Appeal by defendant from judgment filed 24 August 2001 and
order filed 24 August 2001 by Judge A. Moses Massey in Guilford
County Superior Court. Heard in the Court of Appeals 7 January
2003.
Carruthers & Roth, P.A., by Kenneth R. Keller and J. Patrick
Haywood, for plaintiff appellee.
Teague, Rotenstreich & Stanaland, L.L.P., by Stephen G.
Teague, for defendant appellant.
BRYANT, Judge.
Jesse Cornelieus Brackett (Defendant) appeals a judgment filed
24 August 2001 awarding Brenda Macon Phillips (Plaintiff) damages
and attorney's fees and a concurrent order denying Defendant's
motions for relief from order and for reconsideration. We affirm.
On 3 March 2000, Plaintiff filed a complaint seeking “an
amount in excess of $10,000” in damages for Defendant's negligent
driving resulting in a collision with Plaintiff's vehicle. In hisanswer filed 3 April 2000, Defendant admitted negligence but denied
Plaintiff's allegations of injuries, medical expenses, and lost
income. Following trial, the jury entered a verdict for Plaintiff
in the amount of $3,829.98 as compensation for her personal
injuries. Plaintiff moved for a new trial. Before the trial court
ruled on the motion, Plaintiff suggested the trial court first hear
her motion for attorney's fees as this might alleviate the need to
move for a new trial. The trial court inquired whether Defendant
had any objection to this, and Defendant answered he did not. In
support of her motion for attorney's fees, Plaintiff submitted
affidavits from her counsel and other attorneys familiar with
Defendant's insurer. The affidavits outlined the work performed by
Plaintiff's counsel, the hours expended, and his customary rate.
They also described: (1) the actions and posture of Defendant's
insurer and counsel in this case, (2) Defendant's insurer's general
claims practices, (3) observations associated with Defendant's
insurer with respect to other claims, including its tendency to
litigate small claims to the appellate stage, and (4) web sites
dedicated to alleged abuses by Defendant's insurer.
In a judgment filed 24 August 2001, the trial court found in
pertinent part:
1. This is a personal injury action arising
out of a vehicular collision in which . . .
Defendant admittedly failed to reduce the
speed of his vehicle to the extent necessary
to avoid contact with the rear of the vehicle
being operated by . . . Plaintiff while
Plaintiff's vehicle was stopped pursuant to a
duly erected traffic control signal at an
intersection on March 30, 1998.
2. [Plaintiff] . . . and her husband . . .
have been clients of the firm of Carruthers &
Roth, P.A. for many years.
. . . .
4. [Plaintiff's counsel] first met with
[Plaintiff] on April 28, 1998 in connection
with her claims arising out of the collision.
5. After meeting with [Plaintiff], Carruthers
& Roth, P.A. obtained copies of medical
records on [Plaintiff] from all treating
medical providers . . . .
. . . .
7. After obtaining medical records and bills,
[Plaintiff's counsel] prepared a demand letter
summarizing the liability and damages
information on [Plaintiff] and forwarded this
letter on August 11, 1999 to [Defendant's
insurer].
8. The initial demand letter submitted on
behalf of [Plaintiff] was $38,750.00.
9. On October 28, 1999, in response to
requests from [Defendant's insurer],
[Plaintiff's counsel] forwarded . . . copies
of W-2 forms for [Plaintiff] for 1996, 1997
and 1998, and requested an offer from
[Defendant's insurer] in settlement of
[Plaintiff's] claim.
10. Plaintiff received no offer from
[Defendant's insurer] on [her] claim and filed
suit in Guilford County Superior Court on
March 3, 2000.
11. During the course of handling this case,
Carruthers & Roth responded to various
discovery requests from [Defendant's insurer]
and, on February 20, 2001, defended the
depositions of [Plaintiff] and her husband
. . . taken by counsel retained by
[Defendant's insurer] to represent . . .
