Costs--attorney fees--failure to file timely motion
The trial court erred by ordering defendants to pay plaintiff attorney fees under N.C.G.S.
§ 6-19.1 in a claim for injunctive relief to compel plaintiff's reinstatement to the position of
Chief Internal Auditor, because: (1) a request for attorney fees contained within a complaint's
prayer for relief does not constitute a petition within the meaning of N.C.G.S. § 6-19.1; and (2)
the trial court did not have jurisdiction to hear plaintiff's motion for attorney fees since plaintiff
failed to petition for attorney fees within thirty days of the final disposition of his case.
Broughton Wilkins Sugg & Thompson, P.L.L.C., by R. Palmer
Sugg, for plaintiff-appellee.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III and Assistant Attorney General
Sarah Ann Lannom, for defendants-appellants.
ELMORE, Judge.
In this appeal, we must determine whether the trial court
erred by ordering the North Carolina Department of Transportation
(DOT) and Norris Tolson (collectively, defendants) to pay
attorney's fees incurred by Glenn I. Hodge, Jr. (plaintiff) in
plaintiff's prosecution of his claim for injunctive relief. For
the reasons discussed herein, we conclude that the trial court did
not have jurisdiction to hear plaintiff's motion for attorney's
fees pursuant to N.C. Gen. Stat. § 6-19.1 (2003), and we vacate the
trial court's order. The facts are set out in full in a previous opinion of this
Court, Hodge v. N.C. Dep't. of Transportation, 137 N.C. App. 247,
528 S.E.2d 22, rev'd, 352 N.C. 664, 535 S.E.2d 32 (2000). Briefly,
plaintiff was employed in January 1992 by the DOT as an internal
auditor and was promoted to chief of the DOT's Internal Audit
Section in May 1992. In May 1993, plaintiff's position was
reclassified as policymaking exempt pursuant to N.C. Gen. Stat. §
126-5(d). Plaintiff petitioned the Office of Administrative
Hearings for a contested case hearing challenging this
reclassification, and in November 1993, the DOT dismissed plaintiff
as chief of its Internal Audit Section. After proceedings before
the Office of Administrative Hearings, the State Personnel
Commission, the Wake County Superior Court, and this Court, our
Supreme Court ultimately determined that the position of Chief
Internal Auditor had been improperly reclassified as policymaking
exempt. See N.C. Dept. of Transportation v. Hodge, 347 N.C. 602,
499 S.E.2d 187 (1998). Consequently, plaintiff was awarded back
pay and reinstated to employment by the DOT in May 1998, albeit as
an Internal Auditor II rather than as Chief Internal Auditor.
In July 1998, plaintiff commenced the litigation giving rise
to this appeal by applying to the Wake County Superior Court for
injunctive relief to compel his reinstatement to the position of
Chief Internal Auditor. On 12 February 1999, the trial court
granted summary judgment in plaintiff's favor and ordered that he
be immediately reinstated to the position of Chief Internal
Auditor. On appeal, a divided panel of this Court reversed the
trial court's order. See Hodge v. N.C. Dep't. of Transportation,137 N.C. App. 247, 528 S.E.2d 22 (2000). However, in an opinion
filed 6 October 2000, our Supreme Court reversed this Court's
decision, effectively reinstating the trial court's order granting
summary judgment and injunctive relief in plaintiff's favor. See
Hodge v. N.C. Dep't. of Transportation, 352 N.C. 664, 535 S.E.2d 32
(2000) (per curiam). Approximately seventeen months later, on 15
March 2002, plaintiff filed a motion seeking to recover attorney's
fees from defendants. By its order entered 15 October 2002, the
trial court granted plaintiff's motion and awarded reasonable
attorney's fees in the amount of $25,500.00, and costs in the
amount of $837.85. From this order, defendants now appeal.
By their first assignment of error, defendants contend the
trial court lacked jurisdiction to award attorney's fees pursuant
to N.C. Gen. Stat. § 6-19.1, because plaintiff did not file his
motion within 30 days of the final disposition of his case. We
agree.
