N.C. Gen. Stat. § 75-16.1

Section 75-16.1 permits an award of reasonable attorney fees when the defendant willfully violated G.S. 75-1.1 and unwarrantedly refused to fully resolve the matter, even if the trial court's findings do not track the statutory language exactly.

Wilder v. Squires · filed 1984-05-15(1)

The findings by the trial court, although they do not specifically track the language of the statute, are sufficient to support the trial court’s award of attorneys’ fees to Wilder.

Section 75-16.1 permits the presiding judge to award a reasonable attorney fee to the prevailing party upon specified factual findings, but the award remains discretionary even when those facts exist.

Olivetti Corp. v. Ames Business Systems, Inc. · filed 1986-06-03

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.

Section 75-16.1 permits a prevailing party to recover attorney’s fees when the defendant willfully engaged in an unfair or deceptive practice, unwarrantedly refused to settle, and the requested fees are reasonable; the statute’s purpose is to facilitate private enforcement of Chapter 75.

Britt v. Jones · filed 1996-07-02

That statute entitles a prevailing party to attorney’s fees upon specific findings that the defendant willfully engaged in the unfair or deceptive practice, that there was an unwarranted refusal to settle, and that the amount of the attorney’s fees was reasonable. ... Here, the court made adequate findings to support its conclusions that defendant willfully charged usurious rates of interest and that defendant’s pre-trial rejection of plaintiff’s offer to settle for $3,400 and reasonable attorney’s fees constituted an unwarranted refusal to settle. ... Finally, we note that the statutory policy underlying the award of attorney’s fees pursuant to N.C. Gen. Stat. § 75-16.1 is to facilitate private enforcement of Chapter 75. ... This policy justifies shifting plaintiff’s attorney’s fees to defendant regardless of how they may ultimately be distributed. We conclude the trial court did not err in awarding plaintiff the entire amount of her requested attorney’s fees.

Section 75-16.1 permits a judge to award a reasonable attorney fee to the prevailing party only after the required statutory findings, including willfulness, refusal to resolve the matter, and reasonableness of the fees.

Occiden v. Sanders · filed 1996-07-08

Under N.C. Gen. Stat. § 75-16.1, the judge has discretion to allow a reasonable attorney fee to the prevailing party on a finding by the judge that (1) the losing party has wilfully engaged in the practice and there was an unwarranted refusal to resolve the underlying problem; or (2) the plaintiff in the action knew or should have known it was frivolous and malicious. ... Under the statute, the court must make a specific finding that the actions in question were willful, the defendant refused to resolve the matter fully, and the attorneys' fees are reasonable. ... The district court did not make the requisite finding. ... On remand, the district court should consider whether such a finding is possible in this case.

Section 75-16.1 permits attorney’s fees only upon the required finding of a willful violation and an unwarranted refusal to fully resolve the matter, and leaves the award or denial of fees to the trial court’s sound discretion.

Southern Building Maintenance, Inc. v. Osborne · filed 1997-09-02(1)

An award or denial of attorney’s fees under this section, even where supporting facts exist, is within the sound discretion of the trial court. ... The record is devoid of any evidence that the trial court labored under any misapprehension that it did not have authority to award plaintiff attorney’s fees as plaintiff contends. Indeed, the trial court, upon examining all of the evidence before it, decided that there was no evidence that defendant wilfully refused to fully resolve this matter; and as such, plaintiff was not entitled to attorney’s fees. As there was adequate evidence to support the trial court’s finding, that finding is binding upon this Court on appeal. Finding no abuse of discretion, the trial court’s 25 June 1996 order denying plaintiff attorney’s fees is affirmed.

Section 75-16.1 permits a prevailing party to receive reasonable attorney fees in the judge’s discretion when the defendant willfully violated Chapter 75 and unwarrantedly refused to resolve the matter fully.

Leftwich v. Gaines · filed 1999-08-17

“[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit,” the “presiding judge may, in his discretion, allow a reasonable attorney fee” to the prevailing party. ... We hold that the trial court’s findings as to Wray are adequately supported in the record and establish that the trial court did not abuse its discretion in awarding attorney fees against her. However, the findings are inadequate to support the court’s conclusion that Gaines made an unwarranted refusal to resolve the matter fully. We therefore remand for further findings of fact as to the propriety of attorney fees to be paid by Gaines.

Section 75-16.1(1) permits a discretionary reasonable attorney-fee award to a prevailing plaintiff alleging a Chapter 75 violation when the defendant willfully engaged in a deceptive act or practice and unwarrantedly refused to fully resolve the matter; willfulness is not required to prove the underlying Chapter 75 violation.

US f/u/b S&D Land v. D'Elegance Mgmt Ltd · filed 2000-07-13(1)

The trial court may, in its discretion, award a reasonable attorneys' fee to a plaintiff alleging a Chapter 75 violation if (1) the plaintiff is the prevailing party; (2) the defendant willfully engaged in a deceptive act or practice; and (3) the defendant unwarrantedly refused to fully resolve the matter. ... The inclusion of the willfulness requirement in § 75-16.1(1) indicates only that proof of willfulness is not required to prove a Chapter 75 violation.

Section 75-16.1(1) permits a trial judge to award a reasonable attorney fee in the judge’s discretion when the violator acted willfully and unwarrantedly refused to fully resolve the matter, but the court must make specific findings supporting the award’s prerequisites and reasonableness.

Printing Services of Greensboro, Inc. v. American Capital Group, Inc. · filed 2006-11-07(1)

Under section 75-16.1, the presiding trial judge has the discretion to allow a reasonable attorney fee upon finding that the party charged with violating the unfair trade practices statutes acted willfully and unwarrantedly refused to fully resolve the matter. N.C. Gen.Stat. § 75-16.1(1) (2003). ... The decision whether or not to award attorney fees under section 75-16.1 rests within the sole discretion of the trial judge. And if fees are awarded, the amount also rests within the discretion of the trial court and we review such awards for abuse of discretion. However, when awarding fees pursuant to N.C. Gen.Stat. § 75-16.1, the court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that it refused to resolve the matter fully, and that the attorney fee was reasonable.

Section 75-16.1 permits a court to award reasonable attorney fees in a UDTPA action when the violation was willful, the defendant unwarrantedly refused to resolve the matter, and the requested fees are reasonable.

ABT Building Products Corp. v. National Union Fire Insurance · filed 2006-12-19

Under North Carolina law, a court is entitled to award attorneys’ fees against the losing party in a suit alleging a violation of the UDTPA. See N.C. Gen. Stat. § 75-16.1. A court can do so upon finding willfulness on the part of the party committing the violation, plus an unwarranted refusal to resolve the matter which forms the basis of the suit. See id. Thus, in order to award attorneys’ fees to ABT, the district court was obliged to find the following: (1) that National Union had violated the UDTPA; (2) that it did so willfully, and engaged in an unwarranted refusal to fully resolve the matter forming the basis of the suit; and (3) that the attorneys’ fees being sought were reasonable. See id.

Section 75-16.1 permits attorney-fee awards in Chapter 75 actions when the court finds willfulness, an unwarranted refusal to fully resolve the matter, and reasonableness of the fee, subject to abuse-of-discretion review.

Shepard v. Bonita Vista Properties, LP · filed 2008-08-05(1)

"The award or denial of attorney's fees under section 75-16.1 is within the sole discretion of the trial court, Borders v. Newton, 68 N.C.App. 768, 315 S.E.2d 731 (1984), and a trial court may be reversed for abusing its discretion "only upon a showing that its actions are manifestly unsupported by reason." ... "The court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that he refused to resolve the matter fully, and that the attorney's fee was reasonable." ... "Appropriate findings include findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney." ... Thus, the trial court did not abuse its discretion in awarding attorney's fees. However, we are unable to determine from the trial court's findings whether the amount of the award of attorney's fees was reasonable. ... These findings do not fully address the skill required to perform the legal services that were rendered or the experience and ability of Plaintiffs' trial counsel. The trial court's decision to award attorney's fees is affirmed, but this case is remanded for additional findings of fact concerning the reasonableness of the amount of the fee.

Section 75-16.1 permits the trial court, in its discretion, to award attorney's fees in a suit alleging a violation of § 75-1.1.

Jones v. Harrelson and Smith Contractors, LLC · filed 2008-12-16

Upon remand, the trial court must also consider whether to exercise its discretion to award attorney's fees under N.C. Gen.Stat. § 75-16.1.

Section 75-16.1 makes an award of reasonable attorney fees to the prevailing party discretionary with the presiding judge.

