concurring.
I concur with the majority opinion which affirms the order of the trial court.
On 1 July 1995, the City of Lenoir converted its retirement system to LGERS. This 1995 conversion was not pursuant to a judgment, an order, nor a court-approved settlement. In 1998, this Court held that the statutes creating LGERS did not require the City to convert its retirement system to LGERS. Taylor v. City of Lenoir, 129 N.C. App. 174, 497 S.E.2d 715 (1998). After that decision, the parties entered into a court-approved settlement by which a total of $96,000 was paid to the plaintiff class members who did not become enrolled in LGERS as a result of the 1995 conversion. From this amount, the trial court ordered attorneys’ fees paid to the plaintiffs’ attorneys pursuant to the common fund doctrine. It also specifically concluded that, as to the benefits resulting from the 1995 conversion, “[the trial court] does not exercise control over these benefits to make any disbursements from such benefits or monies, which therefore do not constitute a common fund from which this Court can order the payment of attorneys[’] fees.”
As addressed by the majority, our Courts have held that to create a common fund, the trial court must have control over the award from which the common fund would be created. In Raleigh-Durham Airport Authority v. Howard, 88 N.C. App. 207, 363 S.E.2d 184 (1987), disc. rev. denied, 322 N.C. 113, 367 S.E.2d 916 (1988), this Court stated that one of the “ingredients for application of the common fund doctrine” is that the award from which a common fund would be created is “under the trial court’s supervision and control.” 88 N.C. App. at 214, 363 S.E.2d at 187.
In other cases involving the common fund doctrine in this State, the award from which the common fund was created was under the control of the trial court because the award was a judgment or order of the court. See Bailey v. State of North Carolina, 348 N.C. 130, 500 S.E.2d 54 (1998) (The common fund was created out of the court-ordered refund of taxes); Faulkenbury v. Teachers’ and State Employees’ Ret. Sys., 345 N.C. 683, 483 S.E.2d 422 (1997) (The common fund was created out of the court-ordered payment of actuarial value of underpayments and interest thereupon of disability benefits under the State Employees’ Retirement System); Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E.2d 21 (1952) (The common fund was *281created out of the court-ordered refund of monies); and Raleigh-Durham Airport Authority, supra (The common fund was created out of the condemnation award).
In the present case, the plaintiffs’ attorneys seek to recover attorneys’ fees from the benefits resulting from the 1995 conversion. Therefore, the 1995 conversion must be under the supervision and control of the trial court. However, there was no order, judgment, nor court-approved settlement resulting in the 1995 conversion. In 1998, this Court held that the City was not obligated to convert to LGERS, thus, precluding the plaintiff from obtaining an order requiring the City to convert. Therefore, it is clear that the trial court does not now have sufficient supervision nor control over the 1995 conversion to create a common fund out of those benefits.
If there had been a court-approved settlement in 1995 evidencing the City’s commitment to convert to LGERS while preserving other issues for trial, the trial court would have control over the 1995 conversion and its resulting benefits. If that event had occurred, there is enough evidence here to convince me that a common fund could have been identified.
My prior comment, in connection with my dissent in Taylor v. City of Lenoir, 141 N.C. App. 660, 542 S.E.2d 222 (2001), focused on the issue of causation. I concluded there was a “common fund” created from the benefits because of the causal connection between the lawsuit filed and the 1995 conversion by the City. Upon further review of the record and the 1998 decision of this Court, I concur with the majority that the trial court did not have sufficient supervision nor control over the benefits of the 1995 conversion to create a common fund because there was no judgment, order, nor court-approved settlement at that time.