Appeal by defendant from judgment entered 18 June 2001 by
Judge Quentin T. Sumner in Pitt County Superior Court. Heard in the
Court of Appeals 14 October 2002. A divided panel of this Court
reversed as to the first issue and, by opinion entered 17 December
2002, remanded the case to Superior Court with instructions to
enter judgment for defendant.
See Overton v. Purvis, 154 N.C. App.
543, 573 S.E.2d 219 (2002). The North Carolina Supreme Court
reversed and, by opinion entered 2 October 2003, remanded to this
Court for consideration of defendant's remaining assignments of
error.
See Overton v. Purvis, 357
N.C. 497, 586 S.E.2d 265 (2003).
The Blount Law Firm, P.L.L.C., by Marvin K. Blount, III, for
plaintiff-appellee.
Walker, Clark, Allen, Grice & Ammons, L.L.P., by Jerry A.
Allen and Gay P. Stanley, for defendant-appellant.
EAGLES, Chief Judge.
This case arises from judgment entered for plaintiff in a
negligence action stemming from an automobile accident involving a
pedestrian. Since a detailed summary of the facts giving rise to
this appeal is set forth in our previous opinion, Overton v.
Purvis, 154 N.C. App. 543, 573 S.E.2d 219 (2002), only a brief
synopsis of the pertinent facts is required to provide context for
the issues to be considered.
The evidence tended to establish that on 7 September 1996,
while fox hunting with friends near Falkland, North Carolina,plaintiff entered and stood in the middle of Highway 222 to protect
hunting dogs that were crossing the road in pursuit of a fox. While
standing in the road, plaintiff saw defendant's truck round a bend
in the road approximately 1000 feet away. Plaintiff remained in the
road, first just watching defendant as he approached and later,
waving his hands to get defendant's attention when it appeared
defendant was not slowing down. Plaintiff remained in the roadway
until defendant's truck was approximately 100-150 feet from him.
Plaintiff was struck by defendant's truck as he attempted to get
out of the roadway.
On appeal, defendant presented the following issues for
review: (I) whether the trial court erred by instructing the jury
on the doctrine of last clear chance; (II) whether the trial court
erred by denying defendant's request for an instruction on the
doctrine of sudden emergency; (III) whether the trial court erred
by denying defendant's motion for judgment notwithstanding the
verdict or for a new trial; (IV) whether the trial court erred by
denying plaintiff's motion for additur; and (V) whether the trial
court erred by awarding plaintiff costs and attorneys' fees. We now
consider defendant's remaining assignments of error.
I.
Defendant first contends that the trial court erred by
instructing the jury on the doctrine of last clear chance.
Defendant argues that neither the first nor the third elements
required to invoke the doctrine of last clear chance were
sufficiently established. Although this Court's previous opiniononly analyzed the sufficiency of the evidence to support the first
element, our Supreme Court concluded that the issue of last clear
chance was properly submitted to the jury in this case.
See Overton
v. Purvis, 357
N.C. 497, 586 S.E.2d 265 (2003).
See also Overton v.
Purvis, 154 N.C. App. 543, 573 S.E.2d 219 (2002)(THOMAS, J.
dissenting). Accordingly, these assignments of error are overruled.
II.
[1] Defendant next contends that the trial court erred by
denying his request for an instruction on the doctrine of sudden
emergency. We disagree.
Before an instruction on the doctrine of sudden emergency may
be given, the party asserting the doctrine must present substantial
evidence of two elements: (1) that an emergency situation
existed;
and (2) that the emergency was not created by the negligence of the
party seeking the doctrine's protection.
Long v. Harris, 137 N.C.
App. 461, 467, 528 S.E.2d 633, 637 (2000). “In determining whether
the substantial evidence test has been satisfied, 'the evidence
must be considered in the light most favorable' to the party
requesting the benefit of the instruction.”
Id. (quoting
Holbrook
v. Henley, 118 N.C. App. 151, 153, 454 S.E.2d 676, 678 (1995)).
Here, defendant testified that he first saw the hunters'
vehicles parked along the side of the road when he was
approximately 500 feet away from the accident scene. Defendant also
saw Jay Womble, standing on the right side of the road, waving his
arms “for [defendant] to stop.” Although defendant could have
stopped when he saw Jay Womble, he did not; instead, defendant “got
over just a little bit,” and proceeded on to the point where heultimately struck plaintiff, who was standing in the road. In light
of this evidence, we conclude that defendant failed to establish
the second element required for an instruction on sudden emergency,
i.e., that the emergency was not created by defendant's own
negligence. Accordingly, the trial court properly denied
defendant's request for the instruction.