MRD Motorsports, Inc. v. Trail Motorsports, LLC · filed 2010-06-15

The decision to award attorneys’ fees to the plaintiff under N.C.G.S. § 75-16.1 is discretionary. N.C. Gen. Stat. § 75-16.1 (2009) (stating that “the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party”). Accordingly, “[u]pon remand, the trial court must also consider whether to exercise its discretion to award attorney’s fees under N.C.[G.S.] § 75-16.1.”

To award attorney fees under § 75-16.1, the court must specifically find that the Chapter 75 violation was willful, the opposing party refused to fully resolve the matter, and the fee was reasonable.

Blankenship v. Town and Country Ford, Inc. · filed 2005-12-06

However, when awarding fees pursuant to N.C. Gen. Stat. § 75-16.1, the court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that it refused to resolve the matter fully, and that the attorney fee was reasonable.

Section 75-16.1 permits a trial judge to award a reasonable attorney fee to the prevailing party when the violation was willful and the refusal to resolve the matter was unwarranted.

Garlock v. Henson · filed 1993-10-05

N.C. Gen. Stat. § 75-16.1 provides that the trial judge may allow a reasonable attorney fee to the prevailing party if the judge finds that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” The trial court did find that defendant willfully committed the acts charged and that there was an unwarranted refusal to settle. These findings are sufficient to support the award under G.S. § 75-16.1. Contrary to defendant’s argument, there is ample evidence to support the finding that defendant’s failure to pay the claim was unwarranted. We therefore affirm the award of attorney fees.

Section 75-16.1 provides statutory authority for attorney-fee awards in unfair and deceptive practices claims, and the award or denial is within the trial judge’s sole discretion.

Lake Mary Ltd. Partnership v. Johnston · filed 2001-08-21

Nevertheless, § 75-16.1 provides statutory authority for attorney fees under an unfair and deceptive practices claim. However, “[a]ward or denial of attorney fees under [§] 75-16.1 is a matter within the sole discretion of the trial judge.”

Section 75-16.1 authorizes an award of attorneys’ fees for a plaintiff’s unfair or deceptive trade practices claim.

Linsenmayer v. Omni Homes, Inc. · filed 2008-11-18

In addition, attorneys’ fees are allowed by statute where a plaintiff alleges unfair and deceptive trade practices, as plaintiffs did in this case.

Section 75-16.1 permits discretionary attorney-fee awards only when the plaintiff is the prevailing party and proves a willful violation plus an unwarranted refusal to fully resolve the matter; an accepted offer of judgment does not establish a prevailing party or an actual violation.

Evans v. Full Circle Productions, Inc. · filed 1994-05-17(1)

To award attorney’s fees under the statute, the trial court must find: (1) plaintiff is the prevailing party; (2) defendant willfully engaged in the act at issue; and (3) defendant made an unwarranted refusal to fully resolve the matter. Even if the requirements are met, an award of attorney’s fees under N.C. Gen. Stat. § 75-16.1 is in the trial court’s discretion. ... To be a “prevailing party” within the meaning of N.C. Gen. Stat. § 75-16.1, the plaintiff must prove both an actual violation of N.C. Gen. Stat. § 75-1.1 and actual injury to plaintiff as a result of the violation. ... Where an offer of judgment is accepted by the plaintiff, there is not a “prevailing party” or a “losing party.” ... Furthermore, when a case is settled, there is no admission or judgment of liability by defendant; we cannot say that an actual violation under N.C. Gen. Stat. § 75-1.1 has occurred.

Section 75-16.1 permits attorney’s fees only when the defendant is the prevailing party and proves that the plaintiff knew or should have known the action was frivolous and malicious; the trial court must make supporting findings of fact.

Lincoln v. Bueche · filed 2004-09-07(2)

Thus, in order to prevail on a motion for attorneys’ fees under N.C. Gen. Stat. § 75-16.1, the defendant must (1) be the “prevailing party” and (2) prove that the plaintiff “knew, or should have known, the (N.C. Gen. Stat. § 75-1.1) action was frivolous and malicious.” ... “In awarding attorneys fees under G.S. 75-16.1, the trial court must make findings of fact to support the award.” ... The trial court failed to make any conclusion of law that plaintiffs knew or should have known that the action was frivolous and malicious, and also failed to make any findings of fact that would support such a conclusion under N.C. Gen. Stat. § 75-16.1. Upon our review of the record, we cannot say that plaintiffs knew, or should have known, that the action was frivolous and malicious, and find that the trial court abused its discretion in awarding attorney’s fees under N.C. Gen. Stat. § 75-16.1.

For a fee award under the statute's defendant-conduct provision, the trial court must find that the plaintiff prevailed, the defendant willfully engaged in the challenged act, and the defendant unwarrantedly refused to fully resolve the matter; the award remains discretionary.

Envirosafe Paints, Inc. v. Conklin · filed 2005-08-16(1)

To award attorney's fees under the statute, the trial court must find: (1) plaintiff is the prevailing party ; (2) defendant willfully engaged in the act at issue; and (3) defendant made an unwarranted refusal to fully resolve the matter. Even if the requirements are met, an award of attorney's fees under N.C. Gen. Stat. § 75-16.1 is in the trial court's discretion.

When the plaintiff brought the Chapter 75 action and the defendant prevailed, subsection (2) governs fee eligibility and requires a finding that the plaintiff knew or should have known the action was frivolous and malicious; the subsection (1) unwarranted-refusal-to-settle standard does not apply.

Birmingham v. H&H Home Consultants & Designs, Inc. · filed 2008-04-01(2)

In the instant case, the Barnes defendants’ motion for partial summary judgment was granted, and they are the “prevailing party” under N.C. Gen. Stat. § 75-16.1. Since the plaintiff instituted the action against the Barnes defendants, N.C. Gen. Stat. § 75-16.1(2) is applicable to the motion for attorney’s fees. However, the trial court’s order finds “an unwarranted refusal” to fully resolve the case, a standard which applies only to cases falling under N.C. Gen. Stat. § 75-16.1(1). Therefore, the trial court erred in using the incorrect standard in its order awarding attorney’s fees to the Barnes defendants. ... The standard for awarding attorney’s fees under N.C. Gen. Stat. § 75-16.1(2) is that the plaintiff “knew, or should have known, the action was frivolous and malicious.”

Section 75-16.1(1) permits a discretionary award of reasonable attorney fees to the prevailing party when the violation was willful and the violator unwarrantably refused to fully resolve the matter.

Edwards v. West · filed 1998-02-17(1)

Pursuant to N.C. Gen. Stat. § 75-16.1(1), the judge may, in his discretion, allow reasonable attorneys fees to the prevailing party upon a finding that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit....” ... Further, the trial court made conclusions of law that defendants willfully committed the acts charged and that there was an unwarranted refusal to settle. Thus, these findings are sufficient to support the award under N.C. Gen. Stat. § 75-16.1.

Section 75-16.1(1) gives the trial court discretion to award attorney’s fees in a § 75-1.1 action when the violator acted willfully and there was an unwarranted refusal to fully resolve the matter.

Country Club of Johnston County, Inc. v. United States Fidelity & Guaranty Co. · filed 2002-05-21(1)

Under N.C. Gen. Stat. § 75-16.1, a trial court has discretion in actions based upon a violation of N.C. Gen. Stat. § 75-1.1 to award attorney’s fees where the trial court determines that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1(1) permits attorney fees for unfair practices when the defendant has unwarrantedly refused to fully resolve the matter underlying the suit, and that remedy may coexist with punitive damages.

Brown v. King · filed 2004-09-07(1)

To recover attorneys fees for unfair practices, however, the plaintiff must also show that “there was an unwarranted refusal by [the defendant] to fully resolve the matter which constitutes the basis of . . . the suit.” N.C.G.S. § 75-16.1(1). Since recovery of attorneys fees requires proof different from that which gives rise to punitive damages, the claims do not arise from the same course of conduct. ... Here, plaintiff was properly awarded both attorney fees and punitive damages based on the necessary findings by the court and jury.

Section 75-16.1(2) permits a discretionary attorney-fee award when the plaintiff knew or should have known the action was frivolous and malicious, and the award is upheld absent an abuse of discretion.

Castle McCulloch, Inc. v. Freedman · filed 2005-04-05(2)

Section 75-16.1 of the North Carolina General Statutes provides that [i]n any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee ... to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that: ... (2) The party instituting the action knew, or should have known, the action was frivolous and malicious. N.C. Gen.Stat. § 75-16.1 (2004). The award of attorneys' fees under section 75-16.1 of the North Carolina General Statutes is within the sound discretion of the trial judge. Borders v. Newton, 68 N.C.App. 768, 770, 315 S.E.2d 731, 732 (1984). A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. Smith v. Beaufort County Hosp. Ass'n, Inc., 141 N.C.App. 203, 210, 540 S.E.2d 775, 780 (2000). ... Moreover, the trial court made a finding of fact that the action was frivolous and malicious and supported its finding. Although, the dissent does not agree that this is competent evidence to support the trial court's finding of frivolous and malicious, we conclude that the trial court's decision was not manifestly unsupported by reason. Smith, 141 N.C.App. at 210, 540 S.E.2d at 780.

