Opinion
NO. COA12-887
01-15-2013
VERNETTA MARTIN, Plaintiff-Appellee, v. OSI RESTAURANT PARTNERS, LLC; OUTBACK STEAKHOUSE OF FLORIDA, LLC; and PATRICE SANFORD, Defendants-Appellants.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and Harold L. Kennedy, for Plaintiff-Appellee. Ellis & Winters LLP, by Thomas D. Blue, Jr., for Defendants-Appellants.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
Forsyth County
No. 09 CVS 1319
Appeal by Defendants from order entered 4 May 2012 by Judge Patrice A. Hinnant in Superior Court, Forsyth County. Heard in the Court of Appeals on 11 December 2012.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and Harold L. Kennedy, for Plaintiff-Appellee.
Ellis & Winters LLP, by Thomas D. Blue, Jr., for Defendants-Appellants.
McGEE, Judge.
This matter was previously before this Court in Martin v. OSI Restaurant Partners, LLC, ___ N.C. App. ___, 720 S.E.2d 28, 2011 WL 6036143 (2011) (unpublished opinion) (Martin I). In the present case, the record on appeal contains nothing filed prior to this Court's opinion in Martin I and we, therefore, rely on the prior opinion for the initial facts and procedural history as follows. Vernetta Martin (Plaintiff) filed a complaint against OSI Restaurant Partners, LLC (OSI); Outback Steakhouse of Florida, LLC (Outback); and Patrice Sanford (Ms. Sanford), (collectively Defendants), on 16 February 2009. See Martin I at *1. Plaintiff alleged she was a customer in an Outback Steakhouse restaurant (the restaurant) in Winston-Salem, North Carolina when Ms. Sanford, a waitress in the restaurant, "spilled a tray containing dishes" on Plaintiff. Id. "Plaintiff lost consciousness and was taken to a hospital by ambulance." Id. Plaintiff alleged that Ms. Sanford was negligent and that OSI and Outback were vicariously liable for the following injuries:
[Plaintiff] sustained and will sustain in the future severe personal injuries including but not limited to injuries to her head, neck, right shoulder and back, permanent injuries, loss of enjoyment of life, past and future medical expenses, past and future pain and suffering, past and future loss of earnings and loss of earning capacity, all to her damage for a sum in excess of Ten Thousand Dollars ($10,000.00).
Id.
Plaintiff subsequently dismissed without prejudice her action against OSI. A jury found Defendants Outback and Ms. Sanford negligent and awarded Plaintiff $5,500.00 in damages. Id. Plaintiff filed motions for a partial new trial on damages only and for judgment notwithstanding the verdict. Id. The trial court denied both of Plaintiff's motions and granted a motion filed by Defendants for costs in the amount of $11,090.07. Id. Plaintiff appealed to this Court, "advanc[ing] the following issues on appeal: whether the trial court erred by (I) denying [P]laintiff's motion for a partial new trial; (II) by denying [P]laintiff's motion to exclude the testimony of [D]efendants' medical expert; and (III) by granting [D]efendants' motion for costs." Id.
In Martin I, this Court: (1) affirmed the trial court with respect to the denial of Plaintiff's motion for a partial new trial; (2) affirmed the trial court with respect to the denial of Plaintiff's motion to exclude testimony; then (3) addressed the argument concerning Defendants' motion for costs. Id. at *6. This Court reversed in part with respect to Defendants' motion for costs, and noted that the motion for costs "alleged that [D]efendants had incurred witness fees in the amount of $9,083.00 which included the time the experts spent outside trial and time spent reviewing medical records[.]" Id. at *5. This Court further stated that: "Defendants also claimed their deposition expenses as taxable including the following: court-reporting fees, expert witness appearance fees, travel expenses." Id. This Court observed that "[o]n 5 April 2010, [D]efendants filed an offer of judgment, offering to allow judgment to be taken against them in the action, 'jointly and severally, in the lump sum of Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($87,500.00)' which [P]laintiff did not accept." Id. We thus concluded that, "[b]ecause the jury only returned $5,500.00 in damages, the trial court's granting of [D]efendants' motion for costs was proper pursuant to Rule 68(a)." Id.
In Martin I, Plaintiff argued that "the trial court 'has long held that expert witness fees are not recoverable where the expert witness is not under subpoena.'" Id. at *6. With respect to Plaintiff's argument, this Court determined that, "because the record does not show [the expert] was testifying pursuant to a subpoena, the trial court erred by awarding costs for [D]efendants' expert witness." Id. Plaintiff also argued "that the costs of enlarging and mounting documents are not permitted pursuant to N.C. Gen. Stat. § 7A-305 which governs the costs that are assessable in civil actions." Id. With respect to this argument, this Court held that Plaintiff "fail[ed] to show an abuse of discretion by the trial court in allowing recovery of th[ose] costs." Id. Finally, we stated: "In light of the foregoing, we reverse the award of costs for [D]efendant[s'] expert witness only and remand for reconsideration in light of the controlling statutes." Id. This Court's final mandate was: "Affirmed in part; reversed and remanded in part." Id.
