Garlock v. Henson , 112 N.C. App. 243 ( 1993 )

435 S.E.2d 114 (1993) 112 N.C. App. 243

Michael Ray GARLOCK
v.
Glenn HENSON and Wayne Phillips.

No. 9224DC657.

Court of Appeals of North Carolina.

October 5, 1993.

Chester E. Whittle, Jr., Boone, for plaintiff-appellee.

Jan W. Lamm, Boone, for defendant-appellee Phillips.

Steven E. Lacy, New Bern, for defendant-appellant Henson.

ARNOLD, Chief Judge.

In his first argument, defendant contends that the trial court erred in concluding that he and defendant Phillips were not partners. We do not address this argument because defendant averred in his answer that no partnership existed and cannot now argue to the contrary. This portion of the trial court's judgment will, therefore, not be disturbed.

Defendant next argues that the trial court erred in determining that defendant's conduct constituted unfair and deceptive trade practices in violation of N.C.Gen.Stat. § 75-1.1 (1988). Defendant contends that plaintiff established only a breach of contract, and a mere breach of contract cannot be a violation of G.S. § 75-1.1. In Branch Banking and Trust Co. v. Thompson, 107 N.C.App. 53, 418 S.E.2d 694, disc. review denied, 332 N.C. 482, 421 S.E.2d 350 (1992), however, this Court indicated that when accompanied by aggravating circumstances a breach of contract may violate G.S. § 75-1.1. Id. at 62, 418 S.E.2d at 700. See also Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530, 535, (4th Cir.1989) (recognizing that substantial aggravating circumstances would justify the treble damages recovery under G.S. § 75-1.1 and intimating that deception surrounding the breach would suffice).

Plaintiff's evidence showed that defendant repeatedly denied the sale of the bulldozer when he knew it had been sold. In addition, the evidence supports a finding that defendant forged a bill of sale in an attempt to extinguish plaintiff's ownership interest in the bulldozer. Through his conduct, defendant deprived plaintiff for three years of money he was unquestionably entitled to receive. Defendant's conduct in this matter was sufficiently aggravating to support the trial court's conclusion that defendant violated G.S. § 75-1.1. See Foley v. L & L Int'l, Inc., 88 N.C.App. 710, 364 S.E.2d 733 (1988) (when defendant contracted to acquire a car and continually misled plaintiff into believing the car was on its way when it had not even been ordered, facts supported claims for breach of contract and unfair and deceptive trade practices).

Defendant further argues that plaintiff did not show he was injured by defendant's deception, and therefore no claim exists under G.S. § 75-1.1. The basis of defendant's argument is that because plaintiff ultimately received the amount due under the contract, defendant's misleading statements did not cause additional damages but only delayed recovery. On that ground, defendant argues that plaintiff may not maintain an action for unfair and deceptive trade practices because plaintiff suffered no actual injury from the deceptive conduct. We disagree with defendant's perception of this case.

Defendant attempts to divide this case into two distinct occurrences, as if the breach of contract is separate from the conduct which aggravated the breach, when in fact we have a continuous transaction that amounts to unfair and deceptive trade practices. It does not matter that the same set of facts also constitutes a breach of contract. "Where the same course of conduct gives rise to a traditionally recognized cause of action, as, for example, an action for breach of contract, and as well gives rise to a cause of action for violation of G.S. 75-1.1, damages may be recovered either for the breach of contract, or for violation of G.S. 75-1.1...." Marshall v. Miller, 47 N.C.App. 530, 542, 268 S.E.2d 97, 103 (1980), modified and aff'd, 302 N.C. 539, 276 S.E.2d 397 (1981). See also Canady v. Mann, 107 N.C.App. 252, 419 S.E.2d 597 (1992), disc. review improvidently allowed, 333 N.C. 569, 429 S.E.2d 348 (1993). We treat plaintiff's arguments as an election of damages for unfair and deceptive trade practices and affirm the portion of the trial court's order awarding damages on that claim.

Defendant finally argues that the trial court did not make sufficient findings of fact to support the award of attorney fees. We disagree.

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.

Because plaintiff is entitled to attorney fees for time spent protecting his judgment, Cotton v. Stanley, 94 N.C.App. 367, 370, 380 S.E.2d 419, 422 (1989); City Fin. Co. v. Boykin, 86 N.C.App. 446, 450, 358 S.E.2d 83, 85 (1987), we remand this case for a determination and award of a reasonable attorney fee for time spent defending this appeal.

Affirmed in part and remanded in part.

COZORT and MARTIN, JJ., concur.