Under subsection (2), a court may award attorney’s fees against a party asserting a UDTP claim only after making findings sufficient to show that the party knew or should have known the action was frivolous and malicious.

ELDER BROACH PROPERTIES, INC. v. McNeel · filed 2008-12-16(2)

Before the trial court may award attorneys' fees against a party asserting a UDTP claim, it must make findings of fact sufficient to support the conclusion that the party "knew, or should have known, the action was frivolous and malicious." N.C. Gen. Stat. § 75-16.1(2). ... Although the District Court discredited the McNeels' allegations and trial testimony, it was still required to make findings of fact sufficient to support the conclusion that Ms. McNeel "knew or should have known" that her UDTP claim was frivolous and malicious.

An award of attorneys’ fees under § 75-16.1 requires the trial court to make findings of fact supporting the award.

Blyth v. McCrary · filed 2007-07-17

“In awarding attorneys’ fees under G.S. 75-16.1, the trial court must make findings of fact to support the award.”

Section 75-16.1 makes an award of attorneys’ fees discretionary with the trial judge and subject to reversal only for abuse of discretion.

Media Network, Inc. v. Long Haymes Carr, Inc. · filed 2009-06-16

An award of attorneys’ fees pursuant to N.C. Gen. Stat. § 75-16.1 is “within the sound discretion of the trial judge [and] . . . may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.” ... We agree with the trial court’s assessment and find no abuse of discretion.

Section 75-16.1 permits a trial court to award attorneys’ fees when a defendant willfully engages in unfair and deceptive trade practices under § 75-1.1 and unwarrantedly refuses to resolve the matter.

Godfrey v. Res-Care, Inc. · filed 2004-07-06

N.C. Gen. Stat. § 75-16.1 provides that the trial court may award attorneys’ fees upon finding that defendant has “willfully engaged” in unfair and deceptive trade practices in violation of N.C. Gen. Stat. § 75-1.1 and has unwarrantedly refused to resolve the matter.

Section 75-16.1 permits a prevailing plaintiff to recover attorneys’ fees when the defendant willfully engaged in an unfair or deceptive trade practice and made an unwarranted refusal to settle.

Irwin Industrial Tool Co. v. Worthington Cylinders Wisconsin, LLC · filed 2010-10-01

Under Chapter 75, a prevailing plaintiff may recover attorneys’ fees where (1) the defendant willfully engaged in the unfair or deceptive trade practice and (2) the defendant made an unwarranted refusal to settle the matter.

Section 75-16.1 permits a trial court, in its discretion, to award reasonable attorney fees to a prevailing party in a Chapter 75 case when either statutory condition is found, and the award is reviewed for abuse of discretion.

Lupo v. SHARE OF NORTH CAROLINA, INC. · filed 2009-08-18(1), (2)

In turn, N.C. Gen. Stat. § 75-16.1 provides for attorneys' fees in Chapter 75 cases: In any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that: (1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit; or (2) The party instituting the action knew, or should have known, the action was frivolous and malicious. ... An award of attorneys' fees pursuant to N.C. Gen. Stat. § 44A-35 or N.C. Gen. Stat. § 75-16.1 is reviewed for an abuse of discretion. ... Connections Electric and Winchester have not pointed to any evidence that would warrant reversal of the 15 April 2008 order initially awarding attorneys' fees, and, therefore, we affirm that order.

Section 75-16.1 makes attorney’s fees in an unfair and deceptive trade practices claim discretionary with the trial court.

Bumpers v. COMMUNITY BANK OF N. VIRGINIA · filed 2009-05-05

N.C. Gen. Stat. § 75-16.1 provides that attorney’s fees in an unfair and deceptive trade practices claim are in the discretion of the trial court.

Section 75-16.1 lets the presiding judge, in the judge’s discretion, award reasonable attorney fees when the party bringing a § 75-1.1 action knew or should have known that the action was frivolous and malicious.

Kingsdown, Inc. v. Hinshaw · filed 2015-03-25(1)

Pursuant to N.C. Gen. Stat. § 75-16.1, the “presiding judge may, in his discretion” award a reasonable attorney fee if “[t]he party instituting the [N.C. Gen. Stat. 75-1.1] action knew, or should have known, the action was frivolous and malicious.” ... Although in this case Defendant Ray’s assertion of a claim under N.C. Gen. Stat. § 75-1.1 borders on the frivolous, the Court, in its discretion, does not find that Defendant Ray’s claim was malicious, and thus, an award of attorneys’ fees against Defendant Ray is not warranted under these specific circumstances.

Section 75-16.1(1) allows a prevailing plaintiff to recover attorney fees only when the defendant willfully engaged in the act or practice or unjustifiably refused to fully resolve the matter, and attorney fees cannot be recovered as the principal damages when the statute already provides that fee mechanism.

Davis v. State Farm Life Insurance · filed 2016-02-18(1)

The UDPA already provides a provision allowing the recovery of attorney fees, N.C. Gen. Stat. § 75-16.1. That statute allows a prevailing plaintiff to recover attorney fees only where the defendant “has willfully engaged in the act or practice” or “there was an unwarranted refusal ... to fully resolve the matter.” § 75-16.1(1). Because the statute already provides a mechanism whereby a prevailing plaintiff can recover attorney fees, plaintiff cannot recover attorney fees as her principal damages.

Section 75-16.1(1) permits discretionary Chapter 75 attorney’s fees only after specific findings, including willfulness, refusal to fully resolve the matter, and reasonableness of the fee.

DENC, LLC v. PHILADELPHIA INDEMNITY INSURANCE COMPANY · filed 2019-12-05(1)

Before a court can exercise its discretion to award attorney’s fees, it must make “specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that he refused to resolve the matter fully, and that the attorney’s fee was reasonable.” Shepard v. Bonita Vista Props., L.P., 191 N.C. App. 614, 625–26, 664 S.E.2d 388, 396 (2008), aff’d, 363 N.C. 252, 675 S.E.2d 332 (2009); N.C. Gen. Stat. § 75-16.1(1) (requiring a finding of “unwarranted refusal . . . to fully resolve the matter”). DENC does not discuss these legal standards, either generally or in the context of a dispute over insurance coverage, nor does it apply the law to the facts. The record is silent as to any settlement offers Philadelphia may have made along the way, and the Court has limited information about the amount of the covered loss, which will be resolved at trial.

Section 75-16.1(1) gives the court discretion to award attorney's fees when the violator acted willfully and then unwarrantedly refused to fully resolve the matter underlying the suit.

O'Shields v. Columbia Automotive, LLC · filed 2021-08-04(1)

Under the NCUTPA, the circuit court has the discretion to award attorney's fees if it determines "[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit." N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1(1) authorizes a court or arbitrator to award a reasonable attorney fee when the defendant willfully engaged in an unfair or deceptive act and unwarrantably refused to fully resolve the matter underlying the suit.

GOINES v. TITLEMAX OF VIRGINIA, INC · filed 2023-05-09(1)

N.C. Gen. Stat. § 75-16.1(1) authorizes a court (or an arbitrator) to “allow a reasonable attorney fee . . . upon a finding [that] the [defendant] . . . willfully engaged in the [unfair and deceptive] act . . . and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of [the] suit.”

Section 75-16.1(2) permits attorney-fee awards for defending a UDTP claim only when the party instituting the action knew or should have known that the action was frivolous and malicious.

SCI N.C. FUNERAL SERVS., LLC v. McEWEN ELLINGTON FUNERAL SERV., INC. · filed 2013-03-01(2)

Under N.C. Gen. Stat. § 75-16.1, the Court may award attorneys’ fees in defending a claim for unfair and deceptive trade practices (“UDTP”) under N.C. Gen. Stat. § 75-1.1 only upon its finding that “[t]he party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1(2). ... “A claim is frivolous if a proponent can present no rational argument based upon the evidence or law in support of [it]. A claim is malicious if it is wrongful and done intentionally without just cause or excuse or as a result of ill will.” ... First, the Court cannot conclude that Plaintiffs could not present a rational argument in support of their claims for misappropriation of trade secrets, breach of contract, and tortious interference with contract. ... Thus, the Court does not find the claims to be frivolous. ... Moreover, the Court has not been presented with any evidence that suggests that any of these claims were malicious. As a result, the Court denies Defendants’ Motions for Attorneys’ Fees under N.C. Gen. Stat. § 75-16.1.

