Morales v. Garcia

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-983
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA13-983 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

PATRICIA MORALES, Plaintiff,

v. Cabarrus County No. 12 CVD 1061 ANA R. GARCIA, Defendant.

Appeal by plaintiff from judgment entered 19 April 2013 by

Judge D. Brent Cloninger in Cabarrus County District Court.

Heard in the Court of Appeals 8 January 2014.

The Law Offices of Michael A. DeMayo, L.L.P., by Ahmad S. Washington, for plaintiff-appellant.

Bolster, Rogers & McKeown, LLP, by Meredith L. Cushing, for defendant-appellee.

GEER, Judge.

Plaintiff Patricia Morales appeals from a judgment granting

in part and denying in part plaintiff's motion to recover costs

and denying plaintiff's motion for attorneys' fees. Because the

trial court did not have discretion to deny costs for fees

enumerated in N.C. Gen. Stat. § 7A-305(d) (2013), we reverse and

remand for entry of an award of service fees and interpreter -2- fees. However, the trial court did not abuse its discretion in

awarding expert witness fees of only $300.00 for time spent

actually testifying. We also affirm the denial of attorneys'

fees because the trial court complied with N.C. Gen. Stat. § 6-

21.1 (2011).

Facts

On 8 July 2011, plaintiff and defendant Ana R. Garcia were

involved in a motor vehicle collision in which plaintiff

suffered injuries as a result of defendant's negligence.

Plaintiff incurred medical expenses of $5,877.07. On 25 October

2011, prior to the filing of plaintiff's complaint, defendant

offered to settle plaintiff's claims for $4,885.00. Plaintiff

rejected the offer and filed suit on 30 March 2012.

On 18 June 2012, defendant filed an answer admitting

negligence and served on plaintiff an offer of judgment in the

amount of $4,888.00. Defendant served a second offer of

judgment on 3 August 2012 for $5,100.00. A jury trial was held

on 11 March 2013, and, during trial, plaintiff lowered her

demand from $10,000.00 to $7,800.00. The jury returned a

verdict of $5,643.42.

A hearing was held on plaintiff's motion for costs and

attorneys' fees on 19 April 2013. The trial court awarded costs

of $300.00 for an hour of expert witness testimony, but denied -3- plaintiff's motion for costs for a filing fee, trial exhibits,

interpreter fees, and service fees. The trial court also denied

plaintiff's motion for attorneys' fees under N.C. Gen. Stat. §

6-21.1. Plaintiff timely appealed to this Court.

I

Plaintiff first argues that the trial court erred by

denying certain costs requested in plaintiff's motion for costs.

Whether a trial court has properly interpreted the statutory

framework applicable to costs is a question of law reviewed de

novo. See Jarrell v. Charlotte-Mecklenburg Hosp. Auth., 206

N.C. App. 559, 561, 698 S.E.2d 190, 191 (2010).

N.C. Gen. Stat. § 6-1 (2013) provides: "To the party for

whom judgment is given, costs shall be allowed as provided in

Chapter 7A and this Chapter." N.C. Gen. Stat. § 7A-305,

however, specifies the costs assessable in civil actions. If a

cost is set forth in N.C. Gen. Stat. § 7A-305(d), "'the trial

court is required to assess the item as costs.'" Priest v.

Safety-Kleen Sys., Inc., 191 N.C. App. 341, 343, 663 S.E.2d 351,

353 (2008) (quoting Miller v. Forsyth Mem'l Hosp., Inc., 173

N.C. App. 385, 391, 618 S.E.2d 838, 843 (2005)).

Plaintiff argues that she is entitled to recover, at a

minimum, $750.00 in additional costs. These costs include a

service fee ($30.00), an interpreter fee ($265.00), and an -4- expert witness fee for actual time spent testifying in court

($450.00). Service fees are included in N.C. Gen. Stat. § 7A-

305(d)(6), and interpreter fees are included in N.C. Gen. Stat.

§ 7A-305(d)(8). Plaintiff produced undisputed evidence that she

had incurred the service and interpreter fees. The trial court

was therefore required to assess those items as costs.

