                    IN THE COURT OF APPEALS OF NORTH CAROLINA

                                            No. COA16-363

                                      Filed: 30 December 2016

Catawba County, No. 14 CVS 1724

BENJAMIN RIDLEY, Plaintiff,

                   v.

BRET WENDEL; HENDRICK LUXURY COLLISION CENTER, LLC; CITY
CHEVROLET AUTOMOTIVE COMPANY; NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY; and each of them, Defendants.


          Appeal by defendant City Chevrolet Automotive Company from judgment

entered 4 January 2016 by Judge Daniel A. Kuehnert in Catawba County Superior

Court. Heard in the Court of Appeals 28 November 2016.


          Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellant.

          Law Offices of Jason E. Taylor, PC, by Lawrence B. Serbin and Jason E. Taylor,
          for plaintiff-appellee.


          ENOCHS, Judge.


          City Chevrolet Automotive Company (“Defendant”)1 appeals from judgment

entered on 4 January 2016 following a jury verdict finding Defendant liable to

Benjamin Ridley (“Plaintiff”) for fraud and negligence and awarding damages in the

amount of $200,000.00. The judgment of the trial court remitted the jury’s verdict to

$110,270.66, found Defendant had violated the Unfair and Deceptive Trade Practices


          1   City Chevrolet Automotive Company is the only defendant which is a party to the present
appeal.
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                                  Opinion of the Court



Act, trebled the damages to $330,811.98, and awarded attorneys’ fees and costs to

Plaintiff.   On appeal, Defendant contends that the trial court erred in allowing

Plaintiff’s expert witness to testify regarding the motivations and intent of

Defendant; in denying Defendant’s motion notwithstanding the verdict on the claim

for unfair and deceptive trade practices; in denying Defendant’s motion for a new

trial; and in awarding Plaintiff attorneys’ fees. After careful review, we affirm the

judgment, but reverse the grant of attorneys’ fees.

                                Factual Background

       On 12 June 2013, Plaintiff was involved in a motor vehicle accident in his 2008

Land Rover LR3.      Plaintiff’s vehicle struck Bret Wendel’s vehicle when Wendel

turned in front of Plaintiff at an intersection as the traffic light turned yellow.

Plaintiff was travelling at 40 miles per hour at the time of the collision and both

vehicles were damaged.

       After the accident, Plaintiff contacted Land Rover Corporation of America to

find out who they recommended to repair his vehicle. Plaintiff ultimately selected

Hendrick Luxury Collision Center (“Hendrick”) to do the repairs. He specifically

relayed his concerns to Hendrick that because of the force of the collision there was

likely to be unseen damage to the vehicle’s frame.

       Approximately one month later, Hendrick notified Plaintiff that his vehicle

had been repaired and was ready to be picked up. Hendrick, however, had not



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performed any repairs on the vehicle. Unbeknownst to Plaintiff, the repairs had, in

actuality, all been performed by the collision repair shop of Defendant.

      Plaintiff picked up his vehicle from Hendrick and drove it home. On his way

home, he noticed that the vehicle was pulling to the right significantly and whenever

he hit a bump in the road, “there was a very loud clanking like metal slapping

metal[.]” When Plaintiff arrived home, he inspected the vehicle and noticed that the

front left tire had an eighteen inch gash in it and was the same tire that had been on

the vehicle at the time of the collision. Plaintiff contacted Hendrick with his concerns

about the repairs to his vehicle and, on 8 August 2013, Hendrick took Plaintiff’s Land

Rover back to their shop for further inspection and repairs.

      Hendrick had possession of the vehicle “approximately from June until . . . the

first part of September.” When Hendrick returned the vehicle to Plaintiff, it still

pulled to the right, but the clanking sound was no longer heard. Plaintiff attempted

to contact Hendrick several times over the next several weeks, but Hendrick never

returned any of his phone calls.

      Wendel was insured by Nationwide Mutual Fire Insurance Company

(“Nationwide”). After Hendrick returned his vehicle to him for the second time,

Plaintiff contacted Nationwide and requested that they reimburse him for the

diminished value of his Land Rover.          Nationwide made Plaintiff an offer of




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reimbursement, but Plaintiff did not believe that it was fair, and so he declined the

offer.

