BRENDA HOUSE,
Plaintiff-Appellant,
v
.
Johnston County
No. 99 CVS 1591
LEVI STONE,
Defendant-Appellee.
Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for
plaintiff-appellant.
Law Office of Robert E. Ruegger, by Robert E. Ruegger, for
defendant-appellee.
McGEE, Judge.
Brenda House (plaintiff) filed a complaint on 9 July 1999
seeking recovery for her payment of medical bills for injuries
suffered by her minor daughter, LaShay House, in an automobile
collision on 15 July 1996. In the complaint, a claim was also
filed for LaShay House by her guardian ad litem, Luther D.
Starling, Jr., which was later voluntarily dismissed without
prejudice. Levi Stone (defendant) and Maggie Miller Corprew filed
an answer denying liability. Plaintiff later dismissed her claim
against Maggie Miller Corprew.
Defendant filed an offer of judgment on 25 July 2000, pursuant
to N.C. Gen. Stat. § 1A-1, Rule 68, in the amount of $1,264.00which was "inclusive of all damages [and] attorney's fees taxable
as costs[.]" Following a jury trial on 13 November 2000, the jury
found defendant negligent and awarded plaintiff $2,348.00.
Plaintiff filed a motion on 21 November 2000 for costs,
pursuant to N.C. Gen. Stat. § 6-20, and for reasonable attorney's
fees, pursuant to N.C. Gen. Stat. § 6-21.1. An affidavit of L.
Lamar Armstrong, Jr., plaintiff's counsel, was filed in support of
the motion. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52, plaintiff
also requested "specific findings of fact and conclusions of law
with respect to the [trial court's] ruling on plaintiff's motion to
tax reasonable attorney's fees" in a motion dated 4 January 2001.
In an order filed 8 January 2001, the trial court denied
plaintiff's motion for attorney's fees but granted plaintiff's
request for costs in the amount of $1,692.80. From this order
plaintiff appeals.
By her first assignment of error, plaintiff contends the trial
court failed to make sufficient findings of fact and conclusions of
law as required by our Court in Washington v. Horton, 132 N.C. App.
347, 513 S.E.2d 331 (1999), to support its order denying
plaintiff's request for attorney's fees.
As a general rule, attorney's fees are not recoverable by the
successful party at trial as a part of court costs. Id. at 349,
513 S.E.2d at 333. However, an award of attorney's fees is
permitted pursuant to N.C. Gen. Stat. § 6-21.1 (1999), which
provides that
[i]n any personal injury or property damage
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.
When determining whether to award an attorney's fee, our Court
stated in Washington that
pursuant to N.C. Gen. Stat. § 6-21.1 . . . 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) 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, 132 N.C. App. at 351, 513 S.E.2d at 334-35 (citations
omitted). A "[m]ere recitation by the trial court that it has
considered all Washington factors without additional findings of
fact would be inadequate and would not allow for meaningful
appellate review." Thorpe v. Perry-Riddick, 144 N.C. App. 567,
572-73, 551 S.E.2d 852, 857 (2001). However, the trial court is
not required to make detailed findings of fact as to each factor.
Tew v. West, 143 N.C. App. 534, 537, 546 S.E.2d 183, 185 (2001).
Plaintiff argues that the order of the trial court "does not
reflect findings on all of the required issues." We agree. In its
order, the trial court stated that it considered Washington andmade twelve findings of fact. As to factor two of the Washington
factors, the trial court failed to properly consider whether the
"judgment finally obtained" was more favorable than defendant's
offer of judgment pursuant to Rule 68. Washington, 132 N.C. App.
at 351, 513 S.E.2d at 334 (1999) (citing 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)).
In its order, the trial court found that "plaintiff has
incurred costs in the sum of $1,692.80," that "defendant served a
lump sum offer of judgment to [plaintiff] in the amount of
$1,264.00 on July 24, 2000" in response to plaintiff's demands, and
that the jury awarded plaintiff judgment in the amount of
$2,348.00. However, there is no finding of the "judgment finally
obtained" as required by Washington and whether this judgment is
more favorable than defendant's offer of judgment pursuant to Rule
68.
Our Supreme Court in Poole v. Miller stated that "within the
confines of Rule 68, 'judgment finally obtained' means the amount
ultimately entered as representing the final judgment, i.e., the
jury's verdict as modified by any applicable adjustments, by the
respective court in the particular controversy, not simply the
amount of the jury's verdict." Poole, 342 N.C. at 353, 464 S.E.2d
at 411. Thus, we remand the order of the trial court for
additional findings showing that the trial court properly utilized
the "judgment finally obtained" in consideration of the second
Washington factor, and in its determination as to whether to awardattorney's fees in this case.
We disagree with plaintiff's argument that the trial court
failed to make sufficient findings as to the remaining Washington
factors. As to factor one of the Washington factors, the trial
court found that "[n]o attempt was made by [plaintiff] prior to the
institution of litigation to negotiate a settlement with the
defendant's liability insurance carrier[.]" There is no evidence
in the record that plaintiff made any settlement demand prior to
commencement of this action. The trial court did not make findings
as to factor three. Nevertheless, "'the absence of such a finding
does not require reversal when the trial court made adequate
findings on the whole record to support'" its decision on
attorney's fees. Davis v. Kelly 147 N.C. App. 102, 108, 554 S.E.2d
402, 406 (2001) (quoting Olson v. McMillian, 144 N.C. App. 615,
619, 548 S.E.2d 571, 573-74 (2001)).
