Olivetti Corp. v. Ames Business Systems, Inc.

344 S.E.2d 82 (1986)

OLIVETTI CORPORATION v. AMES BUSINESS SYSTEMS, INC.

No. 8526SC1129.

Court of Appeals of North Carolina.

June 3, 1986.

*89 Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, P.A. by Hugh B. Campbell, Jr., Charlotte, for plaintiff.

Joe C. Young, Charlotte, for defendant.

WELLS, Judge.

Olivetti's Appeal

Olivetti first argues that the trial court erred in finding that it made material misrepresentations and that Ames' reliance on such misrepresentations was reasonable. It is well established that in a non-jury trial the trial court's findings of fact are conclusive if supported by competent evidence even though there is evidence to the contrary. Goldman v. Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970). The trial court found that the following conduct constituted fraud: (1) Olivetti's conduct in August *90 1979 in falsely telling Ames, when Olivetti announced the TES-701, that it had a five-year agreement with NBI for supply of the TES-701; (2) Olivetti's conduct in November 1980 when it intentionally misled Ames by falsely telling Ames that its relationship with NBI was all right, that it was negotiating with NBI for a continuation of the NBI agreement and that the NBI agreement provided for certain support for five years; and (3) Olivetti's conduct in the fall of 1981 in falsely telling Ames in connection with the sale by Olivetti to Ames of TES-701's and 351's that it was selling the 701's at a discounted price in order to lower its inventory so that it could purchase additional 701's from NBI pursuant to the NBI agreement.

The trial record shows that competent evidence was presented which supports the court's findings that the representations just described were made and that such representations were false. The findings of fact made by the court, which are extensive and supported by competent evidence in the record, clearly demonstrate the materiality of the misrepresentations made by Olivetti. Moreover, the magnitude of the damage suffered by Ames as a result of its reliance on Olivetti's misrepresentations further shows the materiality of those misrepresentations.

The court found that Ames reasonably relied on the false statements made by Olivetti in August 1979, November 1980 and the fall of 1981 regarding the status and terms of the NBI agreement and that Ames passed up an opportunity to become an NBI dealer in early 1981 in reliance upon Olivetti's misrepresentations. Competent evidence was presented which supports these findings. Olivetti argues, however, that Ames passed up the opportunity, if any, to become an NBI dealer in reliance upon the letter written by Kohart to Epley and that such reliance was unreasonable as a matter of law. We disagree. The evidence shows that Ames decided not to become an NBI dealer in early 1981 in reliance upon the prior misrepresentations made by Olivetti and that such reliance was reasonable. Since the findings in question are supported by competent evidence, they are binding upon us. See Goldman, supra.

Olivetti next argues that the court erred in its findings as to the amount of damages suffered by Ames. Of the damages awarded to Ames, Olivetti contests only that part awarded for lost profits. In determining that Ames was entitled to damages for lost profits in the amount of $401,000, the court reasoned as follows: Had it not been for Olivetti's misrepresentations, Ames would have become an NBI dealer in late 1980 or early 1981. If Ames had become an NBI dealer at that time, it is reasonable to assume that Ames' salesman, Jay Ozment, and Ames' serviceman, David Harrison, would have remained with Ames. Thus, Ames would have had the sales which Ozment produced for IPC, the NBI dealer for which Ozment went to work after leaving Ames; the service business which Ames lost to IPC; and the normal amount of service business from the additional sales. Ames' profits as an NBI dealer, based on the projections of Ames' president and owner, Wade Perry, would have been $77,000 in 1982, $121,000 in 1983 and $203,000 in 1984, for a total of $401,000 for the three-year period.

Olivetti argues that Ames is not entitled to damages for lost profits because it did not have a history of profits, that the court's finding that Ames could have become an NBI dealer has no support in the record, that the court did not use a proper measure to determine Ames' lost profits and that insufficient evidence was presented to support the award.