Accordingly, the trial court erred by denying plaintiff's motion

for costs as to the service fee and interpreter fees, amounting

to $295.00.1

As for the expert witness fee, N.C. Gen. Stat. § 7A-

305(d)(11) allows costs for "[r]easonable and necessary fees of

expert witnesses solely for actual time spent providing

testimony at trial, deposition, or other proceedings." While

the trial court is required to assess the expert witness costs,

it has discretion to determine what amount is "reasonable and

necessary." Khomyak v. Meek, 214 N.C. App. 54, 68, 715 S.E.2d

218, 226 (2011), disc. review denied, 365 N.C. 545, 720 S.E.2d

392 (2012). Plaintiff provided the court with the expert's

invoice charging $600.00 for the two hours that he spent in

court. The invoice indicates that the expert spent one and a

1 Defendant contends that as of the time of this appeal, defendant has paid a total of $542.43 in costs, which is $242.43 above the $300.00 ordered by the trial court, and that therefore this issue is moot. Because, however, this contention is not supported by the record on appeal, we may not consider it. -5- half hours of his time actually testifying in court. On the

other hand, at the hearing, defendant's counsel estimated that

the witness testified for "just about one hour" and noted that

the expert testified that he was not charging for his time, even

though he was.2

The trial court held "I'm going to allow fees in the amount

of $300 for [Dr. Patel's] one hour of testimony, it might have

been an hour and 15 minutes but I'm also considering the fact

that the -- some of the things he said (inaudible)." Although

the trial court did not make an explicit finding as to how long

the expert actually testified, it is clear that the trial court

was aware of the parties' contentions as to the length of time

the expert actually testified. The trial court balanced the

expert's hourly rate, approximate length of testimony, and

considerations of certain statements in his testimony in

determining an award of costs that would be reasonable and

necessary. Under these circumstances, we cannot conclude that

the trial court abused its discretion in awarding $300.00 for

the cost of the expert's time actually testifying in court.

2 Defendant's counsel also noted that after the expert testified that he was not charging, "then Mr. Washington [plaintiff's counsel] tried to get him to say he actually was changing [sic] for his time." We do not have a transcript of the expert testimony and, therefore, cannot consider this argument. -6- Accordingly, we affirm the trial court's award of costs as

to expert witness fees. However, we reverse and remand to costs

for service and interpreter fees.

II

Next, plaintiff argues that the trial court erred in

denying her motion for attorneys' fees made pursuant to N.C.

Gen. Stat. § 6–21.1. Plaintiff argues that the trial court

failed to consider the whole record or make findings in

compliance with Washington v. Horton, 132 N.C. App. 347, 513

S.E.2d 331 (1999). Washington, however, was decided under a

prior and materially different version of the statute, and is

therefore, inapplicable.

It appears from our review of the hearing transcript that

both parties mistakenly believed that the prior version of N.C.

Gen. Stat. § 6-21.1 was applicable to this case.3 However, our

General Assembly amended N.C. Gen. Stat. § 6–21.1 in 2011. The

amendment "[became] effective October 1, 2011, and applies to

actions commenced on or after that date." 2011 N.C. Sess. Laws

ch. 283 §§ 3.1, 4.2. This action was commenced 30 March 2012,

and therefore, is subject to the amended version of the statute. 3 Plaintiff's counsel, Mr. Washington, provided the judge with "the old version of 6-21.1" and then, after addressing the Washington factors, referenced the differences in "the new version of the attorney's fee statute" at the end of his argument. In response, defendant's counsel, Ms. Cushing, stated that the new statute "obviously is not in play yet." -7- The statute reads, in pertinent part, as follows:

(a) In any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company in which the insured or beneficiary is the plaintiff, instituted in a court of record, upon findings by the court (i) that there was an unwarranted refusal by the defendant to negotiate or pay the claim which constitutes the basis of such suit, (ii) that the amount of damages recovered is twenty thousand dollars ($20,000) or less, and (iii) that the amount of damages recovered exceeded the highest offer made by the defendant no later than 90 days before the commencement of trial, the presiding judge may, in the judge's discretion, allow a reasonable attorneys' fees to the duly licensed attorneys representing the litigant obtaining a judgment for damages in said suit, said attorneys' fees to be taxed as a part of the court costs. The attorneys' fees so awarded shall not exceed ten thousand dollars ($10,000).

