Parker v. Hensley

JOHN, Judge,

concurring in part and dissenting in part.

Because I believe the amount of attorney fees awarded plaintiff by the trial court did not constitute an abuse of discretion, I must respectfully dissent from that portion of the majority opinion remanding for additional findings. I concur in that portion of the majority opinion affirming the trial court’s denial of an award of costs.

The majority remands “for the trial court to make findings of fact on the time and labor expended by Plaintiff’s counsel, the skill required and the customary fee for similar work, and Plaintiff counsel’s experience and ability.” However, these factors were not contested in the trial court. Counsel for plaintiff proffered to the trial court a detailed affidavit containing all the information the majority deems lacking in the court’s judgment. Counsel for defendant stated he “d[id no]t disagree with Mr. Bell’s affidavit” and that he felt the rate and hours represented were “fair.”

Contested below was the question of whether the amount of time expended by plaintiff’s counsel was commensurate with a case in which the maximum amount of recovery supported by plaintiff’s evi*744dence (and which amount plaintiffs counsel sought in his jury argument) was less than the sum offered by defendant in settlement (and which latter figure likewise was greater than the jury verdict). Thus the issue before this Court is not whether the trial court’s judgment contained findings irrelevant to the dispute at hand, but whether the trial court’s order constituted an abuse of discretion in light of its exhaustive, four-page recitation of findings addressing, and its consideration of, the guidelines set out in Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999).

To show an abuse of discretion, an appellant must demonstrate the trial court’s ruling is “manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). In Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001), disc. review denied, 356 N.C. 315, 571 S.E.2d 220 (2002), this Court considered whether the trial court abused its discretion in awarding attorney fees absent “appropriate findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.” Id. at 468, 553 S.E.2d at 444. In that case, as in the case sub judice, an extensive affidavit was presented to the trial court addressing such matters, and the award of fees was not challenged upon those grounds but rather upon the contention that portions of the requested fees were unrelated to the matter at hand. Id. The trial court’s award of attorney fees in Whiteside, see id., contained a statement similar to the trial court’s recitation herein that it had reviewed “the entire record, including Plaintiff’s Motion for Attorney’s Fees, the arguments of counsel, the Court file, and the Court’s own recollection of how this case was tried[.]” This Court concluded in Whiteside that, under the circumstances presented and notwithstanding the absence of the findings noted above, it “cfould] not find an abuse of discretion” and affirmed the award of attorney fees. Id.

In the instant case, all the information required by the majority opinion of the trial court in the form of findings of fact was without question before that court, and is essentially uncontested and irrelevant to the court’s award of attorney fees. The trial court set forth extensive findings addressing the Washington factors and in consideration thereof reasoned that “Plaintiff should recover attorney’s fees in the amount of $500.00.” Reviewing the trial court’s plenary findings and following the mandate of Whiteside, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“a *745panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court”), I cannot say the court’s decision was “manifestly unsupported by reason or [wa]s so arbitrary that it could not have been the result of a reasoned decision.” I therefore vote to affirm the trial court’s judgment in its entirety.