Olivetti's argument that Ames is precluded from recovering damages for lost profits because it did not have a history of profits is based on what is sometimes called the "new business rule." See Comment, RemediesLost Profits as Contract Damages for an Unestablished Business: The New Business Rule Becomes Outdated, 56 N.C.L. Rev. 693 (1978). Under this rule, recovery for lost profits is not allowed for injury to a new or unestablished business *91 without a history of profits because evidence of expected profits from such a business is necessarily too speculative. Id. See also 22 Am.Jur.2d, Damages § 173 (1965); Dobbs, Handbook on the Law of Remedies § 3.3 (1973). In contrast, lost profits may be recovered for injury to an "old" or established business because its profit record provides a sufficient minimum basis for calculation of the damages with the degree of certainty required. See Dobbs, supra; 22 Am.Jur.2d, Damages § 173. It has been said that the name "new business rule" is somewhat misleading because the rule applies to any business without a history of profits in the period immediately preceding the period for which lost profits are sought to be recovered. Comment, supra. Thus, this rule could possibly be applied in the present case since Ames did not have a history of profits.

The "new business rule" has been criticized and there is an increasing trend in other jurisdictions either to create exceptions and mitigating sub-doctrines to the rule or simply to recognize that its rationale is not persuasive. See Comment, supra; Dobbs, supra. As noted by one authority:

Courts are now taking the position that the distinction between established businesses and new ones is a distinction that goes to the weight of the evidence and not a rule that automatically precludes recovery of profits by a new business. What is required is reasonable evidence, and that may at times be found in some fact other than the fact of past profit rates.

Dobbs, supra. Those jurisdictions which do not follow the "new business rule" hold that it is enough to merit recovery if the existence and amount of lost profits is shown with reasonable certainty. Comment, supra. See also 22 Am.Jur.2d, Damages § 173.

It appears from our research that North Carolina has never adopted the "new business rule." On the contrary, North Carolina apparently follows the view that recovery for lost profits is allowed for injury to a business, regardless of whether the business has a history of profits, as long as the loss of profits is shown with a reasonable degree of certainty. See Rannbury-Kobee Corp. v. Machine Co., 49 N.C.App. 413, 271 S.E.2d 554 (1980); Hightower, North Carolina: Law of Damages § 2-8 (1981). We agree that this view is by far the better and more equitable one. Accordingly, we reject Olivetti's argument that Ames is precluded from recovering damages for lost profits simply because it did not have a past record of profits.

In order to recover damages for lost profits, Ames had the burden of proving with a reasonable degree of certainty that it would have realized profits had it not been for Olivetti's wrongful conduct and the amount of those profits, and that its loss was the direct and necessary result of the wrongful conduct. See Hightower, supra; 22 Am.Jur.2d Damages §§ 171, 177. As with any damages, damages for lost profits may only be recovered if sufficient evidence is presented that the trier of fact can find with reasonable certainty the fact and amount of the damages. See Hightower, supra at § 7-1; 22 Am.Jur.2d, Damages § 172. Recovery for lost profits may not be based on speculation or guesswork but it will be enough if the evidence justifies an inference that the damages awarded are just and reasonable compensation for the injury suffered. See Hightower, supra at § 7-1. As one authority noted in discussing damages generally, courts seem to have striven for a balance that permits a claimant to recover even if his proof is incomplete as long as he has proven as much as he reasonably can and has proven something relevant to computation of damages. Dobbs, supra. It must be borne in mind that lost profits are to some extent uncertain and problematical. 22 Am.Jur.2d, Damages § 172. Absolute certainty is not required but the evidence must be sufficiently specific to permit the fact finder to arrive at a reasoned conclusion. Hightower, supra. See also Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, *92 234 S.E.2d 605 (1977). Courts state that less certainty is required to prove the amount of the lost profits than is required to show the fact that the profits were lost. 22 Am.Jur.2d, Damages § 172. See also Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931).

