Metts v. Parkinson

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-1243
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-1243

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

TAWANDA L. METTS, Plaintiff,

v. Durham County No. 10 CVS 5717 PAMELA PARKINSON, Defendant.

Appeal by plaintiff from order entered 17 July 2013 by

Judge Henry W. Hight, Jr., in Durham County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Taibi Kornbluth Law Group, P.A., by J. Michael Genest, for plaintiff-appellant.

Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for defendant-appellee.

BRYANT, Judge.

Where plaintiff requests attorneys’ fees pursuant to N.C.

Gen. Stat. § 6-21.1 the trial court may, upon consideration of

the whole record and Washington factors, in its discretion award

attorneys’ fees. -2- On 22 September 2010, plaintiff Tawanda L. Metts filed a

complaint against defendant Pamela Parkinson for negligence

arising from a car accident between them. In her complaint

plaintiff sought an award in excess of $10,000.00 plus court

costs and attorneys’ fees. On 31 May 2012, a jury awarded

plaintiff $6,600.00.

On 7 June 2012, plaintiff filed a motion for attorneys’

fees pursuant to N.C. Gen. Stat. §§ 6-21.1 and 7A-305. On 16

July, the trial court awarded plaintiff $2,200.00 in attorneys’

fees and $1,907.77 in costs. Plaintiff appealed to this Court

arguing that the amount of attorneys’ fees awarded was not

supported by proper findings of fact. This Court agreed and

remanded to the trial court for findings of fact.1

On remand, the trial court made findings of fact but

sustained its prior award of $2,200.00 in attorneys’ fees to

plaintiff. Plaintiff appeals.

____________________________

On appeal, plaintiff raises several issues regarding the

manner in which the trial court determined the amount of

attorneys’ fees.

1 See Metts v. Parkinson, No. COA12-1357, 2013 N.C. App. LEXIS 428 (May 7, 2013). -3- Plaintiff first argues that the trial court erred in

failing to base its award of attorneys’ fees on the hours worked

by plaintiff’s attorney and for the time spent preparing for

plaintiff’s appeal. We disagree.

We review a trial court’s awarding of attorneys’ fees for

an abuse of discretion. Blackmon v. Bumgardner, 135 N.C. App.

125, 130, 519 S.E.2d 335, 338 (1999). “Abuse of discretion

results where the court's ruling is manifestly unsupported by

reason or so arbitrary that it could not have been the result of

a reasoned decision." Id. (citations omitted). "[T]he scope of

appellate review . . . is strictly limited to determining

whether the trial judge's underlying findings of fact are

supported by competent evidence, in which event they are

conclusively binding on appeal, and whether those factual

findings in turn support the judge's ultimate conclusions of

law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619

(1982) (citations omitted). A trial judge's determination to

award attorneys’ fees will not be overturned absent an abuse of

discretion. Whitfield v. Nationwide Mut. Ins. Co., 86 N.C. App.

466, 469, 358 S.E.2d 92, 94 (1987) (citation omitted).

Plaintiff first contends that the trial court erred in

awarding attorneys’ fees because it failed to follow the -4- requirements of N.C.G.S. § 6-21.1. Specifically, plaintiff

argues that by imposing a “one-third contingency fee in this

case, without regard to the actual hours worked and customary

rate,” the trial court has violated N.C.G.S. § 6-21.1.

North Carolina General Statutes, section 6-21.1., holds

that:

In any personal injury . . . suit, instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney’s fee to be taxed as a part of the court costs.

N.C.G.S. § 6-21.1 (2009).2 A trial court’s decision to award

attorneys’ fees pursuant to N.C.G.S. § 6-21.1 is not unbridled,

however. Thorpe v. Perry-Riddick, 144 N.C. App. 567, 571, 551

S.E.2d 852, 856 (2001). In determining whether to award

attorneys’ fees,

the trial court is to consider the entire record in properly exercising its discretion, including but not limited to the following factors: (1) settlement offers made prior to the institution of the action

2 As plaintiff filed her complaint against defendant on 22 September 2010, the applicable version of N.C.G.S. § 6-21.1 is the 2009 version. N.C.G.S. § 6-21.1 was subsequently amended by 2011 N.C. Sess. Law 283, which applied to actions filed on or after 1 October 2011. -5- []; (2) offers of judgment pursuant to Rule 68, and whether the "judgment finally obtained" was more favorable than such offers []; (3) whether defendant unjustly exercised "superior bargaining power" []; (4) in the case of an unwarranted refusal by an insurance company, the "context in which the dispute arose” []; (5) the timing of settlement offers []; (6) the amounts of the settlement offers as compared to the jury verdict []; and the whole record [].

Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331,

334—35 (1999) (citations omitted). “If the trial court elects

to award attorney fees, it must also enter findings of fact as

to the time and labor expended, skill required, customary fee

for like work, and experience or ability of the attorney based

on competent evidence.” Thorpe, 144 N.C. App. at 572, 551

S.E.2d at 856 (citing Porterfield v. Goldkuhle, 137 N.C. App.

376, 378, 528 S.E.2d 71, 73 (2000)).