         To determine the exact diminished value of his vehicle, Plaintiff took his

vehicle to Michael Bradshaw at K&M Auto in Hickory, North Carolina.                 After

inspecting Plaintiff’s vehicle, Bradshaw determined that the Land Rover was not safe

and “shouldn’t be on the road.” The vehicle had several issues that had either not

been repaired or had been repaired improperly. Plaintiff left the vehicle at K&M

Auto and contacted Nationwide to discuss these issues.

         It was at this time that Nationwide “made the decision to total loss the vehicle”

and notified Plaintiff that he “would get paid the value of the vehicle in a couple of

days.”     Nationwide produced a supplemental estimate of repair that included

replacing the frame of the vehicle. This estimate, or the separate estimate prepared

by Bradshaw, required that the vehicle be declared a total loss. However, Nationwide

then represented to Plaintiff that they would need to have the vehicle inspected by a

third-party to confirm that the frame of the vehicle did, in fact, need to be replaced.

This inspection was never performed because Plaintiff backed out of the agreed-upon

inspection.

         On 15 July 2014, Plaintiff filed suit against Defendant, Wendel, Hendrick, and

Nationwide for damage done to his vehicle in the original collision, as well as damages

related to the repair of his vehicle. Plaintiff asserted claims for negligence, fraud,



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negligent misrepresentation, civil conspiracy, tortious breach of contract, bad faith

refusal to settle, and unfair and deceptive trade practices. Nationwide was dismissed

as a defendant, and the claims against Wendel were ordered to be tried separately.

Beginning on 9 November 2015, a jury trial was held on Plaintiff’s claims against

Defendant and Hendrick in Catawba County Superior Court before the Honorable

Daniel A. Kuehnert.

      The jury returned a verdict against Defendant and Hendrick on 18 November

2015. The jury found Defendant guilty of fraud and negligence and awarded Plaintiff

$200,000.00 in damages.      Because civil conspiracy was not found by the jury,

Hendrick was dismissed from the suit pursuant to the trial court’s granting of its

post-judgment motion to dismiss.       On 20 November 2015, Defendant moved for

judgment notwithstanding the verdict and a new trial. On 1 December 2015, Plaintiff

filed a motion for costs and attorneys’ fees.

      The trial court remitted the jury’s verdict to $110,270.66 when it entered

judgment on 28 December 2015. The trial court also found unfair and deceptive trade

practices, and trebled the damages to $330,811.98. The trial court also awarded

Plaintiff attorneys’ fees pursuant to the North Carolina Motor Vehicle Repair Act in

the amount of $100,725.00, as well as costs totaling $6,726.68.      It is from this

judgment that Defendant appeals.

                                        Analysis



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I.     Expert Witness Testimony

       Defendant first argues on appeal that the trial court erred in allowing

Plaintiff’s expert to testify that Defendant did not “just accidentally miss all this

damage” and that there was “motivation for not fixing the damaged areas” of the

vehicle.   Specifically, Defendant argues that this testimony should have been

excluded as it “suggests whether legal conclusions should be drawn or whether legal

standards are satisfied.” HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578,

587, 403 S.E.2d 483, 489 (1991). We disagree, and affirm the trial court on this issue.

       It is well established that “the trial judge is afforded wide latitude of discretion

when making a determination about the admissibility of expert testimony.” State v.

Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). “Given such latitude, it

follows that a trial court’s ruling on the qualifications of an expert or the admissibility

of an expert’s opinion will not be reversed on appeal absent a showing of abuse of

discretion.” State v. McGrady, 232 N.C. App. 95, 98, 753 S.E.2d 361, 365 (2014)

(quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686

(2004)), aff’d, 368 N.C. 880, 787 S.E.2d 1 (2016). “ ‘Abuse of discretion results where

the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could

not have been the result of a reasoned decision.’ ” Id. (quoting State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1998)).

       Rule 702(a) of the North Carolina Rules of Evidence provides that



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             (a) If scientific, technical or other specialized knowledge
             will assist the trier of fact to understand the evidence or to
             determine a fact in issue, a witness qualified as an expert
             by knowledge, skill, experience, training, or education, may
             testify thereto in the form of an opinion, or otherwise, if all
             of the following apply:
                    (1) The testimony is based upon sufficient facts or
                    data.

                    (2) The testimony is the product of reliable principles
                    and methods.

                    (3) The witness has applied the principles and
                    methods reliably to the facts of the case.