The degree to which the evidence will succeed in establishing the reasonable certainty of lost profits depends in large part on the circumstances of the particular case. Note, The Requirement Of Certainty In The Proof Of Lost Profits, 64 Harv. L.Rev. 317 (1950). Consistent with this, it appears that the degree of acceptable uncertainty varies with the strength of the underlying substantive legal policy. Dobbs, supra; Comment, supra. See also Note, supra. "The more reprehensible a defendant's behavior, the more the law will feel justified in resolving doubts against him concerning the consequences of the behavior." Comment, supra. Thus, courts have applied a more liberal rule in cases involving wrongful conduct such as tort and antitrust cases. See, e.g., Steffan v. Meiselman, 223 N.C. 154, 25 S.E.2d 626 (1943) (Whatever may be the rule in contract actions, a more liberal rule should prevail in tort actions); Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 (1946); Story Parchment Co., supra. See generally Comment, supra. As the United States Supreme Court stated in Story Parchment Co., supra:

Where the tort itself [or the wrongful conduct] is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.

In such situations, justice and sound public policy require that the wrongdoer bear the risk of the uncertainty which his own wrong has created. Id. See also Bigelow, supra.

We now apply these principles to the present case and consider the remaining arguments made by Olivetti regarding the damages awarded to Ames for lost profits. We first conclude that there is sufficient evidence in the record to support the finding that Ames could have become an NBI dealer. Although the evidence does not conclusively show that Ames could have become an NBI dealer in early 1981, sufficient evidence was presented to permit the court to find with reasonable certainty that Ames could and would have become an NBI dealer in early 1981 had it not been for the false representations made by Olivetti.

The evidence tends to show that in early 1981, NBI was interested in establishing a dealership in the Charlotte area; that in March 1981, Audley Downs, NBI's eastern regional manager for dealer operations, met with Wade Perry and Ames' other personnel to discuss the possibility of Ames becoming an NBI dealer; that one of Mr. Downs' primary duties was to recruit new dealers for NBI; that Mr. Downs was very much impressed with the personnel at Ames and thought that Ames could be successful in selling, supporting and servicing the NBI product line and that Ames could have been a good NBI dealer; and that it would cost Ames between $26,000 and $45,000 to become an NBI dealer. Although Mr. Downs testified that to the best of his knowledge he did not make a formal offer to Ames to become an NBI dealer, the testimony of Wade Perry, Jay Ozment and David Harrison shows that Ames was told that it could become an NBI dealer if it purchased $25,000-$30,000 worth of NBI equipment. The evidence tends to show that Ames decided not to become an NBI *93 dealer based on the promises and assurances it had received from Olivetti and based on the purchase it had recently made of additional Olivetti equipment in reliance on Olivetti's misrepresentations and that if Olivetti had told Ames the truth about its relationship and agreement with NBI, Ames would not have passed up the opportunity to become an NBI dealer. In addition, sufficient evidence was presented to permit the court to find that Ames either had the financial capability in early 1981 to become an NBI dealer or that it would have had such financial capability had it not been for Olivetti's misrepresentations. We conclude that there is adequate support in the record for the finding in question.

We next consider Olivetti's argument that the trial court did not use a proper measure to determine Ames' lost profits. Olivetti contends the court used IPC's sales to measure Ames' lost profits and that such measure was error as a matter of law because a more definite measureAmes' history of profits or losseswas available and because IPC is too different from Ames to be used as a meaningful yardstick. The court, however, did not determine Ames' lost profits by using the sales record of IPC, as a comparable business, as suggested by Olivetti. The court's determination of the fact and amount of Ames' lost profits is based on the sales and service business which Ames lost to IPC because it passed up the opportunity to become an NBI dealer in reliance on Olivetti's misrepresentations. The sales and service business which the court considered is that which was produced for IPC, an NBI dealer, by Ames' former salesman, Ozment, and Ames' former serviceman, Harrison, both of whom the court found would have remained with Ames had it not been for Olivetti's wrongful conduct. The court's finding that Ozment and Harrison would have remained with Ames if Ames had become an NBI dealer in late 1980 or early 1981 is clearly supported by the evidence.

