{ "id": 11238248, "name": "JIMMIE B. HICKS, JR. and wife BETH B. HICKS, Plaintiffs v. CLEGG'S TERMITE AND PEST CONTROL, INC., Defendant", "name_abbreviation": "Hicks v. Clegg's Termite & Pest Control, Inc.", "decision_date": "1999-02-16", "docket_number": "No. COA98-616", "first_page": "383", "last_page": "386", "citations": [ { "type": "official", "cite": "132 N.C. App. 383" } ], "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": "228 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563214, 8563151, 8563125, 8563098, 8563070 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0660-05", "/nc/290/0660-04", "/nc/290/0660-03", "/nc/290/0660-02", "/nc/290/0660-01" ] }, { "cite": "225 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 731", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557147 ], "year": 1976, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0731-01" ] }, { "cite": "200 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "284 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560879 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0236-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "opinion_index": 1 }, { "cite": "228 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "290 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563214, 8563151, 8563125, 8563098, 8563070 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc/290/0660-05", "/nc/290/0660-04", "/nc/290/0660-03", "/nc/290/0660-02", "/nc/290/0660-01" ] }, { "cite": "225 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "625" } ], "opinion_index": 1 }, { "cite": "29 N.C. App. 731", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557147 ], "year": 1976, "pin_cites": [ { "page": "734" } ], "opinion_index": 1, "case_paths": [ "/nc-app/29/0731-01" ] }, { "cite": "200 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "42" } ], "opinion_index": 1 }, { "cite": "284 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560879 ], "year": 1973, "pin_cites": [ { "page": "239" } ], "opinion_index": 1, "case_paths": [ "/nc/284/0236-01" ] } ], "analysis": { "cardinality": 406, "char_count": 7478, "ocr_confidence": 0.767, "pagerank": { "raw": 2.7519588187273184e-07, "percentile": 0.8328060825167799 }, "sha256": "aee0892f97c9e55597ddece55a29b835b7356fbde59f0b2b11ac81afe575de30", "simhash": "1:1b688568b57f1c1c", "word_count": 1234 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge WALKER concurs with separate opinion." ], "parties": [ "JIMMIE B. HICKS, JR. and wife BETH B. HICKS, Plaintiffs v. CLEGG\u2019S TERMITE AND PEST CONTROL, INC., Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiffs had a contract with defendant under which defendant was to inspect plaintiffs\u2019 property for termites. After their home was damaged by termites, plaintiffs filed an action against defendant in Craven County Superior Court alleging breach of contract, negligence, breach of express warranty, breach of implied warranty, specific performance, fraud, and unfair trade practices. The case was tried before a jury, and at the close of plaintiffs\u2019 evidence the trial court presented only two issues to the jury: whether defendant breached its contract with plaintiffs and if so, the amount of damages plaintiffs sustained. On 12 February 1998 the jury unanimously answered that defendant had breached its contract, and that plaintiffs had sustained damages in the amount of $2,030.00 as a result. Plaintiffs then moved for attorney\u2019s fees under N.C. Gen. Stat. section 6-21.1 (1997).\nIn an order signed 30 March 1998 and filed 6 April 1998, the presiding judge found that plaintiffs were \u201cnot entitled to attorney\u2019s fee since this was as [sic] action for breach of contract with property damage.\u201d The court further found that it did not have discretion to order attorney\u2019s fees in this breach of contract case, but that if it did, it would have allowed attorney\u2019s fees in the amount of $9,750.00. From this decision plaintiffs appeal, arguing only that the trial court did in fact have discretion to award attorney\u2019s fees under section 6-21.1.\nThe sole issue to be decided in this case is one of statutory interpretation. The statute at issue, entitled \u201cAllowance of counsel fees as part of costs in certain cases\u201d (emphasis added), reads in relevant part:\nIn any personal injury or property damage suit, . . . 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.\nG.S. \u00a7 6-21.1. Plaintiffs argue that because this breach of contract case involved property damage, they are entitled to attorney\u2019s fees under section 6-21.1. They attempt to support this assertion by citing Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1973), a case resulting from a suit filed when a plaintiff\u2019s automobile was damaged as a result of the defendant\u2019s alleged negligence. In that case, our Supreme Court interpreted the statute and stated, \u201cThis statute, being remedial, should be construed liberally to accomplish the purpose of the Legislature and to bring within it all cases fairly falling within its intended scope.\u201d Id. at 239, 200 S.E.2d at 42.