2.
Costs--expert witness fee--speculation
Although defendant contends the trial court erred by awarding plaintiff an expert witness
fee of $400 as part of the costs without sufficient evidence that the expert was subpoenaed to
testify, the record does not include the deposition testimony of the expert, defendant failed to
object to the trial court's award of the expert witness fee on the basis of non-service, and under
these circumstances, the Court of Appeals cannot hold there was error without engaging in
speculation.
Lewis & Daggett, Attorneys at Law, P.A., by C. Michael Day,
for plaintiff appellee.
Davis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Richard Clay
Stuart, for defendant appellant.
WYNN, Judge.
Defendant Darren Timothy McBrayer appeals from a judgment and
order of the trial court awarding to Plaintiff Randy Dean McDaniel,
Jr. $4,500.00 in attorneys' fees and $1,437.90 in costs following
a favorable jury verdict and award in the amount of $800.00. Defendant contends the trial court erred in awarding attorneys'
fees and costs to Plaintiff where Defendant made an offer of
judgment of $5,000.00, and the jury awarded Plaintiff only $800.00.
For the reasons stated herein, we affirm the order of the trial
court.
The pertinent facts of the instant appeal are as follows:
Plaintiff filed a complaint 15 January 2002 in Superior Court,
Davie County, seeking recovery for injuries he sustained in an
automobile collision with Defendant. On 1 July 2002, Defendant
made an offer of judgment pursuant to Rule 68 of our Rules of Civil
Procedure in the amount of $5,000.00. Defendant repeated his offer
10 October 2002. On 21 April 2003, the case came for trial,
following which the jury awarded Plaintiff $800.00 for his personal
injuries. The trial court thereafter awarded Plaintiff costs in
the amount of $1,437.90 and attorneys' fees in the amount of
$4,500.00. The trial court denied Defendant's motion for costs.
Defendant appealed.
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[1] Defendant contends the trial court abused its discretion
in awarding Plaintiff $4,500.00 in attorneys' fees where Defendant
made an offer of judgment in the amount of $5,000.00 and the jury
awarded Plaintiff only $800.00. Defendant argues the trial court
further abused its discretion in awarding Plaintiff costs and
denying Defendant's motion for costs. For the reasons stated
herein, we hold the trial court acted within its discretion in
awarding attorneys' fees and costs to Plaintiff.
Section 6-21.1 of our General Statutes provides that: 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 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.
N.C. Gen. Stat. § 6-21.1 (2003). The trial court's decision to
award attorneys' fees is discretionary and will not be overturned
absent a showing of abuse of discretion. Overton v. Purvis, 162
N.C. App. 241, 591 S.E.2d 18, 22 (2004); Thorpe v. Perry-Riddick,
144 N.C. App. 567, 570, 551 S.E.2d 852, 855 (2001). “To prevail,
defendant must show that the trial court's ruling is 'manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.'” Robinson v. Shue, 145
N.C. App. 60, 65, 550 S.E.2d 830, 833 (2001) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
In determining whether to award attorneys' fees, the trial
court must consider the entire record, 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 the defendant unjustly exercised
“superior bargaining power[;]” (4) in the case of an unwarranted
refusal by an insurance company, the “context in which the disputearose[];” (5) the timing of settlement offers; and (6) the amounts
of the settlement offers as compared to the jury verdict.
Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334-
35 (1999); see also Overton, 162 N.C. App. at 246, 591 S.E.2d at
22-23.
In his first argument, Defendant contends the trial court
abused its discretion in awarding attorneys' fees in that such an
award was “manifestly unreasonable in light of the small verdict
and Defendant's settlement offers.” Defendant contends that
allowing attorneys' fees in such cases “discourages settlement and
is tantamount to a guarantee that lawyers will always be paid.”
This Court recently rejected a similar proportionality argument in
Overton. There, the defendant argued the trial court abused its
discretion by awarding attorneys' fees in excess of $32,000.00 in
a case where the jury awarded only $7,000.00. Id. at __, 591
S.E.2d at 23. We found no abuse of discretion by the trial court.
See also Furmick v. Miner, 154 N.C. App. 460, 465, 573 S.E.2d 172,
176 (2002) (finding no abuse of discretion where the defendant's
prejudgment offer was approximately four and one-half times the
verdict). We further note that our Supreme Court, in rejecting the
contention that including costs and attorneys' fees incurred after
an offer of judgment in calculating the “judgment finally obtained”
discourages the settlement of cases, deemed that such policy
arguments are “better addressed to the legislative branch of
government.” Roberts v. Swain, 353 N.C. 246, 251, 538 S.E.2d 566,
569 (2000). Accordingly, we hold the trial court did not abuse its
discretion in awarding attorneys' fees in the amount of $4,500.00. Defendant further contends the trial court failed to consider
the timing and amount of the settlement offers. We disagree. In
its order granting Plaintiff attorneys' fees, the trial court made
specific findings of fact detailing Defendant's two offers of
judgment for $5,000.00 dated 28 March and 10 October 2002. The
trial court also found Defendant repeated this offer during a
mediation of the case 19 November 2002, and again at trial on 21
April 2003. In light of these detailed findings, there is no merit
to Defendant's argument that the trial court failed to consider the
timing and amount of his settlement offers.
