Before addressing the merits of Defendants' appeal, we first
note the applicable standard of review.
To determine whether to
grant a motion for a directed verdict, the trial court must
examine all of the evidence in a light most favorable to the
nonmoving party, and the nonmoving party must be given the benefit
of all reasonable inferences that may be drawn from that evidence.
. . . Lake Mary Ltd. P'ship v. Johnston
, 145 N.C. App. 525, 531,
551 S.E.2d 546, 551-52 (2001) (quoting Abels v. Renfro Corp.
N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). Thus, the trial
court must accept the evidence of the non-moving party as true, and
must resolve all contradictions, conflicts and inconsistencies in
the evidence in the non-moving party's favor. Eatman v. Bunn
N.C. App. 504, 506, 325 S.E.2d 50, 52 (1985). The trial court may
grant a motion for directed verdict only if the evidence is
insufficient, as a matter of law, to support a verdict for the
non-moving party. Id.
(quoting Dickinson v. Pake
, 284 N.C. 576,
201 S.E.2d 897 (1974)). We review a trial court's grant of a
motion for directed verdict de novo. Maxwell v. Michael P. Doyle,
, 164 N.C. App. 319, 323, 595 S.E.2d 759, 761 (2004).
On appeal, Defendants first contend the trial court erred in
granting Clinard Oil's motion for directed verdict on its claim
based upon account stated or open account. Specifically,
Defendants contend there was conflicting evidence presented attrial on the issue of whether an account stated or open account
existed. Defendants' argument is without merit.
To establish an account stated, a party must show: (1) a
calculation of the balance due; (2) submission of a statement to
plaintiff; (3) acknowledgment of the correctness of that statement.
. . ; and (4) a promise, express or implied, by plaintiff to pay
the balance due. Carroll
, 296 N.C. at 209, 250 S.E.2d at 62.
Relying on its decision in Little v. Shores
, 220 N.C. 429, 431, 17
S.E.2d 503, 504 (1941), our Supreme Court explained:
An account becomes stated and binding on both
parties if after examination the part[y]
sought to be charged unqualifiedly approves of
it and expresses his intention to pay it. . .
. The same result obtains where one of the
parties calculates the balance due and submits
his statement of account to the other who
expressly admits its correctness or
acknowledges its receipt and promises to pay
the balance shown to be due. . . .
296 N.C. at
209, 250 S.E.2d at 62.
In this case, Plaintiff alleged a debt based upon an open
account, or in the alternative, upon account stated.
Specifically, Plaintiff's complaint alleged:
5. The present balance due on that open
account is the sum of $431,692.68,plus
interest after the date [of] Judgment, and
6. The Plaintiff has made repeated demand of
the Oil Products for the payment of this sum,
which demands have been refused.
The record reveals that Clinard Oil satisfied each element for
an account stated claim. In its answer to the complaint, Oil
Products admitted that demand had been made for the sums set forthin the complaint.
Furthermore, Clinard Oil introduced into
evidence at trial, without objection, a statement of Oil Product's
account, which reveals that Oil Products last paid Clinard Oil on
2003, and that this last payment reduced the balance
due on the account to $431,692.71.
Moreover, Ms. Edmundson
testified that she did not dispute Clinard Oil's accounting of Oil
Products' business with them
Defendants' counsel argued at the
hearing on the motion for directed verdict that, [w]hat Ms.
Edmundson does not dispute is the accounting they have for the
amount that's owed. When its owed and how its owed is still at
However, the record reveals that how and when the
money was owed was not at issue either, as Ms. Edmundson testified
that invoices were initially due within fifteen days, and later
thirty days, of receipt
. Plaintiff filed this complaint on 12
December 2003, more than ninety days after the last payment on the
account, and after demand was made on Oil Products, based on
Defendants' admission in its answer to the complaint.
Ms. Edmundson's own testimony establishes that Defendants did not
dispute the amount of the balance due, Defendants intended to pay
it, and that the invoices were due no more than thirty days after
receipt of the invoice.
Based on this evidence, we conclude the trial court did not
err in directing a verdict in Plaintiff's favor on the account
Because we hold the trial court did not err in
directing a verdict in Plaintiff's favor on the account stated
claim, we need not address Defendants' argument that the trialcourt erred in granting Plaintiff's motion for directed verdict
based on open account. Defendants' assignments of error related to
these issues are, therefore, rejected.
