, contacted Mr. Boynton on 30 January 2008 and told him that the laser required minor electrical work and that the hand piece needed to be repaired. Mr. Boynton alleged that he authorized the electrical repairs, but asked her to wait on the hand piece while he checked to see if it was still under warranty. The complaint asserted that Mr. Boynton intended to have the hand piece either repaired or replaced before it was returned to Vitality and that Ms. Crews was aware of his intent.
The complaint alleged, upon information and belief, that Ms. Crews falsely told Ms. McLaurin that Mr. Boynton had instructed Ms. Crews to return the laser to Ms. McLaurin without the necessary repairs. Ms. McLaurin then telephoned Mr. Boynton on 30 January 2008, described her conversation with Ms. Crews, stated that she believed Mr. Boynton to be dishonest, and advised him that she no longer wanted the laser and would not accept it if he returned it to her. Mr. Boynton asserted a breach of contract claim against Ms. McLaurin for failing to pay the purchase price of the laser, failing to accept the return of the laser, and failing to pay for the replacement of the hand piece of the laser. With respect to the remaining defendants, he asserted claims for defamation, tortious interference with contract, and unfair and deceptive trade practices.
Ms. McLaurin, in her capacity as an officer and manager of Vitality, filed an answer and a motion to dismiss pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. The motion to dismiss asserted that Mr. Boynton had entered into the contract with Vitality and not Ms. McLaurin personally. In addition to a number of affirmative defenses, the answer asserted three counterclaims against Mr. Boynton, including claims for breach of contract, for fraudulent and negligent misrepresentation, and for unfair and deceptive trade practices.
Mr. Boynton subsequently filed an amended complaint dated 20 October 2008 expressly adding Vitality as a defendant. Vitality in turn filed an answer, asserting five affirmative defenses and a motion to dismiss, a motion for attorney's fees, and a motion for Rule 11 sanctions. While the answer incorporated by reference Ms. McLaurin's responses to the allegations of the original complaint, Vitality did not specifically incorporate by reference the counterclaims and did not assert any counterclaims on its own behalf. The prayer for relief at the close of the answer requested only that “Plaintiff have and recover nothing, and all costs and attorney's fees be paid by Plaintiff.”
The case proceeded to trial as to Mr. Boynton's claims against Ms. McLaurin and Vitality, as well as the counterclaims. Vitality's brief on appeal indicates that defendants Crews, Medical Laser Technologies, and Sandstone Medical Technologies were dismissed prior to trial, although the record does not contain any documents related to that dismissal. Following the close of defendants' evidence, the trial court granted Mr. Boynton's motion for a directed verdict on the counterclaims.
The jury, in response to special interrogatories, found that Ms. McLaurin and Mr. Boynton did not enter into a contract, but that Vitality did enter into a contract with Mr. Boynton. The jury further found that Vitality breached its contract and that Mr. Boynton was entitled to recover $833.33, the amount of a rental payment. The jury also found that Mr. Boynton had breached the contract, but that Vitality was entitled to recover nothing from Mr. Boynton.
On 13 December 2010, Ms. McLaurin and Vitality both moved for judgment notwithstanding the verdict (“JNOV”) on the grounds that because the jury concluded that Mr. Boynton breached the contract, Vitality was relieved from performing under the contract and that Mr. Boynton was, therefore, entitled to recover no damages. On 17 December 2010, the trial court entered judgment in Mr. Boynton's favor setting out the jury's verdict. The court further provided that Mr. Boynton “shall have and recover of the Defendant Vitality ... the sum of $833.00 together with pre-judgment costs in the amount of $2,192.75.” The court did not specifically address defendants' motion for JNOV. Vitality timely appealed to this Court.
