Opinion
No. COA12–1041.
2013-03-5
Connie HIGHSMITH, Plaintiff–Appellee, v. Jeffrey M. CLARK, Defendant–Appellant.
Law Offices of James Scott Farrin, by Elizabeth H. Overmann, for Plaintiff–Appellee. Russ, Worth & Cheatwood, PLLC, by Philip H. Cheatwood, for Defendant–Appellant.
Appeal by Defendant from judgment entered 19 June 2012 by Judge Phyllis Gorham in Superior Court, Sampson County. Heard in the Court of Appeals 8 January 2013. Law Offices of James Scott Farrin, by Elizabeth H. Overmann, for Plaintiff–Appellee. Russ, Worth & Cheatwood, PLLC, by Philip H. Cheatwood, for Defendant–Appellant.
McGEE, Judge.
Connie Highsmith (Plaintiff) filed a complaint against Jeffrey M. Clark (Defendant) on 16 August 2010. In his complaint, Plaintiff alleged that Defendant's negligence in operating his vehicle resulted in personal injury to Plaintiff. A directed verdict was granted to Plaintiff on issues of negligence and contributory negligence. The jury returned a verdict awarding Plaintiff $4,870.50 in damages. The trial court awarded Plaintiff costs, interest, and attorney's fees in the amount of $13,125.00. Defendant appeals.
Defendant first contends the trial court abused its discretion in awarding attorney's fees under N.C. Gen.Stat. § 6–21.1 without considering the whole record.
Pursuant to N.C. Gen.Stat. § 6–21.1, attorney's fees may be awarded as court costs in certain cases.
In any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney's fee to be taxed as a part of the court costs.
N.C. Gen.Stat. § 6–21.1 (2009).
A trial court's decision to award attorney's fees pursuant to N.C. Gen.Stat. § 6–21.1 is reviewed for an abuse of discretion. Washington v. Horton, 132 N.C.App. 347, 351, 513 S.E.2d 331, 334 (1999). “ ‘Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ “ Davis v. Kelly, 147 N.C.App. 102, 106, 554 S.E.2d 402, 405 (2001) (quoting Blackmon v. Bumgardner, 135 N.C.App. 125, 130, 519 S.E.2d 335, 338 (1999)).
A trial court's discretion in awarding attorney's fees pursuant to N.C. Gen.Stat. § 6–21.1 is not unlimited.
[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[.]
Washington, 132 N.C.App. at 351, 513 S.E.2d at 334–35. “Mere recitation by the trial court that it has considered all Washington factors without additional findings of fact would be inadequate[.]” Thorpe v. Perry–Riddick, 144 N.C.App. 567, 572, 551 S.E.2d 852, 857 (2001). However, the trial court need not make detailed findings as to each Washington factor. Tew v. West, 143 N.C.App. 534, 536–37, 546 S.E.2d 183, 185 (2001).
To support the contention that the trial court did not consider the whole record, Defendant asserts that the trial court did not consider Plaintiff's refusal of three reasonable pretrial offers, and the large award of “$39,000 to $55,000” Plaintiff requested before trial. We disagree.
First, the trial court considered the offers in the final judgment. Further, the trial court did not abuse its discretion in considering these offers when granting Plaintiff attorney's fees. This Court has upheld awards of attorney's fees where, as here, the final jury verdict was less than offers of judgment. Thorpe, 144 N.C.App. at 573–74, 551 S.E.2d at 857–58 (finding no error when the trial court awarded attorney's fees where the offer of judgment was $4,801 and the jury verdict was $4,500). The trial court has discretion to deny a motion for attorney's fees where it appeared that the plaintiff rejected reasonable settlement offers and forced the defendant to go to trial. However, in the present case, Defendant makes no argument that Plaintiff conducted settlement negotiations in bad faith. Epps v. Ewers, 90 N.C.App. 597, 599, 369 S.E.2d 104, 105 (1988) (finding that the defendant failed to establish abuse of discretion where no bad faith was shown when plaintiff refused settlement offers).
Second, the fact that Plaintiff originally sought a higher amount of damages than the jury awarded is not dispositive. Neither Washington, supra, nor N.C. Gen.Stat. § 6–21.1 demands that Plaintiff expect a recovery before trial lower than $10,000. Rather, N.C. Gen.Stat. 6–21.1 requires only that “the judgment for recovery of damages is ten thousand dollars ($10,000) or less.” N.C.G.S. § 6–21–1.
Defendant further contends that the trial court abused its discretion by granting an excessive award of attorney's fees. We disagree.
“When a trial court uses its discretion to determine the amount of attorney's fees, its award will not be disturbed without a showing of manifest abuse of its discretion.” Bryson v. Cort, 193 N.C.App. 532, 540, 668 S.E.2d 84, 89 (2008) (citation omitted). Defendant argues that the trial court abused its discretion because the amount of attorney's fees awarded was “more than two and one half times the amount of the jury verdict[.]” However, in personal injury actions similar to the present case, it is common for attorney's fees to be considerably higher than the damages awarded. See Wright v. Murray, 187 N.C.App. 155, 651 S.E.2d 913 (2007) (holding an award of $25,000 in attorney's fees reasonable after a $7,000 verdict); Overton v. Purvis, 162 N.C.App. 241, 591 S.E.2d 18 (2004) (finding an award of $32,000 was not excessive for a plaintiff who received $7,000 in damages); and Phillips v. Brackett, 156 N.C.App. 76, 575 S.E.2d 805 (2003) (holding that the trial court's award of $15,231.50 in attorney's fees was reasonable after a $3,829.98 verdict).
“In order for the appellate court to determine that the 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.' “ Davis, 147 N.C.App. at 108–09, 554 S.E.2d at 406 (citation omitted). The trial court made the following findings of fact:
9. .... The undersigned attorney or her firm has provided legal services to Plaintiff that included advising Plaintiff throughout the case and lawsuit, drafting, filing, and handling all pleadings, motions, as well as discovery requests and replies; handling all communications with State Farm and opposing counsel and the Court upon the filing of this lawsuit; evaluating and responding to Defendant's pleadings and motions; and preparing for, attending, and conducting all court hearings, the mediation, all depositions in this matter, and the trial. As counsel for Plaintiff, Mrs. Overmann has reasonably expended at least 99.25 hours on this matter.
10. That [ ] Plaintiff's attorneys have a reasonable and customary hourly rate in representation of matters of this type with an hourly rate of $175.00 per hour and that this fee is reasonable considering the fees charged by other attorneys in this area with similar experience and background in matters of this nature as evidenced by the submitted Affidavits.
11. That [ ] Plaintiff's counsel has in excess of eight years of civil litigation experience with the past three years focused exclusively on Plaintiff personal injury litigation.
To determine the time and labor expended on the case, the trial court reviewed timesheets submitted by Plaintiff's counsel. Plaintiff's counsel also presented two affidavits of attorneys experienced in representing injured persons to establish the “customary fee for like work[.]” Further, Plaintiff's counsel filed an affidavit detailing her experience in personal injury law. From the above findings of fact, the trial court correctly determined that an award of attorney's fees in the amount of $13,125 .00 was appropriate. We hold these findings sufficient to support the award.
Affirmed. Judges HUNTER, ROBERT C. and ELMORE concur.
Report per Rule 30(e).