Summary
holding that "where a trial court awards attorney fees under North Carolina General Statute section 6-21.1, the trial court must also make findings of fact supported by competent evidence concerning the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence"
Summary of this case from Perry v. GRP Financial Services Corp.Opinion
No. COA05-299.
Filed February 7, 2006.
1. Costs — attorney fees — failure to make findings of fact
The trial court erred in a negligence case arising out of an automobile accident by failing to make findings to support the $500 award of attorney fees under N.C.G.S. § 6-21.1, and the case is remanded to the trial court to make proper findings to support whatever amount the trial judge decides in his discretion is appropriate in this case, because: (1) where a trial court awards attorney fees under N.C.G.S. § 6-21.1, the trial court must also make findings of fact supported by competent evidence concerning the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence; and (2) the mere recitation that the fees are reasonable without further findings is inadequate.
2. Costs — denial — abuse of discretion standard
The trial court did not abuse its discretion in a negligence case arising out of an automobile accident by denying plaintiff costs under N.C.G.S. § 6-20.
Judge JOHN concurring in part and dissenting in part.
Appeal by Plaintiff from judgment entered 28 September 2004 by Judge Jerry R. Tillett in Superior Court, Edgecombe County. Heard in the Court of Appeals 15 November 2005.
Braxton H. Bell, for plaintiff-appellant. Poyner and Spruill, LLP, by Randall R. Adams, for defendant-appellee.
"If the trial court elects to award attorney fees, it must also enter findings of fact as to the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence." Thorpe v. Perry-Riddick, 144 N.C. App. 567, 572, 551 S.E.2d 852, 856 (2001) (citation omitted). In this case, Plaintiff argues that the trial court awarded Plaintiff attorney fees under North Carolina General Statute section 6-21.1 without making any findings of fact to support the amount of the award. See N.C. Gen. Stat. § 6-21.1 (2005). As we agree with Plaintiff's contention, we remand this case to the trial court for further findings of fact.
This matter arises from a vehicular collision on 10 March 2003, in which Plaintiff's new pickup truck was damaged as a result of Defendant's negligence. Plaintiff demanded Defendant's liability insurance carrier, Farm Bureau Mutual Insurance Company, replace his damaged truck with a new truck. But Farm Bureau declined to replace Plaintiff's truck, agreeing instead to repair the truck and address any issue regarding "diminution in value" after completing the repairs. The truck was repaired at a cost of $5,737.63, which is not an issue in this matter. Instead, the parties disagreed as to the amount to be attributable for "diminution in value" (Farm Bureau initially offered up to $2000, but Plaintiff demanded $8,500.00).
Plaintiff retained counsel and filed suit on 18 July 2003. In October 2003, Defendant served an Offer of Judgment for $4,385.73, but Plaintiff requested $8,500.00 plus attorney fees and costs, or, alternatively, "a comparable truck less minimal allowance for mileage, loss of use and attorney fees and costs." Thereafter, the parties unsuccessfully attempted to mediate this matter.
This matter went to trial on 1 June 2004. Before jury selection, Defendant offered $6,000.00 but Plaintiff demanded $7,500.00. In closing arguments, however, Plaintiff asked the jury for a total verdict of $5,500.00, which was the maximum "diminution in value" Plaintiff's evidence supported. The jury returned a verdict for Plaintiff in the amount of $4,500.00 for "diminution in value".
Following the jury verdict, Plaintiff moved for an award of $8,964.50 in attorney fees and $1,701.00 in costs. On 24 August 2004, the trial court awarded Plaintiff attorney fees in the amount of $500.00, but denied Plaintiff's request for costs.
Plaintiff's motion also stated:
29. Plaintiff retained counsel . . . on a one-third contingency fee plus cost contract.
30. Notwithstanding this one-third contract contingency fee contract counsel for the Plaintiff waives the one-third fee provision and relies on the Court for an award of attorney fees consistent with N.C.G.S. § 6-21.1.
Plaintiff first argues that the trial court failed to make findings to support the award of attorney fees in the amount of $500.00 under North Carolina General Statute section 6-21.1. We agree.
Preliminarily, we note that the issue on appeal concerns the amount of the attorney fee award, not whether attorney fees should be awarded which the trial court in this case, in its discretion, elected to do after considering the factors under Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334 (1999) (holding that the decision to allow attorney fees rests with the trial judge, and that decision may only be reversed for an abuse of discretion). See N.C. Gen. Stat. § 6-21.1 (providing that where the recovery of damages is $10,000.00 or less in a property damage suit, upon a finding that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis for such suit, the presiding judge has discretion to grant attorney fees).
The amount of attorney fees is also discretionary. Black v. Standard Guaranty Ins. Co., 42 N.C. App. 50, 53, 255 S.E.2d 782, 784 (1979). However, the trial court's discretion is not "unbridled." Thorpe, 144 N.C. App. at 571, 551 S.E.2d at 856. Indeed, where a trial court awards attorney fees under North Carolina General Statute section 6-21.1, the trial court must also make findings of fact supported by competent evidence concerning "the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence." Id.; see also Porterfield v. Goldkuhle, 137 N.C. App. 376, 528 S.E.2d 71 (2000). The mere recitation that the fees are "reasonable" without further findings is inadequate. Id.
Here, the amount of attorney fees awarded is not supported by the trial court's findings of fact or conclusions of law. The trial court awarded attorney fees in the amount of $500.00 where Plaintiff's counsel provided an affidavit and detailed worksheet outlining his fees to support an award in the amount of $8,964.50. The trial court awarded attorney fees based only on the following conclusion:
18. For all of the foregoing reasons the Court finds, in its discretion that Plaintiff should recover attorney's fees in the amount of $500.00.
Although the trial court heard arguments in support of attorney fees, it failed to make findings concerning: (1) the 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 and ability of the Plaintiff's attorney. See Thorpe, 144 N.C. App. at 572, 551 S.E.2d at 856. Because the trial court's findings of fact are insufficient for us to determine whether the amount of the award of attorney fees is reasonable, we remand for the trial court to make findings of fact on the time and labor expended by Plaintiff's counsel, the skill required and the customary fee for similar work, and Plaintiff counsel's experience or ability. We note, however, that we do not disapprove of the actual amount awarded by the trial court in this case; indeed, we return this matter to the trial court to make proper findings to support whatever amount the trial judge decides in his discretion is appropriate in this case.
Plaintiff next contends the trial court erred in denying him costs under North Carolina General Statute section 6-20. An award of costs under section 6-20 is discretionary. See N.C. Gen. Stat. § 6-20 (2005) (providing, "[C]osts may be allowed or not, in the discretion of the court[.]"). As we can discern no abuse of discretion by the trial court, we uphold the denial of costs in this matter.
Remanded in part, Affirmed in part.
Judge STEELMAN concurs.
Judge JOHN concurs in part and dissents in part with separate opinion.