Furthermore, pursuant to Rule 704 of the North Carolina Rules of Evidence,

“[t]estimony in the form of an opinion or inference is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact.” Expert testimony is

admissible if “ ‘the opinion expressed is really one based on the special expertise of

the expert, that is, whether the witness because of his expertise is in a better position

to have an opinion on the subject than is the trier of fact.’ ” State v. Lane, 365 N.C.

7, 27, 707 S.E.2d 210, 223 (citing State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d

905, 911 (1978)), cert. denied, __ U.S. __, 181 L. Ed. 2d 529 (2011).

      In the present case, Plaintiff’s expert, Michael Bradshaw, had worked in the

automobile collision repair industry for twenty-five years. As an automotive steel

structural technician and as an estimator, Bradshaw had achieved the “platinum

level” of the Inter-Industry Conference on Auto Collision Repair. He was recognized

by Automotive Service Excellence as a certified collision repair technician and

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collision estimator. Also, he was certified by 17 different automobile manufacturers

to provide collision repair for their vehicles. Mr. Bradshaw was tendered as an expert

in automotive repair without objection, and was so admitted.

      Plaintiff’s expert was asked, and answered in the negative, whether “any

professional body tech [could] just accidentally miss all this damage.” This testimony

followed his expert opinion, which was not objected to, as to the obviousness of the

damage to the vehicle. We find that this testimony was provided in response to a

general question and assisted the jury in understanding the evidence before it. It did

not address the intent or motivation of Defendant.

      Defendant also argues that the expert should not have been allowed to testify

that there was “motivation for not fixing the damaged areas.”             However, this

testimony did not address Defendant’s motivations, but instead gave a general

overview — based upon the witness’ area of expertise — of why a body shop may not

repair certain damage to a vehicle. Bradshaw explained different methods by which

an automotive repair shop can bill for services and opined that the method used by

Defendant could embolden a shop not to repair all of the damage to a vehicle.

      None of the testimony Defendant argues was improperly admitted invaded the

province of the jury. Rather, it comprehensively assisted the jury in understanding

the evidence and determining a fact in issue.            “The [expert] witness may offer

testimony in the form of an opinion or inference even though it may embrace the



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ultimate issue to be decided by the jury.” State v. Huang, 99 N.C. App. 658, 663, 394

S.E.2d 279, 283 (1990) (citation, quotation marks, and ellipses omitted).

      To prevail on this issue, Defendant must not only show that the challenged

testimony was improperly admitted, but must also show that it was prejudicial. “In

civil cases, the burden is on the appellant not only to show error but to enable the

court to see that he was prejudiced or the verdict of the jury probably influenced

thereby.” HAJJM, 328 N.C. at 589, 403 S.E.2d at 490 (citation, quotation marks, and

brackets omitted). As shown above, the challenged expert testimony was properly

admitted and, therefore, whether this expert’s testimony was prejudicial need not be

addressed. The trial court did not err, and this assignment of error is overruled.

II.   Unfair and Deceptive Trade Practices

      Defendant argues in its second assignment of error that the trial court erred

in denying its motion for judgment notwithstanding the verdict on Plaintiff’s claim

for unfair and deceptive trade practices. Defendant asks this Court to grant it a new

trial because of the inconsistency between the basis for fraud pled in Plaintiff’s

complaint and the jury’s rejection of this basis in their verdict. It contends that for

this reason, Plaintiff’s fraud claim cannot support the finding of unfair and deceptive

trade practices.   We disagree, and affirm the trial court’s denial of Defendant’s

motion.




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      A motion for a judgment notwithstanding the verdict is, fundamentally, the

renewal of an earlier motion for a directed verdict. Henderson v. Traditional Log

Homes, Inc., 70 N.C. App. 303, 306, 319 S.E.2d 290, 292 (1984). When a motion for

judgment notwithstanding the verdict is brought, the issue is “whether the evidence

is sufficient to take the case to the jury and to support a verdict for [the non-moving

party].” Id. The evidence is to be considered in the light most favorable to the non-

moving party, and the non-moving party is entitled to all reasonable inferences that

can be drawn from that evidence. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408,

411 (1986). “This is a high standard for the moving party, requiring a denial of the

motion if there is more than a scintilla of evidence to support the non-movant’s prima

facie case.” Ellis v. Whitaker, 156 N.C. App. 192, 195, 576 S.E.2d 138, 140 (2003).

