{
  "id": 12139558,
  "name": "PATSY M. MISHOE and LAWRENCE W. MISHOE, Plaintiffs v. MICKEY FRANKLIN SIKES, Defendant",
  "name_abbreviation": "Mishoe v. Sikes",
  "decision_date": "1994-08-02",
  "docket_number": "No. 9318SC903",
  "first_page": "697",
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    "name_abbreviation": "N.C. Ct. App.",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T22:58:18.676868+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judge MARTIN concurs.",
      "Judge COZORT dissents."
    ],
    "parties": [
      "PATSY M. MISHOE and LAWRENCE W. MISHOE, Plaintiffs v. MICKEY FRANKLIN SIKES, Defendant"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe sole issue on appeal is whether the trial court erred in awarding defendant $8,673 in attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1.\nN.C. Gen. Stat. \u00a7 6-21.1 provides:\nIn 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\u2019s fee to be taxed as a part of the court costs.\n\u201cThe obvious purpose of [N.C. Gen. Stat. \u00a7 6-21.1] is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim.\u201d Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973). A party entitled to recover attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1 is so entitled based upon his status as \u201cthe litigant obtaining a judgment.\u201d See Mickens v. Robinson, 103 N.C. App. 52, 404 S.E.2d 359 (1991) (holding that defendant is entitled to recover attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1 for recovery on a counterclaim).\nIn the present case, plaintiffs concede that defendant is entitled to recover attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1 as a \u201clitigant obtaining a judgment for damages\u201d based on his recovery for his counterclaim of less than ten thousand dollars; plaintiffs object, however, to the amount of attorney\u2019s fees that the trial court awarded. As their basis for this objection, plaintiffs contend that the trial court\u2019s award represented not only attorney\u2019s fees to which defendant was entitled for prosecuting his counterclaim but also attorney\u2019s fees to which defendant was not entitled for defending plaintiffs\u2019 claims against him. In support of this contention, plaintiffs cite to defendant\u2019s motion for attorney\u2019s fees and accompanying exhibit.\nIn his motion for attorney\u2019s fees, defendant stated that prior to the filing of these proceedings, defendant employed Gregory A. Wendling to represent him in exercising his legal rights. Further, defendant stated:\nDuring Mr. Wendling\u2019s representation of Mickey Franklin Sikes in this matter, he consulted with Mickey Franklin Sikes, investigated the accident, made demand for payment, evaluated Mickey Franklin Sikes\u2019 position under general legal principles, and filed the necessary action. The fees for Mr. Wendling to both defend the original action and prosecute Mr. Sikesi\u2019l [clounter-claim are more particularly itemized on the attached Exhibit \u201cA\u201d which is referred to and incorporated herein bv reference, which fees totaled Eight Thousand Six Hundred Seventy Three Dollars and 0/100 Cents ($8.673.00) |M\n(Emphasis added.)\nDefendant argues, however, that based on the holding in Mickens, 103 N.C. App. 52, 404 S.E.2d 359, the trial court did not abuse its discretion in awarding defendant the full amount of attorney\u2019s fees. Because we find that Mickens does not hold that a trial court may award the full amount of attorney\u2019s fees representing the cost of prosecuting the counterclaim as well as the cost for defending against the plaintiff\u2019s claim, we disagree.\nMickens involved a negligence action against defendant for damages arising out of an automobile collision. Defendant denied any negligence and counterclaimed for damages. The jury found against plaintiff, awarded defendant $6,000 for \u201cpersonal injury\u201d and found that defendant was entitled to an award for property damage, which amount was stipulated to by the parties to be $1,500. Subsequently, defendant also sought attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1. Defendant\u2019s attorneys put on evidence \u201ctending to show that they were entitled to a fee of $8000.00 for their work in [the] case\u201d, and the trial court awarded defendant $5000.00 in attorney\u2019s fees. Id. at 59, 404 S.E.2d at 363.\nOn appeal to this court, plaintiff assigned as error the trial court\u2019s award of attorney\u2019s fees. This Court stated:\nWe . . . reject plaintiff\u2019s contention that the legislature did not intend for defendants to be able to collect attorney\u2019s fees when they have prevailed on counterclaims for less than the stated amount. We also decline to adopt plaintiff\u2019s argument that the trial court was required to make findings of fact allocating the time spent on this case between work required to defend against plaintiff\u2019s claim and that required to forward her counterclaim. We see little way for the trial corut to have made such a differentiation in this case. Much of the investigation and presentation of evidence necessarily overlapped. Defendant\u2019s attorneys presented evidence tending to show that they were entitled to a fee of $8000.00 for their work in this case. The trial court, after \u201chaving carefully reviewed the petitioner\u2019s hours,\u201d awarded $5000.00. There was no abuse of discretion in this award.\nId. at 58-59, 404 S.E.2d at 363.\nThus, in Mickens, this Court held that the trial court was not required to make specific findings of fact allocating the time spent on defending against plaintiff\u2019s claim and the time spent prosecuting defendant\u2019s counterclaim in its award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1. The trial court in Mickens did not, however, award the full amount of attorney\u2019s fees sought by defendant\u2019s attorneys which represented the cost of both prosecuting defendant\u2019s counterclaim and defending against plaintiff\u2019s claim. Instead, the court in Mickens reduced the amount sought by defendant\u2019s attorneys in its discretion from $8000.00 to $5000.00.