{ "id": 8524608, "name": "WEST END III LIMITED PARTNERS, a North Carolina Limited Partnership, and TRISTAR DEVELOPMENT GROUP, a North Carolina General Partnership, Plaintiffs/Appellants v. GWENDOLYN H. LAMB, Substitute Trustee, and SALLY MARKHAM MICHIE, by and through GUIDO DE MAERE, as Legal Guardian of her Estate, Defendants/Appellees", "name_abbreviation": "West End III Ltd. Partners v. Lamb", "decision_date": "1991-04-02", "docket_number": "No. 9015SC802", "first_page": "458", "last_page": "462", "citations": [ { "type": "official", "cite": "102 N.C. App. 458" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "389 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304621 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0470-01" ] }, { "cite": "378 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "570" }, { "page": "571" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528231 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0537-01" ] }, { "cite": "360 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358494 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0420-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(1)" }, { "page": "225" } ], "opinion_index": 0 }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757614, 4751602, 4754239, 4750583, 4751711 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-01", "/nc/312/0621-05", "/nc/312/0621-03" ] }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "653" }, { "page": "654" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9454, "ocr_confidence": 0.755, "pagerank": { "raw": 2.5681642681925074e-07, "percentile": 0.8159842523637478 }, "sha256": "1a488f6efc913c69da3c1344463c90e96f9db876addee8934b2da527bd61e413", "simhash": "1:27e925f6b40bbd9e", "word_count": 1548 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WEST END III LIMITED PARTNERS, a North Carolina Limited Partnership, and TRISTAR DEVELOPMENT GROUP, a North Carolina General Partnership, Plaintiffs/Appellants v. GWENDOLYN H. LAMB, Substitute Trustee, and SALLY MARKHAM MICHIE, by and through GUIDO DE MAERE, as Legal Guardian of her Estate, Defendants/Appellees" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiffs commenced this action seeking injunctive and declaratory relief from a foreclosure proceeding and attempted enforcement of provisions in a promissory note. The trial court granted defendants\u2019 motion for summary judgment and enforced the attorney\u2019s fees, trustee\u2019s fees and interest provisions of the note. Plaintiffs appeal the portion of the court\u2019s order which provides that defendants are entitled to judgment in the sum of $39,924.24 in attorney\u2019s fees. We affirm in part and reverse in part.\nPlaintiff Tristar is a general partnership, and plaintiff West End III (hereinafter West End), a limited partnership. Tristar, acting for West End, and defendant Guido De Maere, acting for Sally Markham Michie, entered into an \u201coffer to purchase and contract\u201d to purchase real property of the Michie estate. Each partner of Tristar, as a general partner of West End, executed a promissory note dated 1 March 1989, in the amount of $265,000.00 with interest payable the first day of each month until 1 September 1989 when the balance was due. The note contained a provision that \u201c[u]pon default the holder of this Note may employ an attorney to enforce the holder\u2019s rights . . . and endorsers of this Note hereby agree to pay to the holder reasonable attorneys fees not exceeding a sum equal to fifteen percent (15\u00b0/o) of the outstanding balance.\u201d The partners also executed a deed of trust to secure the note.\nOn 29 August 1989, Tristar requested an extension, advising De Maere that payment of the balance due on 1 September 1989 would be difficult. De Maere denied the request. On 20 September, De Maere sent plaintiffs a notice that the Michie estate considered the nonpayment of the principal on 1 September 1989 a default and planned to enforce the attorney\u2019s fees provisions contained in the promissory note. De Maere also instituted a foreclosure proceeding on 20 September. On 22 September, plaintiff West End tendered to De Maere an escrow account check for the balance owed. Because a deposit made by West End did not appear on the teller\u2019s computerized account balance until 26 September, the check was dishonored when De Maere attempted to cash it on 23 and 25 September. On 26 September, West End tendered a cashier\u2019s check to counsel for De Maere. De Maere\u2019s counsel advised plaintiffs that the check was sufficient to stop interest from accumulating, but that additional interest from 22 September to 26 September, trustee\u2019s fees and attorney\u2019s fees of $39,967.80 were past due.\nOn 11 October 1989, plaintiffs filed suit seeking to enjoin defendants from proceeding with foreclosure of the real property and seeking a declaratory judgment declaring the amount due under the note. The complaint further prayed that, in the event attorney\u2019s fees are declared due, the award of attorney\u2019s fees be based on the actual attorney\u2019s fees incurred. In their answer, defendants prayed that the court award attorney\u2019s fees and trustee\u2019s fees as provided in the note. Plaintiffs and defendants moved for summary judgment. On 8 May 1989, the trial court found \u201cthere is no genuine issue of material fact in this matter and that the Defendants are entitled to Judgment as a matter of law.\u201d The court decreed, among other things, that the defendants were entitled to attorney\u2019s fees of $39,924.24, which is 15% of the balance due in September of 1989.\nThe issues presented on appeal are whether defendants are entitled to summary judgment and, if so, whether the trial court erred in ordering payment of attorney\u2019s fees of 15% without determining whether that amount was reasonable. We hold that the court properly found that defendants were entitled to judgment for attorney\u2019s fees; however, we find the court erroneously ordered plaintiffs to pay $39,924.24 in attorney\u2019s fees without making findings as to the reasonableness of the fee.