Discussion
As a preliminary matter, we note that the trial transcript filed by Vitality is not adequate for this Court's review of the appeal. As this Court has observed “[p]ursuant to the North Carolina Rules of Appellate Procedure, our review is limited to the record on appeal, verbatim transcripts constituted in accordance with Rule 9, and any other items filed with the record in accordance with Rule 9(c) and 9(d).” Kerr v. Long, 189 N.C.App. 331, 334, 657 S.E.2d 920, 922 (2008) (observing that deposition testimony of expert was not properly before the Court when no transcript of the deposition was included in the record).
In its request for the transcript served on Mr. Boynton's counsel, Vitality requested that the court reporters prepare a transcript of only the following portions of the trial: (1) the cross-examination of Mr. Boynton; (2) the direct examination of Ms. McLaurin; (3) the direct examination of Ms. Crews; (4) the oral argument on Mr. Boynton's directed verdict motion as to the counterclaims for fraud and unfair and deceptive trade practices; (5) the oral argument regarding proposed jury instructions as well as the jury instructions actually submitted to the jury regarding the “meeting of the minds” element; and (6) the oral argument relating to defendants' Motion in Limine for Spoliation Jury Instruction. Consistent with that transcript request, the record before this Court contains only these portions of the trial.
Under Rule 9 of the Rules of Appellate Procedure, “ ‘[i]t is the appellant's duty and responsibility to see that the record is in proper form and complete.’ “ McKyer v. McKyer, 182 N.C.App. 456, 463, 642 S.E.2d 527, 532 (2007) (quoting State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)). However, “[w]hile an appellant has the primary responsibility for the preparation of a record on appeal, an appellee has the responsibility of ascertaining that the record clearly sets forth things favorable to him that the appellate court is called upon to review.” Fleming Produce Corp. v. Covington Diesel, Inc., 21 N.C.App. 313, 315, 204 S.E.2d 232, 234 (1974).
Both parties have, throughout their briefs, cited to pages in the transcript that are not included in the record on appeal. Because we are limited to the transcript that is part of the settled record on appeal, we have been unable to fully consider certain arguments of both parties.
I
We first address Vitality's arguments on appeal regarding the trial court's instructions to the jury and its verdict sheet. Vitality contends that the trial court erred in (1) not giving a spoliation instruction, (2) not instructing the jury as to ambiguity, (3) not instructing the jury regarding violations of N.C Gen.Stat. § 66–68(a) (2011), the implied warranty of merchantability, and the warranty of fitness for a particular purpose, and (4) providing the jury with a verdict sheet that resulted in an ambiguous decision.
Rule 9(a)(1)(f) of the North Carolina Rules of Appellate Procedure provides that when “an issue presented on appeal relates to the giving or omission of instructions to the jury,” the record on appeal shall include “a transcript of the entire charge given; and identification of the omitted instruction by setting out the requested instruction or its substance in the record on appeal immediately following the instruction given.” Although arguing that the trial court erroneously omitted requested jury instructions and gave the jury an inadequate verdict sheet, Vitality has not included in the record on appeal a transcript of the complete jury charge.
As this Court explained in Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C.App. 238, 260–61, 677 S.E.2d 465, 480 (2009):
In this case, the record on appeal does not include a transcript of the entire charge, and the charge is inexplicably absent from the verbatim, certified transcript of the trial proceedings. The trial transcript only includes those instructions the trial court gave in response to jury questions.... [I]n light of our duty to review a jury charge “contextually and in its entirety[,]” Bass v. Johnson, 149 N.C.App. 152, 160, 560 S.E.2d 841, 847 (2002), and an appellant's duty to demonstrate that an instructional error “ ‘was likely, in light of the entire charge, to mislead the jury[,]’ “ id. (emphasis added) (quoting Robinson v. Seaboard Sys. R.R., Inc., 87 N.C.App. 512, 524, 361 S.E.2d 909, 917 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988)), this portion of the transcribed charge is insufficient to allow us to properly review Plaintiff's assigned error.
Based on Rule 9(a)(1)(f) and for the reasons set out in Barringer, we cannot review Vitality's arguments regarding the jury instructions.
