Trull v. Central Carolina Bank & Trust

478 S.E.2d 39, 124 N.C. App. 486, 1996 N.C. App. LEXIS 1150
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 1996
DocketNo. COA95-1288
StatusPublished
Cited by7 cases

This text of 478 S.E.2d 39 (Trull v. Central Carolina Bank & Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trull v. Central Carolina Bank & Trust, 478 S.E.2d 39, 124 N.C. App. 486, 1996 N.C. App. LEXIS 1150 (N.C. Ct. App. 1996).

Opinions

EAGLES, Judge.

The general rule in North Carolina has long been that a party cannot recover attorneys’ fees “unless such a recovery is expressly authorized by statute.” Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980). N.C.G.S. 6-21.2 allows an award of attorneys’ fees in actions to enforce obligations owed under “an evidence of indebtedness” that itself provides for the payment of attorneys’ fees. RC Associates v. Regency Ventures, Inc., 111 N.C. App. 367, 372, 432 S.E.2d 394, 397 (1993). N.C.G.S. 6-21.2 provides, in pertinent part:

Obligations to pay attorneys’ fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity . . .

The promissory note here provides for the payment of “reasonable attorneys’ fees incurred by the holder in enforcing the agreements of the Borrower(s).” Because the note provides for “reasonable attorneys’ fees” without referring to any specific percentage of fees to be paid, N.C.G.S. 6-21.2(2) applies. N.C.G.S. 6-21.2(2) provides:

(2) If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys’ [491]*491fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the “outstanding balance” owing on said note, contract or other evidence of indebtedness.

I.

Plaintiff contends that the trial court’s award of attorneys’ fees was improper. Plaintiff first argues that, despite the language in the note, CCB is not entitled to attorneys’ fees under the statute because CCB was unsuccessful in its deficiency action against Trull. G.S. 6-21.2 does not require that a party seeking attorneys’ fees under the statute qualify as a “prevailing party” in litigation. Although the General Assembly included this requirement in other statutes providing for attorneys’ fees, the text of G.S. 6-21.2 does not state this requirement. (N.C.G.S. 75-16.1 (1994) limits recovery of attorneys’ fees to the “prevailing party”). The Court “may not, under the guise of judicial interpretation, interpolate provisions which are wanting in the statute and thereupon adjudicate the rights of the parties thereunder.” Simmons v. Wilder, 6 N.C. App. 179, 181, 169 S.E.2d 480, 481 (1969). Furthermore, the purpose of G.S. 6-21.2 is to allow the debtor a last chance to pay his outstanding balance and avoid litigation, not to reward the prevailing party with the reimbursement of his costs in prosecuting or defending the action. RC Associates v. Regency Ventures, Inc., 111 N.C. App. 367, 373- 374, 432 S.E.2d 394, 398 (1993). To limit the operation of G.S. 6-21.2 to successful litigants would require this court to judicially amend the existing statute. We believe that to do so would improperly invade the province of the General Assembly.

Trull also contends that G.S. 6-21.2 should not apply to this action because the statute requires that the attorneys’ fees be “collectible as part of such debt” and that CCB’s failure in its deficiency action precludes the collection of a debt under the statute. CCB’s counterclaim for the deficiency was an ancillary action to the actual foreclosure proceeding. It is undisputed that as of 8 April 1993 Trull owed a debt of $672,168.48 to CCB. CCB’s legal actions were in pursuit of payment of the debt evidenced by the same Promissory Note which contained the provision for “reasonable attorneys’ fees.”

Plaintiff Trull further contends that the trial court’s award of attorneys’ fees should be precluded by the Supreme Court’s decision in Merritt v. Edwards Ridge which held that the anti-deficiency statute applying exclusively, to purchase money notes, N.C.G.S. [492]*49245-21.38 (1991), precludes the recovery of attorneys’ fees under G.S. 6-21.2. 323 N.C. 330, 372 S.E.2d 559 (1988). The decision in Merritt follows the legislative intent behind G.S. 45-21.38, “to protect a vendor’s assignee, who would not know the nature of the transaction.” Childers v. Parker’s Inc., 274 N.C. 256, 263, 162 S.E.2d 481, 486 (1968). It is well established that under this anti-deficiency statute, the purchase money creditor is strictly limited upon foreclosure and sale to the proceeds which stand in place of the land. Merritt, 323 N.C. at 336, 372 S.E.2d at 563. Significantly, the note at issue here is not a purchase money note. Trull defended CCB’s action for the deficiency under G.S. 45-21.36, using the reasonable value defense, not under G.S. 45-21.38. In fact, Trull’s obligation to CCB arose from a commercial land transaction. Expanding the decision in Merritt to this non-purchase money, commercial transaction would “deprive [s] the [defendants] of the benefits of a bargain, fairly and properly entered, which violates no established public policy.” Merritt, 323 N.C. at 338, 372 S.E.2d at 564 (Whichard, J., dissenting).

II.

Plaintiff next contends that the trial court’s calculation of attorneys’ fees was improper and contrary to law. We disagree. When the trial court determines an award of attorneys’ fees is appropriate under the statute, the amount of attorneys’ fees awarded lies within the discretion of the trial court. Coastal Production v. Goodson Farms, 70 N.C. App. 221, 226, 319 S.E.2d 650, 655 (1984). Therefore, the award of attorneys’ fees is conclusive absent an error of law or abuse of discretion by the trial court. Id.

N.C.G.S. 6-21.2(2) expressly authorizes an award of attorneys’ fees of 15% of the “outstanding balance” in suits to collect any “evidence of indebtedness,” when such evidence of indebtedness is collected “by or through an attorney at law after maturity.” The term “evidence of indebtedness” refers to “any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money.” Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 294, 266 S.E.2d 812, 817 (1980). The promissory note involved here fits that description.

The term “outstanding balance” is defined by N.C.G.S. 6-21.2(3) as “the principal and interest owing at the time suit is instituted to enforce any security agreement securing payment of the debt and/or to collect said debt.” N.C.G.S. 6-21.2(3) (1986) (emphasis added). [493]

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Bluebook (online)
478 S.E.2d 39, 124 N.C. App. 486, 1996 N.C. App. LEXIS 1150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trull-v-central-carolina-bank-trust-ncctapp-1996.