Defendant.
. . . .
13. Mediation of this matter was held on April
5, 2001.
14. During the period of approximately three
years prior to the mediation on April 5, 2001,
neither [Defendant's insurer] nor counsel
retained by [Defendant's insurer] made any
offers of settlement on [Plaintiff's] claim,
despite admitting that [Defendant] was
negligent.
15. During mediation . . . [Defendant's
insurer's] adjuster and counsel retained by
[Defendant's insurer] communicated, for the
first time, an offer of $6,000.00 to settle
[Plaintiff's] claim. Counsel for [Plaintiff]
understood that the offer was non-negotiable.
16. On April 5, 2001, counsel retained by
[Defendant's insurer] to defend . . .
Defendant filed a pleading entitled “Offer of
Judgment” which stated that . . . Defendant
“offers to allow Judgment to be taken against
him in the amount of $6,001.00, which amount
includes all attorneys fees and costs of court
accrued to the date of the making of this
offer and interest as may be allowed pursuant
to G.S. § 24-5.”
17. On May 2, 2001, counsel for . . .
Plaintiff communicated to counsel for . . .
Defendant an offer by . . . Plaintiff to
accept a total of $9,000.00 in settlement of
her claim.
18. Counsel retained by [Defendant's insurer]
to represent . . . Defendant made no
counter[-]offers.
The trial court entered findings with respect to the hours
expended by Plaintiff's counsel and his staff, his hourly rate, and
the customary fees for such work. The trial court also made note
of the affidavit assertions regarding Defendant's insurer's claims
practices and concluded Defendant's insurer had engaged in the
unjust exercise of superior bargaining power in this case. Thetrial court then entered judgment for compensatory damages in the
amount of $3,829.98 and awarded Plaintiff $15,231.50 in attorney's
fees.
____________________________
The issues are whether: (I) the trial court's award of
attorney's fees contravened public policy and the purpose of N.C.
Gen. Stat. § 6-21.1; (II) Defendant preserved for appeal the
question whether the trial court's ruling on Plaintiff's motion for
attorney's fees was an improper advisory opinion; (III) Defendant
waived any assignment of error with respect to the trial court's
reliance on affidavit assertions relating to Defendant's insurer's
general or past claims practices; (IV) the award of attorney's fees
punished proper case investigation and discovery; and (V) the trial
court made sufficient findings as to the time and labor expended by
Plaintiff's counsel in this case.
I
Defendant first contends the trial court's award of attorney's
fees contravened public policy and the purpose of section 6-21.1.
Section 6-21.1 provides:
In any personal injury or property damage
suit, or suit against an insurance company
under 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 licensedattorney representing the litigant obtaining a
judgment for damages in said suit . . . .
N.C.G.S. § 6-21.1 (2001). Defendant argues that because Plaintiff
initially demanded $38,750.00 in compensation, Plaintiff's claim
does not fall within the purview of this section and the trial
court should therefore have denied her request for attorney's fees.
We disagree. It is “[t]he amount of the judgment obtained, not the
amount of the judgment sought, [that] governs applicability of the
statute.”
Purdy v. Brown, 56 N.C. App. 792, 796, 290 S.E.2d 397,
399,
rev'd on other grounds, 307 N.C. 93, 296 S.E.2d 459 (1982).
The judgment for recovery of damages obtained in this case was
$3,829.98 and thus within the range that invokes operation of the
statute. Consequently, this assignment of error is overruled.
II
Defendant next argues the trial court's ruling on Plaintiff's
motion for attorney's fees was an improper advisory opinion that
served to guarantee attorney's fees. Defendant, however, did not
object to the trial court's ruling on the motion for attorney's
fees prior to ruling on Plaintiff's initial motion for a new trial.
Accordingly, Defendant failed to preserve this issue for appellate
review.
See N.C.R. App. P. 10(b)(1) (“[i]n order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion”).