      N.C. Gen. Stat. § 75-1.1(a) (2015) states, in pertinent part, that “unfair or

deceptive acts or practices in or affecting commerce [ ] are declared unlawful.” Our

Supreme Court has maintained that “ ‘[i]n order to establish a prima facie claim for

unfair trade practices, a plaintiff must show: (1) [the] defendant committed an unfair

or deceptive act or practice, (2) the action in question was in or affecting commerce,

and (3) the act proximately caused injury to the plaintiff.’ ” Bumpers v. Cmty. Bank

of N. Virginia, 367 N.C. 81, 88, 747 S.E.2d 220, 226 (2013) (quoting Dalton v. Camp,

353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001)).




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      “While our Supreme Court has held that to succeed under G.S. 75-1.1, it is not

necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of

deception, or actual deception, plaintiff must, nevertheless, show that the acts

complained of possessed the tendency or capacity to mislead, or created the likelihood

of deception.” Overstreet v. Brookland, Inc., 52 N.C. App. 444, 452-53, 279 S.E.2d 1,

7 (1981). Moreover, while “[a] mere breach of contract, even if intentional, is not an

unfair or deceptive act under Chapter 75[,]”       Bob Timberlake Collection, Inc. v.

Edwards, 176 N.C. App. 33, 42, 626 S.E.2d 315, 323 (2006), “substantial aggravating

circumstances attending the breach [may allow the plaintiff] to recover under the

Act[.]” Branch Banking and Trust Co. v. Thompson, 107 N.C. App. 53, 62, 418 S.E.2d

694, 700 (1992) (citation omitted).

      In the present case, evidence was presented, which when viewed in the light

most favorable to Plaintiff, tended to show that Plaintiff had suffered damages due

to Defendant’s representations to him that his vehicle was repaired, when Defendant

knew or should have known that it was not fully or properly repaired. Furthermore,

the evidence tended to show that Defendant had also conducted unauthorized repairs

to Plaintiff’s vehicle. These actions by Defendant had the tendency or capacity to

mislead or create the likelihood of deception.           Additionally, these facts were

ultimately found by the jury. Consequently, because more than a scintilla of evidence

was presented establishing these facts, the trial court correctly denied Defendant’s



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   motion for judgment notwithstanding the verdict. Therefore, Defendant’s arguments

   on this issue are overruled.

III.   Remittitur and New Trial

          Defendant next argues that it should also be granted a new trial because the

   jury’s verdict indicates that they ignored the trial court’s instructions on damages. It

   further argues that even the trial court’s remittitur of damages was insufficient to

   uphold the verdict because it is unclear whether the jury’s verdict included punitive

   damages and because the trial court’s remittitur included items which were not

   recoverable as damages. Again, we disagree.

          Defendant asserts that the trial court should have granted its motion for a new

   trial pursuant to Rules 59(a)(5)-(7) of the North Carolina Rules of Civil Procedure

   which provide as follows:

                A new trial may be granted to all or any of the parties and
                on all or part of the issues for any of the following causes
                or grounds:

                ....

                       (5) Manifest disregard by the jury of the instructions
                       of the court;

                       (6) Excessive or inadequate damages appearing to
                       have been given under the influence of passion or
                       prejudice;

                       (7) Insufficiency of the evidence to justify the verdict
                       or that the verdict is contrary to law[.]



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“Denial of a motion for a new trial pursuant to N.C.R. Civ. P. 59(a)(5) and (6) is

reviewed for an abuse of discretion, while the sufficiency of the evidence to justify the

verdict is reviewed under a de novo standard.” Everhart v. O’Charley’s Inc., 200 N.C.

App. 142, 160, 683 S.E.2d 728, 742 (2009).

      “A jury is presumed to follow the court’s instructions[,]” and we must therefore

presume that the jury based its verdict on these instructions. Nunn v. Allen, 154 N.C.

App. 523, 541, 574 S.E.2d 35, 46 (2002). Defendant has presented no evidence, aside

from the amount of the jury award, to show that the jury did not follow the

instructions of the trial court. While “[t]he party seeking damages bears the burden

of proving them in a manner that allows the fact-finder to calculate the amount of

damages to a reasonable certainty . . . proof to an absolute mathematical certainty is

not required.” State Properties, LLC v. Ray, 155 N.C. App. 65, 76, 574 S.E.2d 180,

188 (2002).