III.
Defendant next contends that the trial court erred by denying
his motions for judgment notwithstanding the verdict and, in the
alternative, for a new trial, based on the trial court's erroneous
instruction on the issue of last clear chance. We disagree.
“On appeal our 'standard of review for a judgment
notwithstanding the verdict is the same as that for a directed
verdict; that is, whether the evidence was sufficient to go to the
jury.'”
Whitaker v. Akers, 137 N.C. App. 274, 277, 527 S.E.2d
721, 724 (2000)(citation omitted). “[A] motion for new trial is
addressed to the sound discretion of the trial court, and its
ruling will not be disturbed absent a manifest abuse of that
discretion. However, where the motion involves a question of law
or legal inference, our standard of review is
de novo.”
Kinsey v.
Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000)(citation
omitted).
Here, our Supreme Court has already determined that the issue
of last clear chance was properly submitted to the jury in this
case.
See Overton v. Purvis, 357
N.C. 497, 586 S.E.2d 265 (2003).
Therefore, we conclude the trial court properly denied defendant'smotions for judgment notwithstanding the verdict and for a new trial.
IV.
[2] Defendant next contends that the trial court erred by
denying plaintiff's motion for additur. We disagree.
After the jury returned its verdict ($7,000), plaintiff moved
pursuant to N.C. R. Civ. P. 59 for additur or, in the alternative,
for a new trial on the issue of damages. In his response to
plaintiff's motion, defendant consented to increasing the jury's
verdict to $10,564.05; payment of pre- and post-judgment interest
in the amount of $1,690.24; and payment of costs in the amount of
$2,439.61. The trial court concluded that “the jury verdict [wa]s
adequate” and denied plaintiff's motion.
As a preliminary matter, we note that this Court has subject
matter jurisdiction over this issue. While the general rule is that
“[o]nly a 'party aggrieved' has a right to appeal[,] . . . [a]
'party aggrieved' is one whose legal rights have been denied or
directly and injuriously affected by the action of the trial
court.”
Selective Ins. Co. v. Mid-Carolina Insulation Co., 126 N.C.
App. 217, 219, 484 S.E.2d 443, 445 (1997)(citation omitted). Here,
although the denial of plaintiff's motion for additur was initially
favorable to defendant, the end result was that defendant
ultimately became liable for payment of $32,120.00 in attorneys'
fees.
See G.S. § 6-21.1 (attorneys' fees may be taxed as costs
where the judgment for recovery of damages is ten thousand dollars
or less). Since defendant's rights have been directly and
injuriously affected by the decision of the trial court, this Court
has jurisdiction to consider this issue. [3] “A ruling on a motion for additur or remittur is within
the discretion of [the] trial judge.”
Lazenby v. Godwin, 40 N.C.
App. 487, 496, 253 S.E.2d 489, 493 (1979). “[W]hen rulings are
committed to the sound discretion of the trial court[,] they will
be accorded great deference and will not be set aside unless it can
be shown that they were arbitrary and not the result of a reasoned
decision.”
Albritton v. Albritton, 109 N.C. App. 36, 42, 426 S.E.2d
80, 84 (1993). “The appellate courts will not supervise the lower
court's judgment except in 'extreme circumstances.'”
Lazenby, 40
N.C. App. at 496, 253 S.E.2d at 494 (quoting
Setzer v. Dunlap, 23
N.C. App. 362, 363, 208 S.E.2d 710, 711 (1974)).
Here, defendant argues that his consent to the additur
establishes an abuse of the trial court's discretion. We are
unpersuaded. Careful review of the record reveals that the trial
court made its decision only after considering plaintiff's motion,
defendant's response and arguments of both counsel. As nothing in
the record before us indicates an abuse of discretion, we conclude
the trial court properly denied plaintiff's motion for additur.
V.
Defendant's final contention is that the trial court erred by
awarding plaintiff costs and attorneys' fees. We affirm in part and
reverse in part.
The determination to award counsel fees is a matter within the
discretion of the trial judge and will not be overturned absent a
showing of abuse of discretion.
Thorpe v. Perry-Riddick, 144 N.C.
App. 567, 570, 551 S.E.2d 852, 855-56 (2001). However,
[t]he discretion accorded the trial court in awarding
attorney fees . . . is not unbridled. . . . [T]he trialcourt 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 v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334-
35 (1999)(citations omitted).
“If the trial court elects to award attorney fees, it must
also enter findings of fact as to the time and labor expended,
skill required, customary fee for like work, and experience or
ability of the attorney based on competent evidence.”