Section 75-16.1 permits a court, in its discretion, to award reasonable attorney’s fees to the prevailing party for work at both the trial and appellate levels when the plaintiff knew or should have known the action was frivolous and malicious.

McKINNON v. CV INDUS., INC. · filed 2013-11-26

More specifically, in order to award fees under Section 75-16.1, this court “must make findings that (1) the plaintiff ‘knew, or should have known, the action was frivolous and malicious’; and (2) the attorney’s fee awarded is reasonable.” Id. ... The court has discretion to award attorney’s fees to the prevailing party pursuant to N.C. Gen. Stat. § 75-16.1, which fees may include efforts both at the trial level and at the appellate level.

Section 75-16.1(2) permits a prevailing party to recover reasonable attorney fees and litigation costs when the losing party knew or should have known, when instituting the action, that it was frivolous and malicious.

Red Fox Future, LLC v. Holbrooks · filed 2014-09-09(2)

The Court may award “a reasonable attorney fee” and litigation costs to a prevailing party in an action under N.C. Gen. Stat. § 75-16.1, where the losing party, in “instituting the action knew, or should have known, the action was frivolous and malicious.” ... “A claim is frivolous [under N.C. Gen. Stat. § 75-16.1] if a proponent can present no rational argument based upon the evidence or law in support of [it]. A claim is malicious [under N.C. Gen. Stat. § 75-16.1] if it is wrongful and done intentionally without just cause or excuse or as a result of ill will.” ... The Court is persuaded that the record evidence, as revealed through discovery, demonstrates that Plaintiffs’ claims were not “frivolous” as contemplated under N.C. Gen. Stat. § 75-16.1. ... Accordingly, the Holbrooks Defendants’ request for attorneys’ fees and costs under N.C. Gen. Stat. § 75-16.1 is denied.

Section 75-16.1 permits a discretionary attorney-fee award to the prevailing party in a UDTP action when the plaintiff knew or should have known the claim was frivolous and malicious, and the requested fee is reasonable.

Se. Air Charter, Inc. v. Stroud · filed 2015-06-30

In any lawsuit where a UDTP violation is alleged, the presiding judge may, in his discretion, “allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party.” N.C. Gen. Stat. § 75-16.1 (2014). For a defendant to recover attorney’s fees under section 75-16.1, he must establish that “he is the prevailing party, that [the p]laintiff knew, or should have known the claim was frivolous and malicious, and that the requested fee is reasonable.” Basnight v. Diamond Devs., Inc, 178 F. Supp. 2d 589, 592 (M.D.N.C. 2001) (citing N.C. Gen. Stat. § 75-16.1). Such an award is within “the sound discretion of the trial judge.” Media Network, Inc. v. Long Haymes Carr, Inc., 197 N.C. App. 433, 460, 678 S.E.2d 671, 688 (2009) (quoting Castle v. McCullogh, Inc. v. Freedman, 169 N.C. App. 497, 504, 610 S.E.2d 416, 421–22 (2005)). ... On reviewing the record, the Court finds no basis for determining that Plaintiff’s UDTP claim against Robinson and Viall was either malicious or frivolous. Claims are not “frivolous” simply because they are weak. Cincinnati Ins. Co. v. Dynamic Dev. Grp., LLC, 336 F. Supp. 2d 552, 566–67 (M.D.N.C. 2004). The Court does not find Plaintiff’s UDTP claim so frivolous as to justify the imposition of fees.

Section 75-16.1(2) permits attorney’s fees to a prevailing party only when the § 75-1.1 action was known or should have been known to be frivolous and malicious, while subsection (1) does not apply when the fee-seeking defendants are the parties charged with the violation.

McKEE v. JAMES · filed 2015-08-06(2); (1)

Defendants also contend that they are entitled to attorney’s fees under N.C. Gen. Stat. § 75-16.1, which authorizes the Court to “allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party,” upon a finding that “[t]he party instituting the action [under G.S. 75-1.1] knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1(2) (2014). ... Based on a review of the complete record, Defendants have not offered evidence to establish, and the Court cannot conclude, that Plaintiffs’ § 75-1.1 claim was “wrongful and done intentionally without just cause or excuse or as a result of ill will” or that Plaintiffs were unable to present a “rational argument based upon the evidence or law” in support of their claim. ... As a result, the Court cannot conclude that Plaintiffs “knew, or should have known, the action was frivolous and malicious,” as required for an award of attorneys’ fees under N.C. Gen. Stat. § 75-16.1(2). ... Accordingly, the Court concludes that Defendants are not entitled to attorney’s fees under N.C. Gen. Stat. § 75-16.1. ... § 75-16.1(1), however, provides that when “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit,” an award of attorney’s fees may be warranted. ... Here, Defendants are “the party charged with the violation” of § 75-1.1, not Plaintiffs. Therefore, Plaintiffs’ alleged failure to negotiate a settlement in good faith does not permit an award of attorney’s fees under § 75-16.1(1).

Section 75-16.1 permits, in the court’s discretion, a reasonable attorney-fee award in a § 75-1.1 suit when the party bringing the action knew or should have known that the action was frivolous and malicious.

Phillips & Jordan, Inc. v. Bostic; Yates Constr. Co. v. Bostic Am. Mech., Inc. v. Bostic · filed 2016-12-09

Upon a finding that “[t]he party instituting the action knew, or should have known, the action was frivolous and malicious[,]” the court may “in [its] discretion, allow a reasonable attorney fee” in a suit alleging that defendant violated N.C. Gen. Stat. § 75-1.1. N.C. Gen. Stat. § 75-16.1. “A claim is frivolous if a proponent can present no rational argument based upon the evidence or law in support of [the claim]. A claim is malicious if it is wrongful and done intentionally without just cause or excuse or as a result of ill will.” ... Nevertheless, because Phillips and Jordan filed its Original Action on January 18, 2008—within four years of December 6, 2005—and this action was filed within one year of the voluntary dismissal pursuant to North Carolina Rule of Civil Procedure 41(a)(1)(i), the Court concludes that Phillips and Jordan had a reasonable, good faith belief that its Chapter 75 claim was timely. Consequently, the Court cannot conclude that Phillips and Jordan knew or should have known that the UDTP claim was frivolous and malicious. As a result, the Court concludes, in the exercise of its discretion, that Bostic’s motion for attorneys’ fees under N.C. Gen. Stat. §75-16.1 should be denied.

Section 75-16.1 gives the court discretion to award attorney’s fees to the prevailing party in an unfair and deceptive trade practices action.

Laschkewitsch v. Legal & General America, Inc. · filed 2017-03-23

Under N.C. Gen. Stat. § 75-16.1, the court has discretion to award attorney’s fees to the prevailing party in a suit alleging unfair and deceptive trade practices.

Section 75-16.1(2) permits, in the trial court’s discretion, a reasonable attorney fee for the prevailing party when the plaintiff knew or should have known the UDTP action was frivolous and malicious; an award requires findings that the action was frivolous and malicious and that the fee is reasonable, and a voluntary dismissal without prejudice can make the defendant the prevailing party.

Sloan v. Inolife Techs., Inc. · filed 2017-05-22(2)

Section 75-16.1 provides that: ... The decision of whether or not to award attorneys’ fees under section 75-16.1 is within the trial court’s sole discretion. ... When the trial court awards fees under section 75-16.1, however, it must make specific findings of fact “that (1) the plaintiff knew, or should have known, the action was frivolous and malicious; and (2) the attorney’s fee awarded is reasonable.” ... The Court concludes that the interpretation of “prevailing party” under section 75-16.1 should be, and is the same as, that under section 6-21.5. Therefore, Plaintiffs’ voluntary dismissal without prejudice of their UDTP claim on April 17, 2017 means that Defendants are the “prevailing part[ies]” for purposes of section 75-16.1.

Section 75-16.1(2) permits, but does not require, a court to award attorney’s fees to a prevailing party when the action was instituted frivolously and maliciously; the fee decision is discretionary.

Hopkins v. Mwr Mgmt. Co. · filed 2017-05-31(2)

The Unfair or Deceptive Trade Practices Act similarly allows the Court to, in its discretion, award attorney’s fees to the prevailing party upon the Court’s finding that “the party instituting the action knew or should have known, the action was frivolous and malicious.” ... The Court cannot make such findings as a matter of law at this stage in light of the large number of factual issues to be determined at trial. ... Thus, Plaintiff’s Motion seeking an award of attorney’s fees under N.C. Gen. Stat. § 66-154(d) or § 75-16.1 at this stage of the litigation is denied.

Section 75-16.1(2) permits, but does not require, a court to award reasonable attorney fees to a prevailing UDTPA defendant when the action's institutor knew or should have known that the action was frivolous and malicious.