\nPlaintiffs contend that summary judgment was improper because defendants\u2019 claim for attorney\u2019s fees is barred as a matter of law because defendant De Maere breached his duty to notify the plaintiffs of the dishonor of the tendered payment. Plaintiffs cite us to no law which imposes such a duty, and we reject plaintiffs\u2019 argument.\nPlaintiffs also argue that summary judgment for defendants was inappropriate because plaintiffs had substantially performed their obligations under the note. We find this argument to be completely without merit and summarily reject it. We hold the trial court properly determined that defendants were entitled to judgment for attorney\u2019s fees.\nWe now address the dispositive issue raised on appeal, whether the trial court erred in awarding defendants $39,924.24 in attorney\u2019s fees without considering whether that amount was reasonable. In Coastal Production Credit v. Goodson Farms, 70 N.C. App. 221, 319 S.E.2d 650, disc. review denied, 312 N.C. 621, 323 S.E.2d 922 (1984), defendant Goodson Farms defaulted on a promissory note which was secured by farm real estate and equipment. Plaintiff began seizure proceedings and filed a motion for attorney\u2019s fees. The promissory note provided that \u201cdefendants agreed to pay a \u2018reasonable attorney\u2019s fee of not less than ten per centum of the total amount due hereon, unless contrary to the laws of the state where this note is executed.\u2019 \u201d Id. at 224, 319 S.E.2d at 653. We determined that resolution of the controversy involved construction of the note and the statutory provision governing attorney\u2019s fees. We held that the note and N.C. Gen. Stat. \u00a7 6-21.2(1) combined \u201cto set a range of reasonable attorneys\u2019 fees between 10% and 15%.\u201d Id. at 225, 319 S.E.2d at 654. We further held that the fixing of attorney\u2019s fees within the permissible range lay in the discretion of the court, but that the law requires evidence and findings of fact supporting the reasonableness of the award. Id. at 226, 319 S.E.2d at 655.\nDefendants cite W. S. Clark & Sons, Inc. v. Ruiz, 87 N.C. App. 420, 360 S.E.2d 814 (1987), for the proposition that attorney\u2019s fees equal to 15% of the outstanding balance is reasonable as a matter of law. In Clark, a panel of this Court held that \u201cthe trial court properly allowed plaintiff to recover reasonable fees amounting to 15% of the outstanding balance owed.\u201d Id. at 423, 360 S.E.2d at 816. We read Clark to contain an implicit acknowledgment that, under the particular facts of that case, 15% was a reasonable fee. The fee allowed in Clark was $4,800.00, an amount which appears far more reasonable for debt collection than the $39,924.24 figure in the case below. In the present case, we are unable to make such a determination of reasonableness where the only evidence of the actual time spent by defendants\u2019 attorney is the defendants\u2019 attorney\u2019s billing worksheet indicating that the attorney had worked six hours prior to the request for $39,924.24. Our interpretation of Clark is reinforced by this Court\u2019s recent decision in Barker v. Agee, 93 N.C. App. 537, 378 S.E.2d 566 (1989), aff\u2019d in part, rev\u2019d in part (on other grounds), 326 N.C. 470, 389 S.E.2d 803 (1990). In Barker, the note sued upon provided for \u201creasonable fees \u2018but not more than such attorneys\u2019 usual hourly charges for the time actually expended.\u2019 \u201d Id. at 544, 378 S.E.2d at 570. We held that an award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.2 was supported by sufficient evidence where the plaintiff submitted an affidavit by his attorney and billing statements showing the actual work performed and the attorney\u2019s hourly rates. Further, the \u201ctrial court made findings of fact as to the reasonable amount of time required for the services and the reasonableness of the hourly rates.\u201d Id., 378 S.E.2d at 571. In the present case, the court made no findings as to the amount of time defendants\u2019 attorney actually spent attempting to collect the debt, the attorney\u2019s hourly rates, or the reasonable amount of time required to collect a debt such as the one owed by plaintiffs. Such findings are required by Coastal Production and Barker.\nWe hold the case must be remanded in order for the trial court to make findings as to the actual hours expended collecting the debt owed by plaintiffs and the reasonable value of those services.\nThe order of summary judgment is affirmed in part, reversed in part, and remanded for further findings.\nChief Judge HEDRICK and Judge LEWIS concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Northen, Blue, Little, Rooks, Thibaut & Anderson, by Charles T. L. Anderson, for plaintiff appellants.", "R. Michael Pipkin, P.A., for Sally Markham Michie by and through Guido De Maere, as Legal Guardian of her Estate, defendant appellees." ], "corrections": "", "head_matter": "WEST END III LIMITED PARTNERS, a North Carolina Limited Partnership, and TRISTAR DEVELOPMENT GROUP, a North Carolina General Partnership, Plaintiffs/Appellants v. GWENDOLYN H. LAMB, Substitute Trustee, and SALLY MARKHAM MICHIE, by and through GUIDO DE MAERE, as Legal Guardian of her Estate, Defendants/Appellees\nNo. 9015SC802\n(Filed 2 April 1991)\nAttorneys at Law \u00a7 55 (NCI4th)\u2014 attorney\u2019s fees to collect debt\u2014 no finding as to reasonableness\nThe trial court erred in awarding plaintiffs attorney\u2019s fees in an amount equal to 15% of the amount of their debt to defendants without making findings as to the actual hours expended collecting the debt and the reasonable value of those services.\nAm Jur 2d, Costs \u00a7 78.\nAPPEAL by plaintiffs from order entered 8 May 1990 by Judge Darius B. Herring, Jr., in ORANGE County Superior Court. Heard in the Court of Appeals 13 February 1991.\nNorthen, Blue, Little, Rooks, Thibaut & Anderson, by Charles T. L. Anderson, for plaintiff appellants.\nR. Michael Pipkin, P.A., for Sally Markham Michie by and through Guido De Maere, as Legal Guardian of her Estate, defendant appellees." }, "file_name": "0458-01", "first_page_order": 488, "last_page_order": 492 }