With respect to the verdict sheet, we note that while Vitality has included, in the transcript, the oral argument regarding the issues that should be submitted to the jury, it is unclear whether Vitality's counsel specifically objected on the record to the verdict sheet. In any event, we do not review a verdict sheet in the abstract, but rather consider it in light of the jury instructions. See Kimbrell v. Roberts, 186 N.C.App. 68, 80, 650 S.E.2d 444, 451 (2007) (holding that, based on review of jury instructions, trial court did not abuse its discretion with respect to framing of issue submitted to jury); Shreve v. Combs, 54 N.C.App. 18, 26, 282 S.E.2d 568, 574 (1981) (“The issue, considered in the light of the jury instructions, was sufficient as framed.”). See also State v. Wiggins, 161 N.C.App. 583, 592, 589 S.E.2d 402, 409 (2003) (holding, in criminal case, that verdict sheet “is deemed sufficient if it can be properly understood by reference to the indictment, evidence and jury instructions” (internal quotation marks omitted)). Accordingly, because Vitality failed to include a complete transcript of the jury charge, we cannot review Vitality's arguments regarding the verdict sheet.
II
We next address Vitality's arguments that the trial court erred in granting a directed verdict with respect to Vitality's counterclaims for fraud and unfair and deceptive trade practices. As an initial matter, it is unclear to us, based on our review of the record, that Vitality, as opposed to Ms. McLaurin, ever asserted any counterclaims. While Ms. McLaurin's answer to the original complaint included counterclaims, Vitality was subsequently added as a defendant in the amended complaint. Vitality's answer to the amended complaint neither asserted counterclaims nor referenced Ms. McLaurin's counterclaims. While Ms. McLaurin purported to file her answer “in her capacity as an officer and manager of Vitality,” since the complaint did not yet assert a claim against Vitality, it is not apparent to us that Ms. McLaurin's answer can be attributed to Vitality. Nonetheless, it appears that the parties tried the counterclaims as if asserted by both Ms. McLaurin and Vitality and, therefore, we address the merits of Vitality's arguments regarding the directed verdict.
“The standard of review of [a] directed verdict is whether the evidence, taken in the light most favorable to the nonmoving party, is sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991). “In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the non-movant's claim must be taken as true and considered in the light most favorable to the nonmovant, giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the non-movant's favor.” Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989). A. Fraud
Vitality based its fraud counterclaim on six alleged misrepresentations or non-disclosures. “The essential elements of actionable fraud are: ‘(1) [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.’ “ Becker v. Graber Builders, Inc., 149 N.C.App. 787, 793, 561 S.E.2d 905, 910 (2002) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)). Additionally, plaintiff's reliance on any misrepresentations must be reasonable. State Properties, LLC v. Ray, 155 N.C.App. 65, 72, 574 S.E.2d 180, 186 (2002).
With respect to Vitality's claim that Mr. Boynton misrepresented himself as a Radiancy Inc. sales representative, Vitality has failed to present evidence of reliance. Ms. McLaurin testified that she had read about the Whisper laser, which she believed was made by Radiancy Inc. Because Mr. Boynton had been the Radiancy representative at a seminar Ms. McLaurin attended, she had her office contact him to set up a demonstration. Vitality, however, presented no evidence that Mr. Boynton was not a Radiancy representative at the time of the seminar.
The only evidence cited by Vitality in its brief in support of its claim of fraud simply showed that Mr. Boynton was a representative of a number of companies, including Radiancy-nothing in that testimony suggested Mr. Boynton was not an authorized representative of Radiancy. While Vitality now points to the fact that Mr. Boynton was not a Radiancy sales representative in July 2007, the company has not cited any evidence that Mr. Boynton misrepresented his status in July 2007 or that Vitality relied upon any representation or nondisclosure of his status at the time of the contract.