In its order awarding attorneys’ fees to plaintiff, the

trial court made findings of fact that: defendant’s insurance

carrier denied liability for the accident prior to litigation;

defendant did not make an offer of judgment to plaintiff; at

mediation, plaintiff refused to settle for less than $35,000.00

and defendant’s insurance carrier offered $5,500.00 to settle

the case before an impasse was declared; a jury awarded

plaintiff $6,600.00; defendant’s insurance carrier did not -6- exercise superior bargaining power; and “[t]he Court recalls the

trial of this case and the issues involved, and has considered

the whole record of the case[.] While a "[m]ere recitation by

the trial court that it has considered all Washington factors"

without making additional findings of fact is inadequate,

Thorpe, 132 N.C. App. at 572, 551 S.E.2d at 857, "the trial

court is not required to make detailed findings for each

factor." Id. (citing Tew v. West, 143 N.C. App. 534, 546 S.E.2d

183 (2001)). Rather, the trial court must merely make findings

as to "those facts matching those Washington factors apposite to

the instant case." Id., 132 N.C. App. at 573, 551 S.E.2d at

857. As such, the trial court’s findings of fact are in

accordance with the required factors of Washington.

On remand, the trial court made additional findings of

fact: plaintiff incurred costs of $1,907.77; plaintiff’s counsel

submitted affidavits indicating that plaintiff’s primary

attorney spent 105.4 hours of time, at $225.00 per hour, while a

second attorney spent 29.3 hours, at $250.00 per hour, on the

case; plaintiff’s primary attorney is an associate attorney who

became licensed to practice law in 2010; this was plaintiff’s

attorney’s second jury trial; plaintiff’s second attorney took

no active role in the trial; the case concerned a car accident -7- and had no significant evidentiary issues; the hours spent by

plaintiff’s attorneys “are disproportionately higher than the

hours reasonably and normally spent by plaintiff’s counsel in

this type of civil case”; and that “[i]t is customary for an

attorney to receive 1/3 (one third) of the settlement or

Judgment amount as a fee for services rendered.” The trial

court concluded that plaintiff’s primary attorney “spent more

than a reasonable amount of time on the case, and, in its

discretion, finds that an attorney’s fee of $2,200.00 is

appropriate in this case.”

Plaintiff argues that the trial court erred because its

award of attorneys’ fees was not based on the affidavits

submitted by plaintiff’s attorney. We disagree, as the language

of N.C.G.S. § 6-21.1 clearly states that a trial court may award

attorneys’ fees at its discretion. See Harrison v. Herbin, 35

N.C. App. 259, 261, 241 S.E.2d 108, 109 (1978) (“While [N.C.G.S.

§ 6-21.1] is aimed at encouraging injured parties to press their

meritorious but pecuniarily small claims, we do not believe that

it was intended to encourage parties to refuse reasonable

settlement offers and give rise to needless litigation by

guaranteeing that counsel will, in all cases, be compensated.”).

Moreover, as the trial court considered the entire record before -8- it and made findings of facts as required by both Washington and

Thorpe, the trial court acted within its discretion in awarding

$2,200.00 in attorneys’ fees to plaintiff. See Messina v. Bell,

158 N.C. App. 111, 115, 581 S.E.2d 80, 84 (2003) (“From the

findings, it is clear that the trial court exercised its

discretion by considering the whole record and in applying the

Washington factors. Thus, the findings are sufficient to

support the trial court's conclusion that plaintiff should be

awarded attorney's fees, and therefore, the trial court did not

abuse its discretion in granting plaintiff's motion.”).

Plaintiff further argues that the trial court erred in

failing to award attorneys’ fees for the time spent preparing

for plaintiff’s appeal. A trial court has the authority

pursuant to N.C.G.S. § 6-21.1 to award additional attorney's

fees for an appeal. Hill v. Jones, 26 N.C. App. 168, 171, 215

S.E.2d 168, 170 (1975). A plaintiff must make a motion to the

trial court seeking attorneys’ fees for an appeal. Davis v.

Kelly, 147 N.C. App. 102, 109, 554 S.E.2d 402, 406—07 (2001).

On 10 July 2013, plaintiff made a motion to the trial court

for attorneys’ fees relating to plaintiff’s initial appeal.

Plaintiff provided to the trial court affidavits of her

attorneys’ fees for both the original jury trial and appeal. -9- The trial court accepted these documents noting that “I’m going

to have to take a look at it.” In its order awarding plaintiff

$2,200.00 in attorneys’ fees, the trial court did not mention

any fees or costs incurred as a result of plaintiff’s appeal.

However, as discussed above, the trial court was not required to

award attorneys’ fees to plaintiff for either an initial action

or an appeal. Moreover, as we have already determined that the

trial court considered the appropriate factors and made findings

of fact regarding its decision to award attorneys’ fees to

plaintiff, we cannot say that the trial court erred in not

awarding attorneys’ fees to plaintiff for her appeal.

Accordingly, the trial court did not abuse its discretion in

awarding $2,200.00 in attorneys’ fees to plaintiff. See Overton

v. Purvis, 162 N.C. App. 241, 247—48, 591 S.E.2d 18, 23 (2004)

(“The record indicates that the trial court considered these

statements, together with argument from counsel, in determining

whether and to what extent attorneys' fees were appropriate. We

hold that these statements are competent and sufficient to

support the trial court's award and find no abuse of

discretion.”). As such, we need not reach plaintiff’s third

argument on appeal.

Affirmed. -10- Judges STEPHENS and DILLON concur.

Report per Rule 30(e).