Hatteras/Cabo Yachts, LLC v. M/Y Epic (official Number 747618, HIN: US-HATHR3021617), her engines, boilers, tackle, appa · filed 2021-12-09(2)

Pursuant to N.C. Gen. Stat. § 75-16.1, if the defendant of a UDTPA claim prevails, “the presiding judge may, in his discretion, allow a reasonable attorney fee” to the attorney representing the prevailing party upon a finding that “[t]he party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1(2). ... Here, although ultimately deemed legally insufficient, counterclaim plaintiffs’ UDTPA claims survived—at least in part—a motion to dismiss and one for summary judgment. ... On the evidence presented, the court cannot conclude that counterclaim plaintiffs knew or should have known the UDTPA claims were frivolous and malicious. As such, counterclaim defendants’ motion for attorneys’ fees, (DE # 253), will be denied.

Section 75-16.1 permits a court to award a reasonable attorney fee to the prevailing party when the instituting party knew or should have known the action was frivolous and malicious, but an award should not rest merely on filing a frivolous suit and is inappropriate where dismissal occurs at an early stage rather than after prolonged maintenance.

Southeastern Public Safety Group Inc. v. Munn · filed 2022-01-03

Similarly, N.C. Gen. Stat. § 75-16.1 allows a court to award “a reasonable attorney fee” to the “the prevailing party” upon concluding that “[t]he party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-15.1(2). ... Although Plaintiff’s civil conspiracy and UDTPA claims against CSP border on frivolous and unreasonable, the Court finds the extreme sanction of attorney’s fees inappropriate here, particularly in light of the sole dismissal at such an early stage in the proceedings. ... (finding a Chapter 75 award of attorney’s fees to a prevailing defendant should not be based “simply on the filing of a frivolous suit but also on the prolonged maintenance of a frivolous suit.”). Accordingly, the Court DENIES CSP’s Motion for Attorney’s Fees (Doc. No. 48).

Section 75-16.1 authorizes attorneys' fees for unfair or deceptive trade-practices claims, but cannot support a fee award when that claim fails.

TriMark Foodcraft, Inc. v. Leger · filed 2014-06-17

Because we have already concluded that the trial court erred in entering summary judgment in favor of plaintiff on its unfair and deceptive trade practices claim, the statute authorizing fees for such claims, N.C. Gen. Stat. § 75-16.1 (2013), cannot justify the trial court's fee award.

Section 75-16.1(2) permits a court, in its discretion, to award attorneys’ fees to a prevailing party in a § 75-1.1 action when the instituting party knew or should have known the action was frivolous and malicious.

Rouse v. Harley-Davidson, Inc. · filed 2021-11-22(2)

That provision allows the court, in its discretion, to direct payment of attorneys’ fees to a prevailing party in any suit alleging a violation of § 75-1.1 (unfair and deceptive trade practices) if the “party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1(2). Here, defendants have not demonstrated that plaintiff knew, or should have known, that the instant action was frivolous or malicious. To the contrary, plaintiff, through counsel, has advanced arguments in favor of application of Pennsylvania law which, though unavailing, were reasonable and supported by citations to case law. Accordingly, attorneys’ fees are not warranted under § 75-16.1, and defendants have not demonstrated any other basis for attorneys’ fees or costs. Therefore, the court declines to award attorneys’ fees and costs as requested by defendant Harley- Davison.

Section 75-16.1(1) permits a court to award attorneys’ fees when the opposing party willfully engages in unfair acts or practices and makes an unwarranted refusal to resolve the underlying matter.

Progress Solar Solutions, LLC v. Long · filed 2022-07-22(1)

The case is “exceptional” under 15 U.S.C. § 1117(a) and the record shows that defendants “willfully engaged” in unfair acts and practices and made an “unwarranted refusal” to resolve the matters constituting the basis of these actions, N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1 permits a trial court to award reasonable attorneys’ fees when a party willfully engages in an unfair or deceptive act or practice and unreasonably refuses to fully resolve the matter.

Out of the Box Devs., LLC v. Logicbit Corp. · filed 2014-08-29

A trial court has discretion to award attorneys’ fees when a party has “willfully engaged in [an unfair or deceptive] act or practice, and there was an unwarranted refusal by such party to fully resolve the matter . . . .” N.C. Gen. Stat. § 75-16.1 (2013); Blankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 771, 622 S.E.2d 638, 643 (2005) (quoting N.C. Gen. Stat. § 75-16.1). The jury found that Doan Law willfully and purposefully breached the Licensing Agreement. The court then concluded that the breach was accompanied by aggravated circumstances. The contract itself does not include any exclusive means for determining damages flowing from the breach. Doan Law engaged in an unfair and deceptive trade practice. Accordingly, Plaintiff is a prevailing party entitled to recover reasonable attorneys’ fees pursuant to Section 75-16.1.

Section 75-16.1 permits a judge in an unfair-and-deceptive-practices action to award reasonable attorneys’ fees to the prevailing party in certain circumstances, and a defendant whose dismissal order is reversed is not entitled to that fee award.

Eli Global, LLC v. Heavner · filed 2016-12-06

Additionally, N.C. Gen. Stat. § 75-16.1 provides that a judge presiding over an action for unfair and deceptive practices may, in certain instances, award “reasonable” attorneys’ fees to “the prevailing party.” Having determined that the trial court erred by dismissing plaintiffs’ claim for unfair and deceptive practices, we necessarily conclude that the court also erred by awarding attorneys’ fees to defendant.

Section 75-16.1 permits attorneys’ fees when the party charged willfully engaged in the violation and made an unwarranted refusal to fully resolve the dispute.

Sunbelt Rentals, Inc. v. Guzman · filed 2022-03-14

North Carolina law permits an award of attorneys’ fees upon a finding that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” N.C. Gen. Stat. §75-16.1. Guzman has not agreed to surrender anything to Sunbelt. Guzman entered a plea agreement with the United States, agreeing to forfeit some assets to the United States, but not to Sunbelt (See Case No. 5:21-CR-31 Doc. No. 18). Moreover, after his termination Guzman continued to spend money that rightfully belonged to Sunbelt even though he knew his scheme had been discovered. (See Case No. 5:21-CR-31 Doc. No. 4 ¶¶13-16). These actions are sufficient for the Court to assess Sunbelt’s attorneys’ fees against Guzman.

Section 75-16.1 permits a court to award reasonable attorneys’ fees against a losing party in a UDTPA suit when the violation was willful and the party unwarrantedly refused to resolve the matter.

DENC, LLC v. Philadelphia Indemnity Ins. · filed 2022-04-18

In North Carolina, a court may “award attorneys’ fees against the losing party in a suit alleging a violation of the UDTPA.” ABT Bldg. Prods. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 127 (4th Cir. 2006) (citing N.C. Gen. Stat. § 75-16.1). To do so, a court must find (1) “willfulness on the part of the party committing the violation” and (2) that the party engaged in “an unwarranted refusal to resolve the matter which forms the basis of the suit.” 8 Id. We review the district court’s decision to award fees for abuse of discretion. See id. at 113. ... N.C. Gen. Stat. § 75-16.1 also requires that a fee award be “reasonable,” but Philadelphia hasn’t contested the amount of the award.

Section 75-16.1 permits attorneys’ fees when the party charged willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

Sunbelt Rentals, Inc. v. Guzman · filed 2022-05-06(1)

North Carolina law permits an award of attorneys’ fees upon a finding that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” N.C. Gen. Stat. §75-16.1. Second Life has not agreed to surrender anything to Sunbelt. This is sufficient for the Court to assess Sunbelt’s attorneys’ fees against Second Life.

Under § 75-16.1, factual findings that the action was frivolous and malicious are required to justify an award of attorney fees, but are not required when the trial court denies fees.

E. Brooks Wilkins Family Med., P.A. v. Wakemed · filed 2016-01-05(2)

Based on the language of the statute, we hold that the trial court is not required to make such findings in any order declining to award attorneys’ fees.

Section 75-16.1 permits a presiding judge to award attorney’s fees against a party that willfully violated § 75-1.1 and unwarrantedly refused to fully resolve the matter, but the award remains within the trial judge’s discretion, including discretion to deny fees even when the statutory elements are met.

Ke v. Zhou · filed 2017-11-21

Section 75-16.1 of our General Statutes provides that a presiding judge may award attorney’s fees against an opposing party found to have willfully violated N.C. Gen. Stat. § 75-1.1 and who has engaged in “an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit[.]” N.C. Gen. Stat. § 75-16.1 (2015). And as stated in the statute, “[w]hether to award or deny attorneys’ fees is within the sound discretion of the trial judge.” Custom Molders, Inc. v. American Yard Products, Inc., 342 N.C. 133, 141-42, 463 S.E.2d 199, 204 (1995). So even where the trial court finds that the elements of N.C. Gen. Stat. § 75-16.1 have been met, the trial court retains the discretion to refuse to award attorney’s fees.

