An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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.
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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.
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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."
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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
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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
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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
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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).