Section 6-19.1 of our General Statutes provides, in pertinent
part, as follows:
In any civil action, other than an adjudication for the
purpose of establishing or fixing a rate, or a
disciplinary action by a licensing board, brought by the
State or brought by a party who is contesting State
action pursuant to G.S. 150B-43 or any other appropriate
provisions of law, unless the prevailing party is the
State, the court may, in its discretion, allow the
prevailing party to recover reasonable attorney's fees,
including attorney's fees applicable to the
administrative review portion of the case, in contested
cases arising under Article 3 of Chapter 150B, to be
taxed as court costs against the appropriate agency if:
(1) The court finds that the agency acted without
substantial justification in pressing its claim against
the party; and
(2) The court finds that there are no special
circumstances that would make the award of attorney's
fees unjust. The party shall petition for the attorney's
fees within 30 days following final disposition of the
case. The petition shall be supported by an affidavit
setting forth the basis for the request. . . .
N.C. Gen. Stat. § 6-19.1 (2003) (emphasis added).
In reviewing an award of attorney's fees under Section 6-19.1,
a different panel of this Court has previously stated that “[t]he
30-day filing period contained in the statute is a jurisdictional
prerequisite to the award of attorney's fees, and it begins to run
after the decision has become final and it is too late to appeal.”
Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815, 818, 434
S.E.2d 229, 232 (1993), appeal dismissed and disc. review denied,
335 N.C. 566, 441 S.E.2d 135 (1994) (citations omitted) (emphasis
added). In Whiteco, this Court cited with approval the Black's Law
Dictionary definition of “final disposition” as “'[s]uch a
conclusive determination of the subject-matter that after the
award, judgment, or decision is made, nothing further remains to
fix the rights and obligations of the parties, and no further
controversy or litigation can arise thereon.'” Id. at 818, 434
S.E.2d at 232 (quoting Black's Law Dictionary 630 (6th ed. 1990)).
In the present case, we conclude that the litigation
underlying the instant appeal reached its “final disposition”
within the meaning of Section 6-19.1(2) twenty days after the North
Carolina Supreme Court filed its written opinion on 6 October 2000
reinstating plaintiff to the position of chief of the DOT's
Internal Audit Section. See N.C.R. App. P. 32(b) (2004) (unless an
appellate court orders otherwise, its mandate shall issue 20 days
after the court's written opinion is filed with the clerk). Wereject plaintiff's contention that he satisfied the 30-day filing
period contained in Section 6-19.1(2) by praying for attorney's
fees within the complaint by which he initiated this litigation.
The statute's plain language requires a prevailing party seeking
recovery of attorney's fees to “petition” for them. “When the
language of a statute is clear and unambiguous, there is no room
for judicial construction, and the courts must give it its plain
and definite meaning.” Lemons v. Old Hickory Council, 322 N.C.
271, 276, 367 S.E.2d 655, 658, reh'g denied, 322 N.C. 610, 370
S.E.2d 247 (1988). Because a petition is “[a] formal written
application to a court requesting judicial action on a certain
matter,” see Black's Law Dictionary 1145 (6th ed. 1990), we conclude
that a request for attorney's fees contained within a complaint's
prayer for relief does not constitute a “petition” within the
meaning of Section 6-19.1(2).
Because plaintiff did not move for attorney's fees until 15
March 2002, almost a year and a half after final disposition of his
case, we hold that plaintiff failed to satisfy the “jurisdictional
prerequisite” imposed by Section 6-19.1(2) that he petition for
attorney's fees within 30 days of his case's final disposition.
Whiteco, 111 N.C. App. at 818, 434 S.E.2d at 232. Accordingly, we
vacate the trial court's order awarding attorney's fees and costs
to plaintiff and remand to the trial court for entry of an order
dismissing plaintiff's motion for attorney's fees and costs.
Because we conclude that the trial court lacked jurisdiction
to order an award of attorney's fees to plaintiff, we need not
address defendants' remaining assignments of error. Vacated and remanded.
Judges WYNN and TIMMONS-GOODSON concur.
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