Vitality next claims that Mr. Boynton committed fraud by “representing that the Laser was fully operational, ‘close to new’ and had only been ‘used on two previous clients' when in fact the Laser was old and non-functional.” This argument is based on the language of the parties' contract, which stated: “This device, while being sold as my demo has never been placed and has only been used on two previous clients; thus, it is close to new.” In support of Vitality's contention that this representation was false, it points to (1) Ms. McLaurin's testimony that Mr. Boynton told her that the low setting of the laser was not effective and would not get results; (2) Ms. Crews' testimony, as a representative of the laser's manufacturer (Medical Laser Technologies), that the low setting was effective and produced results; and (3) the further testimony of Ms. Crews that when the laser was sent to the manufacturer for repair, the laser was non-functional. None of this testimony proves false the contract's statement that, as of 16 July 2007, the laser had never been placed, had only been used on two clients, and was close to new.
Vitality, however, cites to the following testimony of Ms. Crews as showing that the laser was in fact old when delivered on 16 July 2007:
Q. In your experience does a laser like that—does the handpiece go out overnight?
A. No, it does not.
Q. After substantial use would a Whisper lose power?
A. The lamp is what—Every time you click the foot switch on that laser, it powers the lamp. And after a certain amount of use, then the lamp gets weaker.
Since Vitality's evidence indicated that the handpiece did not cease working until after five months of use, this testimony does not support Vitality's claim that the laser was in fact “old and non-functional.”
Finally, Vitality contends that this claim of fraud should survive because of the spoliation doctrine. Vitality points to the fact that Mr. Boynton got rid of his business computer, which could have held documents that showed when Mr. Boynton received the laser from Radiancy and what he paid. “The spoliation doctrine recognizes that where a party fails to produce certain evidence relevant to the litigation, the finder of fact may infer that the party destroyed the evidence because the evidence was harmful to its case.” Outlaw v. Johnson, 190 N.C.App. 233, 244, 660 S.E.2d 550, 559 (2008).
However, even though “spoliation of evidence permits an inference that the destroyed evidence was unfavorable to the party that destroyed it, the inference does not ‘supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.’ “ Panos v. Timco Engine Ctr., Inc., 197 N.C.App. 510, 521, 677 S.E.2d 868, 876 (2009) (quoting McLain v. Taco Bell Corp., 137 N.C.App. 179, 184, 527 S.E.2d 712, 716 (2000)).
Consequently, “ ‘it is improper to base the grant or denial of a motion for summary judgment on evidence of spoliation. It is not an issue to be decided as a matter of law, and cannot, by its mere existence, be determinative of a claim.’ “ Id., 677 S.E.2d at 876–77 (quoting Sunset Beach Dev., LLC v. AMEC, Inc., 196 N.C.App. 202, 220, 675 S.E.2d 46, 58 (2009)). Likewise, it would be improper to deny a motion for a directed verdict when, as here, a party failed to present independent evidence of fraud apart from evidence of spoliation.
With respect to Vitality's claim that Mr. Boynton committed fraud by “promising training when no industry standard training was contemplated by Boynton,” it is well established that “[a]n unfulfilled promise is not actionable fraud ... unless the promisor had no intention of carrying it out at the time of the promise, since this is a misrepresentation of a material fact.” McKinnon v. CV Indus., Inc., ––– N.C.App. ––––, ––––, 713 S.E.2d 495, 503,disc. review denied,365 N.C. 353, 718 S.E.2d 376 (2011).
The record contains evidence that Mr. Boynton promised to provide training and that he did provide some training. Vitality's argument at trial and its evidence was that Mr. Boynton did not provide adequate training-in other words, training that met the industry standard. There is no evidence that Mr. Boynton never intended to provide training. Consequently, this contention amounts simply to an “unfulfilled promise” rather than fraud. See Leake v. Sunbelt Ltd. of Raleigh, 93 N.C.App. 199, 204–05, 377 S.E.2d 285, 289 (1989) (holding that when “a promissory misrepresentation is made with an intent to deceive the purchaser and at the time of making the misrepresentation the defendant has no intention of performing his promise, fraud may be found”).