Defendants next contend the trial court erred in directing a
verdict against them on their counterclaims of unfair and deceptive
trade practices and tortious interference with contract. We
Paragraph nine of Oil Products' counterclaim alleges:
9. The Defendant relied upon the Plaintiff's
good faith in providing sensitive financial
and business information to the Plaintiff, and
relied upon the Plaintiff's representations
that it had no intention of stealing the
Defendants' market locations, and upon which
affirmations, the Defendants relied to their
detriment, such that the Plaintiff's actions
constituted unfair and deceptive trade
practices in violation of N.C.G.S. . 75-1.1,
, as egregious or oppressive behavior
which affects commerce in the State of North
Carolina, or alternatively that such behavior
constituted a tortuous interference by the
Plaintiff with the right to contract of the
Defendants with their customers, and which
activity proximately caused damage to the
Defendants by substantially interfering with
the Defendant Oil Products Company's cash flow
and profits, which would have enabled the
Defendants to reduce the Defendant Oil
Products Company's debt with the Plaintiff and
which actions have damaged the Defendants in
an amount greater than $10,000.00.
To prevail on a claim of unfair and deceptive trade practices,
a party must prove (1) an unfair and deceptive trade practice; (2)
in or affecting commerce; (3) which proximately causes actual
N.C. Gen. Stat. .
75-1.1 (2005); Belcher v. Fleetwood
, 162 N.C. App. 80, 85, 590 S.E.2d 15, 18 (2004);
Spartan Leasing v. Pollard
, 101 N.C. App. 450, 460-61, 400 S.E.2d476, 482 (1991). A practice is unfair when it offends established
public policy as well as when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers.
Marshall v. Miller,
302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981).
Here, Oil Products argues that it presented evidence that
Clinard Oil refused to supply product during Labor Day weekend in
2003 on short notice, and, thus, prevented Oil Products from making
alternative plans to honor its delivery obligations to its
customers. Oil Products argues that based on this evidence, a jury
could find that Clinard Oil intentionally manipulated the supply of
product to Oil Products and, therefore, destroyed Oil Products'
relationships with its customers.
Contrary to Defendants' assertion, the uncontradicted evidence
presented at trial reveals that Clinard Oil refused to deliver
product to Oil Products during Labor Day weekend in 2003 because
Oil Products was unable to provide a certified check for payment as
required by the parties' arrangement. Mr. Clinard testified:
They needed one [delivery] on Monday, the
first of September, and, of course, Wednesday,
we would be happy to deliver, but we have to
have payment for it. And of course, she [Ms.
Edmundson] said, Well, the banks are closed.
And I said, Well I'm not disagreeing with you
that the banks are closed. Obviously, the
[outstanding Oil Products] balance didn't get
here by one or two misinterpretations or
things not being followed through properly,
and like I said, where this was, we were at
the point we would not come [deliver] unless
we got certified funds for it.
Defendants contend that it paid Clinard Oil $12,000.00 in advance
to deliver petroleum during Labor Day weekend in 2003. While Ms.Edmundson testified on direct examination that she paid Clinard Oil
$12,000.00 for delivery of product to their bulk plant over Labor
Day weekend, on cross-examination she testified that the $12,000.00
was the extra amount required by Clinard Oil to lower Oil Products'
balance on its account.
Indeed, as it relates to the delivery on
Labor Day weekend in 2003, Ms. Edmundson testified that [b]y the
arrangement [she] had to give the transport driver the certified
but was unable to get a certified check on Labor Day
because the banks were closed. She further testified that Oil
Products paid an extra amount each time it requested delivery in
efforts to lower the balance on its account with Clinard Oil.
Thus, Mr. Clinard's and Ms. Edmundson's testimony establish that
Clinard Oil's refusal to deliver product to Oil Products during
Labor Day weekend in 2003 was due to Oil Products' failure to
provide the required certified funds for delivery.
is no evidence in the record to support Defendants' argument that
Clinard Oil intentionally manipulated the supply of petroleum to
Oil Products on Labor Day weekend 2003, and, therefore, engaged in
unfair trade and deceptive practices, we reject Defendants'
assignment of error.
In its next argument on appeal, Defendants contend that a
false statement made by a Clinard Oil employee to an Oil Products'
customer during Labor Day weekend in 2003 constituted an unfair
trade and deceptive practice. Specifically, Defendants contend
that based on the evidence presented at trial, a jury could
conclude that [Plaintiff] knowingly, or in reckless disregardingof the truth, made . . . statements which were both false and
designed to injure or destroy [Defendants'] business[,] citing to
Martin Marietta Corp. v. Wake Stone Corp.,
111 N.C. App. 269, 453
S.E.2d 146 (1995). We disagree.