Subsection (1) authorizes discretionary attorney’s fees only when the judge finds a willful unfair or deceptive act and an unwarranted refusal to fully resolve the matter.

SHEN v. CAPITAL ONE BANK (USA), NATIONAL ASSOCIATION · filed 2020-01-09(1)

Such fees are discretionary and may be awarded against a defendant if the presiding judge finds that the defendant “willfully engaged in the [unfair or deceptive] act or practice, and there was an unwarranted refusal by [the defendant] to fully resolve the matter.” N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1 permits a court to award the prevailing party a reasonable attorney fee when the violation was willful and the violator unwarrantedly refused to fully resolve the matter.

DENC, LLC v. PHILADELPHIA INDEMNITY INSURANCE COMPANY · filed 2020-04-13

Under N.C. Gen. Stat. § 75-16.1, DENC is entitled to recover a reasonable attorneys’ fee if Philadelphia’s violation was willful and if there was an unwarranted refusal to settle. ... Based on all of these findings, the Court finds and concludes that up to the time of its settlement offer on December 18, 2019, for $525,000, Philadelphia engaged in an unwarranted refusal to settle.

Section 75-16.1 permits the presiding judge to award a reasonable attorney fee to the prevailing party when the party charged with the violation acted willfully and unwarrantedly refused to fully resolve the matter, and the award must be supported by findings of fact on entitlement and amount.

HONGDA CHEM USA, LLC v. SHANGYU SUNFIT CHEMICAL COMPANY, LTD. · filed 2020-04-16

Under N.C. Gen. Stat. § 75-16.1, the presiding judge has discretion to “allow a reasonable attorney fee” to the attorney “representing the prevailing party” if “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” ... A Chapter 75 attorneys’ fee award must be supported by findings of fact, both as to entitlement to the fee and the awarded amount. ... In the Chapter 75 context, “[a]n act or a failure to act is ‘willfully’ done if done voluntarily and intentionally with the view to doing injury to another.” ... In evaluating whether there was an “unwarranted refusal to fully resolve the matter which constitutes the basis” of the suit, courts take the entirety of the circumstances into account.

Section 75-16.1(1) permits an award of attorneys’ fees when the record shows willful unfair acts and an unwarranted refusal to resolve the matter.

Progress Solar Solutions, LLC v. Fire Protection, Inc. · filed 2022-07-22(1)

The case is “exceptional” under 15 U.S.C. § 1117(a) and the record shows that defendants “willfully engaged” in unfair acts and practices and made an “unwarranted refusal” to resolve the matters constituting the basis of these actions, N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1 is an attorney-fee provision for claims made under North Carolina’s Unfair and Deceptive Trade Practices Act.

SUPERIOR PERFORMERS, INC. v. THORNTON · filed 2021-05-27

Although Superior Performers relies upon N.C. Gen. Stat. § 75-16.1 to support an award of attorneys’ fees, this statute applies to claims made under the UDTPA. Because default judgment on this claim was denied, this statute is inapposite.

Section 75-16.1 gives the presiding judge discretion to award attorney’s fees in a UDTPA claim.

Withers v. BMW of North America, LLC · filed 2021-09-15

Pursuant to North Carolina statute, a presiding judge has discretion to award attorney’s fees in a UDTPA claim. N.C. Gen. Stat. § 75- 16.1 (2021). Here, to meet the amount-in-controversy threshold, the Court need only consider whether an attorney’s fee award around $15,000 would be possible, and the Court concludes that it is.

Section 75-16.1 permits a court to award reasonable attorneys’ fees against the losing party in a UDTPA suit if the violation was willful and the party unwarrantedly refused to resolve the matter.

DENC, LLC v. Philadelphia Indemnity Insuran · filed 2022-04-18

In North Carolina, a court may “award attorneys’ fees against the losing party in a suit alleging a violation of the UDTPA.” ... To do so, a court must find (1) “willfulness on the part of the party committing the violation” and (2) that the party engaged in “an unwarranted refusal to resolve the matter which forms the basis of the suit.” ... N.C. Gen. Stat. § 75-16.1 also requires that a fee award be “reasonable,” but Philadelphia hasn’t contested the amount of the award.

Section 75-16.1 allows reasonable attorney's fees in a UDTPA action only upon willfulness and an unwarranted refusal to resolve the matter, requires factual findings supporting the award, and does not permit fees unrelated to the claims against the defendants.

Sunbelt Rentals, Inc. v. Guzman · filed 2022-05-26

In North Carolina, a court may “award [reasonable] attorneys' fees against the losing party in a suit alleging a violation of the UDTPA.” ABT Bldg. Prods. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 127 (4th Cir. 2006) (citing N.C. Gen. Stat. § 75-16.1). To do so, a court must find (1) “willfulness on the part of the party committing the violation” and (2) that the party engaged in “an unwarranted refusal to resolve the matter which forms the basis of the suit.” Id. ... In awarding attorney’s fees under N.C. Gen. Stat. § 75-16.1, the court “must make findings of fact to support the award. Appropriate findings include findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.” Lapierre v. Samco Dev. Corp., 103 N.C. App. 551, 561, 406 S.E.2d 646, 651 (1991). ... And lastly, some of the requested fees, in the amount of $ 36,034.40, is for work unrelated to the Defendants, such as work that relates only to Jessica Guzman and the related criminal matter involving Michael Guzman. While this work arguably related to the claims against the Defendants, the Court finds that it would be inappropriate to assess these fees against the remaining Defendants under Section 75-16.1. In sum, a reduced award of $509,326.83 is reasonable considering the hourly rate of the attorneys, the complexity of the case, and the necessity to only assess fees that relate directly to the claims against the Defendants.

Section 75-16.1 permits a discretionary attorney-fee award in a suit alleging a violation of G.S. 75-1.1, but the award must be limited to defendants against whom the court properly found a qualifying violation.

Weaver Investment Co. v. Pressly Development Associates · filed 2014-07-01

Accordingly, the trial court erred in awarding attorney’s fees pursuant to N.C. Gen. Stat. § 75-16.1 against David, Edwin, and PDA, as members of Fourth Creek Limited Partnership; the trial court did not err in awarding attorney’s fees against PDCI, or against David who was individually liable for the actions of PDCI under a veil-piercing theory.

Section 75-16.1 authorizes a discretionary award of attorney’s fees for violations of Section 75-1.1, subject to the statute’s specified findings.

Ray Lackey Enters., Inc. v. Vill. Inn Lakeside, Inc. · filed 2016-01-29

N.C. Gen. Stat. § 75-16.1 expressly authorizes an award of attorney’s fees for violations of Section 75-1.1.

Section 75-16.1 permits a discretionary attorney-fee award only in a suit instituted by a person alleging that the defendant violated G.S. 75-1.1.

Mills International, Inc. v. Holmes (In re Mills International, Inc.) · filed 2017-03-15

Similarly, the Defendants’ request that attorney’s fees be awarded pursuant to N.C. Gen. Stat. § 75-16.1 must also be denied.

Section 75-16.1 permits a discretionary reasonable attorney-fee award to a prevailing party when the defendant willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

WILLIAMS v. THE ESTATES LLC · filed 2022-09-09

Under N.C. Gen. Stat. § 75-16.1, the presiding judge has discretion to “allow a reasonable attorney fee” to the attorney “representing the prevailing party,” if “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.”

Section 75-16.1 permits, but does not require, a presiding judge to award a reasonable attorney fee to the prevailing party when the action's proponent knew or should have known it was frivolous and malicious.

Rector v. Nirvana Extractions, LLC · filed 2023-07-31

Mittet is correct that a “presiding judge may . . . allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party . . . when the party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1. ... Accordingly, the Court will exercise its discretion to deny an award of attorney’s fees because Plaintiffs UDTP claim does not meet the level of frivolity and maliciousness required for such an award.

Section 75-16.1 allows a trial court, in its discretion, to award attorney's fees to a prevailing defendant if the plaintiff knew or should have known the action was frivolous and malicious.

Weston Medsurg Ctr., PLLC v. Blackwood · filed 2017-02-07

Thus, "this statutory provision allows a trial court to award attorney's fees to a prevailing defendant if the plaintiff knew, or should have known, the action was frivolous and malicious."

