Population Planning Associates, Inc. v. Mews, 8215SC1145

• Citation: 65 N.C.App. 96,308 S.E.2d 739
• Decision Date: 15 November 1983
• Docket Number: No. 8215SC1145,8215SC1145
• Parties: POPULATION PLANNING ASSOCIATES, INC. v. Linda MEWS and Romeo, Inc.
• Court: North Carolina Court of Appeals

Page 739

308 S.E.2d 739

65 N.C.App. 96

POPULATION PLANNING ASSOCIATES, INC. v. Linda MEWS and Romeo, Inc.

No. 8215SC1145.

Court of Appeals of North Carolina.

Nov. 15, 1983.

Manning, Osborn & Frankstone by J. Kirk Osborn, Chapel Hill, for plaintiff-appellant.

Haywood, Denny & Miller by George W. Miller, Jr., Durham, for defendants-appellees.

EAGLES, Judge.

Plaintiff's first assignment of error is that the trial court erred at the end of all the evidence when it granted defendants' motion to dismiss plaintiff's 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 plaintiff's claim, when taken as true, considered in the light most favorable to plaintiff and given the benefit of every reasonable inference in the plaintiff's 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).

Plaintiff's 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. Plaintiff's 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 re-use 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 re-used by 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.

Plaintiff's second claim for relief alleges that defendants willfully violated the consent judgment. Although plaintiff's 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 re-used by publications after June 1980 were mailed after defendants had already informed those publishers that the Carrboro 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.

Plaintiff's 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 plaintiff's 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.

Plaintiff's 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 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...