Thorpe, 144
N.C. App. at 572, 551 S.E.2d at 856
. “The scope of appellate review
is strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.”
Id. at 570, 551 S.E.2d at 855.
A. Washington Factors.
[4] Defendant first argues that the trial court abused its
discretion by failing to consider each of the
Washington factors.
We disagree.
While a “[m]ere recitation by the trial court that it has
considered all [the]
Washington factors” without making additional
findings of fact is inadequate,
id. at 572, 551 S.E.2d at 857,
“the
trial court is not required to make detailed findings for each
factor.”
Id. (citing
Tew v. West, 143 N.C. App. 534, 546 S.E.2d 183(2001)). The trial court must only make findings with respect to
“those facts matching th[e]
Washington factors apposite to the
instant case.”
Id. at 573, 551 S.E.2d at 857.
Here, the trial court made nine findings of fact. The trial
court specifically found that: no settlement offer was made prior
to the institution of the action; no Rule 68 offer of judgment was
made; and the judgment finally obtained was more favorable than the
offer, since none was made. The trial court further found that,
after careful consideration of “all the necessary factors and
guidelines set forth in
Washington” and “the entire record,” an
award of attorneys' fees was proper under the circumstances. On
this record, we conclude no further findings were necessary.
First,
in light of the finding that no settlement offer was made, a
finding as to the timing of a settlement offer would have been
unnecessary. Second, this was neither a “superior bargaining power”
nor an “unwarranted refusal” case; therefore, findings as to these
factors were also unnecessary. Accordingly, this assignment of
error is overruled.
B. Proportionality of Fees to Recovery.
[5] Defendant next argues that the trial court abused its
discretion by awarding attorneys' fees in excess of $32,000 in a
case where the plaintiff recovered only $7,000. We disagree.
“Abuse of discretion results where the court's ruling 'is
manifestly unsupported by reason or so arbitrary that it could not
have been the result of a reasoned decision.'”
Thorpe, 144 N.C.
App. at 570, 551 S.E.2d at 855 (citations and internal quotation
marks omitted). Here, plaintiff supported his motion for attorneys'fees with detailed time and billing statements, which are included
in the record on appeal. The record indicates that the trial court
considered these statements, together with argument from counsel,
in determining whether and to what extent attorneys' fees were
appropriate. We hold that these statements are competent and
sufficient to support the trial court's award and find no abuse of
discretion.
C. Findings of Fact.
[6] Defendant next argues that the trial court's findings of
fact fail to support its decision to award attorneys' fees. We
disagree.
In addition to the
Washington factors, “[i]f the trial court
elects to award attorney fees, it must also enter findings of fact
as to the time and labor expended, skill required, customary fee
for like work, and experience or ability of the attorney based on
competent evidence.”
Thorpe, 144 N.C. App. at 572, 551 S.E.2d at
856
.
Here, the trial court specifically found:
5. The attorneys' fees requested are reasonable based
on competent evidence including the time and labor
expended by Plaintiff's counsel prior to and during
trial; the skill exhibited by Plaintiff's counsel
before the Court; the customary fee for like work;
and the experience and ability of Plaintiff's
counsel.
6. After careful review of hours and rates submitted
to the Court, the Court finds that the hours
expended by attorneys Marvin K. Blount, Jr., Ted
Mackall, Jr., and Marvin K. Blount III on behalf of
the Plaintiff in this action are reasonable in time
and manner under the circumstances of this case,
and at rates per hour that are reasonable in this
area for this type of work by attorneys with their
respective experience and expertise in personal
injury law of this nature.
We have already concluded that the trial court's findings
satisfied the requirements of
Washington. Likewise, we have
concluded that the statements of rates and hours that accompanied
plaintiff's motion for attorneys' fees were competent to support
the fees awarded by the trial court. In light of these conclusions,
we hold that the above quoted findings are sufficient to
support
the trial court's award of attorneys' fees.
[7] Defendant next argues that the record fails to support the
trial court's finding that “[d]efendant made no offer to settle
prior to the verdict being received.”
After conducting its own investigation, defendant's insurance
carrier, North Carolina Farm Bureau Mutual Insurance Company (“Farm
Bureau”), denied liability for the accident. In December 1996, Farm
Bureau's agent stated that “he would reconsider the denial if
Plaintiff would settle th[e] case for litigation costs in the
$3,000.00 to $8,000.00 range.” Defendant contends that this compels
the conclusion that he made an offer to settle. We disagree.