Section 75-16.1(1) permits a discretionary award of attorney fees only after the judge finds that the charged party willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

Tools USA & Equipment Co. v. Champ Frame Straightening Equipment, Inc. · filed 1994-12-27(1)

Plaintiff is likewise not entitled to attorneys’ fees under N.C.Gen.Stat. § 75-16.1 (1994), which states that: [T]he presiding judge may, in his discretion, allow a reasonable attorney fee ... upon a finding by the presiding judge that: (1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit. Id. § 75-16.1(1). The court, in its discretion, will not allow attorneys’ fees under this statute as the jury found that Defendant did not intentionally copy Plaintiffs trade dress. Further reasons for the denial of attorneys’ fees are discussed above, in the court’s denial of disgorgement of profits.

Section 75-16.1 authorizes a discretionary award of reasonable attorney fees to the prevailing party when the defendant willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

McClendon v. Walter Home Mortgage (In re McClendon) · filed 2013-03-01(1)

One of the policy considerations involved in an award of attorney fees in the context of consumer protection violations is “to encourage private enforcement of Chapter 75.” ... Thus, allowing a recovery for attorney fees is based on wholly different acts on the part of a defendant, namely, the failure to act to resolve the matter privately. ... The Court believes this unreasonable refusal to negotiate a solution throughout the months following tender of the home is sufficient to constitute “an unwarranted refusal ... to fully resolve the matter.” Therefore, in light of WMC’s refusal to work with Plaintiffs to resolve the payment issues surrounding their home loan, the Court believes an award of attorney fees is justified.

Section 75-16.1 permits a court to award reasonable attorney fees to the prevailing party when either statutory prong—willful conduct plus unwarranted refusal to resolve the matter, or a frivolous and malicious action—is satisfied.

Laschkewitsch v. Lincoln Life & Annuity Distributors, Inc. · filed 2014-09-15(1), (2)

Chapter 75 provides for an automatic trebling of damages upon the finding of a violation of the Chapter, i.e., the finding of an unfair or deceptive trade or practice. N.C. Gen.Stat. § 75-16. In addition: [T]he presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that: (1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit; or (2) The party instituting the action knew, 'or should have known, the action was frivolous and malicious. N.C. Gen.Stat. § 75-16.1. Here, an award of attorney’s fees is warranted under both statutory prongs. Plaintiff willfully engaged in a multi-state scheme of insurance fraud, victimizing Lincoln and others. Moreover, after Lincoln denied plaintiffs claim for' death benefits, it did not initiate litigation. Having secured nearly a million dollars in life insurance payments after the death of Insured, plaintiff sought more, and initiated this suit against Lincoln. This suit as initiated by plaintiff is clearly frivolous as plaintiff sought to have this Court sanction his fraud' and award him ill-gotten gains. Further, the suit compelled Lincoln to file its compulsory counterclaims for fraud and Chapter 75 violations. Despite this, Lincoln repeatedly asked plaintiff to drop his lawsuit. See e.g., [DE 84-3 at 139-40]. This constitutes an “unwarranted refusal ... to fully resolve the matter which constitutes the basis of such suit” by plaintiff. N.C. GemStat. § 75-16.1. Additionally, plaintiff instituted his own action under Chapter 58 for unfair claims process. Plaintiff should have known that a suit to enforce his fraud was frivolous and malicious and therefore an award of attorney’s fees is justified.

Section 75-16.1 permits attorney’s fees to a prevailing N.C. Act plaintiff only when the violation was willful and the defendant was unwarranted in refusing to settle, and a technical violation without actual injury is insufficient.

Grantham and Mann, Inc., D/B/A Grantham Safety Industries, Inc. v. American Safety Products, Inc., Sam Evans, Richard J. Althoff and James Hunneke · filed 1987-09-30

Attorney’s fees may be awarded to a “prevailing party” upon a finding that the defendant’s violation was willful and the violator was unwarranted in refusing to settle the case. N.C.Gen.Stat. § 75-16.1 (1985). A plaintiff will qualify as a “prevailing party,” however, only upon successfully showing that he suffered actual injury; proof of a mere technical violation of the N.C.Act is not sufficient to warrant an award of attorney’s fees.

Section 75-16.1 permits a discretionary award of reasonable attorney’s fees to the prevailing party in an unfair and deceptive trade practices action when the action was known or should have been known to be frivolous and malicious.

Burton Constr. Cleanup & Landscaping, Inc. v. Outlawed Diesel Performance, LLC · filed 2018-09-18

Again, based upon the findings of the trial court and the limited record before us, the trial court did not abuse its discretion by awarding attorney’s fees to Defendants pursuant to N.C. Gen. Stat. §75-16.1.

Section 75-16.1 permits, but does not require, a discretionary attorney-fee award to a prevailing party when a Chapter 75 plaintiff knew or should have known the action was frivolous and malicious.

Russe v. Harman · filed 2023-11-07(2)

Absent any evidence of maliciousness, this Court will exercise its broad discretion and deny Defendant’s Motion for Attorneys’ Fees under N.C. Gen. Stat. § 75-16.1.

Sections 75-16.1(1) and (2) permit a prevailing party to recover attorney’s fees when the opposing party willfully violates Chapter 75 and refuses to resolve the matter, or when the action was known or should have been known to be frivolous and malicious.

JRM, Inc. v. The HJH Cos., Inc. · filed 2025-12-03(1)-(2)

A trial judge may award attorney’s fees to the prevailing party in any suit initiated by a person who proves a party violated N.C. Gen. Stat. § 75-1.1 (2023), i.e., if a party brings an Unfair and Deceptive Trade Practices Act (“UDTPA”) claim. ... To award attorney’s fees, the trial court must find and conclude the “party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit[,]” or the “party instituting the action knew, or should have known, the action was frivolous and malicious.” Id.

Section 75-16.1(2) allows a court, in its discretion, to award reasonable attorney’s fees to the prevailing party when the party bringing a § 75-1.1 action knew or should have known it was frivolous and malicious.

WILLIAMSON · filed 2026-03-30(2)

North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1 et seq., permits a court, in its discretion, to allow a reasonable attorney’s fee when a “party instituting a [§75-1.1] action knew, or should have known, the action was frivolous and malicious.” N.C. Gen. Stat. § 75-16.1(2). “To prevail on a motion for attorney’s fees under § 75-16.1, the moving party must (1) be the prevailing party and (2) prove that the non-moving party knew or should have known the §75-1.1 action was frivolous and malicious.”

Section 75-16.1(1) permits attorney fees when a party willfully violates Chapter 75 and makes an unwarranted refusal to fully resolve the matter, while subsection (2) applies when the claimant knew or should have known the action was frivolous and malicious, subject to the court’s discretion to apportion the award.

Marie Sharp’s USA, LLC v. Eve Sales Corp. and Marie Sharp’s Fine Foods, Ltd. · filed 2026-05-04(1), (2)

The jury found that the Toubys intentionally infringed on MSFF’s trademarks. Doc. 113 at 5. That is sufficient to establish willfulness. ... The Toubys’ refusal to accept any one of MSFF’s settlement offers and refusal to meaningfully reduce its own settlement demands, particularly after the Court excluded its evidence of actual damages, was objectively unreasonable. ... Under § 75-16.1(1), MSFF is entitled to attorney fees as to its trademark infringement-based claim. ... Under § 75-16.1, “a claim is frivolous if a proponent can present no rational argument based upon the evidence or law in support of it. A claim is malicious if it is wrongful and done intentionally without just cause or excuse or as a result of ill will.” ... Given that it is undisputed that MSFF was dishonest with Mr. Touby about its sales to other companies, the Court cannot say that this claim was frivolous and malicious from the get-go. ... Thus, MSFF is entitled to an award of attorney fees under § 75-16.1.

Section 75-16.1(2) permits a prevailing defendant to recover attorney’s fees when the plaintiff knew or should have known the action was frivolous and malicious, and requires specific findings that the statutory standard is met and the fee awarded is reasonable.

McKinnon v. CV Industries, Inc. · filed 2013-07-02(2)

If, as here, the defendant is the prevailing party, the trial court must make findings that (1) the plaintiff “knew, or should have known, the action was frivolous and malicious”; and (2) the attorney’s fee awarded is reasonable.

Section 75-16.1(2) permits a prevailing defendant to recover attorneys’ fees only when the plaintiff knew or should have known that the action was frivolous and malicious.

Vanwyk Textile Systems, B v. v. Zimmer MacHinery America, Inc. · filed 1997-12-04(2)

Under the North Carolina Unfair Trade Practices Act, a prevailing defendant must show that “the party instituting the action knew, or should have known, the action was frivolous and malicious.” N.C.Gen.Stat. § 75-16.1(2). By this standard, attorneys’ fees should not be awarded, inasmuch as the jury found that Zimmer committed both fraud and breach of fiduciary duty in the Glenoit Mills transaction.

Section 75-16.1(2) permits a discretionary attorney-fee award when the party bringing a UDTPA action knew or should have known that the action was frivolous and malicious.

