Costs_-attorney fees_-personal injury_-judgment finally obtained greater than offer of
judgment
The trial court did not abuse its discretion in a personal injury action by awarding attorney
fees of $2,625.00 under N.C.G.S. § 6-21.1 to plaintiff even though defendant made a settlement
offer of $1,997.50 and plaintiff only received a jury verdict of $350.00, because: (1) there is no
allegation that the hours claimed or the amount per hour used in the calculation was
unreasonable; and (2) the judgment finally obtained was more favorable to plaintiff than
defendant's offer of judgment since the final amount is not merely the jury's verdict, but includes
the award of attorney fees making the total $2,975.00.
Chesnutt, Clemmons, Thomas & Peacock, by Gary H. Clemmons, for
plaintiff-appellee.
Walker, Clark, Allen, Herrin & Morano, by Jeffrey T. Ammons
and Gay P. Stanley, for defendant-appellant.
THOMAS, Judge.
Defendant, Oscar Aldridge, appeals from a judgment awarding
attorney fees to plaintiff, Tanesha Hardesty, in a personal injury
action resulting from an automobile accident. For the reasons
discussed herein, we affirm the trial court and remand the issue of
attorney fees pending appeal.
The facts are as follows: On 28 January 1997, a vehicle owned
and operated by defendant struck the vehicle plaintiff wasoperating. Plaintiff sustained injuries and was first treated at
the Craven Regional Medical Center emergency room and then at a
chiropractic center.
Subsequently, defendant's insurance carrier, Allstate
Insurance Company (Allstate), engaged in negotiations with
plaintiff's counsel. Allstate offered to settle for a total of
$1,997.50, which equaled the amount of medical bills, but the offer
was refused and suit was filed on 28 October 1997.
There was no answer to the complaint and plaintiff obtained a
default judgment of $5,000 plus $2,134 for costs, interest, and
attorney fees against defendant. Allstate, however, filed a motion
to vacate the judgment because plaintiff had never forwarded a copy
of the complaint to the company. Plaintiff signed a consent order
to both vacate the entry of default and set aside the judgment.
Defendant then filed an answer, which included a Rule 68 offer of
judgment for $1,997.50.
In May 2000, a jury returned a verdict for plaintiff in the
amount of $350. On 25 September 2000, the trial court granted
plaintiff's motion for attorney fees and awarded $2,625.00.
Defendant appeals the order.
By defendant's sole assignment of error, he argues the trial
court abused its discretion in granting plaintiff's motion for
attorney fees pursuant to N.C. Gen. Stat. § 6-21.1. We disagree.
The North Carolina General Statutes provide:
In any personal injury or property damage
suit, or suit against an insurance companyunder a policy issued by the defendant
insurance company and in which the insured or
beneficiary is the plaintiff, upon a finding
by the court that there was an unwarranted
refusal by the defendant insurance company to
pay the claim which constitutes the basis of
such 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. Gen. Stat. § 6-21.1 (1999). Under this statute, the trial
court is given the discretion to award attorney fees to the
prevailing party. See Porterfield v. Goldkuhle, 137 N.C. App. 376,
528 S.E.2d 71 (2000). The trial court's ruling will not be
disturbed on appeal absent a showing of abuse of discretion. West
v. Tilley, 120 N.C. App. 145, 461 S.E.2d 1 (1995). An abuse of
discretion occurs when the trial court's ruling “is so arbitrary
that it could not have been the result of a reasoned decision.”
Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670,
500 S.E.2d 84 (1998)(citations omitted).
When determining whether to award attorney fees, the trial
court must consider the entire record, including the following
factors: (1) settlement offers made prior to institution of the
action; (2) offers of judgment made 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 a case of unwarranted refusal by an insurance company to pay
the claim, the context in which the dispute arose; (5) the timing
of settlement offers; and (6) the amounts of settlement offers as
compared to the jury verdict. Washington v. Horton, 132 N.C. App.
347, 351-52, 513 S.E.2d 331, 334-35 (1999).
The trial court made findings as to those factors as follows:
(1) Allstate engaged in settlement negotiations with plaintiff
before the institution of suit and offered $1,997.50. Plaintiff,
in turn, rejected it. (2) After suit had been filed, defendant
served an offer of judgment for the same amount. It was also
rejected by plaintiff. Plaintiff had incurred costs of $67, her
counsel had expended a total of 17.50 hours, $150 per hour was
reasonable as attorney fees, and plaintiff was in sum entitled to
$2,625 in attorney fees. Attorney fees plus the jury verdict of
$350 totals $2,975, which is the judgment finally obtained. The
judgment finally obtained is more favorable to plaintiff than the
offer of $1,997.50. (3) The trial court's findings of fact did
not mention whether defendant may have unjustly exercised superior
bargaining power. However, “'the absence of such a finding does
not require reversal when the trial court made adequate findings on
the whole record to support an award of attorney's fees.'” Davis
v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402 (Nov. 6, 2001)(No.
COA00-1360)(quoting Olson v. McMillan, 144 N.C. App. 615, 619, 548
S.E.2d 571, 573-74 (2001). (4) There was no unwarranted refusal by
Allstate to pay the claim. This finding is not necessary since thesuit was not on an insurance policy. See Crisp v. Cobb, 75 N.C.
App. 652, 331 S.E.2d 255 (1985). (5) One of the settlement offers
was made before suit, and one after, both in the amount of
$1,997.50. (6) The jury verdict was $350.
Detailed findings are not required for each factor. Tew v.
West, 143 N.C. App. 534, 546 S.E.2d 183 (2001). These excerpts are
adequate findings of fact based on the whole record. Additionally,
we note an award of attorney fees must be reasonable. The trial
court found here that the award was reasonable and, further, there
is no allegation that the hours claimed or the amount per hour used
in the calculation was unreasonable.
Lastly, defendant argues the judgment finally obtained was not
more favorable to plaintiff than defendant's offer of judgment. We
disagree. In Tew, where the offer amount was $5,000, the jury's
verdict was $5,000, and the trial court had awarded the plaintiff
$555 in costs and $3,937.50 in attorney fees, this Court held that
the judgment finally obtained “is not merely the jury's verdict”
but the final amount awarded to the plaintiff, $9,492.50. Id. Our
Supreme Court has defined “judgment” as “'[t]he final decision of
the court resolving the dispute and determining the rights and
obligations of the parties,' and '[t]he law's last word in a
judicial controversy.'” Poole v. Miller, 342 N.C. 349, 352, 464
S.E.2d 409, 411 (1995), reh'g denied, 342 N.C. 666, 467 S.E.2d 722
(1996) (quoting Black's Law Dictionary 841-42 (6th ed. 1990)). Because the order contains the $350 jury verdict and attorney fees
of $2,625, we hold the trial court did not abuse its discretion in
awarding attorney fees to plaintiff.
Furthermore, plaintiff has moved, in this Court, for
attorney's fees for work performed during the appellate process.
This Court has held that the trial court has authority, pursuant to
section 6-21.1 to award such fees. See Hill v. Jones, 26 N.C. App.
168, 215 S.E.2d 168, cert. denied, 288 N.C. 240, 217 S.E.2d 664
(1975). Accordingly, we remand this case for the limited purpose
of allowing the trial court, in its discretion and upon plaintiff's
motion, to make findings of fact relevant to a determination of
reasonable attorney's fees for services rendered on appeal and to
enter an award consistent with those findings. See Davis v. Kelly,
147 N.C. App. 102, 554 S.E.2d 402 (Nov. 6, 2001)(No. COA00-1360).
AFFIRMED AND REMANDED.
Judges WYNN and WALKER concur.
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