N.C. Gen. Stat. § 6–21.1(a) (emphasis added).

The language of the statute is plain and unambiguous.

Before awarding fees, the presiding judge must first make the

following three findings: (1) that there was an unwarranted

refusal by the defendant to negotiate or pay the claim which

constitutes the basis of the suit, (2) that the amount of

damages recovered is twenty thousand dollars ($20,000) or less,

and (3) that the amount of damages recovered exceeded the

highest offer made by the defendant no later than 90 days before

the commencement of trial. It follows that if the judge cannot -8- make any of these three findings, the judge has no discretion to

award attorneys' fees. "When the language of a statute is clear

and unambiguous, there is no room for judicial construction and

the courts must give the statute its plain and definite meaning,

and are without power to interpolate, or superimpose, provisions

and limitations not contained therein." In re Banks, 295 N.C.

236, 239, 244 S.E.2d 386, 388–89 (1978).

Even if the judge has made all three findings, the

plaintiff is not automatically entitled to attorneys' fees.

Instead, reasonable fees "may [be awarded], in the judge's

discretion." N.C. Gen. Stat. § 6-21.1(a).

Finally, the amendment added a second subsection to N.C.

Gen. Stat. § 6-21.1 to address the requirements once a judge has

decided to award attorneys' fees:

(b) When the presiding judge determines that an award of attorneys' fees is to be made under this statute, the judge shall issue a written order including findings of fact detailing the factual basis for the finding of an unwarranted refusal to negotiate or pay the claim, and setting forth the amount of the highest offer made 90 days or more before the commencement of trial, and the amount of damages recovered, as well as the factual basis and amount of any such attorneys' fees to be awarded.

N.C. Gen. Stat. § 6-21.1(b). Thus, if the trial judge makes all

the requisite findings and additionally decides, in his

discretion, to award attorneys' fees, he must then enter a -9- written order outlining the findings required in subsection (a),

the factual basis for the subsection (a)(i) finding, and "the

factual basis and amount of any such attorneys' fees to be

awarded." Id.

The factual basis for the attorneys' fees would include the

facts necessary for an appellate court "to determine whether the

amount of the award of attorney fees is reasonable," including

"(1) the reasonable time and labor for Plaintiff's counsel to

expend, (2) skill required by this case, (3) the customary fee

for similar cases and (4) the experience and ability of the

Plaintiff's attorney." Parker v. Hensley, 175 N.C. App. 740,

742, 743, 625 S.E.2d 182, 185 (2006).

Here, the plaintiff recovered a jury verdict of $5,643.43

plus 8% per annum interest and $300.00 in costs. This recovery

is less than $20,000.00, in accordance with subsection (ii) of

N.C. Gen. Stat. § 6–21.1(a). The recovery also exceeded the

highest offer made by defendant, $5,100.00, as required under

subsection (iii). As to subsection (i), however, the trial

court concluded that "I cannot find any unwanted (sic) refusal

by the defendant to pay a claim." This finding is supported by

competent evidence in the record that "[t]he settlement offers

were offered throughout the period of even before the filing of

the suit" and that the biggest difference between the offer of -10- judgment and the amount awarded by the jury was less than

$1,000.00. Therefore, subsection (i) of N.C. Gen. Stat. § 6–

21.1(a) was not met, and plaintiff was not entitled to

attorneys' fees under N.C. Gen. Stat. § 6-21.1.

Further, because the trial judge did not have discretion to

award attorneys' fees, he was not required to issue a written

order under subsection (b). Therefore, plaintiff's argument

that the trial court erred by failing to make sufficient

findings of fact as to the time and labor expended by

plaintiff's counsel, the skill required, the customary fee for

like work, and the experience or ability of plaintiff's counsel

is without merit. Such findings are only required if the trial

court determines attorneys' fees should be granted. We hold

that the trial court's denial of attorneys' fees complied with

the requirements of N.C. Gen. Stat. § 6-21.1 and therefore

affirm.

Affirmed in part; reversed and remanded in part.

Judges BRYANT and CALABRIA concur.

Report per Rule 30(e).