Cincinnati Insurance v. Dynamic Development Group, LLC · filed 2004-09-17(2)

Cincinnati contends that it is entitled to attorneys’ fees pursuant to 28 U.S.C. § 1927, ... N.C. Gen.Stat. § 75-16.1, ... and N.C. Gen.Stat. § 6-21.5. ... Second, after a careful review of Cincinnati’s Motion for Attorneys’ Fees, the Court finds that the Motion fails to show that DDG’s claims of bad faith and violation of UDTPA were so frivolous as to warrant an award of attorneys’ fees. Although the Court granted Cincinnati summary judgment on these claims because they were weak both legally and factually, they simply were not so frivolous as to justify a departure from the normal rule that a litigant bears his own attorneys’ fees.

Section 75-16.1 permits a discretionary attorney-fee award in a G.S. 75-1.1 suit when the plaintiff knew or should have known the action was frivolous and malicious, and the award is reviewed for abuse of discretion.

Greensboro Scuba Sch., LLC v. Robertson · filed 2015-07-21(2)

Section 75-16.1 provides that [i]n any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee ... to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that: ... (2) The party instituting the action knew, or should have known, the action was frivolous and malicious. N.C. Gen.Stat. § 75-16.1 (2013).

Section 75-16.1 makes attorney fees discretionary and contingent on a finding of actual damages.

Shell Oil Co. v. Commercial Petroleum, Inc. · filed 1991-03-11

Under both the Lanham Act and state statute, attorney’s fees are not awarded as a matter of right; they are within the discretion of the trial court. ... Mayton v. Hiatt's Used Cars, Inc., 45 N.C.App. 206, 262 S.E.2d 860 (1980) (under N.C. Gen.Stat. § 75-16.1, attorney’s fees are within discretion of court but are contingent upon finding actual damages). Finding no abuse of discretion, we affirm the court’s denial of attorney’s fees.

Section 75-16.1 permits a prevailing party to recover reasonable attorney fees upon a finding that the opposing party willfully violated the UDTPA and unwarrantedly refused to resolve the matter, or that the plaintiff knew or should have known the action was frivolous and malicious.

M.D. Russell Construction, Inc. v. Consolidated Staffing, Inc. · filed 2024-08-30

Here, defendant seeks an award of attorney fees under North Carolina’s Unfair and Deceptive Trade Practices Act (UDTPA), which permits a prevailing party to recover reasonable attorney fees upon a finding by the presiding judge that: (1) The party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit; or (2) The party instituting the action knew, or should have known, the action was frivolous and malicious. N.C. Gen. Stat. § 75-16.1 (emphasis added). ... Thus, despite that it was at a later stage determined to be “legally insufficient[,]” the Court does not conclude that the UDTPA claim was frivolous. ... Because the Court has determined that plaintiffs UDTPA claim was not frivolous, it need not decide whether the claim was also malicious. The Court thus, in its discretion, denies defendant’s request for attorney fees under the UDTPA.

Section 75-16.1 allows the court to tax a party with the opposing party’s attorneys’ fees in a UDTPA action.

B & M Realty, LLC v. Elam · filed 2025-04-24

In addition, N.C. Gen. Stat. § 75-16.1 allows the court to tax Mr. Elam and United Properties with the Plaintiff’s attorneys’ fees of $40,060.00, rendering the total amount of Judgment to be $1,173,710.53.

Section 75-16.1 permits, but does not require, a discretionary attorney-fee award to a prevailing party when a defendant willfully violated G.S. 75-1.1 and unwarrantedly refused to resolve the matter.

Wiedemann · filed 2026-04-16(1)

Therefore, in order to award attorneys’ fees under this section, the trial court must find: (1) plaintiff is the prevailing party; (2) defendant willfully engaged in the act at issue; and (3) defendant made an unwarranted refusal to fully resolve the matter. ... Here, there is no evidence of an “unwarranted refusal to fully resolve the matter.” ... Not all default judgment cases satisfy the requirement of an unreasonable refusal to settle merely by their very nature (i.e. the absence of a response). Rather, the intent of the statute is two-sided - to both encourage plaintiffs to pursue settlement and defendants to consider reaching an agreement, at the risk of being further liable for attorneys’ fees.

Section 75-16.1(1) gives a court discretion to award attorneys’ fees to a prevailing party when the defendant willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

Smith v. Race Engines Plus, LLC · filed 2022-12-28(1)

The Court has the discretion to award attorneys’ fees to the prevailing party pursuant to Section 75-16.1 of the Act upon a finding that “[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit.” N.C. Gen. Stat. § 75-16.1(1).

Section 75-16.1 permits a trial judge to award a reasonable attorney’s fee to a prevailing party in a § 75-1.1 action only when the statutory conditions are met, but leaves the award discretionary.

Basnight v. Diamond Developers, Inc. · filed 2001-11-20

In any suit instituted by a person alleging that the defendant violated N.C.Gen.Stat. § 75-1.1, the presiding judge may, in his discretion, award a reasonable attorney’s fee to the prevailing party. N.C.Gen.Stat. § 75-16.1. In order for Defendant Bleiman to recover attorney’s fees, he must establish that he is the prevailing party, that Plaintiff knew, or should have known the claim was frivolous and malicious, and that the requested fee is reasonable. Id. ... Even where the facts of a particular case will support a finding that the requirements of N.C.Gen.Stat. § 75-16.1 have been met and an award of attorney’s fees may be warranted, the Court retains the discretion to deny the award.

Section 75-16.1(1) permits a trial court to award attorney's fees in a § 75-1.1 action when the defendant willfully engaged in the violation and unwarrantedly refused to fully resolve the matter, and the fee decision is within the court's sound discretion.

COUNTRY CLUB v. US Fidelity & Guar. Co. · filed 2002-05-21(1)

Under N.C. Gen.Stat. § 75-16.1, a trial court has discretion in actions based upon a violation of N.C. Gen.Stat. § 75-1.1 to award attorney's fees where the trial court determines that "[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit." N.C. Gen.Stat. § 75-16.1(1). An award or denial of attorney's fees under this section is within the sound discretion of the trial court.

Section 75-16.1 permits a court to award reasonable attorney fees when the defendant willfully engaged in the violation and unwarrantedly refused to fully resolve the matter.

X-It Products, LLC v. Walter Kidde Portable Equipment, Inc. · filed 2002-06-25

Next, under the North Carolina Unfair Trade Practices Act the Court may, in its discretion, award a reasonable attorney fee “upon a finding by the presiding judge that (1) the party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constituted the basis of such suit....” N.C. Gen.Stat. § 75-16.1. The Defendant failed to resolve the matter. In addition, the Court finds that the Defendant willfully engaged in an unfair trade practice.

Section 75-16.1 does not authorize an award of attorneys’ fees when the claimant has not successfully established a UDTPA claim.

Anderson v. Brokers, Inc. (In Re Brokers, Inc.) · filed 2008-10-17

The court has found that Brokers did not present a successful claim under the UDTPA. As such, Brokers is not entitled to an award of attorneys’ fees under § 75-16.1.

Section 75-16.1 permits an injured party to recover attorney’s fees for a willful violation of the Unfair and Deceptive Trade Practices Act.

Petersen v. State Employees Credit Union (In Re Kittrell) · filed 1990-05-31

This court further finds that the evidence as herein recited indicates that SECU knowingly and willfully engaged in unfair and deceptive trade practices, and therefore the trustee is entitled to recover attorney’s fees pursuant to N.C.Gen.Stat. § 75-16.1.

Section 75-16.1 authorizes a reasonable attorney fee to the attorney representing the prevailing party, so in a class action the fee is prorated among all class members rather than attributed only to the named plaintiff.

Ratliff v. Sears, Roebuck and Co. · filed 1995-10-23

Moreover, unlike the state statute in Free, the relevant North Carolina statutes do not contain language specifically providing for fees to “representative parties.” Instead, the statutes provide for a “reasonable attorney fee to ... the attorney representing the prevailing party,” N.C.Gen.Stat. § 75-16.1, or “reasonable attorney’s fees incurred by the buyer,” § 25A-44. Thus, any award of attorneys’ fees as estimated by defendant will not provide the court with subject matter jurisdiction because the fees would be prorated among all members of the plaintiff class.

Section 75-16.1(1) permits a trial court to award reasonable attorneys' fees to a prevailing Chapter 75 party when the violator acted willfully and unwarrantedly refused to fully resolve the matter.

Faucette v. 6303 Carmel Road, LLC · filed 2015-07-21(1)

A trial court may award reasonable attorneys' fees to a prevailing party under Chapter 75 upon finding, in relevant part, that "[t]he party charged with the violation has willfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit." Id. § 75-16.1(1).