Next, Defendant argues the trial court abused its discretion
by awarding attorneys' fees where Defendant did not exercise
“superior bargaining power” over Plaintiff, and there was no
“unwarranted refusal to settle” by Defendant's insurer. We find no
merit in these arguments. The trial court's failure to make a
finding as to Defendant's exercise of unfair bargaining power is
not grounds for reversal. See Tew v. West, 143 N.C. App. 534, 537,
546 S.E.2d 183, 185 (2001) (upholding fee award where the court's
findings omitted whether the defendant exercised superior
bargaining power). Further, it is well established that where an
insurance company is not a named defendant, there is no requirement
that the trial court make an “unwarranted refusal” finding in order
to award attorneys' fees. Furmick, 154 N.C. App. at 464, 573
S.E.2d at 175; Washington, 132 N.C. App. at 350, 513 S.E.2d at 334.
Defendant's insurer was never a named defendant in this action, and
the trial court was therefore not required to make any findings
regarding the insurer's actions. See Overton, 162 N.C. App. at247, 591 S.E.2d at 23 (concluding that, because the case raised
neither issues of “superior bargaining power” nor “unwarranted
refusal,” findings as to these factors were unnecessary).
We further reject Defendant's argument that the trial court
believed it had no discretion in granting Plaintiff's motion for
attorneys' fees. The trial court in its order specifically noted
it had considered the entire record in light of Washington, and
that “in its discretion” it would award attorneys' fees. The trial
court then made nine detailed findings of fact in support of its
award. The findings, in summary, included: (1) all of the offers
of settlement made by both parties and Defendant's insurer after
suit was filed; (2) Defendant's two offers of judgment of
$5,000.00, which was less than the “judgment finally obtained” in
the amount of $6,737.90; (3) no findings regarding unjust exercise
of superior bargaining power, but as we have already noted, the
absence of such a finding does not require reversal, see Davis v.
Kelly, 147 N.C. App. 102, 108, 554 S.E.2d 402, 406 (2001); (4) no
findings regarding an unwarranted refusal to pay an insurance
policy, which we have determined was unnecessary, however; and (5)
the dates and amounts of all offers to settle by the parties in
arbitration and mediation, in offers of judgment, and during trial.
Further, the jury verdict was $800.00, the judgment finally
obtained was $6,737.90, and Defendant offered to settle the case
for $5,000.00. From the judgment and its findings, it is clear the
trial court exercised its discretion by considering the whole
record and in applying the Washington factors. The findings are
sufficient to support the trial court's conclusion that Plaintiffshould be awarded attorneys' fees, and therefore, the trial court
properly exercised its discretion in granting Plaintiff's motion.
Messina v. Bell, 158 N.C. App. 111, 115, 581 S.E.2d 80, 84 (2003).
By further assignment of error, Defendant argues the trial
court erred in granting Plaintiff's Rule 68 motion for costs and
denying Defendant's motion for costs. Defendant's argument is
based entirely upon his position that the trial court abused its
discretion in awarding attorneys' fees. As we discern no abuse of
discretion by the trial court in awarding attorneys' fees, we
necessarily overrule this assignment of error.
[2] Finally, Defendant contends the trial court erred in
awarding Plaintiff's expert witness fee of $400.00 as part of the
costs where there is insufficient evidence that the expert was
subpoenaed to testify. Defendant correctly notes that, unless an
expert witness is subpoenaed, witness fees are not recognized as
costs, and the trial court is without authority to award such.
Rogers v. Sportsworld of Rocky Mount, Inc., 134 N.C. App. 709, 713,
518 S.E.2d 551, 554 (1999). In Rogers, the expert witness
testified that he was not served with a subpoena. Id. Because the
trial court was without authority to award an expert witness fee
where the expert witness was not subpoenaed, we held the trial
court abused its discretion in assessing the expert witness fee
upon the defendant. Id.
Unlike Rogers, the record on appeal here is silent on the
issue of whether the expert witness was subpoenaed. “An appellate
court is not required to, and should not, assume error by the trial
judge when none appears on the record before the appellate court.”State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968);
Hicks v. Alford, 156 N.C. App. 384, 389-90, 576 S.E.2d 410, 414
(2003); Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34
(1997). We note, however, the trial court's judgment includes an
award of $20.00 for “service of subpoenas” as part of Plaintiff's
costs. The record does not include the deposition testimony of the
expert witness, nor did Defendant object to the trial court's award
of the expert witness fee on the basis of non-service. Under these
circumstances, we cannot, without engaging in speculation, hold the
trial court erred in awarding to Plaintiff $400.00 for his expert
witness fee. See Pharr, 125 N.C. App. at 139, 479 S.E.2d at 34
(concluding that, where the record on appeal did not include
relevant portions of the transcript, the Court would not engage in
speculation as to potential error by the trial court).
In summary, we find no abuse of discretion by the trial court
in awarding Plaintiff attorneys' fees and costs and in denying
Defendant's motion for costs. The order of the trial court is
hereby,
Affirmed.
Judges CALABRIA and STEELMAN concur.
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