Volume 112 — North Carolina Court of Appeals Reports

1. Appeal and Error 446 (NCI4th) — averment in answer — contrary argument on appeal not permitted Defendant's contention that the trial court erred by concluding that the codefendants were not partners in an action seeking payment of an amount owed under a contract and damages for unfair or deceptive practices was not heard on appeal because defendant averred in his answer that no partnership existed. He could not argue to the contrary on appeal. Am Jur 2d, Appeal and Error 726-729. 2. Unfair Competition 1 (NCI3d) — unfair and deceptive practices — breach of contract — aggravated conduct The trial court did not err by awarding damages on an unfair or deceptive practices claim where plaintiff and defendants entered into a contract for the sale of plaintiff's bulldozer under which plaintiff was to receive $7,642.40 as the balance of the purchase price when the bulldozer was sold; plaintiff's evidence showed that defendant Henson repeatedly denied the sale of the bulldozer when he knew it had been sold and supports a finding that defendant forged a bill of sale in an attempt to extinguish plaintiff's ownership interest in the bulldozer; and, through his conduct, defendant deprived plaintiff for three years of money he was unquestionably entitled to receive. Although defendant contends that plaintiff established only a breach of contract, a breach of contract may violate G.S. <cross_reference>75-1.1</cross_reference> when accompanied by aggravating circumstances. While defendant argued that the misleading statements did not cause additional damages because plaintiff ultimately received the amount due under the contract, this was a continuous transaction rather than two distinct occurrences. It does not matter that the same set of facts also constitutes a breach of contract; plaintiff's arguments are treated as an election of damages for unfair and deceptive practices. <block_quote> Am Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices 695.</block_quote><page_number>Page 244</page_number> 3. Unfair Competition 1 (NCI3d) — unfair or deceptive practices — attorney fees — findings The trial court correctly awarded attorney fees, and the case was remanded for award of a reasonable attorney fee for the appeal, in an unfair or deceptive practices action where defendant Henson contended that the court did not make sufficient findings to support the award, but the court found that defendant willfully committed the acts charged and that there was an unwarranted refusal to settle. Those findings are sufficient to support the award under N.C.G.S. <cross_reference>75-16.1</cross_reference>. <block_quote> Am Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices 711.</block_quote>

1. Searches and Seizures 77 (NCI4th) — license check — defendant detained and searched — evidence seized — no unreasonable detention — suppression of evidence not required There was no merit to defendant's contention that the trial court should have granted his motion to suppress evidence seized from his person because the officers' initial stop of him was an unreasonable detention under principles of the Fourth Amendment, since defendant was stopped at a roadblock set up for the purpose of checking drivers' licenses and registrations, and such spot checks do not amount to unreasonable detention. Am Jur 2d, Searches and Seizures 52, 190. 2. Searches and Seizures 82 (NCI4th) — officer's suspicion that defendant armed — determination to frisk reasonable An officer's determination to frisk defendant was lawful where defendant appeared to stop before approaching a license check point; once at the check point, defendant informed the officer that he was carrying no identification, did not own the vehicle, and could provide no registration for the car; the officer could reasonably suspect that the car might have been stolen; the officer legitimately asked defendant to step out of the car; the officer then observed a bulge in defendant's pocket; the officer's concern that defendant might be armed was reasonable; and the officer could properly ask defendant to turn around and put his hands on the car so the officer could search him for weapons. Am Jur 2d, Searches and Seizures 51, 78. 3. Searches and Seizures 58 (NCI4th) — frisk proper — seizure of cocaine unreasonable An officer properly frisked defendant where there was no evidence that the officer felt a packet of cocaine in defendant's pocket in a manner that invaded the privacy of defendant beyond a pat down for weapons; however, because the officer was never asked and did not testify about whether it was<page_number>Page 478</page_number> immediately apparent to him that the item he felt was contraband, his seizure of the packet of cocaine was unreasonable under the Fourth Amendment and the cocaine could not be used as evidence against defendant. Am Jur 2d, Searches and Seizures 161.