REESE ANN JONES,
Plaintiff
v
.
MICHAEL WAINWRIGHT and BRUCE VEDDER WAINWRIGHT,
Defendants
E. Gregory Stott for plaintiff-appellee.
Broughton, Wilkins, Sugg, Hall & Thompson, P.L.L.C., by
Jonathan E. Hall, for defendant-appellants.
HUNTER, Judge.
Michael Wainwright and Bruce Vedder Wainwright (“defendants”)
appeal an order awarding Reese Ann Jones (“plaintiff”) attorney's
fees and costs following entry of a jury verdict in favor of
plaintiff. We affirm in part and reverse and remand in part.
This case stems from a June 1997 automobile collision wherein
defendant Michael Wainwright rear-ended plaintiff's vehicle and
then fled the scene. Plaintiff filed a complaint on 14 October
1997 seeking damages for Michael Wainwright's negligence, as well
as attorney's fees. The matter was submitted to court-orderedarbitration, and in June 1998, the arbitrator ruled in favor of
plaintiff in the amount of $1,879.00. Defendants then filed an
Offer of Judgment on 21 July 1998 for the amount determined by the
arbitrator. Plaintiff declined the offer and requested a trial de
novo in district court.
Following a trial on the matter, a jury returned a verdict in
favor of plaintiff in the amount of $256.00. The trial court
entered judgment thereon on 30 July 1999. By a separate order
dated 26 July 1999, the trial court taxed costs of $55.00 against
defendants, and ordered them to pay plaintiff $3,045.00 in
attorney's fees. Defendants appealed the order of costs and
attorney's fees to this Court. In an unpublished opinion, this
Court vacated the order, concluding the order failed to reflect
that the trial court had considered all of the factors required
under this Court's decision in Washington v. Horton, 132 N.C. App.
347, 513 S.E.2d 331 (1999), and that the order reflected that
attorney's fees were awarded as a matter of law, not in the court's
discretion as required. See Jones v. Wainwright, 139 N.C. App.
450, 537 S.E.2d 272 (2000) (unpublished opinion). We remanded the
matter to the trial court with instructions for further review and
findings consistent with Washington.
Upon remand, the trial court entered an order on 22 March 2001
containing additional findings and again concluding that plaintiffwas entitled to attorney's fees in the amount of $3,045.00. The
trial court taxed the same $55.00 costs to defendants, but also
added as costs a $75.00 arbitration appeal fee. From this order,
defendants appeal.
Defendants make two arguments on appeal: (1) the trial court
erred in taxing as costs the $75.00 arbitration appeal fee; and (2)
the trial court abused its discretion in awarding plaintiff
$3,045.00 in attorney's fees. We agree with defendants as to their
first argument, and accordingly reverse the trial court's decision
to tax the $75.00 appeal fee to defendants. However, we affirm the
trial court's order in all other respects, including the taxing of
costs of $55.00 to defendants, and awarding of attorney's fees to
plaintiff in the amount of $3,045.00.
Regarding the $75.00 arbitration appeal fee, Rule 5(b) of the
Rules for Court-Ordered Arbitration provides:
(b) Filing Fee. A party filing a demand
for trial de novo shall pay a filing fee
equivalent to the arbitrator's compensation,
which shall be held by the court until the
case is terminated and returned to the
demanding party only if there has been a trial
in which, in the trial judge's opinion, the
position of the demanding party has been
improved over the arbitrator's award.
Otherwise, the filing fee shall be deposited
into the State's General Fund.
R. Ct.-Ordered Arbitration in N.C. 5(b), 2002 N.C. R. Ct. 234. Thus, the rules of arbitration provide specifically for the
disposition of the $75.00 appeal fee upon conclusion of the trial.
We acknowledge that N.C. Gen. Stat. § 6-20 (1999) permits the trial
court to award costs in its discretion; however, it may do so
“unless otherwise provided by law.” N.C. Gen. Stat. § 6-20. We
believe Rule 5(b) of the arbitration rules is explicit in its
requirements for disposition of the $75.00 fee and thus falls
within the “unless otherwise provided by law” limitation on the
court's discretion to award costs. The trial court was required to
dispose of the $75.00 fee in the manner set forth in Rule 5(b),
which requires a determination of whether the trial improved
plaintiff's position over the arbitrator's award of $1,879.00, and
if not, the $75.00 must be deposited into the State's General Fund.
It is clear from the record that plaintiff's position was not
improved by trial. The jury only awarded plaintiff $256.00,
whereas the arbitrator's award was $1,879.00. The $75.00 must be
deposited into the State's General Fund. We therefore reverse the
trial court's order only to the extent it taxed the $75.00 as costs
to defendants.
Defendants next argue that the trial court erred in awarding
plaintiff attorney's fees. They contend the trial court failed to
properly consider the Washington factors as required by our prioropinion, and that the trial court abused its discretion in awarding
$3,045.00 in fees. We disagree.
“The allowance of attorney fees is in the discretion of the
presiding judge, and may be reversed only for abuse of discretion.”
Washington, 132 N.C. App. at 351, 513 S.E.2d at 334. In
Washington, this Court set forth six factors that the trial court
must consider in determining whether to award attorney's fees: (1)
settlement offers made prior to the institution of the action; (2)
offers of judgment, and whether the judgment finally obtained was
more favorable than those offers; (3) whether the defendant
unjustly exercised superior bargaining power; (4) the context in
which the dispute arose in cases of an unwarranted refusal by an
insurance company; (5) the timing of settlement offers; and (6) the
amounts of the settlement offers as compared to the jury verdict.
Id. at 351, 513 S.E.2d at 334-35.
The record in this case reflects that the trial court complied
with our prior mandate by making findings that reflect its
consideration of all applicable Washington factors, and by stating
that the award of fees was made in its discretion. The trial
court's findings with respect to these factors are supported by the
evidence.
Moreover, with respect to the amount of fees, the trial court
made appropriate findings on the specific tasks performed byplaintiff's attorney; the amount of time actually devoted to such
tasks, as well as the amount of time reasonably devoted to such
tasks; and whether the rate charged for such tasks was customary
for the profession. The trial court awarded fees only for the
amount of time it determined was reasonably spent in prosecuting
the claim, which was less than what plaintiff's attorney had
billed, and at the rate it determined to be customary for the
profession. Defendants have failed to show that the trial court
abused its discretion in awarding attorney's fees.
The order on appeal is affirmed in all respects, with the
exception of that portion taxing the $75.00 arbitration appeal fee
to defendants. The $75.00 must be deposited into the State's
General Fund in accordance with Rule 5(b) of the Rules for Court-
Ordered Arbitration.
Affirmed in part; reversed and remanded in part.
Judges WALKER and BRYANT concur.
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