An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 03-1597


Filed: 15 February 2005


                                Harnett County
BRIAN K. RICHARDS,                    No. 02 CVS 1146

    Appeal by defendant from order entered 28 August 2003 by Judge Donald L. Smith in Harnett County Superior Court. Heard in the Court of Appeals 20 September 2004.

    West & Smith, L.L.P., by Stanley W. West, for plaintiff- appellee.    

    Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for defendant-appellant.

    HUDSON, Judge.
    Defendant Richards appeals the trial court's order awarding attorney's fees to plaintiff. For the reasons set forth below, we affirm.
    On 19 July 1999, plaintiff and defendant were involved in a motor vehicle collision in which defendant rear-ended plaintiff. Plaintiff filed suit in June of 2002 alleging that defendant's negligence caused him personal injuries. In answer, defendant admitted that he negligently failed to reduce speed to avoid the collision. After unsuccessful mediation, defendant made an Offer of Judgment of $10,001 on 6 June 2003. The case went to trial in Superior Court in Harnett County and on 21 July 2003 a juryreturned a verdict of $7500 for plaintiff. The plaintiff served a Motion for Costs and Attorney's Fees and on 25 August 2003, the court entered judgment and ordered defendant to pay plaintiff $11,430 in attorney's fees and $2,394.00 in costs. Defendant appeals the order for attorney's fees and costs.
    First, defendant argues that the trial court erred in awarding costs for plaintiff's expert witness, Dr. Monaco, where there was no evidence that the witness had been subpoenaed. Defendant correctly asserts that expert witness fees cannot be awarded as costs unless there is evidence that the expert was subpoenaed. Rogers v. Sportsworld of Rocky Mount, 134 N.C. App. 709, 713, 518 S.E.2d 551, 554 (1999). However, defendant did not make this objection in the trial court. In his written response to plaintiff's Motion for Costs, defendant objected on the grounds that Monaco's deposition was taken after the Offer of Judgment, but did not object to the lack of a subpoena.
    Rule 46 (b) of the North Carolina Rules of Civil Procedure requires a party to preserve exceptions to rulings not directed to the admissibility of evidence by objecting “at the time the ruling or order is made or sought.” N.C. Gen. Stat. § 1A-1, Rule 46 (2003). Rule 46 (b) further requires that the party object “to the action of the court” or “make[] known the action that the party desires the court to take and the party's grounds for its position.Id. Contentions not raised at trial may not be raised for the first time on appeal. Plemmer v. Matthewson, 281 N.C. 722, 725, 190 S.E.2d 204, 206 (1972). Here, as defendant did not objectto the absence of a subpoena at the time he filed his response, he has failed to preserve this issue for appeal. We overrule this assignment of error.
    Defendant also contends that the trial court failed to make sufficient findings of fact in support of its orders awarding attorney's fees to plaintiff's attorney. We disagree. N.C. Gen. Stat. § 6-21.1 (2003) gives the judge in a personal injury suit where the judgment is $10,000 or less the discretion to award reasonable attorney's fees to the plaintiff's attorney. In Washington v. Horton, this Court articulated guidelines for the trial court in awarding attorney's fees pursuant to N.C.G.S. § 6- 21.1. 132 N.C. App. 347, 513 S.E.2d 331 (1999). Defendant asserts that the trial court did not properly exercise its discretion because it did not consider all of the factors set forth in Washington v. Horton. The factors in Washington include:
    (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. 132 N.C. App. at 351, 513 S.E.2d at 334-35 (1999) (internal citations omitted).
    Defendant contends that the court erred in not making findings regarding why no settlement offers were made prior to the suit. Washington does not require the court to determine why settlement offers were made or not made before trial, only that it consideroffers that were made. As the court did make the finding that no offers were made, we reject defendant's argument. Similarly, we reject defendant's contention that the court made inadequate findings regarding plaintiff's settlement conduct, as no such finding is required by Washington. Defendant argues that because the order indicates that attorney's fees are being awarded in consideration of the “purposes and intent of adequately compensating and encouraging settlement,” the court was required to make findings regarding plaintiff's settlement conduct and that plaintiff encouraged settlement. Defendant cites no authority for this proposition and we conclude that it is without merit.
    Defendant correctly notes that the court did not make any findings regarding whether defendant unjustly exercised “superior bargaining power.” However, we conclude that this omission is not error. Contrary to defendant's assertions that the court only made findings regarding the amount of the settlement offer compared to the jury verdict, the court made findings regarding four of the five applicable Washington factors (factor four appears not to apply here). As noted above, the court made a finding regarding settlement offers prior to trial, thus satisfying factor number one. It also made findings regarding the offer of judgment and the jury verdict (factor two), the timing of settlement offers (factor five), and the amount of the settlement offer compared to the jury verdict (factor six). This Court has held explicitly that a trial court's failure to make a finding concerning whether defendant exercised superior bargaining power is not grounds for reversal.Thorpe v. Perry-Riddick, 144 N.C. App. 567, 573, 551 S.E.2d 852, 857 (2001); McDaniel v. McBrayer, ___ N.C. App. ___, 595 S.E.2d 784, 787 (2004). Moreover, in Washington, the Court stated that in addition to the listed factors, “the trial court is to consider the entire record in properly exercising its discretion.” 132 N.C. App. at 351, 513 S.E.2d at 334. This Court has also stated that “where the trial court makes findings on the entire record, we should defer to the trial court's discretion in determining how much weight to give its findings.” House v. Stone, 163 N.C. App. 520; 594 S.E.2d 130. (2004). Thus, no one factor, or combination of factors, from Washington is dispositive. We conclude that it was not error here for the trial court to rely on four of the five relevant factors in exercising its discretion.
    Defendant also asserts that the trial court abused its discretion in awarding attorney's fees, suggesting that the court's decision was arbitrary. In support of this argument, defendant contends that the “vast majority,” if not all, of the Washington factors are in the defendant's favor. Defendant relies heavily on the contention that its insurance carrier had insufficient information to evaluate the case early on and that plaintiff's settlement demands were too high. We note that these contentions were excluded from the record by the trial court in its 20 November 2003 order and thus are not properly before this Court. Accordingly, we do not consider defendant's arguments which rest on these contentions.
    “A trial court may be reversed for abuse of discretion onlyupon a showing that its actions are manifestly unsupported by reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1984). The trial court's ruling must be given “great deference” and should be “upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id. The findings of the trial court are “conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary.” Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E. 2d 29, 33 (1968) (internal quotes and citations omitted). “If different inferences may be drawn from the evidence, he determines which inferences shall be drawn and which shall be rejected.” Id. It is not the role of this Court to re-weigh the evidence. We conclude that there was sufficient evidence to support the trial court's findings of fact regarding the Washington factors and that these findings support the court's conclusion that plaintiff was entitled to attorney's fees.
    Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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