Appeal by plaintiff from order filed 24 March 2003 by Judge
J.B. Allen, Jr. in Durham County Superior Court. Heard in the
Court of Appeals 28 April 2004.
James E. Rogers, P.A., by James E. Rogers; and Foy & Lavelle,
PLLC, by Lydia E. Lavelle, for plaintiff-appellant.
Teague, Rotenstreich & Stanaland, LLP, by Kenneth B.
Rotenstreich and Paul A. Daniels, for defendant-appellee.
BRYANT, Judge.
Danielle Council (plaintiff) appeals from an order filed 24
March 2003 reducing plaintiff's attorney's fees from $23,312.50 to
$1,165.00.
On 23 January 1997, plaintiff and Lewis Slack (defendant) were
involved in an automobile accident in Orange County, North
Carolina. Plaintiff filed a lawsuit on 13 May 1999 against
defendant alleging the accident was caused by defendant's
negligence and that plaintiff suffered serious personal injury and
lost wages as a result. Plaintiff requested $187,000.00 to settle
her claim. On 12 April 1999, the parties attempted an unsuccessfulcourt-ordered mediation.
On 22 January 2001, a four-day trial began. The plaintiff was
represented by attorneys James E. Rogers and Lydia E. Lavelle in
Orange County Superior Court. On 9 February 2001 judgment was
entered for the plaintiff in the amount of $1,165.00; motion for
attorney's fees and costs was to be heard at a later date.
For the convenience of the parties, venue was transferred from
Orange County to Durham County Superior Court. On 9 July 2001,
Judge Donald M. Jacobs awarded attorney's fees of $18,462.50 for
Rogers, $4,850.00 for Lavelle and $6,981.65 in costs.
On appeal, the North Carolina Court of Appeals held the trial
court did not abuse its discretion in awarding attorney fees and
costs, but reversed Judge Jacobs' order and remanded the matter
back to the trial court for sufficient findings as to whether or
not the attorney's fees were reasonable. Council v. Slack, 153
N.C. App. 811, 571 S.E.2d 86 (2002) (unpublished) (hereafter
Council I). In particular, the Court of Appeals stated that Judge
Jacobs failed to determine (1) the reasonable time and labor for
plaintiff's counsel to expend on the case; (2) the level of skill
required by this case; (3) the customary fee for similar cases; and
(4) the experience of the attorneys.
On 10 March 2003 Judge J.B. Allen, Jr., pursuant to the
remand, conducted a hearing in Durham County Superior Court and
awarded attorney's fees for plaintiff in the amount of $1,165.00.
Plaintiff appeals.
The dispositive issue in this appeal is whether the trial
court erred in failing to follow the Court of Appeals
mandate in
Council I.
In
Council I, this Court remanded the case to the trial court
to address the reasonableness of the award of attorney's fees based
on the following factors:
(1) what was reasonable time and labor for
plaintiff's counsel to expend, (2) skill
required by this case, (3) the customary fee
for similar cases and (4) the experience of
the attorneys.
“A decision of this Court on a prior appeal constitutes the
law of the case, both in subsequent proceedings in the trial court
and on a subsequent appeal.”
Transportation, Inc. v. Strick Corp.,
286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974); see
Epps v. Duke,
122
N.C. App. 198, 201, 468 S.E.2d 846, 849 (1996). “[O]ur mandate
is binding upon [the trial court] and must be strictly followed
without variation or departure. No judgment other than that
directed or permitted by the appellate court may be entered.”
D &
W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202
(1966). “We have held judgments of Superior [C]ourt which were
inconsistent and at variance with, contrary to, and modified,
corrected, altered or reversed prior mandates . . . to be
unauthorized and void.”
Lea Co. v. North Carolina Bd. of Transp.,
323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989)
(quoting
Collins v.
Simms, 257 N.C. 1, 8, 125 S.E.2d 298, 303 (1962)).
On remand, in addition to restating the findings of fact fromJudge Jacobs' 9 July 2001 order, Judge Allen made the following
findings of fact in his order dated 10 March 2003:
The [c]ourt does find that the Court of
Appeals indicated that since they were unable
to determine if the amount of attorney fees
awarded was reasonable, they reversed and
remanded for a new hearing to determine the
amount of attorney fees that should be awarded
to the plaintiff. . . . And the Court will
find that based upon what's presented before
me the award for attorney fees ordered by
Judge Jacobs is not reasonable. . . . The
[c]ourt in considering all of this in its
discretion, sets a total amount of the
verdict, $1,165.00.
A trial court's grant of attorney's fees pursuant to N.C. Gen.
Stat. § 6-21.1 “will not be disturbed on appeal absent a showing of
an abuse of discretion.”
Culler v. Hardy,
137 N.C. App. 155, 157,
526 S.E.2d 698, 700 (2000). In
Culler, the
plaintiff was injured
in a car accident and demanded $62,545.00 from the defendant's
insurer who declined the offer. The plaintiff rejected the
defendant's $1,000.00 pretrial settlement offer and the lowest
demand she made was $17,500.00. A jury awarded the plaintiff
$1,500.00, and the court granted the plaintiff's motion for
$9,050.00 in attorney's fees after a hearing. The defendant's
motion to amend the fee order was denied. On appeal, the court
vacated the order because the trial court abused its discretion in
awarding attorney's [fees] without considering factors such as the
timing and amount of any settlement offers, how they compared to
the jury verdict, and the bargaining position of the parties. The
court remanded to the trial court with instructions to consider the
entire record and make additional findings of fact regarding thosefactors.
As in
Culler,
this Court in
Council I reversed the trial court
based on its failure to make the appropriate factual findings
relative to the following: reasonable amount of time and labor for
plaintiff's counsel to expend; the required skill for the case; the
customary fee for similar cases; and the experience of the
attorneys. Therefore, on remand, the trial court was required to
make the necessary findings and thereafter determine a reasonable
attorney fee award.
If a court elects to award attorney fees, it
must also enter findings to support the amount
awarded. To determine if an award of counsel
fees is reasonable, the record must contain
findings of fact as to the time and labor
expended, the skill required, the customary fee
for like work, and the experience or ability of
the attorney based on competent evidence.
Porterfield v. Goldkuhle, 137 N.C. App. 376, 378, 528 S.E.2d 71, 73
(2000).
Appellee argues that Judge Allen heard evidence regarding the
time and labor expended by plaintiff's attorneys. While the record
does confirm Judge Allen heard, and perhaps considered such
evidence, he failed to follow this Court's mandate in
Council I: to
make findings that support an award of reasonable attorney's fees.
Judge Allen merely restated the findings of fact from Judge Jacobs'
order (which
Council I deemed insufficient), stated the prior order
of Judge Jacobs was unreasonable, and awarded attorney's fees in the
amount of $1,165.00, the same amount as the jury verdict, without
addressing the four issues regarding reasonableness of attorney's
fees as directed by this Court in
Council I.
Because it was error for the trial court to fail to follow the
mandate of
Council I, we reverse and remand this matter back to the
trial court to determine the following issues from
Council I:
(1) what was reasonable time and labor for
plaintiff's counsel to expend, (2) skill
required by this case, (3) the customary fee
for similar cases and (4) the experience of the
attorneys.
Reversed and remanded.
Judges ELMORE and GEER concur.
Report pursuant to Rule 30(e).
*** Converted from WordPerfect ***