Vitality next argues that Mr. Boynton committed fraud by “offering a manufacturer's warranty for one (1) year when there was no manufacturer's warranty.” With respect to the warranty, the contract provided: “The equipment will remain under warrantee [sic] for one year from July, [sic] 2007. If [Vitality] wish[es] to continue the warrantee [sic] in years two and three, you will have to maintain it from the factory.” Mr. Boynton testified that he was providing the warranty to Vitality, although he believed that the laser was still under warranty from Radiancy.
Although Vitality makes much of the fact that “Boynton provided no documentation to Vitality that the Laser was under warranty by Radiancy” and that because Radiancy was not the manufacturer, it could not provide a manufacturer's warranty, Vitality does not point to any evidence that Mr. Boynton promised a manufacturer's warranty or that Mr. Boynton never intended to honor the warranty in the contract. Vitality instead focuses on (1) whether Mr. Boynton should have, under this provision, replaced the laser rather than repaired it, and (2) whether Mr. Boynton refused to cover the necessary repairs. Again, Vitality's evidence, at most, shows an unfulfilled promise and a dispute over the meaning of the contract terms. Vitality has not presented evidence that Mr. Boynton never intended to provide a warranty at the time he entered into the contract.
Mr. Boynton's testimony upon which Vitality relies indicates that his belief at the time of contracting was that a warranty from Radiancy was still in effect. Consequently, Vitality has failed to meet the requirement that in order for the representation to have been fraud and not mere breach of contract, Mr. Boynton must have intentionally made the representation with the calculation to deceive.
Vitality next contends that Mr. Boynton fraudulently induced them to enter into the contract by deliberately misrepresenting that Vitality was contracting with “PRC Medical Inc.” and not with him personally. Looking to the contract in this case, the agreement specifies that “Grace McLaurin/ Vitality Antiaging and PRC Medical, Ed Boynton” were the parties to the contract. The check for purchase of the laser was to be made out to “PRC Medical or Ed Boynton,” and the signature line at the bottom of the contract was for “Ed Boynton” with no reference to PRC Medical.
The contract contains no representation that PRC Medical was incorporated or otherwise a company. Further, Vitality's checks, in accord with the terms of the contract, were made out to “PRC Medical/Ed Boynton” and, in one case, merely to Mr. Boynton individually. Vitality has pointed to no testimony or other evidence that Mr. Boynton represented to Vitality at the time of the contract that PRC Medical was a corporation. Accordingly, Vitality has failed to identify a fraudulent statement.
Finally, Vitality argues that Mr. Boynton committed fraud by “attempting to return a partially repaired laser under the guise that the Laser was fully operational.” Vitality, however, has failed to present any evidence that it was in fact deceived. As it states in its brief on appeal, a phone call from Sandstone prevented Vitality from being defrauded.
With respect to each of the six misrepresentations or nondisclosures, Vitality has failed to present evidence of each element of a claim for fraud, as opposed to an unfilled promise. The trial court, therefore, properly granted a directed verdict as to the fraud counterclaim. B. Unfair and Deceptive Trade Practices
Turning to the counterclaim for unfair and deceptive trade practices in violation of N.C. Gen.Stat. § 75–1.1 (2011), the elements of such a claim are: (1) an unfair or deceptive act or practice or an unfair method of competition; (2) in or affecting commerce; (3) that proximately causes actual injury to the plaintiff or to his business. Furr v. Fonville Morisey Realty, Inc., 130 N.C.App. 541, 551, 503 S.E.2d 401, 408 (1998). Although whether a party committed the acts alleged to be an unfair and deceptive trade practice is a question of fact, whether those acts violated N.C. Gen.Stat. § 75–1.1 is a question of law. First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C.App. 242, 252–53, 507 S.E.2d 56, 63 (1998).
Apart from Vitality's arguments regarding fraud, which we have already addressed above, Vitality contends that Mr. Boynton committed unfair and deceptive trade practices by (1) representing himself as an incorporated business through the use of the name “PRC Medical Inc.” in violation of N.C. Gen.Stat. § 66–68(a); and (2) violating N.C. Gen.Stat. § 75–35 (2011).