In the present case, the record on appeal contains a document titled, "Plaintiff's motion for attorneys' fees and costs and motion upon remand[,]" dated 16 April 2012. The trial court entered an order on 4 May 2012 granting Plaintiff's motion for attorney's fees and costs and ordering Defendants to pay Plaintiff's attorneys the amount of $60,903.46 and directing that "Plaintiff shall bear no costs." Defendants appeal.
Defendants raise on appeal the issue of whether the trial court erred in its award of attorney's fees and costs to Plaintiff. Defendants argue that the trial court erred by awarding costs to Plaintiff after "this Court had already found that the award of costs to" Defendants was proper. Defendants argue that the trial court erred in awarding attorney's fees to Plaintiff because it failed to make appropriate findings of fact to support such an award.
First, we must determine the jurisdiction of the trial court upon remand. This Court addressed the issue in Crump v. Board of Education, 107 N.C. App. 375, 420 S.E.2d 462 (1992):
In D & W, Inc. v. Charlotte, 268 N.C. 720, 152 S.E.2d 199 (1966), our Supreme Court noted that,Crump, 107 N.C. App. at 378-79, 420 S.E.2d at 464-65 (citations omitted). Thus, it is clear that "'[n]o judgment other than that directed or permitted by the appellate court may be entered.'" Id. (citation omitted). Further, any actions outside of those directed by the appellate court are "outside of [the trial court's] jurisdiction." Id.
In our judicial system the Superior Court is a court subordinate to the Supreme Court. Upon appeal our mandate is binding upon it and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered. "Otherwise, litigation would never be ended, and the supreme tribunal of the state would be shorn of authority over inferior tribunals."In the instant case, our Supreme Court, in Crump II SC, affirmed the jury award of $78,000 in compensatory damages to appellant on his 42 U.S.C. § 1983 claim. The Supreme Court also remanded the case for the limited purpose of amending the judgment:
[T]he trial court's judgment in this case indicated that those damages were to be recovered from the "defendants," but indicated that the "defendant" was to pay the costs. By his complaint, the plaintiff sought compensatory damages only from the defendant Board, and not from the individual defendants. The plaintiff sought only punitive damages from the individual defendants. The jury having returned its verdict awarding only compensatory damages, but no punitive damages, the trial court's judgment should have ordered that the damages and costs be recovered only from the defendant Board and not from the other defendants individually. This case is remanded to the Court of Appeals for its further remand to the Superior Court, Catawba County, with instructions that the judgment be modified and amended accordingly. Except as modified in this regard, the decision of the Court of Appeals affirming the judgment of the trial court is affirmed.This language from Crump II SC clearly restricts the jurisdiction of the trial court on remand to the act of modifying the jury verdict. Any affirmative relief granted by the trial court would have been outside of its jurisdiction.
In Martin I, this Court clearly held that "[b]ecause the jury only returned $5,500.00 in damages, the trial court's granting of [D]efendants' motion for costs was proper pursuant to Rule 68(a)." Martin I at *6. We also noted that the trial court did not abuse its discretion in awarding costs to Defendants for exhibit preparation. Id. This Court concluded that the only error by the trial court involved its award of expert witness fees as costs, because the record did not show that the expert witness was testifying under subpoena. Id. Thus, we affirmed the trial court except in the following, explicit sense: "In light of the foregoing, we reverse the award of costs for [D]efendant[s'] expert witness only and remand for reconsideration in light of the controlling statutes." Id. (emphasis added). Thus, on remand, the only issue before the trial court with respect to Defendants being awarded costs was the issue of costs as they applied to Defendants' "expert witness." While Plaintiff's motion for attorney's fees is a separate issue, the trial court's ruling on that motion was based in part on its understanding of our ruling with respect to Defendants' motion for costs. Because the prior opinion of this Court and the trial court's interpretation of it are so interrelated with trial court's ruling on Plaintiff's motion for attorney's fees, in the interest of judicial economy we elect to address the issue.
In its order awarding Plaintiff attorney's fees and costs, the trial court made the following findings:
1. Prior to the filing of the lawsuit in this case, Defendants made no settlement offers to Plaintiff.
2. At the court-ordered mediation held on November 10, 2009, Defendant's counsel discussed the amount of $10,000 with the arbitrator, but it is unclear whether a firm settlement offer was conveyed to the Plaintiff.
3. On April 5, 2010, Defendant served the Plaintiff with an Offer of Judgment in the amount of $87,500, pursuant to Rule 68 of the N.C. Rules of Civil Procedure. However, the Offer of Judgment was not filed. The Offer of Judgment was not accepted by Plaintiff. The Offer of Judgment was made fifteen (15) days before the commencement of the trial.