\nThus, although the trial court was not required to make findings of fact allocating the time spent on defending against plaintiffs claim and the time spent prosecuting defendant\u2019s counterclaim in its award of attorney\u2019s fees, the holding in Mickens does not give the trial court the blanket authority to award attorney\u2019s fees in an amount that unquestionably includes the cost for defending against plaintiff\u2019s claim. Courts are still bound by the specific language of N.C. Gen. Stat. \u00a7 6-21.1 that the party is entitled to an award of attorney\u2019s fees based on the party\u2019s status as a \u201clitigant obtaining a judgment for damages.\u201d Thus, although a trial court is not necessarily required to make specific findings as to the allocation of time for attorney\u2019s fees in its award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1, the court must still carefully review the attorney\u2019s hours and determine the amount of fees to be awarded that represents, in the court\u2019s opinion, the legal fees for obtaining a judgment whether from a complaint or a counterclaim.\nIn the present case, defendant sought attorney\u2019s fees in the amount of $8,673 representing the cost \u201cto both defend the original action and prosecute [defendant\u2019s] [counterclaim.\u201d Unlike the trial court in Mickens that reduced the amount of attorney\u2019s fees in its discretion, however, the trial court in the present case awarded defendant attorney\u2019s fees in the full amount of $8,673. Because defendant is not entitled to recover attorney\u2019s fees for defending against plaintiff\u2019s claim and because the amount of attorney\u2019s fees sought by defendant represented the cost for defending against plaintiff\u2019s claim as well as prosecuting defendant\u2019s counterclaim, the trial court necessarily abused its discretion in awarding defendant the full amount sought. Accordingly, we reverse the order of the trial court and remand this case for the trial court to determine the amount of attorney\u2019s fees to which defendant is entitled, representing the cost for prosecuting defendant\u2019s counterclaim.\nReversed and Remanded.\nJudge MARTIN concurs.\nJudge COZORT dissents.",
        "type": "majority",
        "author": "ORR, Judge."
      },
      {
        "text": "Judge Cozort\ndissenting.\nI find the trial court\u2019s award of attorney fees was consistent with our opinion in Mickens v. Robinson, 103 N.C. App. 52, 404 S.E.2d 359 (1991), and was within the trial court\u2019s discretion. I therefore vote to affirm.",
        "type": "dissent",
        "author": "Judge Cozort"
      }
    ],
    "attorneys": [
      "Wyatt Early Harris Wheeler & Hauser, by Kim R. Bauman, for plaintiff-appellants.",
      "Frazier, Frazier & Mahler, by Torin L. Fury, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "PATSY M. MISHOE and LAWRENCE W. MISHOE, Plaintiffs v. MICKEY FRANKLIN SIKES, Defendant\nNo. 9318SC903\n(Filed 2 August 1994)\nCosts \u00a7 30 (NCI4th)\u2014 attorney\u2019s fee for defending claim and prosecuting counterclaim \u2014 award of full amount error\nBecause defendant was not entitled to recover attorney\u2019s fees for defending against plaintiff\u2019s claim but was entitled to recover attorney\u2019s fees for prosecuting his counterclaim, and because the amount of attorney\u2019s fees sought by defendant represented the cost for defending against plaintiff\u2019s claim as well as prosecuting defendant\u2019s counterclaim, the trial court necessarily abused its discretion in awarding defendant the full amount of attorney\u2019s fees sought. N.C.G.S. \u00a7 6-21.1.\nAm Jur 2d, Costs \u00a7\u00a7 72-86.\nJudge Cozort dissenting.\nAppeal by plaintiffs from order entered 9 June 1993 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 22 April 1994.\nOn 23 October 1991, plaintiffs filed a negligence action against defendant for personal injuries and property damage allegedly arising out of an automobile accident that occurred between Patsy M. Mishoe and defendant while Patsy M. Mishoe was driving Lawrence W. Mishoe\u2019s automobile on 17 July 1991. Defendant filed an answer denying plaintiffs\u2019 allegations of negligence and a counterclaim for property damage in the amount $800.00.\nThis action came on for trial during the 21 September 1992 jury session of Guilford County Superior Court. Subsequently, the jury was unable to reach a unanimous verdict, and on 30 September 1992, Judge Julius A. Rousseau, Jr. entered an order declaring a mistrial.\nThis action came on for trial a second time during the 1 March 1993 civil jury term of the Guilford County Superior Court. Prior to this second trial, the parties stipulated that defendant sustained property damage in the amount of $2,582 as a result of the collision. On 5 March 1993, the jury returned a verdict finding that Plaintiff Patsy M. Mishoe was not injured by the negligence of defendant, that the automobile of Plaintiff Lawrence W. Mishoe was not damaged by the negligence of defendant, but that defendant was, however, damaged by the negligence of Plaintiff Patsy M. Mishoe. On 12 March 1993, Judge W. Douglas Albright entered a judgment based on this verdict ordering that defendant recover $2,582 for property damage in his counterclaim and that plaintiffs recover nothing from defendant.\nOn 26 April 1993, defendant filed a motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1 in the amount of $8,673. On 9 June 1993, Judge W. Douglas Albright entered an order granting defendant\u2019s motion and ordering plaintiffs to pay defendant $8,673 in attorney\u2019s fees.\nFrom this order, plaintiffs appeal.\nWyatt Early Harris Wheeler & Hauser, by Kim R. Bauman, for plaintiff-appellants.\nFrazier, Frazier & Mahler, by Torin L. Fury, for defendant-appellee."
  },
  "file_name": "0697-01",
  "first_page_order": 729,
  "last_page_order": 734
}