In determining Ames' lost profits, the court basically accepted the projections of Ames' president and owner, Wade Perry. Perry's projections were based on Ozment's actual sales during the period between October 1981 and March 1984, the projected gross profit margin on those sales which figure was based on the gross profit margin realized by Ames in prior years, the projected service revenue generated by Ozment's sales which projection was based on Perry's knowledge of and experience in the industry and on Ames' past record, and Ames' projected operating expenses which projection was based on Ames' operating expenses in prior years. We note that the court correctly based its award on Ames' projected net, rather than gross, profits. See 22 Am.Jur.2d, Damages § 178. The court found that Perry's projections were reasonable, particularly in view of the fact that Olivetti's wrongful conduct made more definite projections difficult to ascertain, and we agree. Perry's projections are reasonable and conservative and are adequately supported by evidence in the record.

Various means are available to claimants in attempting to prove lost profits with the requisite degree of certainty. Note, supra. See Rannbury-Kobee Corp. v. Machine Co., supra. There is no single method of determining lost profits which can be applied in all cases. 22 Am.Jur.2d, Damages § 178. Each case must be determined according to its own facts, keeping in mind the goal of the damage remedy for those facts. Id. We are unable to say that the method used by the court here to ascertain Ames' lost profits was improper given the circumstances of this case. Ozment testified that there was no substantial difference between the sales techniques he used while working for IPC and those he used while with Ames. Given this, use of the sales made by Ozment for IPC, an NBI dealer, during the relevant time period and in the same or similar geographical area in which Ames operated and the service business generated from those sales to determine the profits which Ames would have made during the same time period as an NBI dealer seems particularly reliable.

Olivetti argues, however, that even if the measure used by the court to determine *94 Ames' lost profits was proper, the only basis in the record for the court's findings as to those profits is the unsubstantiated opinion testimony of Wade Perry and that such testimony alone is inadequate to support the award. We disagree. The court's findings as to the profits lost by Ames are supported not only by Perry's testimony but also by Ozment's testimony and certain documentary evidence submitted to the court, such as Ames' tax returns. Perry's projections, in turn, are not mere guesswork, but are based on evidence in the record and therefore provide a sufficient basis for the findings and award made. See Tillis v. Cotton Mills, 251 N.C. 359, 111 S.E.2d 606 (1959).

We conclude that sufficient evidence was presented to permit the court to find with a reasonable degree of certainty that Ames lost profits for the years 1982 through 1984 in the amount of $401,000 and that such loss was the direct and necessary result of Olivetti's wrongful conduct. The evidence supports the findings and award made with respect to such profits and justifies the conclusion that the damages awarded are fair and reasonable compensation for the injury suffered. Accordingly, we find no error in the damages awarded to Ames for its loss of profits for the years 1982 through 1984.

Olivetti next contends the court erred in applying N.C.Gen.Stat. § 75-1.1 (1985) to the distributor-dealer relationship between Olivetti and Ames. Olivetti argues that G.S. § 75-1.1 applies only to transactions involving consumers, that Ames is a dealer rather than a consumer or "user" of Olivetti equipment and that therefore Ames has no standing to sue Olivetti under N.C.Gen. Stat. § 75-16 (1985). G.S. § 75-1.1 provides in relevant part as follows:

(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. (b) For purposes of this section, "commerce" includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.

G.S. § 75-16 provides:

If any person shall be injured or the business of any person, firm or corporation shall be broken up, destroyed or injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict. [Emphasis added.]