Vitality recasts the fraud arguments slightly, arguing that Mr. Boynton committed an unfair and deceptive trade practice by “offering for sale a defective product that was intended for use in medical treatment of patients.” As we have already concluded that Vitality failed to present sufficient evidence that Mr. Boynton offered for sale a defective product, we need not address this argument further.
The only evidence cited by Vitality as showing that Mr. Boynton used the name “PRC Medical Inc.” rather than just “PRC Medical” is the 18 January 2008 invoice seeking payment from Vitality for the final rent payment of $833.35 and the purchase price of $25,000.00. This invoice was never paid.
As this Court has emphasized with respect to unfair and deceptive trade practices claims involving fraud: “ ‘Where an unfair or deceptive trade practice claim is based upon an alleged misrepresentation by the defendant, the plaintiff must show ‘actual reliance’ on the alleged misrepresentation in order to establish that the alleged misrepresentation ‘proximately caused’ the injury of which plaintiff complains.' “ Sunset Beach Dev., LLC, 196 N .C. App at 211, 675 S.E.2d at 53 (quoting Tucker v. The Blvd. at Piper Glen, LLC, 150 N.C.App. 150, 154, 564 S.E.2d 248, 251 (2002)). Since Vitality did not pay the invoice referring to PRC Medical as an incorporated entity, it was not actually deceived.
Vitality appears to also argue that simply referencing “PRC Medical” violated N.C. Gen.Stat. § 66–68(a), which provides in pertinent part:
(a) Unless exempt under subsection (e) hereof, before any person ... engages in business in any county in this State under an assumed name or under any designation, name or style other than the real name of the owner or owners thereof ... such person ... must file in the office of the register of deeds of such county a certificate giving the following information:
(1) The name under which the business is to be conducted; and
(2) The name and address of the owner, or if there is more than one owner, the name and address of each.
Vitality has not, however, cited any authority in support of its argument that a mere violation of this registration statute constitutes an unfair and deceptive trade practice. In the absence of the citation of any authority or analysis, we cannot conclude that Mr. Boynton's use of the name “PRC Medical” (without registration) together with his own name was an unfair and deceptive trade practice.
Vitality also claims that Mr. Boynton committed an unfair and deceptive trade practice by violating N.C. Gen.Stat. § 75–35. That statute provides:
No person engaged in commerce shall in any manner issue any writing which simulates or resembles: (i) a negotiable instrument; or (ii) an invoice, unless the intended recipient has actually contracted for goods, property, or services for which the issuer seeks proper payment.
Id.
The basis for Vitality's claim that Mr. Boynton violated this statute is not entirely clear. The brief states only: “ ‘PRC Medical, Inc.’ sent invoices prohibited by N.C.G.S. § 75–35 which mislead [sic] customers including Vitality.” The brief contains no further explanation or citation of authority regarding this contention. To the extent that Vitality is reiterating its arguments regarding “PRC Medical” and “PRC Medical, Inc.” and arguing that those references also violate N.C. Gen.Stat. § 75–35, our prior discussions have already addressed that issue adequately, and Vitality has not, in any event, explained how use of those names violates N.C. Gen.Stat. § 75–35.
Further, this Court held in Malone v. Topsail Area Jaycees, Inc ., 113 N.C.App. 498, 504, 439 S.E.2d 192, 195 (1994) (quoting N.C. Gen.Stat. § 75–35 (1988)), a case involving the issuance of a check, that “the statute does not prevent the described conduct [of issuing a negotiable instrument] if the recipient of the ‘check’ ‘has actually contracted for the goods, property, or services. ...’ “ Here, it is undisputed that Vitality contracted with “PRC Medical, Ed Boynton” to rent and entitled to send an invoice pursuant to the contract, and no violation of N.C. Gen.Stat. § 75–35 occurred. Malone, 113 N.C.App. at 504, 439 S.E.2d at 195 (holding that because plaintiff contracted for prize money by entering tournament and hitting hole in one, she was entitled to receive check, and issuance of fake check did not violate N.C. Gen.Stat. § 75–35).