\nWe look, then, at the intended scope of this statute. It appears from the title of the statute that it is to apply to \u201ccertain cases,\u201d and from the text of the statute it seems clear that these certain cases are \u201cpersonal injury or property damage suit[s],\u201d as well as particular suits against insurance companies. G.S. \u00a7 6-21.1. There is no mention of breach of contract cases in the current version of section 6-21.1, just as such a cause of action was omitted from the purview of this statute when it was established in 1959 and amended in 1963, 1967, 1969, 1979, and 1986. It is well worth noting that the provisions regarding suits against insurance companies were not in the original version of the statute, either. They were added by amendment in 1967, just as breach of contract cases could have been at that time or any time since, had the legislature so intended.\n\u201cIt appears to be well established that ordinarily attorneys\u2019 fees are recoverable only when expressly authorized by statute.\u201d Construction Co. v. Development Corp., 29 N.C. App. 731, 734, 225 S.E.2d 623, 625, disc. review denied, 290 N.C. 660, 228 S.E.2d 459 (1976). The consumer relief sought by plaintiffs is available in Chapter 75 of our statutes and, as noted in plaintiffs\u2019 complaint, N.C. Gen. Stat. section 75-16.1 (1994) provides for the awarding of attorney\u2019s fees in unfair trade practices actions. Plaintiffs\u2019 unfair trade practices claim, however, did not reach the jury, and plaintiffs do not appeal from the trial court\u2019s decision to limit the jury\u2019s deliberations to breach of contract issues.\nThis is clearly a case in contract. To embrace property damages under this statute because some damage may have resulted from the termites would be to make attorney\u2019s fees in every contract case compensable by extending the damages to some sort of property or personal injury. Nearly forty years have now passed since G.S. section 6-21.1 was made the law of this state, and the legislature has had ample opportunity to extend the statute\u2019s remedial provisions to the causes of action it intends to cover. Such an extension was made in 1967 for certain insurance cases, and breach of contract claims could be addressed just as easily if the legislature wished to include them among the \u201ccertain cases\u201d it enumerates in the statute. It has not chosen to do so, and we are unable to do so now by reading additional words into the plain language of the statute. As such, we affirm the trial court\u2019s decision to deny attorney\u2019s fees under the statutory theory cited by plaintiffs.\nAffirmed.\nJudge TIMMONS-GOODSON concurs.\nJudge WALKER concurs with separate opinion.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge Walker\nconcurring.\nI write to express my concern over the language in N.C. Gen. Stat. \u00a7 6-21.1 (1997). The statute allows recovery of attorney fees at the discretion of the trial court in personal injury or property damage suits, which seems to allow recovery only in cases arising out of negligence. It is true that attorney fees are recoverable only when expressly granted by statute. See Construction Co. v. Development Corp., 29 N.C. App. 731, 734, 225 S.E.2d 623, 625, disc. review denied, 290 N.C. 660, 228 S.E.2d 459 (1976). However, our Supreme Court held in Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973), that this statute \u201cshould be construed liberally to accomplish the purpose of the Legislature and to bring within it all cases fairly falling within its intended scope.\u201d The General Assembly should extend this statute to clearly permit recovery of attorney fees in cases such as this.", "type": "concurrence", "author": "Judge Walker" } ], "attorneys": [ "Sumrell, Sugg, Carmichael & Ashton, P.A., by Scott C. Hart, for plaintiff-appellants.", "Hutson Hughes & Powell, PA., by Kathryn P. Fagan, for defendant-appellee." ], "corrections": "", "head_matter": "JIMMIE B. HICKS, JR. and wife BETH B. HICKS, Plaintiffs v. CLEGG\u2019S TERMITE AND PEST CONTROL, INC., Defendant\nNo. COA98-616\n(Filed 16 February 1999)\nCosts\u2014 attorney fees \u2014 contract action\nThe trial court did not err by denying attorney\u2019s fees under N.C.G.S. \u00a7 6-21.1 in an action arising from a contract to inspect plaintiff\u2019s property for termites where the only two issues presented to the jury were whether defendant breached its contract to plaintiffs and the amount of damages. There is no mention of breach of contract cases in the current version of N.C.G.S. \u00a7 6-21.1, just as such a cause of action was omitted when the statute was established in 1959 and amended in 1963, 1967, 1969, 1979, and 1986. The Legislature has had ample opportunity to extend the statute\u2019s remedial provisions to causes of action it intends to cover.\nJudge Walker concurring.\nAppeal by plaintiffs from order filed 6 April 1998 by Judge James E. Ragan, III, in Craven County Superior Court. Heard in the Court of Appeals 13 January 1999.\nSumrell, Sugg, Carmichael & Ashton, P.A., by Scott C. Hart, for plaintiff-appellants.\nHutson Hughes & Powell, PA., by Kathryn P. Fagan, for defendant-appellee." }, "file_name": "0383-01", "first_page_order": 417, "last_page_order": 420 }