NO. COA04-121

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

    Appeal by defendant from judgment entered 7 July 2003 by Judge Jane P. Gray in Wake County District Court. Heard in the Court of Appeals 22 September 2004.

    David E. Holm and John Schifano for plaintiffs-appellees.

    Broughton, Wilkins, Sugg & Thompson, P.L.L.C., by Benjamin E. Thompson III, for defendant-appellant.

    GEER, Judge.

    Defendant appeals from the trial court's award of attorneys' fees to plaintiffs under N.C. Gen. Stat. § 6-21.1 (2003). Because the trial court's decision complies with Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999), and defendant has failed to demonstrate that the trial court abused its discretion in awarding fees, we affirm.

Facts

    Plaintiffs Mary Gilchrist, Samantha Parham, and Dorothinia Taylor were injured on 8 August 2000 when their Ford Explorer was struck in the rear by a truck driven by defendant Richard French. On 16 March 2001, plaintiffs' attorney Charles M. Putterman filed an action on behalf of all three women in Wake County District Court, seeking damages in an amount not to exceed $10,000.00 for each plaintiff.
    On 14 May 2001, defendant served offers of judgment, offering Gilchrist $4,380.00, Parham $3,342.00, and Taylor $1,530.00. On the same day, defendant also requested, pursuant to N.C.R. Civ. P. 8(a)(2), a statement of the monetary relief sought by each plaintiff. In their responses, Gilchrist requested $15,000.00, Parham $12,000.00, and Taylor $3,500.00. The action was referred to arbitration and on 16 August 2001, the arbitrator awarded Gilchrist $7,721.79, Parham $5,585.34, and Taylor $3,533.52. On 29 August 2001, defendant requested trial de novo.
    On 30 November 2001, the district court allowed Putterman to withdraw as counsel for plaintiffs. John P. Schifano filed a notice of appearance on plaintiffs' behalf on 1 March 2002. In November 2002, defendant's attorney contacted Schifano and orally renewed his original offers of judgment. Plaintiffs again rejected the offers.    Schifano withdrew as counsel in December 2002. Attorney David E. Holm subsequently filed notices of appearance on behalf of each plaintiff. Schifano returned to assist in the trial approximately ten days before trial in April 2003.
    On 2 April 2003, plaintiffs made an offer to settle their claims, seeking $10,000.00 for Gilchrist, $3,342.00 for Parham, and $3,000.00 for Taylor. Defendant responded the following day by offering $4,500.00 to Gilchrist, $3,100.00 to Parham, and $1,600.00 to Taylor. Defendant subsequently increased its offer to Gilchrist to $4,900.00 after receiving additional medical information. Defendant's settlement offer was an "all or none" offer, requiring that all plaintiffs accept the settlement.
    When the parties were unable to agree on a settlement, the action proceeded to trial. The jury returned a verdict awarding the following amounts: $1,541.00 to Gilchrist, $956.00 to Parham, and $823.00 to Taylor. Following the jury verdict, plaintiffs moved for an award of attorneys' fees under N.C. Gen. Stat. § 6- 21.1. Specifically, they sought $5,651.23 in time and expenses for Holm's representation, $2,737.00 in time and expenses for Schifano's representation, and $3,088.28 in time and expenses for Putterman's representation. Included in Holm's expenses was an expert witness fee of $1,211.23.     On 7 July 2003, District Court Judge Jane P. Gray entered judgment in accordance with the jury verdict. The court also concluded that plaintiffs were entitled pursuant to N.C. Gen. Stat. § 6-21.1 to recover attorneys' fees in a total amount of $5,000.00 and an expert witness fee in the amount of $1,200.00. Defendant has appealed from the award of attorneys' fees.