G.S. § 75-1.1(b) has been broadly applied to cover many activities. Kim v. Professional Business Brokers, 74 N.C. App. 48, 328 S.E.2d 296 (1985). This section is not broad enough, however, to encompass "all forms of business activities," but was adopted to ensure that the original intent of G.S. § 75-1.1 as set forth in G.S. § 75-1.1(b) (1977) was effectuated. Threatt v. Hiers, 76 N.C.App. 521, 333 S.E.2d 772 (1985), disc. rev. denied, 315 N.C. 397, 338 S.E.2d 887 (1986). G.S. § 75-1.1 as originally enacted contained the following declaration of legislative intent in Section (b):

The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State. [Emphasis added.]

N.C.Gen.Stat. § 75-1.1 (1975). Any party claiming to be exempt from the provisions of the statute has the burden of proof with respect to such claim. G.S. § 75-1.1(d) (1985); Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977).

We think it is clear that the activities concerned herein fall within the intended *95 scope of G.S. § 75-1.1. The actions in question undoubtedly were in commerce and Olivetti has failed to show that it is otherwise exempt from the operation of the statute's provisions. It is also clear that individual consumers are not the only ones protected and provided a remedy under G.S. §§ 75-1.1 and 75-16. This is obvious both from the language of the statutes and from the decisions of the appellate courts of this State. See, e.g., Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985); Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Oil Co. v. State, 80 N.C.App. 139, 341 S.E.2d 371 (1986); Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 340 S.E.2d 755 (1986). The case on which Olivetti primarily relies for this argument, Bunting v. Perdue, Inc., 611 F. Supp. 682 (E.D.N.C.1985), is distinguishable and unpersuasive on this issue and certainly is not controlling on this Court. We conclude that G.S. § 75-1.1 is applicable in the present case and that Ames has standing under G.S. § 75-16 to bring this action.

Olivetti argues that even if G.S. § 75-1.1 is applicable in this case, there is no basis in the record for the court's findings that Olivetti committed unfair and deceptive acts and practices. This argument is premised on Olivetti's previous argument that the court erred in finding that Olivetti made material misrepresentations. We rejected that argument and reject the present argument as well. The court found that Olivetti's conduct as particularly described in findings numbers 30, 31 and 32 constituted fraud. There is competent evidence in the record which supports these findings. "Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive acts." Winston Realty Co., supra, citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).

Olivetti further contends that G.S. § 75-1.1, as applied in this case, is unconstitutionally vague and overbroad. The constitutional doctrine that statutes may be held void for vagueness is designed to require that statutes adequately warn people of conduct required or prohibited. Ellis v. Ellis, 68 N.C.App. 634, 315 S.E.2d 526 (1984). See also United States v. Mazurie, 419 U.S. 544, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975). As our Supreme Court stated in In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971):

"A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."... Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges or juries to interpret and administer it uniformly, constitutional requirements are fully met. [Citations omitted.]

Courts should scrutinize the constitutionality of a statute only as applied in the case at hand. 16 Am.Jur.2d, Constitutional Law § 173 (1979). See also In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236 (1981); State v. Covington, 34 N.C.App. 457, 238 S.E.2d 794 (1977), disc. rev. denied, 294 N.C. 184, 241 S.E.2d 519 (1978). Clearly, the language of G.S. § 75-1.1 provides adequate notice that conduct constituting fraud is prohibited. See Hardy v. Toler, supra. Therefore, we do not agree that the statute is unconstitutional as applied in this case.

Olivetti assigns as error the trial court's refusal to award to it the full amount allegedly owed to it by Ames on accounts receivable for goods sold. Of the $148,990.68 which Olivetti sought to recover, the court awarded Olivetti $57,800.00 plus interest. The court further directed Ames to return to Olivetti the two 351's and the seven 701's which Ames purchased from Olivetti in the fall of 1981 or pay the purchase price for each piece of equipment not returned. Olivetti argues that the court erred in not awarding to it the amount owed by Ames for the two 351's and the seven 701's.

*96 The court concluded that since Ames purchased the 351's and the 701's as a result of Olivetti's fraud and unfair and deceptive acts and practices and had not yet sold the machines or paid Olivetti for them, as a matter of equity the sale of the machines should be rescinded and Ames should return the machines to Olivetti and owe nothing for them or pay the purchase price for each machine not returned. We find no error in this and therefore overrule this assignment of error.