Because the present action was not brought by an insured or a
beneficiary against an insurance company defendant, factor four is
inapplicable and the trial court was not required to make a finding
as to this factor. See Washington, 132 N.C. App. at 350, 513
S.E.2d at 334. The trial court found in considering factor five
that:
7. By letter dated July 17, 2000, counsel
for plaintiff indicated that the value of
Brenda and LaShay House's claims were arguably
more than the total of the applicable
liability and underinsured policies, which
total[]ed $75,000.00, and suggested that the
LaShay House claim would be voluntarily
dismissed without prejudice, and that Brenda
House would try her claim for $6,500.00 of
medical bills.
8. In response to [plaintiff's] demands,
the defendant served a lump sum offer of
judgment to Brenda House in the amount of
$1,264.00 on July 24, 2000.
. . .
11. Mediation was conducted and impassed
on October 20, 2000. The defendant's last
offer at mediation was $1,788.00, and the
plaintiff's settlement demand was $4,741.00.
The trial court found as to factor six that plaintiff
indicated she "would try her claim for $6,500.00 of medical bills."
"In response to [this] demand[]," defendant made an offer of
judgment for $1,264.00. At mediation, defendant's last offer was
$1,788.00, compared to plaintiff's settlement demand of $4,741.00.
Finally, the trial court found that the jury returned a verdict for
plaintiff in the amount of $2,348.00. We find the trial court made
sufficient findings on the remaining factors to support its
statement in the order that it had considered the Washington
factors.
Plaintiff further argues that the trial court made irrelevant
findings of fact in its order. We disagree. The findings of fact
reflect that the trial court properly considered the entire record
in determining whether to award an attorney fee, as Washington
requires. Following a hearing on 12 December 2000, the trial court
stated in its order that it "reviewed the court file, heard
arguments from counsel, the Affidavit of L. Lamar Armstrong, Jr.,
and . . . received, reviewed, and considered relevant case law,
including [Washington] . . . and the factors for consideration
outlined therein[.]" Thus, the trial court properly considered theappropriate factors enumerated in Washington, as well as the entire
record, in its order.
Plaintiff also contends that the trial court failed to make
findings as required by Rule 52. N.C. Gen. Stat. § 1A-1, Rule
52(a)(2) (1999) states that "[f]indings of fact and conclusions of
law are necessary on decisions of any motion . . . only when
requested by a party[.]" Upon such request, compliance by the
trial court is mandatory and the findings and conclusions must be
sufficiently detailed to allow meaningful review. Andrews v.
Peters, 75 N.C. App. 252, 258, 330 S.E.2d 638, 642 (1985).
In this case, the record shows that plaintiff made a request
pursuant to N.C. Gen. Stat. § 1A-1, Rule 52, for the trial court to
make "specific findings of fact and conclusions of law with respect
to the [trial court's] ruling on plaintiff's motion to tax
reasonable attorney's fees pursuant to G.S. § 6-21.1." Because we
have determined that the trial court failed to properly assess the
second Washington factor, we agree that the trial court failed to
make sufficient findings pursuant to plaintiff's Rule 52 request.
By her second assignment of error, plaintiff argues that the
trial court's findings of fact numbers three, five, six and seven
are not supported by competent evidence. Plaintiff withdraws her
objection to findings of fact numbers ten and eleven.
Plaintiff argues the competent evidence before the trial court
upon which the court could have based its findings of fact is the
court file, evidence presented at trial, and the affidavit by
plaintiff's counsel. According to plaintiff, the oral argument bydefendant's counsel at the motion hearing is not competent evidence
and cannot be the basis upon which findings of fact are made.
However, plaintiff cites no case law or statutory authority in her
brief to support her argument that an attorney, in opposing an
award of an attorney's fees, is required to give sworn testimony or
a written affidavit for the information in the attorney's argument
to be considered by the trial court. N.C.R. App. P. 28(b)(5)
requires that an appellant's argument "contain citations of the
authorities upon which appellant relies."
Further, although plaintiff contends that because an argument
is not under oath and thus opposing counsel is not afforded the
opportunity to cross-examine inaccurate or incomplete "facts"
injected by way of argument by counsel, the trial court's order
does not show that plaintiff objected to oral statements of
opposing counsel. As defendant points out, our Court in Blackmon
v. Bumgardner, 135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999),
noted that the trial court had considered the arguments of counsel
in exercising its discretion to deny a request for attorney's fees.
See also Stilwell v. Gust, ___ N.C. App. ___, 557 S.E.2d 627 (2001)
(trial court reviewed entire record, including arguments of
counsel, in awarding attorney fees). This assignment of error is
overruled.
Having determined that the trial court failed to make
sufficient findings for our review under Washington, we need not
address plaintiff's third assignment of error that the trial court
abused its discretion in failing to award attorney's fees. Reversed and remanded for additional findings consistent with
this opinion.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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