West ex rel. Farris v. Tilley

461 S.E.2d 1, 120 N.C. App. 145, 1995 N.C. App. LEXIS 697
CourtCourt of Appeals of North Carolina
DecidedSeptember 5, 1995
DocketNo. 947DC334
StatusPublished
Cited by16 cases

This text of 461 S.E.2d 1 (West ex rel. Farris v. Tilley) 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
West ex rel. Farris v. Tilley, 461 S.E.2d 1, 120 N.C. App. 145, 1995 N.C. App. LEXIS 697 (N.C. Ct. App. 1995).

Opinion

JOHN, Judge.

Defendant appeals the trial court’s judgment granting plaintiffs request for attorneys’ fees. He contends the award is barred because the court’s judgment is in excess of $10,000.00, the limit imposed by N.C. Gen. Stat. § 6-21.1 (1986). Defendant further argues the trial court erred by basing its judgment upon insufficient evidence, by failing to make necessary findings of fact, and by allowing an “excessive, unreasonable, arbitrary, [and] capricious” award. For the reasons set forth herein, we believe defendant’s assignments of error are unfounded.

Pertinent facts and procedural information are as follows: On 22 July 1992, Brande West (plaintiff) was injured in an automobile collision involving defendant’s 1986 Ford vehicle. On 7 December 1992, plaintiff instituted the instant action by and through her guardian ad litem alleging defendant was negligent in the operation of his automobile thereby proximately causing injury to plaintiff. Defendant answered denying liability and further alleged plaintiff’s contributory negligence as an affirmative defense.

The parties stipulated at trial that “[t]he medical expenses incurred on behalf of the minor Plaintiff . . . will be allowed into evidence and the jury will be able to consider these expenses as part of the damages to be considered in addition to the amount prayed for in the Complaint for personal injury.”

The issues submitted by the trial court to the jury were answered as follows:

Issue 1: Was the minor Plaintiff, Brande M. West, injured as a result of the negligence of the Defendant, Toni Gray Tilley?
Answer: Yes.
Issue 2: Did the minor Plaintiff, Brande M. West, by her own negligence, contribute to her injury?
[148]*148Answer: No.
Issue 3: What amount is the minor Plaintiff, Brande M. West, entitled to recover for personal injury?
Answer: $9,000.00.
Issue 4: What amount, if any, is Gloria Williams, mother of the minor Plaintiff, entitled to recover for medical expenses?
Answer: $1,301.00.

The trial court subsequently entered judgment stating “Plaintiff is hereby awarded a Judgment against the Defendant, Toni Gray Tilley, in the sum of $9,000.00,” and further awarded plaintiff attorneys’ fees in the amount of $8,400.00.

Defendant moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. The trial court denied defendant’s motions, but subsequently entered an amended judgment to reflect the receipt by plaintiff’s mother of $1,301.00 for medical expenses incurred as a result of plaintiff’s injuries. Defendant gave notice of appeal to this Court 16 November 1993 and 18 November 1993.

I.

Although the court’s amended judgment provided separately for recovery by plaintiff of $9,000.00 and by Gloria Williams (plaintiff’s mother; Ms. Williams) of $1,301.00, defendant contends the trial court “entered one judgment in the total amount of $10,301.00.” Because the “judgment” intended by G.S. § 6-21.1 must necessarily include plaintiff’s damages and the mother’s award for medical expenses, defendant continues, the court erred by allowing attorneys’ fees upon a judgment in excess of the statutory limit. We find defendant’s argument unpersuasive.

G.S. § 6-21.1 states in pertinent part:

In any personal injury or property damage suit, . . . 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.

The statute, an exception to the general rule that counsel fees may not be included in costs recoverable by a successful party to an [149]*149action or proceeding, is remedial and should be construed liberally to accomplish the legislative purpose and to bring within it all cases fairly falling within its scope. Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973) (citations omitted).

“Statutory interpretation properly begins with an examination of the plain words of the statute.” Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). The plain language of the statute at issue allows counsel fees to “the duly licensed attorney representing the litigant obtaining a judgment for damages . . . .” G.S. § 6-21.1 (emphasis added). “A party entitled to recover attorney’s fees under N.C. Gen. Stat. § 6-21.1 is so entitled based upon his status as ‘the litigant obtaining a judgment.’ ” Mishoe v. Sikes, 115 N.C. App. 697, 699, 446 S.E.2d 114, 115 (1994), aff'd, 340 N.C. 256, 456 S.E.2d 308 (1995) (citation omitted). The dispositive issue therefore becomes whether plaintiff’s mother was indeed a “litigant” in the case sub judice.

A “litigant” is defined as “[a] party to a lawsuit; one engaged in litigation; usually spoken of active parties, not of nominal ones.” Black’s Law Dictionary 841 (5th ed. 1979). Although counsel herein stipulated to jury consideration of the child’s medical expenses so as to prevent multiplicity of suits related to the same incident, the record reflects no formal motion by either plaintiff or defendant to add Gloria Williams as a party. She did not therefore function as a “litigant” herein. Accordingly, the recovery attributed to her for plaintiff’s medical expenses may not be incorporated with that of plaintiff in determining eligibility for attorneys’ fees under G.S. § 6-21.1. Cf. Mickens v. Robinson, 103 N.C. App. 52, 58, 404 S.E.2d 359, 363 (1991) (phrase “litigant obtaining a judgment” includes defendants prevailing on counterclaims for less than statutory amount).

The foregoing conclusion is consistent with the policies underlying G.S. § 6-21.1:

The obvious purpose of this statute is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations.

Hicks, 284 N.C. at 239, 200 S.E.2d at 42.

[150]*150In Hicks, defendant argued plaintiff was not entitled to attorneys’ fees in a case settled prior to trial because the language of the statute mandates that a “presiding judge” must enter the award. Id. Therefore, defendant continued, the case must proceed to trial to qualify under the statute for an award of counsel fees. Id. Our Supreme Court disagreed observing that “[t]o hold, as the defendant . . .

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Bluebook (online)
461 S.E.2d 1, 120 N.C. App. 145, 1995 N.C. App. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-ex-rel-farris-v-tilley-ncctapp-1995.