Appeal by defendant from amended judgment filed 28 March 2002
by Judge Benjamin G. Alford in Craven County Superior Court. Heard
in the Court of Appeals 16 April 2003.
Chesnutt, Clemmons, Thomas & Peacock, P.A., by Gary H.
Clemmons, for plaintiff appellee.
Wallace, Morris & Barwick, P.A., by Edwin M. Braswell, Jr.,
for defendant appellant.
BRYANT, Judge.
Jayne M. Bell (defendant) appeals from an amended judgment
filed 28 March 2002 awarding damages, court costs, and attorney's
fees as costs to Alisha L. Messina (plaintiff).
(See footnote 1)
Plaintiff filed suit against defendant on 11 August 2000
alleging personal injury damages arising from an automobile
accident caused by defendant's negligence. During discovery,
defendant submitted a request for production of documents toplaintiff for any medical reports and other documents from any
medical practitioner who had ever treated plaintiff in connection
with any back or neck surgery or difficulties. Plaintiff responded
that there were none. At trial, it was revealed by a doctor who
had treated plaintiff, that there were medical records of an
emergency room visit from a separate, unrelated automobile accident
during which plaintiff had complained of neck pain. Plaintiff
testified she had forgotten the emergency room visit, and the
records were thereafter provided to defendant. Defendant moved for
sanctions against plaintiff, including dismissal or, in the
alternative, a directed verdict for nominal damages and denial of
any motion to award attorney's fees to plaintiff. The trial court
denied the motion for the sanctions of dismissal, or in the
alternative, directed verdict, but left open the possibility of
denying attorney's fees to plaintiff. Defendant was given the
opportunity to cross-examine plaintiff about the records and her
failure to disclose them, and was also granted last argument.
Following the trial, the jury awarded plaintiff damages in the
amount of $2,000.00. After the verdict, plaintiff moved for an
award of attorney's fees under section 6-21.1 of the North Carolina
General Statutes. Plaintiff subsequently submitted an affidavit in
support of this motion alleging that prior to filing suit,
plaintiff, through counsel, sent a demand letter dated 14 March
2000 to defendant's insurance company demanding damages in the
amount of $66,337.33. This figure included $2,459.18 in medical
expenses, $5,000.00 for past pain and suffering, and $58,878.15 asthe present value of future pain and suffering. On 1 June 2000,
defendant's insurance company offered $5,500.00 to settle the case.
After suit was filed, the case was sent to arbitration and
plaintiff was awarded $12,829.95, including damages, interest, and
attorney's fees. Defendant appealed from the arbitration award,
and the case was scheduled for mediation. At the 7 June 2001
mediation, plaintiff's first offer to settle was $20,000.00 and her
last offer to settle was $13,000.00. Defendant's one and only
offer at mediation was $8,500.00. After mediation, defendant filed
an offer of judgment in the amount of $5,501.00. Defendant made no
other offers between 7 June 2001 and 11 February 2002. During
trial, beginning 11 February 2002, defendant made one last offer to
settle for $5,000.00.
In its amended judgment the trial court made forty-one
separate findings of fact. These findings, in large part, mirrored
the affidavit of plaintiff's counsel. The trial court granted
plaintiff's motion and awarded a total amount of $13,475.22. This
award included the jury verdict of $2,000.00 as damages, $9,172.50
in reasonable attorney's fees as costs, and $2,302.72 in incurred
expenses as court costs. The trial court also denied defendant's
motion for sanctions.
________________________
The issues are whether the trial court abused its discretion
in (I) awarding attorney's fees to plaintiff and (II) denying
defendant's motion for sanctions.
I
Defendant argues that based upon the jury verdict and prior
offers to settle, the trial court erred in granting plaintiff's
motion for attorney's fees because the trial court's findings were
not supported by the evidence and that, moreover, those findings do
not support the trial court's conclusion of law.
(See footnote 2)
We disagree.
In actions for personal injury where the judgment for recovery
of damages is $10,000.00 or less, the trial court may, in its
discretion, “allow a reasonable attorney fee to the duly licensed
attorney representing the litigant obtaining a judgment for damages
. . . [,] said attorney's fee to be taxed as a part of the court
costs.” N.C.G.S. § 6-21.1 (2001). Accordingly, a trial court's
decision to award attorney's fees under this section will be
reversed on appeal only upon a showing that the trial court abused
its discretion.
Whitfield v. Nationwide Mut. Ins. Co., 86 N.C.
App. 466, 469, 358 S.E.2d 92, 94 (1987). “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.'”
Sowell v.
Clark, 151 N.C. App. 723, 727, 567 S.E.2d 200, 202 (2002) (quoting
Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
109, 493 S.E.2d 797, 802 (1997)).
The trial court's discretion in
awarding attorney's fees under section 6-21.1 is, however, not
unbridled.
Washington v. Horton, 132 N.C. App. 347, 351, 513S.E.2d 331, 334 (1999). The trial court must consider the whole
record and make the requisite findings, 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.
Id. at 351, 513 S.E.2d at 334-35 (citations omitted).