III
Defendant further asserts the trial court's reliance on the
affidavit assertions relating to Defendant's insurer's generalclaims practices amounted to an abuse of discretion. We first note
that Defendant did not cite any relevant authority in his brief to
this Court in support of his argument and thereby has waived
appellate review of this issue.
See N.C.R. App. P.
28(b)(6).
Moreover, even assuming the trial court erred in relying on the
affidavit assertions in question, such error was harmless.
Although the trial court, in order to award attorney's fees, needed
to make findings with respect to the factors listed in
Washington
v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334-35 (1999),
including any exercise of superior bargaining power, the existence
of such a use of bargaining power is not required for a fee award,
see Robinson v. Shue, 145 N.C. App. 60, 66-69, 550 S.E.2d 830, 834-
36 (2001) (finding no abuse of discretion in trial court's award of
attorney's fees where parties conceded there had been no unjust
exercise of superior bargaining power). As long as the trial
court's consideration of the other relevant
Washington factors
justifies an award of attorney's fees under section 6-21.1, there
is no abuse of discretion.
See id. In this case, we are satisfied
with the trial court's remaining findings on the
Washington factors
and find no abuse of discretion.
IV
Defendant also contends the award of attorney's fees punished
proper case investigation and discovery by Defendant's insurer.
Specifically, Defendant argues Plaintiff's failure to provide
documentary support for her claim of lost wages, which was part of
her overall claim for damages, was the reason Defendant was unableto make any settlement offers prior to mediation. While
Defendant's argument carries some weight as far as the disputed
lost wage claim, it does not explain the absence of any settlement
offers with respect to damages for which Defendant did receive
timely documentary support, such as Plaintiff's medical expenses.
This Court has previously held that the trial court properly
awarded attorney's fees pursuant to section 6-21.1 where a
“defendant's refusal to pay at least the undisputed amount of [the]
loss to [the] plaintiff was unwarranted.”
PHC, Inc. v. N.C. Farm
Bureau Mut. Ins. Co., 129 N.C. App. 801, 806, 501 S.E.2d 701, 704
(1998). As Defendant in this case offered no justification for his
failure to make a settlement offer prior to mediation reflecting
the damages for which there was documentary support, the trial
court did not abuse its discretion in noting Defendant's lack of
settlement offers and awarding Plaintiff attorney's fees in part on
this basis.
V
In his last assignment of error, Defendant argues the trial
court made insufficient findings as to the time and labor expended
by Plaintiff's counsel in this case.
We agree with Defendant that “[i]f the trial court elects to
award attorney fees, it must also enter findings of fact as to the
time and labor expended.”
Thorpe v. Perry-Riddick, 144 N.C. App.
567, 572, 551 S.E.2d 852, 856 (2001). In this case, the trial
court's findings reflect the various tasks performed by Plaintiff's
counsel during the course of his representation of Plaintiff'sclaim. These tasks include obtaining and forwarding Plaintiff's
medical records, drafting a demand letter, corresponding with
Defendant's insurer and his counsel, replying to interrogatories,
defending depositions, participating in mediation, and going to
trial. The trial court then listed the hours spent by Defendant's
counsel and his staff with respect to this matter. Although the
trial court made the requisite findings as to time and labor,
Defendant contends the trial court was further obligated to
specifically break down the number of hours allocated to each
activity. Such detail, however, is not required to support an
award of attorney's fees.
See, e.g., Mickens v. Robinson, 103 N.C.
App. 52, 59, 404 S.E.2d 359, 363 (1991) (where the trial court was
not required to make findings allocating the time spent on the case
between work required to defend against the plaintiff's claim and
that required to forward the defendant's counterclaim). As the
trial court's findings were sufficient, there was no abuse of
discretion in awarding Plaintiff the requested attorney's fees.
(See footnote 1)
Affirmed.
Judges WYNN and GEER concur.
Footnote: 1