A former Oil Products' customer testified that when he did not
receive fuel during Labor Day weekend in 2003, he called Clinard
Oil and was told Lynn [Edmundson] had not called [Clinard Oil] and
did not have a load of fuel on the way to [their] store.
Mr. Clinard and Ms. Edmundson testified that Ms. Edmundson had
requested petroleum delivery for Labor Day weekend, but that it was
not supplied because she said that she could not provide a
certified check for payment.
Defendants contend this false
statement by a Clinard Oil employee constituted an unfair and
deceptive trade practice. Even assuming that a Clinard Oil
employee told one of Oil Products' customers that Ms. Edmundson had
not requested petroleum delivery for Labor Day weekend in 2003, the
undisputed evidence reveals that Clinard Oil was not delivering
petroleum to any of Oil Products' customers that weekend pursuant
to a request from Oil Products because Oil Products failed to pay
for delivery. While a Clinard Oil employee may have misconstrued
the facts regarding Oil Products' request for delivery of petroleum
to its customers, that action does not constitute the type of
egregious conduct which amounts to an unfair and deceptive trade
Likewise, we reject Defendants' argument that Clinard Oil's
proposal in early 2003 to sell directly to Oil Products' customersis evidence of a pattern of unfair competition. Mr. Clinard
testified that in an effort to help reduce Oil Products' debt to
Clinard Oil, he offered to sell directly to Oil Products'
customers, to which it was already directly delivering petroleum,
and pay Oil Products a penny per gallon so that its debt could be
reduced. He further testified that Ms. Edmundson was not receptive
to this proposal. Ms. Edmundson corroborated Mr. Clinard's
testimony as it related to the penny per gallon offer and her
refusal of the offer.
She testified that she countered Mr.
Clinard's offer with an offer to sell Oil Products to Clinard Oil
and provided Mr. Clinard with sensitive financial information
about the company; however, Mr. Clinard declined to purchase Oil
Viewing this evidence in the light most favorable to
Defendants, we conclude this was a mere proposal to reduce Oil
Products' debt to Clinard Oil by selling directly to Oil Products'
customers, and not an unfair and deceptive trade practice. As
there is no evidence to support a claim for unfair and deceptive
we hold that the trial court did not err in
directing a verdict against Defendants on its unfair trade and
deceptive acts claim. Accordingly, Defendants' assignment of error
In its final argument on appeal, Defendants contend the trial
court improperly directed a verdict against it on its claim of
tortious interference with contract rights. Defendants' argument
is without merit. To prevail on a claim for interference with contract, a party
must prove: (1) a valid contract between the plaintiff and a third
person which confers upon the plaintiff a contractual right against
a third person; (2) the defendant knows of the contract; (3) the
defendant intentionally induces the third person not to perform the
contract; (4) and in doing so acts without justification; (5)
resulting in actual damage to plaintiff. Daimlerchrysler Corp. v.
, 148 N.C. App. 572, 584, 561 S.E.2d 276, 285 (2002)
(quoting United Laboratories, Inc. v. Kuykendall
, 322 N.C. 643,
661, 370 S.E.2d 375, 387 (1988)).
As Oil Products failed to prove that it had an enforceable
contract with any third party of which it accused Clinard Oil of
interfering, we conclude that the trial court properly granted
Clinard Oil's motion for a directed verdict on Oil Products'
tortious interference with contract claim. Indeed, Ms. Edmundson
that Oil Products did not have a supply agreement with
Jack's Grocery, Pine Ridge General Store, or Lentz General Store,
and that they were free to do business with other oil suppliers.
While Oil Products may have had an ongoing relationship with these
convenience stores, there is no evidence that Oil Products had
protected contract rights with these customers with whom Clinard
Oil allegedly interfered.
Even assuming arguendo
that Oil Products had protected
contract rights with these convenience stores, there is simply no
evidence that Clinard Oil induced the customers not to perform any
contract that it had with Oil Products. Although Ms. Edmundsontestified that Clinard Oil stole Oil Products' customers, the
owners of the convenience stores in question testified that they
terminated their relationship with Oil Products because they just
or because they let me run out of fuel.
Moreover, these store owners all testified that Clinard Oil did not
solicit their business.
Based on our review of the evidence, we
hold that the trial court correctly directed a verdict against
Defendants as it relates to their interference with a contract
claim against Clinard Oil. Accordingly, Defendants' assignment of
error is rejected.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).