Cotton v. Stanley

380 S.E.2d 419, 94 N.C. App. 367, 1989 N.C. App. LEXIS 465

• Court: Court of Appeals of North Carolina
• Decided: June 20, 1989
• Docket: 8810SC1055
• Status: Published

Opinion

PARKER, Judge.

The sole issue presented on appeal is whether the trial court committed reversible error in setting an unreasonable attorneys’ fee award. In an action under Chapter 75 of the General Statutes alleging unfair or deceptive trade practices, the prevailing party is entitled to reasonable attorneys’ fees when the court finds (i) that the party charged with a violation wilfully engaged in unlawful conduct proscribed by the Chapter and (ii) that there was an unwarranted refusal by the party charged to fully resolve the matter. G.S. 75-16.1.

One purpose for the statute authorizing attorneys’ fees is to encourage individuals to bring valid actions to enforce the statute by making such actions economically feasible. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 95, 331 S.E. 2d 677, 680 (1985); City Finance Co. v. Boykin, 86 N.C. App. 446, 358 S.E. 2d 83 (1987). Whether to award or deny these fees is within the sound discretion of the trial judge. Morris v. Bailey, 86 N.C. App. 378, 387, 358 S.E. 2d 120, 125 (1987); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 688, 340 S.E. 2d 755, 761, cert. denied, 317 N.C. 333, 346 S.E. 2d 137 (1986); Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 457, 337 S.E. 2d 616, 620 (1985). Once the court decides to award attorneys’ fees, however, it must award reasonable attorneys’ fees. G.S. 75-16.1; Morris v. Bailey, 86 N.C. App. at 387, 358 S.E. 2d at 125. Furthermore, in order for the appellate court to determine if the statutory award of attorneys’ fees is reasonable the record must contain findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney. Id.

The order awarding attorneys’ fees recited that the court had previously “found that defendant’s conduct was wilful and that their refusal to settle the dispute was unwarranted.” Then after recitations concerning the appeal and settlement the order stated:

Plaintiffs now seek additional attorneys fees for legal expenses in prosecuting the appeal and in preparing for trial. The Court finds that the defendants failure and refusal to settle this remaining damage issue after the decision of the N. C. Court of Appeals which required Plaintiffs to prepare for a second jury trial was unwarranted. The Court in its discretion therefore awards an additional amount of $1,500 in attorneys fees.

This order is deficient in that the findings of fact are inadequate to enable this Court to determine whether or not the award of attorneys’ fees was reasonable. The order merely states, “The Court in its discretion therefore awards an additional amount of $1,500 in attorneys fees.” Consistent with this Court’s decision in Morris v. Bailey, supra, we remand this action for the trial court to make findings of fact taking into consideration the time and labor expended by plaintiffs’ counsel, the skill required, the experience and ability of the attorneys, and the customary fee for like work and to make an award based on these findings.

Further, the language that “defendants failure and refusal to settle this remaining damage issue after the decision of the N.C. Court of Appeals which required plaintiffs to prepare for a second jury trial was unwarranted,” suggests that the court may have limited its award of attorneys’ fees to those services related to preparation for retrial. This Court has held that when awarding attorneys’ fees pursuant to G.S. 75-16.1, the trial court may include fees for services rendered at all stages of the litigation. Finance Co. v. Boykin, 86 N.C. App. at 449, 358 S.E. 2d at 85. Fees are authorized for the prevailing party and may be awarded for all time, including appeal, reasonably expended in obtaining or sustaining the status of prevailing party. See id. at 449-50, 358 S.E. 2d at 85. In the present case, plaintiffs sought review of the trial court’s refusal to submit the issue of damages to the jury and prevailed on this issue on appeal. Since the trial court had already found in the previous order that defendants’ conduct was wilful and that their refusal to settle the dispute was unwarranted, plaintiffs were, in our opinion, entitled to legal fees for prosecuting the appeal as well as for the preparation for retrial.

We affirm plaintiffs’ entitlement to legal fees and remand for further findings of fact and an award of attorneys’ fees consistent with this opinion.

Affirmed in part, reversed in part and remanded.

Judges PHILLIPS and Cozort concur.