4. During the trial, Defendants made no further settlement offers.
5. The jury returned a verdict in the amount of $5,500.
6. As of January 28, 2009, Plaintiff's past medical expenses totaled $101,024.18.
7. At the trial, counsel for the Plaintiff and counsel for Defendants entered into a written Stipulation on Plaintiff's Past Medical Expenses on April 27, 2010 on behalf of the parties. The Stipulation stated that: IT IS HEREBY agreed and stipulated by the parties, through counsel, that the past medical expenses of Plaintiff "in this case" total $110,000.00.
8. Defendants' last settlement offer was $22,500 less than the medical lien.
The trial court then made the following conclusions of law:
1. In the discretion of the [trial c]ourt, Plaintiff is entitled to an award of attorneys' fees and costs pursuant to N.C.G.S. §§ 6-20, 6-21.1 and 7A-305(d).
2. [The trial c]ourt awards Plaintiff attorneys, Kennedy, Kennedy, Kennedy and Kennedy, LLP, $50,250 in attorneys' fees and $10,653.46 for costs.
3. [The trial c]ourt concludes that the above-listed attorneys' fees and costs are reasonable.
Finally, the trial court entered an award of attorney's fees and costs in favor of Plaintiff. The trial court ordered that: "Defendants shall pay to Plaintiff's attorneys, Kennedy, Kennedy, Kennedy and Kennedy, LLP, a total of Sixty Thousand Nine Hundred and Three and 46/100 Dollars ($60,903.46)." The trial court also stated: "In light of the Court of Appeals' Opinion reversing as to the costs previously awarded to Defendants, on remand, the Plaintiff shall bear no costs."
We first address the trial court's statement concerning the opinion issued by this Court. The trial court observed that: "In light of the Court of Appeals' Opinion reversing as to the costs previously awarded to Defendants, on remand, the Plaintiff shall bear no costs." As discussed above, this statement is not an accurate representation of the prior opinion in this case. Rather, we determined that Defendants were properly awarded certain costs pursuant to N.C.G.S. § 1A-1, Rule 68. This Court also concluded that an award of costs based on preparation of exhibits was appropriate in favor of Defendants. In fact, the sole portion of the prior order that we reversed was that portion related to expert witness fees when the record failed to show that the experts were under subpoena. Thus, the trial court's order in the present case must be reversed as to its statement that "Plaintiff shall bear no costs."
Further, "[a] trial court's discretion in awarding attorney's fees pursuant to G.S. § 6-21.1 is not unbridled." Davis v. Kelly, 147 N.C. App. 102, 107, 554 S.E.2d 402, 405 (2001). In Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999), this Court stated that:
[T]he trial court 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.Id. at 351, 513 S.E.2d at 334-35 (citations omitted). Further, "[t]o 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." Robinson v. Shue, 145 N.C. App. 60, 65, 550 S.E.2d 830, 834 (2001) (citation and quotation marks omitted). "[W]hen we examine a trial court's decision concerning whether to award attorney's fees, we require more than '[m]ere recitation by the trial court that it has considered all Washington factors.'". House v. Stone, 163 N.C. App. 520, 523, 594 S.E.2d 130, 133 (2004) (citation omitted). "However, the trial court is not required to make detailed findings of fact as to each factor." Id. "Instead, the trial court is required only to make the additional findings necessary to preserve its ruling on appeal." Id.
In the present case, the trial court's order awarding attorney's fees to Plaintiff did contain the statement: "[A]fter hearing arguments from counsel for the Plaintiff and the Defendants and reviewing the [c]ourt file, and after considering the Washington factors and the entire record, the [c]ourt is of the opinion that the motion should be allowed." However, the order contains no findings concerning "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." Robinson, 145 N.C. App. at 65, 550 S.E.2d at 834 (citation and quotation marks omitted). Further, with respect to the trial court's findings concerning Defendants' Rule 68 offer of judgment, we again note that the trial court was operating on the assumption that the award of costs in favor of Defendants was reversed, which we have determined was an invalid assumption. In light of the foregoing, we find that the trial court's order granting Plaintiff attorney's fees is "inadequate and [does] not allow for meaningful appellate review." Thorpe v. Perry-Riddick, 144 N.C. App. 567, 572-73, 551 S.E.2d 852, 857 (2001).
This Court therefore vacates the trial court's 4 May 2012 order awarding Plaintiff attorney's fees and costs and remands for the trial court to proceed in compliance with this Court's opinion in Martin I. Upon remand, the trial court is to first enter an award of costs in favor of Defendants conforming with the opinion of this Court in Martin I. The trial court is to reconsider only that portion of the award of costs to Defendants for Defendants' expert witness, and is to do that reconsideration "in light of the controlling statutes," which the prior opinion of the Court indicated were N.C. Gen. Stat. § 7A-305 and N.C. Gen. Stat. § 7A-314.
The trial court's order awarding attorney's fees and costs in favor of Plaintiff in this matter is hereby reversed and remanded; the trial court shall reconsider its award of attorney's fees and costs to Plaintiff in light of the award of costs it makes in favor of Defendants. The trial court shall consider the Washington factors and make the findings required thereby.
Vacated in part, reversed and remanded in part.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).