Discussion

    "'Allowance of counsel fees under the authority of [N.C. Gen. Stat. § 6-21.1] is, by its express language, in the discretion of the presiding judge, and is reversible only for abuse of discretion.'" Robinson v. Shue, 145 N.C. App. 60, 65, 550 S.E.2d 830, 833 (2001) (quoting McDaniel v. N.C. Mut. Life Ins. Co., 70 N.C. App. 480, 483, 319 S.E.2d 676, 678, disc. review denied, 312 N.C. 84, 321 S.E.2d 897 (1984)). Therefore, for defendant to prevail, he must show that the trial court's award of attorneys' fees was "'manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" Id. (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
    In Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334 (1999), this Court stressed that "[t]he discretion accorded the trial court in awarding attorney fees pursuant to N.C. Gen. Stat. § 6-21.1 is not unbridled." Rather, the trial courtmust consider the whole record and make findings of fact on the pertinent factors, including but not limited to:
        (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., 513 S.E.2d at 334_35 (internal quotation marks and citations omitted). A trial court is not, however, required to make detailed findings for each factor listed in Washington. "The trial court must only make findings with respect to those facts matching the Washington factors apposite to the instant case." Overton v. Purvis, 162 N.C. App. 241, 247, 591 S.E.2d 18, 23 (2004) (internal quotation marks omitted).
    Defendant argues that the trial judge failed to make sufficient findings of fact under Washington and that consideration of all the factors leads to the conclusion that an award of fees is not warranted. Based on our review of the judge's order and the record, we conclude otherwise.
    With respect to the first factor _ settlement offers made prior to the institution of the action _ defendant argues that thetrial court failed to consider and make findings regarding pre-suit offers made by defendant's insurance carrier. Defendant, however, fails to cite to any portion of the record reflecting that such offers were made. Our independent review of the record reveals no evidence of any offers prior to plaintiffs' filing this action. It is fundamental that the trial court was not required to make _ and, indeed, was barred from making _ any findings regarding settlement offers not evidenced in the record. Cf. Hicks v. Alford, 156 N.C. App. 384, 389, 576 S.E.2d 410, 414 (2003) ("Rule 9 of the North Carolina Rules of Appellate Procedure requires the appellant to include in the record on appeal 'so much of the evidence . . . as is necessary for an understanding of all error assigned.' N.C.R. App. P. 9(a)(1)(e) (2003). It is the duty of the appellant to ensure that the record is complete.").
    Defendant acknowledges that the trial court did consider the second factor _ offers of judgment _ but complains that the trial court did not compare them to the final verdict or the judgment finally obtained. In considering this factor, this Court has applied the rule set out in Poole v. Miller, 342 N.C. 349, 464 S.E.2d 409 (1995) and held that the "judgment finally obtained" includes "'any applicable adjustments, by the respective court in the particular controversy, not simply the amount of the jury's verdict.'" Davis v. Kelly, 147 N.C. App. 102, 107-08, 554 S.E.2d402, 406 (2001) (quoting Poole, 342 N.C. at 353, 464 S.E.2d at 411). Here, defendant made an offer of judgment totaling $9,252.00. The final judgment ultimately obtained equaled the jury verdict as modified by "any applicable adjustments," including attorneys' fees, costs, and prejudgment interest. While the record does not include a figure for prejudgment interest, we can determine _ based on the trial court's findings of fact _ that the ultimate judgment was $9,520.00 plus prejudgment interest, a figure greater than the offers of judgment. While the trial court's order did not specifically perform the math, the fact that the trial court made findings regarding the amount and timing of the offers of judgment as well as the amounts of the jury verdict is sufficient to indicate that the trial court considered this factor in reaching its decision. See Davis, 147 N.C. App. at 108, 554 S.E.2d at 406 (concluding that trial court's noting of the defendant's pre-suit settlement offer was sufficient to indicate that the trial court considered settlement offers).
    The trial court did not make findings of fact regarding the third Washington factor: whether defendant unjustly exercised superior bargaining power. It is, however, well-established that "'the absence of such a finding does not require reversal when the trial court made adequate findings on the whole record to support an award of attorney's fees.'" Id. (quoting Olson v. McMillian,144 N.C. App. 615, 619, 548 S.E.2d 571, 573_74 (2001)). See also McDaniel v. McBrayer, 164 N.C. App. 379, 382, 595 S.E.2d 784, 787 (2004) ("The trial court's failure to make a finding as to Defendant's exercise of unfair bargaining power is not grounds for reversal.").
    The parties agree that the fourth factor is irrelevant "since this suit was not brought by an insured or beneficiary against an insurance company defendant." Davis, 147 N.C. App. at 108, 554 S.E.2d at 406. The trial court was not, therefore, required to address the fourth factor.
    With respect to the fifth Washington factor (relating to the timing of settlement offers), defendant points again to the trial court's failure to consider the carrier's pre-litigation offers _ offers not documented in the record. The trial court's judgment, however, reveals that it expressly considered the amounts, timing, and terms of the settlement offers supported by the evidence. These findings are sufficient to demonstrate that the court considered not only the fifth factor, but also the sixth factor (concerning the amounts of the settlement offers as compared to the jury verdict). See Davis, 147 N.C. App. at 108, 554 S.E.2d at 406 ("As to factor six, it is clear from the court's findings of fact that it considered the amount of the settlement offer as comparedto the jury verdict since the court cited the settlement offer and jury verdict within the findings.").
    Finally, a review of the trial court's order and the record persuades us that the trial court reached its decision after evaluating the whole record. Indeed, the court went beyond the Washington factors and made findings regarding other circumstances, such as the arbitration award being favorable to plaintiffs, defendant's decision to seek trial de novo from that award, and the fact that the pre-trial settlement offers were conditioned on all of the plaintiffs agreeing to settle. As a result, "[t]he findings are sufficient to support the trial court's conclusion that Plaintiff should be awarded attorneys' fees, and therefore, the trial court properly exercised its discretion in granting Plaintiff's motion." McDaniel, 164 N.C. App. at 383, 595 S.E.2d at 787. Defendant has not challenged the amount of fees awarded.
    Plaintiffs have filed a separate motion in this Court, pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure, for attorneys' fees on appeal. "This Court has held that the trial court has the authority under G.S. § 6-21.1 to award additional attorney's fees for an appeal." Davis, 147 N.C. App. at 109, 554 S.E.2d at 406-07. Therefore, we remand this case for the limited purpose of allowing the district court, in its discretion, and upon plaintiffs' motion, to make findings of fact relevant toa determination of reasonable attorneys' fees for services rendered on appeal and to enter an award consistent with those findings.

    Affirmed and remanded.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).

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