An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1243
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
TAWANDA L. METTS,
Plaintiff,
v. Durham County
No. 10 CVS 5717
PAMELA PARKINSON,
Defendant.
Appeal by plaintiff from order entered 17 July 2013 by
Judge Henry W. Hight, Jr., in Durham County Superior Court.
Heard in the Court of Appeals 5 March 2014.
Taibi Kornbluth Law Group, P.A., by J. Michael Genest, for
plaintiff-appellant.
Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for
defendant-appellee.
BRYANT, Judge.
Where plaintiff requests attorneys’ fees pursuant to N.C.
Gen. Stat. § 6-21.1 the trial court may, upon consideration of
the whole record and Washington factors, in its discretion award
attorneys’ fees.
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On 22 September 2010, plaintiff Tawanda L. Metts filed a
complaint against defendant Pamela Parkinson for negligence
arising from a car accident between them. In her complaint
plaintiff sought an award in excess of $10,000.00 plus court
costs and attorneys’ fees. On 31 May 2012, a jury awarded
plaintiff $6,600.00.
On 7 June 2012, plaintiff filed a motion for attorneys’
fees pursuant to N.C. Gen. Stat. §§ 6-21.1 and 7A-305. On 16
July, the trial court awarded plaintiff $2,200.00 in attorneys’
fees and $1,907.77 in costs. Plaintiff appealed to this Court
arguing that the amount of attorneys’ fees awarded was not
supported by proper findings of fact. This Court agreed and
remanded to the trial court for findings of fact.1
On remand, the trial court made findings of fact but
sustained its prior award of $2,200.00 in attorneys’ fees to
plaintiff. Plaintiff appeals.
____________________________
On appeal, plaintiff raises several issues regarding the
manner in which the trial court determined the amount of
attorneys’ fees.
1
See Metts v. Parkinson, No. COA12-1357, 2013 N.C. App. LEXIS
428 (May 7, 2013).
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Plaintiff first argues that the trial court erred in
failing to base its award of attorneys’ fees on the hours worked
by plaintiff’s attorney and for the time spent preparing for
plaintiff’s appeal. We disagree.
We review a trial court’s awarding of attorneys’ fees for
an abuse of discretion. Blackmon v. Bumgardner, 135 N.C. App.
125, 130, 519 S.E.2d 335, 338 (1999). “Abuse of discretion
results where the court's ruling is manifestly unsupported by
reason or so arbitrary that it could not have been the result of
a reasoned decision." Id. (citations omitted). "[T]he scope of
appellate review . . . is strictly limited to determining
whether the trial judge's underlying findings of fact are
supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual
findings in turn support the judge's ultimate conclusions of
law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619
(1982) (citations omitted). A trial judge's determination to
award attorneys’ fees will not be overturned absent an abuse of
discretion. Whitfield v. Nationwide Mut. Ins. Co., 86 N.C. App.
466, 469, 358 S.E.2d 92, 94 (1987) (citation omitted).
Plaintiff first contends that the trial court erred in
awarding attorneys’ fees because it failed to follow the
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requirements of N.C.G.S. § 6-21.1. Specifically, plaintiff
argues that by imposing a “one-third contingency fee in this
case, without regard to the actual hours worked and customary
rate,” the trial court has violated N.C.G.S. § 6-21.1.
North Carolina General Statutes, section 6-21.1., holds
that:
In any personal injury . . . suit,
instituted in a court of record, 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.
N.C.G.S. § 6-21.1 (2009).2 A trial court’s decision to award
attorneys’ fees pursuant to N.C.G.S. § 6-21.1 is not unbridled,
however. Thorpe v. Perry-Riddick, 144 N.C. App. 567, 571, 551
S.E.2d 852, 856 (2001). In determining whether to award
attorneys’ fees,
the trial court is to consider the entire
record in properly exercising its
discretion, including but not limited to the
following factors: (1) settlement offers
made prior to the institution of the action
2
As plaintiff filed her complaint against defendant on 22
September 2010, the applicable version of N.C.G.S. § 6-21.1 is
the 2009 version. N.C.G.S. § 6-21.1 was subsequently amended by
2011 N.C. Sess. Law 283, which applied to actions filed on or
after 1 October 2011.
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[]; (2) offers of judgment pursuant to Rule
68, and whether the "judgment finally
obtained" was more favorable than such
offers []; (3) whether defendant unjustly
exercised "superior bargaining power" [];
(4) in the case of an unwarranted refusal by
an insurance company, the "context in which
the dispute arose” []; (5) the timing of
settlement offers []; (6) the amounts of the
settlement offers as compared to the jury
verdict []; and the whole record [].
Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331,
334—35 (1999) (citations omitted). “If the trial court elects
to award attorney fees, it must also enter findings of fact as
to the time and labor expended, skill required, customary fee
for like work, and experience or ability of the attorney based
on competent evidence.” Thorpe, 144 N.C. App. at 572, 551
S.E.2d at 856 (citing Porterfield v. Goldkuhle, 137 N.C. App.
376, 378, 528 S.E.2d 71, 73 (2000)).