In this case, the trial court's detailed findings, in summary,
included: (1) all the offers of settlement made by both parties
prior to and after suit was filed; (2) defendant's offer of
judgment of $5,501.00, which was less than the “judgment finally
obtained” in the amount of $13,475.22,
see Hardesty v. Aldridge,
147 N.C. App. 776, 778, 557 S.E.2d 136, 137 (2001); (3) no findings
regarding unjust exercise of superior bargaining power, although
“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,
108, 554 S.E.2d 402, 406 (2001) (citation omitted) (internal
quotations omitted); (4) no findings regarding an unwarranted
refusal to pay an insurance policy, however, such a finding is not
necessary in a suit involving an automobile accident and which is
not a suit directly against an insurance policy,
see Crisp v. Cobb,
75 N.C. App. 652, 653, 331 S.E.2d 255, 256 (1985); (5) the dates ofall offers to settle by either party prior to suit, in arbitration
and mediation, in offers of judgment, and during trial; and (6) the
jury verdict was $2,000.00, the judgment finally obtained would be
$13,475.22, and defendant offered to settle the case for $5,500.00,
$5,501.00, and $8,500.00.
These findings of fact are supported by both the record and
the affidavit of plaintiff's counsel. From the findings, it is
clear that the trial court exercised its discretion by considering
the whole record and in applying the
Washington factors. Thus, the
findings are sufficient to support the trial court's conclusion
that plaintiff should be awarded attorney's fees, and therefore,
the trial court did not abuse its discretion in granting
plaintiff's motion.
II
Defendant also contends the trial court erred in denying her
motion for sanctions under Rule 37 of the North Carolina Rules of
Civil Procedure for plaintiff's failure to properly respond to the
request for production of documents. Rule 37(d) permits a trial
court to impose sanctions for failure to serve written responses to
a request for inspection under Rule 34 of the rules of civil
procedure.
See Chateau Merisier, Inc. v. Le Mueble Artisanal GEKA,
S.A.,
142 N.C. App. 684, 687, 544 S.E.2d 815, 817 (2001); N.C.G.S.
§ 1A-1, Rule 37(d) (2001);
see also N.C.G.S. § 1A-1, Rule 34 (2001)
(production of documents). “Not every abuse of discovery merits
imposition of punitive sanctions. It is well settled that Rule 37
allowing the trial court to impose sanctions is flexible, and abroad discretion must be given to the trial judge with regard to
sanctions.”
Rose v. Isenhour Brick and Tile Co., 120 N.C. App.
235, 240, 461 S.E.2d 782, 786 (1995) (citations omitted) (internal
quotations omitted),
aff'd, 344 N.C. 153, 472 S.E.2d 774 (1996).
The trial court's discretion is accorded great deference and may be
overturned only upon a showing that the ruling “was so arbitrary
that it could not have been the result of a reasoned decision.”
Id. at 241, 461 S.E.2d at 786 (citation omitted) (internal
quotations omitted).
In this case, the record shows once it was revealed that
plaintiff's answer to the request for production was erroneous,
plaintiff's counsel obtained and delivered the documents to
defendant and defendant was given the opportunity to cross-examine
plaintiff about the documents. During this cross-examination,
plaintiff admitted her response to the request for production had
been untruthful. She explained, however, that when she was asked
to produce documents related to other back or neck difficulties,
she had forgotten the visit to an emergency room following the
separate, unrelated automobile accident. She apparently had not
been hurt seriously in that accident and did not seek any other
medical treatment as a result of that accident. From this record,
we conclude the trial court was within its discretion in denying
defendant's motion for sanctions.
See id. (even though trial court
would have been justified in imposing sanctions for abuse of
discovery, the trial court did not abuse its discretion by not
imposing sanctions). Thus, we conclude the trial court did not errin denying defendant's motion for sanctions.
We note that plaintiff has filed a separate motion in this
Court, pursuant to Rule 37(a) of the North Carolina Rules of
Appellate Procedure, for attorney's fees during appeal under N.C.
Gen. Stat. § 6-21.1. Plaintiff requests that this Court enter an
order remanding this case to the trial court for an additional
hearing and findings on the motion for attorney's fees during
appeal. A trial court, in its discretion and upon appropriate
findings of fact, may award reasonable attorney's fees for service
performed during an appeal, and we therefore remand this case to
the trial court to make the appropriate findings of fact and enter
an award consistent with those findings.
See Hardesty, 147 N.C.
App. at 779, 557 S.E.2d at 138;
see also Davis, 147 N.C. App. at
109, 554 S.E.2d at 407 (remand for findings of fact on plaintiff's
motion for attorney's fees on appeal)
;
Hill v. Jones, 26 N.C. App.
168, 171, 215 S.E.2d 168, 170 (1975) (trial court has discretion to
award attorney's fees for appellate services on remand under N.C.
Gen. Stat. § 6-21.1).
We also note that at the institution of this action, the named
plaintiff in the case was Alisha L. Meadows. On 24 January 2002,
a consent order was filed modifying the caption in this case to
reflect plaintiff's married name, Alisha L. Messina. Subsequently,
both in the trial court and in this Court, plaintiff is listed as
Alisha L. Messina. Both the verdict sheet and the amended
judgment, however, list plaintiff as Alisha M. Messina.
Accordingly, we remand this matter to the trial court for thetechnical correction of the amended judgment to name plaintiff as
Alisha L. Messina consistent with the consent order entered by the
parties.
NO ERROR resulting from the jury trial and amended judgment.
REMANDED for findings of fact on plaintiff's motion for
attorney's fees on appeal and for correction of the amended
judgment.
Judges TIMMONS-GOODSON and GEER concur.
Footnote: 1