Because Vitality has failed to show that it submitted sufficient evidence of fraud or a violation of N.C. Gen.Stat. § 75–35 and has failed to demonstrate that, in this case, a violation of N.C. Gen.Stat. § 66–68(a) constituted an unfair and deceptive trade practice, Vitality has not established that the trial court erred in granting a directed verdict on Vitality's counterclaim under N.C. Gen.Stat. § 75–1.1.
III
Vitality also contends the trial court erred in denying its motion for JNOV as to the jury's verdict awarding damages to Mr. Boynton for breach of contract. In its motion for JNOV, Vitality argued that the jury “determined that the Plaintiff breached the contract and therefore, Defendant Vitality was relieved from performing and any damages that may arise from breach.”
However, as this Court has observed, a motion for JNOV is essentially the renewal of a prior motion for a directed verdict. Henderson v. Traditional Log Homes, Inc., 70 N.C.App. 303, 306, 319 S.E.2d 290, 292 (1984). Rule 50(b)(1) of the Rules of Civil Procedure provides: “Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.” (Emphasis added.) Further, a motion for JNOV may only argue those issues argued in the motion for a directed verdict. Couch v. Private Diagnostic Clinic, 133 N.C.App. 93, 100, 515 S.E.2d 30, 36 (“Thus, a movant cannot assert grounds on a motion for JNOV that were not previously raised in the directed verdict motion.”), aff'd by an equally divided court,351 N.C. 92, 520 S.E.2d 785 (1999).
This Court has previously held that denial of a motion for JNOV cannot be reviewed unless the record contains evidence of the motion for a directed verdict:
A motion for directed verdict at the close of all evidence is an absolute prerequisite to the post verdict motion for judgment notwithstanding the verdict.... Having failed to preserve the record of any motion for directed verdict at the close of all evidence, defendant has waived his right to assign error to either the trial judge's purported ruling on that motion or the ruling on the motion for judgment notwithstanding the verdict.
Jansen v. Collins, 92 N.C.App. 516, 517–18, 374 S.E.2d 641, 643 (1988).
Here, the record contains no indication that Vitality moved for a directed verdict. No written motion appears in the record, and the excerpts from the trial transcript filed with this Court do not include any discussion of a directed verdict by Vitality at the close of the evidence. Consequently, Jansen holds that we cannot review Vitality's arguments regarding its motion for JNOV. We note that the record also contains no motion for a new trial pursuant to Rule 59 of the Rules of Civil Procedure, which would have been an alternative means for the Court to address Vitality's arguments regarding the jury verdict.
IV
Finally, Vitality contends that the trial court erred in awarding pre-judgment costs in the amount of $2,192.75 to Mr. Boynton. Vitality points out that Mr. Boynton did not submit any evidence of his costs. Rather, the figure was simply included in Mr. Boynton's proposed judgment. We agree with Vitality that the trial court erred.
Mr. Boynton simply argues in support of the costs award that $2,192.75 “is not an amount that is inherently unreasonable on its face” and that Vitality has presented no evidence that the amount was unreasonable. Mr. Boynton mistakes the analysis applicable to a request for costs.
The General Assembly has significantly amended the costs statutes, and it is now clear that certain costs may be awarded and other expense items may not be taxed as costs. See, e.g., Peters v. Pennington, ––– N.C.App. ––––, 707 S.E.2d 724 (2011). It does not appear that Mr. Boynton itemized his costs for the trial court. In the absence of itemization, the trial court could not properly apply the costs statutes or exercise its discretion.
We must, therefore, remand for further proceedings regarding the award of costs. Mr. Boynton should file a proper motion for costs. Any award of costs must then itemize which of the requested expenses are being awarded as costs in order to allow proper appellate review should the order taxing costs be further appealed.
Affirmed in part; reversed and remanded in part.