In its order awarding attorneys’ fees to plaintiff, the
trial court made findings of fact that: defendant’s insurance
carrier denied liability for the accident prior to litigation;
defendant did not make an offer of judgment to plaintiff; at
mediation, plaintiff refused to settle for less than $35,000.00
and defendant’s insurance carrier offered $5,500.00 to settle
the case before an impasse was declared; a jury awarded
plaintiff $6,600.00; defendant’s insurance carrier did not
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exercise superior bargaining power; and “[t]he Court recalls the
trial of this case and the issues involved, and has considered
the whole record of the case[.] While a "[m]ere recitation by
the trial court that it has considered all Washington factors"
without making additional findings of fact is inadequate,
Thorpe, 132 N.C. App. at 572, 551 S.E.2d at 857, "the trial
court is not required to make detailed findings for each
factor." Id. (citing Tew v. West, 143 N.C. App. 534, 546 S.E.2d
183 (2001)). Rather, the trial court must merely make findings
as to "those facts matching those Washington factors apposite to
the instant case." Id., 132 N.C. App. at 573, 551 S.E.2d at
857. As such, the trial court’s findings of fact are in
accordance with the required factors of Washington.
On remand, the trial court made additional findings of
fact: plaintiff incurred costs of $1,907.77; plaintiff’s counsel
submitted affidavits indicating that plaintiff’s primary
attorney spent 105.4 hours of time, at $225.00 per hour, while a
second attorney spent 29.3 hours, at $250.00 per hour, on the
case; plaintiff’s primary attorney is an associate attorney who
became licensed to practice law in 2010; this was plaintiff’s
attorney’s second jury trial; plaintiff’s second attorney took
no active role in the trial; the case concerned a car accident
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and had no significant evidentiary issues; the hours spent by
plaintiff’s attorneys “are disproportionately higher than the
hours reasonably and normally spent by plaintiff’s counsel in
this type of civil case”; and that “[i]t is customary for an
attorney to receive 1/3 (one third) of the settlement or
Judgment amount as a fee for services rendered.” The trial
court concluded that plaintiff’s primary attorney “spent more
than a reasonable amount of time on the case, and, in its
discretion, finds that an attorney’s fee of $2,200.00 is
appropriate in this case.”
Plaintiff argues that the trial court erred because its
award of attorneys’ fees was not based on the affidavits
submitted by plaintiff’s attorney. We disagree, as the language
of N.C.G.S. § 6-21.1 clearly states that a trial court may award
attorneys’ fees at its discretion. See Harrison v. Herbin, 35
N.C. App. 259, 261, 241 S.E.2d 108, 109 (1978) (“While [N.C.G.S.
§ 6-21.1] is aimed at encouraging injured parties to press their
meritorious but pecuniarily small claims, we do not believe that
it was intended to encourage parties to refuse reasonable
settlement offers and give rise to needless litigation by
guaranteeing that counsel will, in all cases, be compensated.”).
Moreover, as the trial court considered the entire record before
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it and made findings of facts as required by both Washington and
Thorpe, the trial court acted within its discretion in awarding
$2,200.00 in attorneys’ fees to plaintiff. See Messina v. Bell,
158 N.C. App. 111, 115, 581 S.E.2d 80, 84 (2003) (“From the
findings, it is clear that the trial court exercised its
discretion by considering the whole record and in applying the
Washington factors. Thus, the findings are sufficient to
support the trial court's conclusion that plaintiff should be
awarded attorney's fees, and therefore, the trial court did not
abuse its discretion in granting plaintiff's motion.”).
Plaintiff further argues that the trial court erred in
failing to award attorneys’ fees for the time spent preparing
for plaintiff’s appeal. A trial court has the authority
pursuant to N.C.G.S. § 6-21.1 to award additional attorney's
fees for an appeal. Hill v. Jones, 26 N.C. App. 168, 171, 215
S.E.2d 168, 170 (1975). A plaintiff must make a motion to the
trial court seeking attorneys’ fees for an appeal. Davis v.
Kelly, 147 N.C. App. 102, 109, 554 S.E.2d 402, 406—07 (2001).
On 10 July 2013, plaintiff made a motion to the trial court
for attorneys’ fees relating to plaintiff’s initial appeal.
Plaintiff provided to the trial court affidavits of her
attorneys’ fees for both the original jury trial and appeal.
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The trial court accepted these documents noting that “I’m going
to have to take a look at it.” In its order awarding plaintiff
$2,200.00 in attorneys’ fees, the trial court did not mention
any fees or costs incurred as a result of plaintiff’s appeal.
However, as discussed above, the trial court was not required to
award attorneys’ fees to plaintiff for either an initial action
or an appeal. Moreover, as we have already determined that the
trial court considered the appropriate factors and made findings
of fact regarding its decision to award attorneys’ fees to
plaintiff, we cannot say that the trial court erred in not
awarding attorneys’ fees to plaintiff for her appeal.
Accordingly, the trial court did not abuse its discretion in
awarding $2,200.00 in attorneys’ fees to plaintiff. See Overton
v. Purvis, 162 N.C. App. 241, 247—48, 591 S.E.2d 18, 23 (2004)
(“The record indicates that the trial court considered these
statements, together with argument from counsel, in determining
whether and to what extent attorneys' fees were appropriate. We
hold that these statements are competent and sufficient to
support the trial court's award and find no abuse of
discretion.”). As such, we need not reach plaintiff’s third
argument on appeal.
Affirmed.
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Judges STEPHENS and DILLON concur.
Report per Rule 30(e).