      Here, Plaintiff presented evidence regarding the cost incurred for the storage

of his damaged vehicle, his loss of the use of his vehicle, and the cost of renting a

vehicle while his was unsafe to drive. Certainly Plaintiff should not recover a windfall

of excess recovery, but, if fraud is proved — as the verdict here indicates — he must

be allowed “a complete remedy.” Tradewinds Airlines, Inc. v. C-S Aviation Servs.,

222 N.C. App. 834, 841, 733 S.E.2d 162, 169 (2012) (citation omitted). “ ‘[I]t is

elementary that a plaintiff in a fraud suit has a right to recover an amount in



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      damages which will put him in the same position as if the fraud had not been

      practiced on him.’ ” Id. (quoting Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 79, 598

      S.E.2d 396, 404 (2004)). “ ‘Damages are compensation in money, in an amount so far

      is possible, to restore a respective plaintiff to his or her original condition or

      position[.]’ ” Id. (quoting Godfrey, 165 N.C. App. at 78-79, 598 S.E.2d at 404). We are

      satisfied here that the trial court properly calculated the remittitur of damages to put

      Plaintiff in the same position he would have been in had he not been the victim of

      fraud, and, as a result, we affirm the trial court’s denial of Defendant’s motion for a

      new trial on this ground.

IV.      Attorneys’ Fees

            In its final argument on appeal, Defendant asserts that the trial court erred in

      awarding attorneys’ fees to Plaintiff pursuant to N.C. Gen. Stat. § 20-354.9 (2015) for

      violation of the North Carolina Motor Vehicle Repair Act. This case was not tried

      under this Act and the jury was neither given instructions on nor asked to render a

      verdict on any cause of action related to this Act. Therefore, we reverse the trial

      court’s award of attorneys’ fees.

            “Because statutes awarding an attorney’s fee to the prevailing party are in

      derogation of the common law, [these statutes] must be strictly construed.”

      Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437

      (1991). Here, the statute under which the trial court awarded attorneys’ fees states,



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in pertinent part: “Any customer injured by a violation of this Article may bring an

action in the appropriate court for relief. The prevailing party in that action may be

entitled to damages plus court costs and reasonable attorneys’ fees.” N.C. Gen. Stat.

§ 20-354.9 (emphasis added).

      Rule 54(c) of the North Carolina Rules of Civil Procedure states, in pertinent

part, that “[e]very final judgment shall grant the relief to which the party in whose

favor it is rendered is entitled, even if the party has not demanded such relief in his

pleadings.”

              [I]t is well-settled that adherence to the particular legal
              theories that are suggested by the pleadings is subordinate
              to the court’s duty to grant the relief to which the
              prevailing party is entitled. It is equally well-settled,
              however, that the relief granted must be consistent with
              the claims pleaded and embraced within the issues
              determined at trial, which presumably the opposing party
              had the opportunity to challenge. Simply put, the scope of
              a lawsuit is measured by the allegations of the pleadings
              and the evidence before the court and not by what is
              demanded. Hence, relief under Rule 54(c) is always proper
              when it does not operate to the substantial prejudice of the
              opposing party. Such relief should, therefore, be denied
              when the relief demanded was not suggested or
              illuminated by the pleadings nor justified by the evidence
              adduced at trial.

N.C. Nat. Bank v. Carter, 71 N.C. App. 118, 121-22, 322 S.E.2d 180, 183 (1984)

(internal citations omitted).

      Here, Plaintiff brought his case without reference to, or reliance upon, the

North Carolina Motor Vehicle Repair Act. Neither his pleadings nor his evidence at


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trial gave any indication that he was relying on this Act to remedy his loss. It is thus

axiomatic that he may not recover any remedy provided for by this Act. Therefore,

the trial court’s grant of attorneys’ fees based upon the Motor Vehicle Repair Act must

be reversed.

                                       Conclusion

      In conclusion, the trial court properly allowed Plaintiff’s expert witness to

testify at trial. Furthermore, the trial court did not err in finding unfair and deceptive

trade practices or in denying Defendant’s motion for a new trial. These rulings of the

trial court are consequently affirmed. The granting of attorneys’ fees based upon the

North Carolina Motor Vehicle Repair Act, however, is reversed.

      AFFIRMED IN PART; REVERSED IN PART.

      Chief Judge McGEE and Judge BRYANT concur.




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