“An offer [of compromise] must be definite and complete[.] .
. . [A] mere proposal intended to open negotiations which contains
no definite terms but refers to contingencies to be worked out”
cannot form the basis for an enforceable contract.
Seawell v.
Continental Casualty Co., 84 N.C. App. 277, 279, 352 S.E.2d 263,
264 (1987). Moreover, “it must be made known to the purported
offeree, in clear and unmistakable terms, that the act or promise
is being offered as an offer to compromise.” 15A Am.Jur.2d,
Compromise and Settlement § 13, p. 735 (2000). Here, Farm Bureau's
statement was more akin to a proposal intended to open negotiationswithin a range of values from $3,000 to $8,000 than an offer to
settle the claim. The statement was indefinite and incomplete as to
its terms and did not clearly purport to be an offer to compromise.
Accordingly, this assignment of error is overruled.
Defendant next contends that there was no competent evidence
in the record to support the trial court's findings that the
“attorneys' fees requested” and the “hours expended” were
reasonable. For the reasons set forth in sections
V.B. and V.C. of
this opinion, these assignments of error are overruled.
D. Costs.
Finally, defendant argues that the trial court erred by
awarding as costs amounts not recoverable by statute or as provided
by law. We agree.
After the jury returned its verdict, plaintiff moved for and
was awarded costs in the amount of $5,595.55. Included within this
amount were the following itemized expenses: (1) $1,210.41 for
photocopies; (2) $48.53 for telephone calls; (3) $23.64 for
photographs; (4) $93.80 for medical records and reports; (5)
$1,434.90 for expert witnesses; (6) $270.98 for travel and meals;
and (7) $1,378.85 for trial diagrams and exhibits.
G.S. § 6-20 allows the trial court to assess “costs” in its
discretion. “[W]hile the decision to tax costs is not reviewable
absent an abuse of discretion, the discretion to award costs is
strictly limited by our statutes.”
Muse v. Eckberg, 139 N.C. App.
446, 447, 533 S.E.2d 268, 269 (2000)(citation omitted). “The trial
court . . . is prohibited from assessing costs in civil cases which
are neither enumerated in section 7A-305 nor 'provided by law.'”
Crist v. Crist, 145 N.C. App. 418, 424, 550 S.E.2d 260, 265
(2001)(citation omitted).
Although the costs set forth in Article
28 of our General Statutes are “complete and exclusive,” G.S. § 7A-
320, “'the authority of trial courts to tax deposition expenses as
costs, pursuant to § 6-20, remains undisturbed.'”
Dep't of Transp.
v. Charlotte Area Manufactured Housing, Inc., 160 N.C. App. 461,
467, 586 S.E.2d 780, 784 (2003)(quoting
Alsup v. Pitman, 98 N.C.
App. 389, 391, 390 S.E.2d 750, 751 (1990)).
1. Expert Witness Fees.
[8] G.S. § 7A-314(d) provides that “an expert witness . . .
shall receive such compensation and allowances as the court, . . .
in its discretion, may authorize.”
However, “'only witnesses who
have been subpoenaed may be compensated.'”
Holtman v. Reese, 119
N.C. App. 747, 752, 460 S.E.2d 338, 342 (1995)(quoting
Brandenburg
Land Co. v. Champion International Corp., 107 N.C. App. 102, 104-
05, 418 S.E.2d 526, 528-29 (1992)). Here, the trial court made no
findings that plaintiff's expert witnesses were subpoenaed and the
record before us does not support such a finding. Therefore,
plaintiff's expert witness fees were improperly included in the
costs assessed against defendant.
2. “Other Costs.”
[9] The itemized expenses numbered (1)-(4), (6) and (7) are
not authorized by G.S. § 7A-305. Moreover, in order to be
recoverable as deposition costs, these expenses must be “
directly
related to a deposition.”
Muse v. Eckberg, 139 N.C. App. 446, 447,
533 S.E.2d 268, 269 (2000). Where “the record on appeal fails to
show conclusively that any of the expenses incurred . . . stemmeddirectly from a deposition[,]” the trial court's award of costs
must be reversed.
Id. at 448, 533 S.E.2d at 270. Here, the record
fails to establish conclusively that any of these expenses were
directly related to the taking of a deposition. Therefore, these
items were improperly included in the costs assessed against
defendant.
Since the trial court lacked authority to assess the foregoing
expenses as costs, we reverse and remand for entry of an order not
inconsistent with this opinion.
Affirmed in part, reversed in part.
Judges WYNN and TYSON concur.
*** Converted from WordPerfect ***