Roland HICKS
v.
James Michael ALBERTSON.
No. 7318DC420.
Court of Appeals of North Carolina.
July 11, 1973.*625 Clontz, Gardner & Tate by J. W. Clontz and Rossie G. Gardner, High Point, for plaintiff appellee.
Henson, Donahue & Elrod by Joseph E. Elrod, III, Greensboro, for defendant appellant.
BALEY, Judge.
In this appeal the defendant seeks to avoid the payment of an attorney fee under G.S. § 6-21.1 upon the ground that his offer of judgment and its acceptance by the plaintiff eliminated any trial, and that only a presiding trial judge can allow an attorney fee to the successful litigant. We do not agree.
Ordinarily, in the absence of any contractual or statutory liability, attorney fees are not recoverable as an item of damages or part of the costs of litigation. Piping, Inc. v. Indemnity Co., 9 N.C.App. 561, 176 S.E.2d 835; Perkins v. Insurance Co., 4 N.C.App. 466, 167 S.E.2d 93.
However, G.S. § 6-21.1 is a statutory exception to this general rule and expressly authorizes the payment of an attorney fee as a part of the court costs. In pertinent part it provides:
"In any personal injury or property damage suit . . . instituted in a court of record, where the judgment for recovery of damages is two thousand dollars ($2,000.00) 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." (Emphasis added.)
The act refers specifically to the "institution" of a suit, not its trial, and allows an attorney fee to be awarded to the "duly licensed attorney representing the litigant obtaining a judgment for damages in said suit" without regard to how that judgment is obtained. To permit an offer of judgment, or indeed any settlement prior to a completed trial, to avoid the payment of a reasonable attorney fee in the discretion of the court would defeat in large measure the purpose of the statute. If a party wishes to avoid payment of attorney fee in cases to which G.S. § 6-21.1 may be applicable, he should make his offer of settlement before the suit is instituted.
Here the facts are clear that this suit was instituted in a court of record and that a judgment for recovery of damages of less than $2,000.00 was obtained. While *626 it is proper that the trial judge in an action which proceeds to trial may allow a reasonable attorney fee to the successful litigant under G.S. § 6-21.1, the presiding judge of the court in which the suit is instituted may allow such fee when judgment is obtained without the necessity for trial. In cases where the judge who presided at the trial is unable because of death, disability, or other valid reason to make such allowance, the presiding judge of the court in which the suit is instituted would have such authority.
In Colby v. Larson, 208 Or. 121, 299 P.2d 1076, the Supreme Court of Oregon in interpreting a statute somewhat similar to G.S. § 6-21.1 in a case where judgment was entered upon an offer of judgment filed by the defendant determined that the court which entered judgment retained its power to award a reasonable attorney's fee even though there was no actual trial. The Oregon court stated that:
"The judgment of the court directing the clerk to pay the deposited money to the plaintiff was a `recovery' within the meaning of this statute. To `recover' means, among other things, to `"obtain by course of law"'. [Citations omitted.] It was through a legal proceeding and the order and judgment of a court that the plaintiff obtained the damages for which he sued." Colby v. Larson, supra, at 129-130, 299 P.2d at 1077.
Throughout the entire chronological sequence of events from the filing of complaint on 15 September 1972 until the judgment awarding attorney fee was entered on 28 February 1973, there is a clear indication in this record that an application for attorney fee as a part of the costs was to be considered by the court, and the settlement was effected with knowledge of this proposed application.
Defendant maintains that only the clerk of court had jurisdiction to determine and tax costs in this case and did not tax an attorney fee as a part of such costs. The judgment entered by the clerk awarded costs to include "such attorney's fee as the court may order". This contention has no merit. The district judge found facts concerning the reasonable value of services performed by plaintiff's attorney and awarded the sum of $75.00 as attorney fee. The judgment recites that the findings of fact are made "upon the record and judicial admissions of counsel . . ." at the hearing. The findings are sufficient to support the judgment. In the absence of any contrary evidence in the record, it is presumed that they are supported by competent evidence.
The judgment is affirmed.
Affirmed.
BRITT, J., concurs.
CAMPBELL, J., dissents.