Lastly, Olivetti argues that the court erred in not deducting the amount of its recovery from the damages awarded to Ames prior to trebling Ames' damages. We disagree. Offsetting Ames' damages by the amount of Olivetti's recovery prior to trebling the damages would amount to a triple recovery for Olivetti and would frustrate the punitive function of the treble damage provision. See Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981) (G.S. § 75-16 is partly punitive in nature). Certainly this is not what our legislature intended.

Ames' Appeal

Ames contends the trial court erred in not awarding it damages for the expenses it wasted during the period from August 1979 through December 1981 due to Olivetti's misrepresentations and for its loss of profits after 1984 resulting from Olivetti's wrongful conduct. Ames was awarded damages for its loss of profits in 1982, 1983 and 1984 and for the loss it sustained on the sale of two 701's but was not otherwise awarded any damages for the period from August 1979 through December 1981 or for any time period after 1984. We conclude that Ames failed to prove with the requisite degree of certainty that it was entitled to recover any damages other than those which it was awarded.

At trial, Ames sought to recover in full the amount of its expenses for the period from August 1979 through December 1981. It now in essence concedes that it is not entitled to the full amount it requested at trial and asks that this Court calculate its damages according to a new formula proposed by it which it maintains is a more reasonable and conservative measure of its actual damages for the period. Under this formula, Ames asks that the court determine its damages by calculating the amount of its expenses devoted to the 701 during the period in question and subtract from that amount the profit made and the service revenue obtained by it as a result of its sales of 701's during the period.

Even if we were so inclined to calculate Ames' damages for Ames and accepted the formula just stated as a proper measure of the damages in question, insufficient evidence was presented at trial to permit the calculation of the damages under this formula with the requisite degree of certainty. Ames had the burden of presenting sufficient evidence to permit the trier of fact to find with reasonable certainty the fact and amount of these damages. See Hightower, supra at § 7-1. This it failed to do. Specifically, Ames failed to present sufficient evidence to permit the court to find with reasonable certainty the portion or amount of its expenses or losses during this period which was attributable to Olivetti's wrongful conduct rather than to other factors. In addition, we note that, had Ames been awarded the damages it now seeks for its expenses incurred from August 1979 until December 1981 as well as damages for lost profits in the years 1982 through 1984, it would have received to a certain extent a double recovery.

The evidence presented in support of Ames' claim for loss of profits after 1984 was simply too speculative to permit recovery. As Ames concedes, the certainty of its profits after 1984 is less than the certainty of its profits prior to that time when Ozment's actual sales are known. The evidence presented was not sufficient to permit the court to determine with any degree of certainty the fact or amount of Ames' lost profits after 1984; thus, Ames' claim for such damages was properly denied.

Ames next argues that the trial court erred in refusing to assess punitive damages against Olivetti in an amount greater than and in lieu of the treble damages *97 awarded Ames. Both the awarding of punitive damages and the amount to be allowed, if any, rest in the sound discretion of the trier of fact. Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). Given the substantial amount of the treble damages, we find no abuse of the court's discretion in refusing to award punitive damages in an even greater amount. It is clear that the court believed that the amount awarded was sufficient to compensate Ames for the injury suffered by it and to penalize Olivetti for its wrongful conduct. We are inclined to agree.

Lastly, Ames argues that the court abused its discretion in refusing to award reasonable attorney's fees to Ames pursuant to N.C.Gen.Stat. § 75-16.1 (1985). G.S. § 75-16.1 authorizes the presiding judge to allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party upon the finding of certain facts. Award or denial of such fees, even where supporting facts exist, is within the discretion of the trial judge. Concrete Service Corp. v. Investors Group, Inc., supra. We perceive no abuse of that discretion here.

The judgment entered by the trial court is hereby affirmed.

Affirmed.

HEDRICK, C.J., and MARTIN, J., concur.